oak, and balsam trees standing. During all this time, indeed from 1882 to 1902, he continued to work for the Northern Pacific Railroad Company at Aitkin, and to draw his salary of $45 per month. But during the time he was absent upon his alleged homestead he employed a substitute, to whom he paid a proper share of his stipend. The logs were worth $1.25 per thousand feet in the trees, and $6 per thousand feet in the boom, at the time when the defendants purchased them.

In this state of the evidence the court charged the jury that if Byerla made his homestead entry in good faith, and if during the time he was cutting and removing the logs he continued to act in good faith, and was cutting the timber from the land in an honest effort to prepare it for cultivation, he had the right to sell the logs, the defendants had the right to buy them, and the plaintiff could not recover; but that if Byerla's original entry was not made in good faith, but was made for the purpose of using his homestead claim as a screen and subterfuge to strip the land of its timber, and if he did cut and remove the timber with this evil intent, then the government was entitled to recover the value of the timber in the boom where the defendants first received it. No exception was taken to this charge, but several errors are assigned upon refusals to submit to the jury specific instructions requested by counsel for the defend

ants.

It is insisted that the court erred because it refused to charge the jury that if Byerla honestly believed that his conduct in cutting, hauling, and selling the timber to the defendants was rightful, and if the defendants at the time they purchased the logs honestly entertained the same belief, then the defendants could not be liable for more than the value of the timber in the trees. This was undoubtedly a correct statement of the law. But did the refusal to submit it to the jury prejudice the cause of the defendants? The charge actually given by the court gave them the full benefit of the rule which they invoked, and more. It was, in effect, that, if Byerla and the defendants honestly believed that he had the right to cut and remove the timber, the defendants were not liable for anything, but were entitled to a verdict in their favor, because the court charged that unless Byerla made his homestead entry in bad faith, and cut and removed the timber with the intent to use the entry, not to acquire a homestead, but as a screen and subterfuge to strip the land of its value, the government could not recover anything.

If Byerla made his entry in bad faith, with the evil purpose of using it as a subterfuge to strip the land of its timber in violation of the law, and if he actually cut and removed the logs with that intent, and the jury have found that he did, he could not have taken and sold the logs with an honest belief that he had a right to do so. An honest belief that one has the lawful right to take and appropriate an article to himself, and bad faith and the evil intent to steal it, can no more exist at the same time in the same mind than two solid bodies can occupy the same space at the same time. The crucial question in this case, the question which the court fairly submitted to the jury and which the jury has decided, the question whether

Byerla cut and removed the timber with the honest intention to acquire a homestead in this land, or with the evil purpose to strip it of its timber in violation of the law, necessarily involved the issue whether or not he took it with the honest belief that he had the lawful right to do so. The finding of the jury that he took it in bad faith, with the intent to use his homestead entry as a screen to strip the public land of its logs, is necessarily a finding that he did not take it in the honest belief that he had a right to do so; and the refusal to submit that specific question to the jury in the exact words dictated by counsel for the defendants was error without prejudice, and no ground for reversal, because it was necessarily included in the question fairly submitted to the jury, and was necessarily decided by them. It is specified as error (1) that the court refused to instruct the jury to find a verdict for the defendants, and (2) that it refused to charge them that the plaintiff's damages could not in any event exceed the value of the timber in the trees. The case was not barren of substantial evidence to sustain a finding of the jury that Byerla's homestead entry was conceived, made, and used by him for the sole purpose and with the single intent of availing himself of it to strip the land of its timber and of its value, and with no intention to become a bona fide settler or to use it as his home. The court could not therefore have lawfully taken the case from the jury on the ground that there was no substantial evidence that Byerla made his entry and cut the timber in bad faith. The character of the land, five-eighths of it incapable of cultivation, its inaccessibility, the nature of Byerla's cutting, which made no clearing, but merely stripped the high land of its valuable pine timber and left the popple, birch, and balsam trees standing, the nature of his family, and his immediate abandonment of the land after the pines were removed, point unerringly to the conclusion at which the jury arrived.

This condition of the testimony contained in the record disposes of the second specification now under consideration, because, if Byerla made his entry and took the timber in bad faith, he necessarily took it with the willful intent to convert the property of the government to his own use; and, conceding the innocence of the defendants, the measure of the plaintiff's damages was $6 per thousand feet, or the value of the timber in the boom when the defendants purchased it. The measure of damages for the conversion of property by an innocent purchaser from an intentional trespasser is the value of the property at the time of the purchase. Bolles Woodenware Co. v. Ú. S., 106 U. S. 432, 435, I Sup. Ct. 398, 27 L. Ed. 230; Pine River Logging Co. v. United States, 186 U. S. 279, 293-295, 22 Sup. Ct. 920, 46 L. Ed. 1164.

