Qualls, 4 Black f. 286, 30 Am. Dec. 658; sowing of the land must have been legal." The same rule undoubtedly applied to a homesteader, who, by his entry, becomes entitled to the immediate possession of the land, and, necessarily, to all that may be growing thereon, as he, by the entry, succeeded to the government title. The supreme court of Minnesota, in Red River & L. of W. R. Co. v. Sture, 32 Minn. 95, 20 N. W. 229, in considering this question, uses the following language: "It In Boyer v. Williams, 5 Mo. 341, 32 Am. Dec. 324, the supreme court of Missouri uses the following language: "The United States have complete title to the public lands, and complete title to everything growing on the public lands. The purchaser of lands from the United States acquires... title to the land, and to everything growing upon the land, which is claimed, however, that an entry under the United States had before the sale. The doctrine of emblements does not apply here. To entitle the party to emblements, the plaintiff of the difference between the value of improvements and use of the land. Brygger v. Schweitzer, 5 Wash. 564, 32 Pac. 462, 33 Pac. 388. In some cases granting relief to the occupant under the occupying claimant act, it was upon the ground that his possession was under color of title. And relief was also granted to occupants of state lands on the ground that they held possession in good faith. And the same was held where the occupant held possession by an equitable title. The same was held where a state statute relating to state land protected the occupant. In two cases relating to state lands relief was granted on the ground of equity. In a Missouri case a holder of a receiver's certificate. in possession for twenty years, was granted equitable relief, and this was held not to be an interference with the disposal of government soil. the homestead law gives the settler no vested rights in the land until the issue of the patent. To this we cannot assent. We river land were entitled to the benefit of the occupying claimant law, where they were settlers in good faith under color of title. And, in Doe er dem. Chinn v. Darnell. 4 McLean, 440, Fed. Cas. No. 2,684, an entry was made on Virginia military land in Ohio, and a patent was obtained in 1806, the settler violating the acts of Congress of September 12, 1783, March 3, 1793, and March 30, 1802, prohibiting any settlement or survey upon Indian lands. Subsequently the Indian treaty of September 29, 1817, ceded the lands to the United States, and a patent was issued to another party, of the same lands, in 1827. It was held that the title of the first settler was void. The court held, without discussion, that the defendant was entitled to relief under the occupying claimant law. So, where a party obtained a certificate from the receiver of the Land Office, and im So relief was granted where the occupant proved the land, and was in possession twenty held under color of title. A settler entering land and obtaining a patent from the government, which patent was void as against a grant under act of Congress of 1846, to the state of Iowa and a grantee thereunder, was held entitled to the benefit of Iowa Rev. chap. 97, providing that, where an occupant has color of title, and in good faith makes valuable improvements, and is not the rightful owner, he may be allowed the value of his improvements. Wells v. Riley, 2 Dill. 566, Fed. Cas. No. 17.404. The title of plaintiff under the Des Moines river grant had been the subject of litigation, and was finally decided to be valid by the Supreme Court of the United States. The court said: "Some of the exceptions taken by plaintiff relate to the question of color of title in the party in possession, and to her good faith in making these improvements. I am very clear that the defendant comes within the rule of the statute in both respects, and within any principle of equity that can be established on this subject. She had a patent from the United States, and had it for eight or ten years before this action was brought. She had been a settler upon the land, and made a showing to the satisfaction of the Land Office, and received a certifi cate that she was entitled to pre-emption, the pre-emption commencing thirteen or fourteen years ago. That she has color of title. therefore, there cannot be a doubt." The same rule was adopted in Litchfield v. Johnson, 4 Dill. 551, Fed. Cas. No. 8.387, where it was held that settlers on the Des Moines years, and another party obtained a patent for the land, the former was held entitled to the benefit of Mo. Rev. Code 1855, § 20, p. 694, providing relief to the occupying claimant making improvements in good faith. Russell v. Defrance, 39 Mo. 506. The court said; "The petition sets out a case of persuasive equity, and we wholly fail to see any force in the objection that the enforcement of the remedy here sought is an attempt on the part of the laws and courts of this state to interfere with the disposal of the soil on the part of the general government. The party under whom the plaintiffs derived their title had paid his money for the land. and received a certificate from the receiver of the Land Office; under and by virtue of that certificate they had cultivated. improved, and been in possession of the land for twenty years, when the defendant entered it and received his patent. There is no effort to interfere with the