Statement of the Case. dian, and was one which he had authority to make under the laws of Mississippi. The case is quite different from Hayes v. Massachusetts Life Ins. Co., 125 Illinois, 626, cited by the plaintiff, in which, after the death of the man whose life was insured, the guardian of his children gave up the policy in consideration of a payment of about half its amount. MANUEL v. WULFF. Judgment affirmed. ERROR TO THE SUPREME COURT OF THE STATE OF MONTANA. No. 214. Submitted January 17, 1894.- Decided March 26, 1894. A deed of a mining claim by a qualified locator to an alien operates as a transfer of the claim to the grantee, subject to question in regard to his citizenship by the government only. If, in a contest concerning a mining claim, under Rev. Stat. § 2326, one party, who is an alien at the outset, becomes a citizen during the proceedings and before judgment, his disability under Rev. Stat. § 2319 to take title is thereby removed. THIS was an action in the ordinary form of a contest between two claimants of a quartz lode mining claim upon the lands of the United States to determine the right to proceed in the United States land office for patent therefor. Moses Manuel, defendant below, made application in the land office at Helena, Montana, for a patent for the Marshal Ney lode mining claim, which application Iver Wulff, plaintiff below, adversely contested, basing his contest upon his right to the premises by virtue of their location and possession as the Columbia mining claim. This proceeding was thereupon commenced in the District Court for Lewis and Clarke County of the Territory of Montana, in accordance with section 2326 of the Revised Statutes. The title of plaintiff was put in issue by the pleadings and the defendant filed a counter claim charging that the Columbia Statement of the Case. lode location was forfeited by reason of the want of required annual work, and that the ground in controversy was unoccu pied public domain at the time of the location of the Marshal Ney. This was denied by plaintiff in his replication. Upon the trial it appeared that Henry Pflaume, who was a citizen of the United States, located the Columbia lode mining claim, July 1, 1882; that November 1, 1885, he conveyed the claim to Fred. Manuel by deed, and that November 30, 1887, Fred. Manuel conveyed the same property by deed to Iver Wulff, the plaintiff; that one Alfred Manuel, who was a citizen of the United States, located the same mining claim under the name of the "Marshal Ney," (claiming that the Columbia lode location had been abandoned and forfeited for the reason that no work was done thereon during the years 1883 and 1884,) and conveyed to Moses Manuel, the defendant, a one-third interest therein, October 12, 1885, and the remaining two-thirds, October 15, 1887, by deeds duly exe cuted and recorded. It further appeared that Moses Manuel was born in Canada and came to this country when about eight years old with his father, whom he supposed had been naturalized, and that he was thus a citizen of the United States. But the court held that he was not a citizen, whereupon he was naturalized, pending the trial, under the provisions of section 2167 of the Revised Statutes. The District Court then non-suited defendant upon his counter claim, and did not permit him to proceed with his case, upon the ground that he was not a citizen at the time that Alfred Manuel executed to him the deeds of conveyance of the Marshal Ney lode mining claim and at the time the suit was commenced, holding that the attempt on the part of Alfred Manuel to convey the mining claim operated as an abandonment thereof. Defendant then moved that plaintiff be non-suited, which motion was denied, but the question raised in respect thereof need not be examined here. Judg. ment was thereupon given in favor of Wulff, and defendant took the case by appeal to the Supreme Court of the State, (which had been admitted into the Union in the meantime.) by which the judgment was affirmed. The opinion of the Opinion of the Court. court will be found reported in 9 Montana, 279. The case was then brought to this court by writ of error. Mr. John B. Clayberg, for plaintiff in error, submitted on his brief. No appearance for defendant in error. MR. CHIEF JUSTICE FULLER delivered the opinion of the court. The Supreme Court of Montana recognized the settled rule that an alien may take and hold land by purchase until office found, and that, if the alien become a citizen before his alienage has been adjudged, the act of naturalization takes effect by relation; but held that "possessory rights to mining claims on the public domain of the United States," although "endowed with the qualities of real estate to a high degree," did not come within that rule. The argument was that as by statute mineral lands are not open to exploration, occupation, or purchase by aliens, but only by citizens of the United States and those who have declared their intention to become such, upon compliance with the laws and local mining rules and regulations as to location and possession, title and possessory rights to mining. claims thus acquirable solely by virtue of the statute and in the