It is contended, however, that the commutation of Byerla's homestead entry to a cash entry, the sale of the land to him thereunder by the government, the issue of the final certificate, and the acceptance by the United States of the purchase price of the property in February, 1896, estopped the government from maintaining an action against the defendants for the timber taken from the land by Byerla or for its value, and that upon this ground the defendants were entitled to a peremptory instruction in their favor. The position would

be sound if the sale of the land by the United States and its issue of the final certificate had not been induced by fraud, or if, by act or acquiescence, the government had condoned or waived that defect. The acceptance from the purchaser by the United States, or by any other vendee, of the price of the land of which he has been in possession under an offer or contract of sale, estops the vendor from recovering damages of the vendee or of his grantee for timber or ore taken from the land by them during the pendency of the offer or contract. Teller v. United States, 54 C. C. A. 349, 117 Fed. 577; United States v. Ball (C. C.) 31 Fed. 667; United States v. Freyburg (C. C.) 32 Fed. 195.

But fraud vitiates all acts and contracts. The defendants furnished the supplies, and paid the men to cut and haul the timber. They provided the money to pay the United States for the land. They had ample notice to put a reasonable man upon inquiry into the nature of Byerla's homestead entry and of his title to the logs, and a notice sufficient to stir a reasonable man to investigation is notice of all the facts that a reasonably diligent inquiry will disclose. The defendants cannot shelter their title to these logs under the shield of an innocent purchaser. The rule caveat emptor conditions their rights.

Before this action was commenced, Byerla's entry and certificate had been lawfully canceled for fraud by the Commissioner of the General Land Office, and they no longer served as muniments of title either for him or for those who claimed under him with notice of the origin of his title. A final certificate of entry of public lands obtained by and canceled for fraud will not estop the United States from recovering of the grantee therein, who had notice of the fraud, for the conversion of logs or ore wrongfully taken from the land described in the certificate by the grantee before it was canceled.

There was testimony that, when Byerla had cut all but about 70,000 feet of the timber in question, a special agent of the United States informed him that after proving up upon the land he might go on and finish his cutting, and it is specified as error that the court refused to charge, at the request of the defendants, that if the jury believed this testimony there could be no recovery in any event on account of the timber cut after that conversation. But the record contains no evidence of the character or limits of the authority conferred upon this special agent, and it certainly cannot be presumed that he had any authority, by any act or omission on his part, to empower any one to unlawfully appropriate the timber of the United States, or to estop it from enforcing its legal rights. U. S. v. Pine River Logging & Improvement Co., 32 C. C. A. 406, 412, 89 Fed. 907, 913; Pine River Logging Co. v. United States, 186 U. S. 279, 291, 22 Sup. Ct. 920, 46 L. Ed. 1164; Whiteside v. U. S., 93 U. S. 247, 23 L. Ed. 882; Lee v. Munroe, 7 Cranch, 366, 3 L. Ed. 373; The Floyd Acceptances, 7 Wall. 666, 19 L. Ed. 169.

The court permitted a witness to testify, over the objection of the defendants, to the number of feet of timber the latter bought in the winter of 1895-96, and this ruling is assailed as erroneous. But no exception was taken to it, and for this reason it is not presented

for our consideration. It is indispensable to a review in the courts of the United States of any ruling of a trial court on the admissibility of evidence that it should be challenged, not only by an objection, but by an exception taken and recorded at the time, to the end that the attention of the trial judge may be sharply called to the question presented, and that a clear record of his action and its challenge may be made. Hutchins v. King, I Wall. 53, 60, 17 L. Ed. 544; Pomeroy's Lessee v. Bank of Indiana, 1 Wall. 592, 602, 17 L. Ed. 638; Newport News & Miss. Valley Co. v. Pace, 158 U. S. 36, 37, 15 Sup. Ct. 743, 39 L. Ed. 887; Tucker v. U. S., 151 U. S. 164, 170, 14 Sup. Ct. 299, 38 L. Ed. 112.

The judgment of the court below is affirmed.

CARSON V. HAWLEY, Sheriff of Pine County, Minn.

(Circuit Court of Appeals, Eighth Circuit. April 13, 1903.)