disposal or sale of the land; but the plaintiffs do insist, with justice and reason, that they shall be compensated for their improvements, and the defendant must be regarded as having constructive notice of the facts." And, under Iowa Revision, § 264, providing that, when an occupant of land has color of title, and in good faith has made valuable improvements, he shall not be evicted without compensation, it was held that an occupant of the "Half Breed tract." who was in adverse possession for fifteen years and had resisted a decree of partition, was holding under color of title, and entitled to compensation. Craton v. His entry, which is made by making and filing an affidavit and paying the sum required by law, is a contract of purchase which gives him an inchoate title to the land, which is property. This is a substantial and vested right, which can only be defeated by his failure to perform the conditions annexed.” are aware that it has been authoritatively | But a homesteader, after entry, occupies an decided, in Frisbie v. Whitney, 9 Wall. 187, entirely different position. He has in fact 19 L. ed. 668, and the Yosemite Valley Case, purchased. (Hutchings v. Low) 15 Wall. 77, 21 L. ed. 82, that occupation and improvement on public lands, with a view to pre-emption, do not confer any vested right in the land as against the United States; that this is only obtained when the purchase-money has been paid, and the receipt of the Land Office given to the purchaser. This is put upon the ground that until such time the proposed pre-emptor has merely a right to be preferred in the purchase over others, provided a sale is made by the United States. Wright, 16 Iowa, 134. In this case neither party seemed to have title from the government, but the plaintiff's title was based upon a decree, and the early Iowa statute recognizes the rights of settlers on the Half Breed tract to compensation for improvements. So, relief was granted to an occupant of state lands, who was in adverse possession in good faith. Tex. Rev. Stat. 1879, art. 3794, provides that all vacant lands are the property of the state, and art. 3795 recites the general resolution of Congress annexing Texas. March 1. 1845, and provides that said state, when ad mitted into the Union, shall also retain all vacant and unappropriated land lying within its limit. In an action of trespass to try title, brought by the patentee of the state against a homestead settler who claimed that the pre-emption right had been abandoned, that the patent was void, and that plaintiff was estopped from disputing the title. the plaintiff obtained a judgment for title, but the defendants were held entitled to their improvements made in good faith. Miller V. Moss. 65 Tex. 179. The court said: "So far as the improvements are concerned, the statute provides a method by which one who makes them in good faith may recover their value from the owner, but that good faith in part may arise from the facts set up as an estoppel, does not enlarge the right in any respect. The statute declares its extent, and, under the facts presented by the record, we are of the opinion that the defendants are entitled to recover for their improvements in accordance with the rules given by the statute, but they are not entitled to hold the land." Tex. Civ. Stat. art. 4813, provides that, in an action of trespass to try title, the defendant, claiming adverse possession in good faith for one year next before suit, and that he has made valuable improvements during such possession, will be entitled to the value of the improvements in excess of the value of use for two years. In Gaither v. Hanrick, 69 Tex. 92, 6 S. W. 619, it was held that, if a settler had good reason to believe land to be vacant, and settled upon it with intent to acquire title by possession, he was held entitled to the value of his improvements made while he was thus an occupant, so believing, unless there was some fact connected with the settlement that would prevent the occupant from being a settler in good faith. In this case the defendant knew that These views lead to an affirmance of the judgment, and the same, and the order denying a new trial, are affirmed. Fuller, J., dissents. it was adversely claimed under the Aguirre grant," but believed that said grant was a forgery, because it had been so held in another action in the district court, which was affirmed by the supreme court. The court said: As a general rule, to constitute one a possessor in good faith, he must not only believe that he is the true owner, and have reasonable grounds for the belief, but he must be ignorant that his title is contested by one having a better right. But there may be cases when, though aware of an adverse claim, the possessor may have reasonable and strong grounds to believe such claim to be destitute of any just or legal foundation, and so be in possession in good faith." And, a settler on state land under an honest belief that he was entitled to pre-empt the same was held entitled to pay for improvements made during his occupancy. Sellman v. Lee, 55 Tex. 319. In this case the defendant's claim was on an undesignated 150 acres of a section of land, which was held too indefinite in description. And relief was granted to the holder of an equitable title. in Shaler v. Magin, 2 Ohio, 235, where the defendant made an entry on land in 1818, and made improvements. The entry was then