The Kansas Pacific R'y Co. v. The Atchison, Topeka & Santa Fe R. R. Co. limit in the grant to the state, being in fact at a point where the two grants cross each other. On the nineteenth day of March, A. D. 1863, the commissioner of the general land office, under instruction of the secretary of the interior and with his approval, made a withdrawal of lands in said state of Kansas under said act of congress approved March 3, 1863, withdrawing all of said lands with other lands from market or entry at public or private sale, or location or entry under the homestead or pre-emption laws of the United States or for other purposes, which said withdrawal was to take effect from and after its receipt at the local land office in said state, and which was received at the local land office at Topeka, Kansas, in which land district all of said lands in controversy were then situated, on the thirtieth day of April, 1863, and immediately took effect on said day, and has since said day continued in full force and effect. All of the lands in controversy were included in and covered by the said withdrawal made on account of the said act of congress, approved March 3, 1863. Both the said complainant and defendant have done everything necessary to be done under the law to entitle them to the lands in controversy, provided no prior legal right or reservation had intervened for the benefit of the other. J. P. Usher, for complainant. Ross Burns, A. A. Hurd and Geo. R. Peck, for respond ent. MCCRARY, Circuit Judge.-The lands in controversy were not granted to the complainant by the original Pacific Railroad act of 1862. They are outside of the limits of that grant. If complainant's title can be sustained at all, it must be under and by virtue of the amendatory act of July 2, 1864, enlarging the Pacific Railroad grant. Under this latter act the complainant undoubtedly acquired the title, unless by the intervening grant to the state of Kansas of March 3, 1863, and the with The Kansas Pacific R'y Co. v. The Atchison, Topeka & Santa Fe R. R. Co. drawal of the lands thereunder, they were within the meaning of the statute "reserved or otherwise disposed of by the United States." These several acts occurred in chronological order as follows: July 1, 1862. April 30, 1863. Original grant. Grant to the state. Lands withdrawn from market by order of the commissioner of the general land office with the approval of the secretary of the interior. July 2, 1864. Amendatory act passed enlarging the original grant. The case turns upon the effect that is to be given to the act of the interior department withdrawing the lands from sale, pre-emption or homestead entry. Did this withdrawal amount to a reservation of the lands within the meaning of the grant? If so, the lands in controversy did not pass by the grant of 1864, and the complainant has no title. In the case of Walcott v. Des Moines Co. 5 Wall. 681, the opinion was expressed that the interior department was the competent power to make an order withdrawing or reserving public land from sale, and it was held that, if this were not so, a grant of land for a specific purpose "carried along with it by necessary implication, not only the power, but the duty of the land office to reserve from sale the lands embraced in the grant." The proposition that wherever there is authority to withdraw any of the public land from market, the land department of the government is the proper authority to make the order of withdrawal, is to my mind too clear to require argument to enforce it. Nor can there be any doubt that the moment the grant of March 3,` 1863, was made, the authority to withdraw the lands embraced therein was created. It is also well settled that a withdrawal of public lands from sale by competent authority for the purpose of appropriating them to any lawful purpose operates to sever such lands from the public domain. Wilcox v. Jackson, 13 Pet. 498; Leaven The Kansas Pacific R'y Co. v. The Atchison, Topeka & Santa Fe R. R. Co. worth, etc. R. R. Co. v. United States, 92 U. S. 745; Railroad Co. v. Fremont Co. 9 Wall. 94. Complainant, however, relies on the ruling of the supreme court in the case of Missouri, etc. Railroad Co. v. The Kansas Pacific Railway Co. 97 U. S. 491. In that case the acts under which the complainant claims were construed. Mr. Justice Field, in delivering the opinion of the court construing the two acts together, said: "When the location was made and the sections granted ascertained, the title of the plaintiff took effect by relation as of the date of the act, except as to the reservations mentioned, the act having the same operation upon the sections as if they had been specifically described in it. "It is true that the act of 1864 enlarged the grant of 1862, but this was done, not by words of a new and an additional grant, but by a change in the words of the original act, substituting for those there used words of larger import. This mode was evidently adopted that the grant