No. 1,830.

1. CONVERSION BY SHERIFF-ATTACHMENT AGAINST VENDOR-ESTOPPEL FROM MAKING DEFENSE THAT PLAINTIFF WAS FRAUDULENT Vendee.

Where the fraudulent character of the sale of personal property found In the possession of the vendee makes a seizure of it by a sheriff under a writ of attachment against the vendor rightful, no subsequent affirmance of the sale, without the consent of the sheriff, by the attaching creditor, or by his representative, the trustee in bankruptcy of the vendor, can make the sheriff's seizure wrongful, or estop him from defending an action for conversion on account of it upon the ground that the sale was fraudulent and invalid.

(Syllabus by the Court.)

In Error to the Circuit Court of the United States for the District of Minnesota.

Newel H. Clapp (A. W. Clapp, on the brief), for plaintiff in error. P. J. McLaughlin, for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN, Circuit Judge. This is an action for $5,000 damages for the conversion on December 1, 1898, by the defendant, R. J. Hawley, as sheriff of Pine county, Minn., of a stock of goods then in the possession of the plaintiff, C. N. Carson. The defense is that the goods originally belonged to one Crittenden; that on October 25, 1898, Crittenden and Carson conspired together to make a sale of the goods, which was fraudulent and voidable as to the creditors of Crittenden, and to deliver the personal property to Carson with the intent to defraud these creditors; that Kellogg, Johnson & Co., a corporation, and a creditor of Crittenden, brought an action against him, and caused a writ of attachment to be issued out of the proper state court, which was directed to and which commanded the sheriff to levy upon and take into his possession the property of Crittenden, and that by virtue of this writ the sheriff seized this stock of goods,

which was then in the possession of Carson. There was a small amount of goods of the value of about $100 which had been put into the stock by Carson after his purchase, and for which the plaintiff recovered damages. No question arises over these goods, and the case will be considered and discussed as though they were not involved in the action.

At the trial the jury sustained the defense which has been stated, and no complaint of the proceedings relative to the trial of the issue which this defense presents is made. But counsel for the plaintiff insist that the court erred because it did not give an instruction to the jury that the plaintiff was entitled to a verdict for the value of the goods taken by the sheriff, and that the sheriff was estopped from asserting the fraudulent character of the sale to the plaintiff by the fact that the trustee in bankruptcy of Crittenden's estate had subsequently recovered of one of his creditors as a preferential payment a part of the proceeds of that sale, which Crittenden had received and paid to that creditor at the time of the sale. The contention is that the receipt of this portion of the proceeds of the sale by the trustee was an affirmance of the sale not only by the trustee, but by all the creditors of Crittenden, and especially by Kellogg, Johnson & Co., the plaintiff in the attachment. This question was properly raised and preserved in the court below by offers of testimony, rulings, and exceptions, which it is unnecessary to state in detail. The essential facts which condition it are these: The sale by Crittenden to the plaintiff, Carson, was made on October 25, 1898, and out of the proceeds of that sale, which were paid to him by the plaintiff, Crittenden paid to R. P. Smith & Sons Company, one of his creditors, a debt of about $679, which he owed to this creditor. On December 1, 1898, Kellogg, Johnson & Co. commenced its action against Crittenden, and issued the writ of attachment under which the sheriff seized the goods then in possession of Carson. Before the sheriff made the levy, Kellogg, Johnson & Co. fully indemnified him against all loss or damage which might result to him on account of his seizure of the property under the writ. On January 25, 1899, Crittenden was adjudged a bankrupt, and about February 10, 1899, L. W. French, the secretary, treasurer, and credit man of Kellogg, Johnson & Co., was chosen his trustee in bankruptcy at a meeting of creditors in which Kellogg, Johnson & Co. participated. French then and at all times thereafter knew the fraudulent character of the sale by Crittenden to Carson, and that it was voidable at the election of the creditors. On October 19, 1899, he commenced an action as trustee in bankruptcy against Smith & Sons Company (1) to recover as a fraudulent preference the $679 which Crittenden had paid to Smith & Sons Company out of the proceeds of his sale to Carson, and (2) to recover $2,150.24 for the conversion by Smith & Sons Company, of that portion of the personal property which Carson had received from Crittenden and had sold before the attachment was levied, on the theory that Carson was in reality the agent of Smith & Sons Company. About April 15, 1901, Smith & Sons Company offered, and French, as trustee, accepted, judgment in this action for $679, the alleged preferential payment, and this judgment was paid