withdrawn, and another entry made on the same land by a party under whom the defendant claimed. The defendant was defeated in ejectment, but was held entitled to the benefit of the occupying claimant act, providing that, when any occupying claimant, being in quiet possession of land, for which he can show a plain and connected title in law or equity, is evicted by an adverse or better title, the occupying claimant shall be paid for improvements made prior to notice by commencement of suit. In this case the defendant was held to have an equitable title of record. The title of plaintiff was not stated in the case. In Ketner v. Rogan, 95 Tex. 559, 68 S. W. 774, which granted a mandamus to compel the school land commissioner to accept complainant's application for purchase, a prior lessee whose lease was void, and who had made improvements. resisted the application. The court said: “It was shown that Slaughter had made improvements, of the value of several thousand dollars, on one of the sections in question but the fact, as it here exists, does not create any impediment to the purchase by relator, as it does not bring the case within any of the provisions of the statute concerning improvements by lessees. The question as to the title to these improvements cannot be decided in this proceeding, in which the only question is whether or not the right asserted by Slaughter is such as to preclude relator from buying the land." Under state statutes giving relief to occupants of state lands, compensation for imThis was held provements has been allowed. under Tenn. act 1832, chap. 2, § 6, providing that, when any settler upon vacant lands in Ocoee district shall have made valuable improvements, it shall not be lawful for an enterer to dispossess the settler until the value of such improvements is paid. This statute was held to apply to an assignee of a settler, and was held to be imperative. Peck v. Eakin, 7 Humph. 22. In this case the plaintiff had a grant from the state. And the same was held in Harvey v. Jones, 3 Humph. 157, where persons had improved vacant land in the Ocoee district without residing thereon. In Washington the statutes relating to state, school, and tide lands gives to an occupant in possession compensation for improvements. So, the party in possession of school lands, having made improvements thereon, was held entitled to retain possession until he had been same. as paid the appraisal value of the Pearson v. against a purchaser from the state. Ashley, 5 Wash. 169, 31 Pac. 410. This was under Wash. Gen. Stat. § 2146. providing for an appraisement of improvements, and that, if the purchaser be not the owner of the improvements, he shall pay to the said owner, in cash, the appraised value thereof at the time of sale, within thirty days from the day of sale. And in Wilkes v. Hunt, 4 Wash. 100, 29 Pac. 830, which denied an injunction against the commissioner of public lands to restrain him from executing a contract of purchase with another party because the improvements had not been paid for, it was said: "In the first place, if there has been no compliance with the statute by the appraisement of his improvements, certainly no court would permit purchaser, under those circumstances. interfere with his possession of the land untill he is compensated as the law requires." a to So, in a subsequent action by the same plaintiff against the purchaser. Wilkes v. Davies, 8 Wash. 112, 23 L. R. A. 103, 35 Pac. 611, the tenant of school land, improving the same, was held entitled to recover the value of the imsold provements, where the land had been by the county commissioners without valuing the improvements, although the plaintiff was still in possession. And, a party improving tide land was held entitled to have his improvements separately appraised, and the land sold in parcels not exceeding 160 acres. where the land was sold by the state. Sullivan v. Callvert. 27 Wash. 600, 68 Pac. 363. This was an action by the party making the improvements to restrain the commissioner of public land from executing a contract of sale with another party. Wash. Laws 1899, p. 138, provide that sales of tide lands shall be made in the same manner as school lands. In Holm v. Prater, 7 Wash. 207, 34 Pac. 919. where it was held that the appraisement applied for five years, and that improvements made after an appraisement would not be reappraised within that time, it was said: "The protection of the improvers at all was probably a pure act of grace on the part of the legislature, and, if any occupiers of school lands have, since the date of said act, made improvements thereon, they must be deemed to have done so in the light of the law upon the subject, and at their peril as to any compensation being awarded them therefor by the lawmaking power." But, an appraisement of improvements on the day of sale was held not to avoid the claim of the party improving, as against a purchaser of school land from the state: and it was also held that the fact that a portion of the improvements were on tide lands did not J. F. affect his right to the appraised value. Hart Lumber Co. v. Rucker. 15 Wash. 456. 46 Pac. 728. This case distinguishes Holm v. Prater, 7 Wash. 207, 34 Pac. 919, saying: "What was held in that case was that, an appraisement of the improvements having been once made, the fact that other improvements were placed thereon before the sale would not entitle the owner thereof to a second appraisement. But in the case at bar there was nothing tending to show that there had been any appraisement of the improvements prior to the one in controversy." In Columbia & P. S. R. Co. v. Seattle. 