manner prescribed thereby, must be regarded as passing as by operation of law, and not as by grant. Hence that mining claims are controlled by the rule which forbids the alien to take or hold real estate by descent, since it is the rule of law and not the act of the party that vests title in the heir, and it would be an idle thing to vest title by one act of law and then take it away by another. The court was of opinion that upon principle the analogy between an alien heir claiming by descent and an alien miner claiming under the mining laws was complete; and that as Moses Manuel was incapable. of taking, the conveyance to him by Alfred Manuel, who was a citizen, amounted to an abandonment by the latter. We are unable to concur in this view. We do not think that the Opinion of the Court. transfer of a mining claim by a qualified locator to an alien is to be treated as ipso facto an abandonment or that the analogy of such a case to the casting of descent upon an alien can be maintained. Among the cases often referred to upon the general subject and cited by the Montana Supreme Court is Governeur v. Robertson, 11 Wheat. 332, 350, 354. That was an action of ejectment and the facts these: Plaintiff claimed under one Brantz, who, being an alien, obtained, October 11, 1784, two grants from the Commonwealth of Virginia, of lands lying in Kentucky. He became naturalized in Maryland, November 8, 1784, and his title was confirmed to him and to his heirs and their grantees by the legislature of Kentucky in 1796 and 1799. Defendant claimed under a grant of Virginia made to a citizen in 1785. This court, speaking by Mr. Justice Johnson, among other things, said: "On this subject of relation, the authorities are so ancient, so uniform, and universal, that nothing can raise a doubt that it has a material bearing on this cause, but the question whether naturalization in Maryland was equivalent to naturalization in Kentucky. To this the articles of confederation furnish an affirmative answer, and the defendant has not made it a question. Nor, indeed, has he made a question on the subject of relation back; yet it is not easy to see how he could claim the benefit of an affirmative answer on the question he has raised, without first extricating his cause from the effects of the subsequent naturalization, upon the rights derived to Brantz through his patent. The question argued, and intended to be exclusively presented here, is, whether a patent for land to an alien, be not an absolute nullity. "The argument is, that it was so at common law, and that the Virginia land laws, in some of their provisions, affirm the common law on this subject. "We think the doctrine of the defendant is not to be sustained on either ground. . "It is clear, therefore, that this doctrine has no sufficient sanction in authority; and it will be found equally unsup ported by principle or analogy. Opinion of the Court. "The general rule is positively against it, for the books, old and new, uniformly represent the King as a competent grantor in all cases in which an individual may grant, and any person in esse, and not civiliter mortuus, as a competent grantee. Femes covert, infants, aliens, persons attainted of treason or felony, clerks, convicts, and many others, are expressly enumerated as competent grantees. (Perkins, Grant, 47, 48, 51, etc.; Comyn's Dig. Grant, B. 1.) It behooves those, therefore, who would except aliens, when the immediate object of the King's grant, to maintain the exception. "It is argued that there is an analogy between this case and that of the heir, or the widow, or the husband, alien; no one of whom can take, but the King shall enter upon them without office found. Whereas, an alien may take by purchase and hold until divested by office found. It is argued, that the reason usually assigned for this distinction, to wit, nil frustra agit lex, may, with the same correctness, be applied to the case of a grant by the King to an alien, as to one taking by descent, dower, or curtesy: That the alien only takes from the King to return the subject of the grant back again to the King by escheat. But, this reasoning obviously assumes as law the very principle it is introduced to support; since, unless the grant be void, it cannot be predicated of it that it was executed in vain. It is also inconsistent with a known and familiar principle in law, and one lying at the very root of the distinction between taking by purchase and taking by descent. It implies, in fact, a repugnancy in language. Since the very reason of the distinction between aliens taking by purchase, and by descent, is, that one takes by deed, the other by act of law; whereas a grantee, ex vi termini, takes by deed, and not by act of law. If there is any view of the subject in which an alien, taking under grant, may be considered as taking by operation of law, it is because the grant issues, and takes effect, under a law of the State. But this is by no means the sense of the rule, since attaching to it this idea would be to declare the legislative power of the State incompetent to vest in an alien even a defeasible estate. "That an alien can take by deed, and can hold until office |