might be treated as if thus made originally; and therefore as against the United States the title of the plaintiff to the enlarged quantity, with the exceptions stated, must be considered as taking effect equally with the title of the less quantity as of the date of the first act." I do not understand the supreme court to hold that the amendatory grant of 1864 passed to the grantee the title to land which congress had in the meantime granted to another, or which had in the meantime been by competent authority otherwise disposed of. It is certainly clear that during the time intervening between July 1, 1862, when the original grant was made, and July 2, 1864, when it was amended and enlarged, the United States was at liberty to dispose of any public lands outside of the limits of the original grant, and the lands in controversy were during that period public lands outside of said grant. They were, I presume, up to the time of their withdrawal under the grant to the state, lands in the The Kansas Pacific R'y Co. v. The Atchison, Topeka & Santa Fe R. R. Co. market subject to pre-emption or homestead entry. If any of them had been, prior to the passage of the act of 1864, disposed of under the pre-emption or homestead laws-or patented to private parties under any law of the United States, it would, I apprehend, hardly be claimed that lands thus disposed of would have passed to the complainant. And yet this would be the logical consequence of holding that the two acts are to be construed as one act for all purposes. The supreme court was careful to avoid this construction. It is said that "when the location was made and the sections granted ascertained, the title of the plaintiff took effect by re-. lation as of the date of the act, except as to the reservations mentioned." There is in this language a distinct recognition of the fact that the reservations mentioned did not pass, and that an inquiry was necessary to ascertain what sections did and what did not pass. But to make the meaning still more definite and certain the supreme court add, "and therefore as against the United States the title of the plaintiff to the enlarged quantity, with the exceptions stated, must be considered as taking effect equally with the title to the less quantity, as of the date of the first act." This language not only does not authorize, but it forbids the inference that as against an intervening grantee of some of the lands included within the limits of the larger grant, the title would pass under the two grants as of the date of the former. It is only as against the United States that this construction prevails. As against other grantees claiming adversely to the United States as well as to complainant, the later act must be considered as a subsequent grant and as taking effect only from its date. Decree for respondent. In re Dixon, Bankrupt. In re DIXON, Bankrupt. (Eastern Division Western District of Missouri. January, 1881.) 1. HOMESTEAD EXEMPTION-CONTRACT- ACCORD AND SATISFACTION.Under section 2695 of the Revised Statutes of Missouri, the homestead of a debtor who is the head of a family is exempt from sale for debts contracted before its acquisition by such debtor. Where a single note was given by the debtor before the acquisition of the homestead, and after such acquisition it was agreed between the parties that said note should be given up and cancelled, and five new notes for sums ranging from $100 to $150 should be given in its stead, in order to enable the creditor to sue in a justice's court, held, that such new notes created new indebtedness in place of the old, and were an accord and satisfaction of the latter. 2. SAME-SAME-CONSIDERATION.- An agreement by the debtor at the creditor's request and for his accommodation, to give new notes for small sums so as to enable the creditor to sue before a justice of the peace, is a sufficient consideration for an agreement to cancel a previous contract. Petition for review in bankruptcy. Belch & Silver, for petitioner. J. R. Edwards, for bankrupt. MCCRARY, Circuit Judge.-Upon petition of the bankrupt the district court ordered that certain land be set apart to him. as a homestead, and as such, exempt. This order was made against the objection of the First National Bank of Jefferson City, one of the creditors of the bankrupt estate. The bank files its petition under section 4986, Revised Statutes, praying a review and reversal of said order of the district court. The ground upon which the decision of the court below is attacked is that the debt held by the bank against the bankrupt was contracted prior to the acquisition by the bankrupt of the premises now claimed by him as exempt under the homestead law of Missouri. R. S. Mo. vol. 1, p. 452, sec. 2695. The proof shows that at the time the original indebtedness was contracted the land in question was held in common by the bankrupt and his father, Levi Dixon. The original debt was contracted January 23, 1874. It does not appear from |