6 Wash. 335, 33 Pac. 824, 34 Pac. 725, referring to Wash. act of 1890 in regard to extension of city streets over tide lands, the court said: "The act of the same year, concerning school lands, carefully protected every improver of them, so that he could not be dispossessed until his improvements were paid for, though he were a mere squatter." Relief has been granted to an occupant of state lands on the ground of equity. even The This was held in an action by a grantee of Massachusetts against a party who had OCcupied the land for more than six years. tenant in the writ of entry was held entitled to the benefit of Mass. Stat. 1821, chap. 47. known as the betterment act. Fisk v. Briggs. 12 Me. 373. Under the act separating Maine from Massachusetts, made a part of the Maine Constitution, it was provided that the rights of that commonwealth to their lands and name, and the remedies for their recovery, should remain the same as they were before The in the commonwealth of Massachusetts. court said: "The equitable claim of the tenant to be reimbursed the value of his improvements is of a different character. The protection of interests of this kind have not, for nearly thirty years in Massachusetts, been regarded as inconsistent with the just rights of the proprietor. A law of that commonwealth, which passed as early as 1808. lends its aid to vindicate his title, and to restore to him his possession; but upon the condition that he pay for the additional value, derived from the labor and expense of those who may have held the land for the period of six years or more. The proprietor may, at his option, claim to receive the full value of the land, if unimproved: or, if he choose to retain it, he is not to enrich himself at the expense of the occupant, but is held to pay for its increased value, arising from the improvements. This law, which has been re-enacted here since the separation, has become a rule of distributive justice, which has commended itself to the favor of the public, for the equity of its provisions, and has received a liberal construction in the highest courts of both states. It relaxes the rigor of extreme right, and is intended generally to extend some indulgence to those who penetrate the wilderness, subdue the soil, and render it productive, and who usually have families depending upon the fruits of their labor. It has not accorded with the moral sense and enlightened justice of either state, to suffer a proprietor to strip the occupant of these fruits, so far as they had given additional value to his land, without compensation. This increased value is not considered as of right belonging to him. If, therefore, in this suit, we award it to the tenant, as our laws and their laws required in ordinary cases, we do not impair the rights of Massachusetts. either according to our sense of right and justice or their own." commonwealth re A grantee from the covered possession of land, and the defendant was held entitled to the value of his betterments. Kinsman v. Greene, 16 Me. 60. The court said: "Whether a person can be considered as holding lands by virtue of a possession and improvement against the state may well be questioned, but it is not now necessary to decide. The deed from the commonwealth to the plaintiff conveys only all its right, title, and interest in the lot, and is without covenants. And, considering her usual regard for settlers as exhibited in her conveyances to the grantees and others, she may be understood as designing to allow any settler to set up his claims in the same manner as he might have done if the title had been in the hands of a private person. And the plaintiff cannot, under such a title, interpose the rights of the state when she did not choose to do it, against the claim of the defendant for his improvements." In this case the defendants held under a lease of the proprietors from 1810 to 1820, which lease required him to surrender the same with all improvements when the land was sold. In 1820 the land was assigned by the proprietor to the commonwealth, and she conveyed to the 70 L. R. A. plaintiff in 1835. The court does not discuss color of title or good faith of the occupant. V. Summary. The rule seems to be well settled that the purchaser or patentee from the United States government is entitled to the growing crops and improvements on the property at the time he acquires title. In some few states cases have arisen where the occupant has been held entitled to remove the improvements or crops before the patentee obtained possession. In the early Louisiana cases it was held that the occupant, with the hope of acquiring title, would be entitled to compensation for his improvements; but these early cases have been subsequently overruled. Relief has been sought for the occupant under the various occupying claimant acts, and has been generally denied where he has not had color of title, or has not been an occupant in good faith. Some of the cases refuse relief on the ground that, if a lien was allowed to the occupant under the act, it would be unconstitutional, or contrary to the organic act of the state, or interfere with the right of Congress to dispose of public lands. It will be noticed that in most of the cases granting relief under the occupying claimant and betterment acts, that the claim of the occupant was made on state lands. In many of the cases the claim of the occupant in good faith under color of title has been sustained. A few exceptional cases grant relief to the occupant on the ground of equity, and in several cases relief was granted where the settler had improved under a patent or certificate which was held void. This might be construed to be a color of title. State statutes relating to state lands, and providing for the compensation for improvements by the occupant, have been applied in some cases to the purchaser from the state, who acquired the lands subject to such statute. Cases involving the question whether or not a note given for improvements on public lands is upon a good consideration are not intended to be included in this note. I. T. NORTH DAKOTA SUPREME COURT. COLONIAL & UNITED STATES MORTGAGE COMPANY, Limited, Respt., v. NORTHWEST THRESHER COMPANY, Appt. (......N. D.......) *1. Action to foreclose a mortgage on real property is not a proceeding in rem, but is an action in personam, and comes within the operation of § 5210, Rev. Codes 1899, which excepts from the period limited for commencing an action the time during which the person against whom the cause of action has accrued is absent from the state. 2. A foreign corporation which has complied with the laws of this state governing such corporations, and which has been regularly and continuously doing business in this state during the entire period required to bar an action, and during all that time has had an agent resident here, upon whom process could be served, can avail itself of the statue of limitations of this state. 3. The absence of the mortgagee from the state after he has parted with the title to the mortgaged property does not prevent the statute of limitations from running in favor of his grantee. 4. An action to foreclose a mortgage on real property is a remedy distinct from the remedies by which the creditor may enforce the personal obligation for the debt secured by the mortgage, and may become barred by the statute of limitations, even though the debt is not outlawed. 5. Although the property passed to gage debt, that doctrine cannot be extended so as to prevent the defendant from availing himself of the statute of limitations as a defense against an action to foreclose the mortgage, even though the debt is neither discharged nor barred as against the debtor. (Young, J., dissents.) (April 27, 1905.) APPEAL by defendant from a judgment of the District Court for Cass County in favor of plaintiff in an action brought to foreclose a mortgage. Reversed. The facts are stated in the opinion. Messrs. Ball, Watson, & Maclay, for appellant: The absence from the state, or the nonresidence of the original mortgagor, does not extend the time within which an action of foreclosure may be brought, as against subsequent grantees or holders of the equity of redemption. Wood v. Goodfellow, 43 Cal. 185; Watt v. Wright, 66 Cal. 202, 5 Pac. 91; Lord v. Morris, 18 Cal. 482; George v. Butler, 26 Wash. 456, 57 L. R. A. 396, 90 Am. St. Rep. 756, 67 Pac. 263; Anderson v. Baxter, t Or. 105; Eubanks v. Leveridge, 4 Sawy. 274, Fed. Cas. No. 4,544; Bush v. White, 85 Mo. 339; Arthur v. Screven, 39 S. C. 77, 17 S. E. 640; Fowler v. Wood, 78 Hun, 304, 28 N. Supp. 976. After the mortgagor has parted with the property covered by the mortgage, he loses all control over it. Cook v. Prindle, 97 Iowa, 464, 59 Am. St. the defendant's grantor, subject to Rep. 424, 66 N. W. 781; Hubbard v. Missouri Valley L. Ins. Co. 25 Kan. 172; Schmucker v. Sibert, 18 Kan. 111, 26 Am. Rep. 765. the mortgage, and was, in equity, the primary fund for the payment of the mort *Headnotes by ENGERUD, J. NOTE. As to right of foreign corporation to plead the statute of limitations, see also, in this series, Winney v. Sandwich Mfg. Co. 18 L. R. A. 524, and note; Pierce v. Southern P. Co. 40 L. R. A. 350; Turcott v. Yazoo & M. Valley R. Co. 40 L. R. A. 768; Travelers' Ins. Co. v. Fricke, 41 L. R. A. 557; and Williams v. Metropolitan Street R. Co. 64 L. R. A. 794. As to effect of absence from the state of mortgagor on grantee's right to set up limitations, see, in this series, George v. Butler, 57 L. R. A. 396. For a case in this series holding that when an action to foreclose a mortgage has become barred as against a purchaser who assumes the mortgage, it is also barred as against the mortgagor, see Mulvane v. Sedgley, 55 L. R. A. 552. As to effect of statutory bar of principal debt on right to foreclose a mortgage or deed of trust, see note, to Kulp v. Kulp, 21 L. R. A. 550. The right to sue upon the debt (not the debt itself) might be extinguished, while the right to bar redemption might still exist as against the owner of the property. Satterlund v. Beal, 12 N. D. 122, 95 N. W. 518. A foreign corporation can plead the statute of limitations. 13 Am. & Eng. Enc. Law, p. 904: Turcott v. Yazoo & M. Valley R. Co. 101 Tenn. 102, 40 L. R. A. 768, 70 Am. St. Rep. 661, 45 S. W. 1067; State v. National Acci. Soc. 103 Wis 208, 79 N. W. 220; St. Paul v. Chicago, M. & St. P. R. Co. 45 inn. 387, 48 N. W. 17. Messrs. Newman, Holt, & Frame, for respondent: This is a civil action in personam; and all provisions of the Code of Civil Procedure for the limitation of the time for |