
    No. 291.
    C. R. Mower vs. W. M. Kemp.
    i. While it is true that a legislative act authorizing a private corporation to ex \ ecute a mortgage on lands and franchises which have been donated to it by the State, being a private act, should be introduced in evidenpe, yet that it has not, can make no difference when such act has been, in another cause, recognized and enforced by a decree of this court. We are bound to take judicial cognizance of our own decisions.
    2. In case the federal government, neither by legislative enactment nor judicial construction, has declared the forfeiture of a grant o,f lands to a railroad corporation, the Legislature of the State, which is designated as the trustee in the granting act of Congress, can — if she has done no act to estop her from setting up an adverse claim to a present grantee — forfeit such grant, on the ground of the non-fulfilment of the condition subsequent to said grant — the completion of the railroad within the fixed period of ten years.
    6. The State having by legislative enactment authorized a railroad corporation, as donee and grantee of lands and franchises which she bestowed upon it, to execute a mortgage thereon, is estopped from impeaching same. Rights acquired through the enforcement, judicially, of such mortgage can not be destroyed by subsequent legislative action by the State.
    4. The corporation acquires an apparent legal title to the lands and franchises which are adjudicated to it under such judicial foreclosure of a mortgage, and the State, as trustee, is estopped from disputing its validity-, or setting up adverse right or title in herself. Only the United States government, as grantor, can in such-case take advantage of the grantee’s non-performance of condition subsequent which is attached to the grant, and this must be done by act of Congress or judicial proceedings and decree.
    5. So long as a railroad company is permitted to retain the occupancy of such granted lands, and to exercise the franchises it has thus acquired, and the grantor shall forbear to forfeit the grant, the corporation is entitled to proceed with the construction of its railroad to completion “out of time,” and thus fulfil the condition subsequent that is attached to the grant.
    6.At most, an intervening, repealing statute, enacted by a Legislature of the State, as trustee, could repeal and avoid its oxen donation to the railroad company; but it containing only like conditions as those prescribed in the granting act of Congress, left the grant as it was originally. And it having never been revoked by act of Congress or judicial decree, a mere possessor of the granted lands, without title from any source, can take nothing by the effect of the repealing statute, the condition subsequent having been intermediately fulfilled.
    
      7.The granted lands having been withdrawn from sale and settlement and passed into the domain of private property — not subject to entry under the United States government homestead laws; and defendant not having a title from any source whatever, must be treated as a trespasser, and not entitled to recover the value of improvements in excess of the annual revenues of the land.
    PPEAL from the Second District Court, Parish of Bienville. Boone, J.
    
    
      Stubbs & Bussell and Wise & Herndon for Plaintiff and Appellant:
    1. In a grant of lands by Congress to aid in the construction of a railroad, uthere be and hereby is gra/nted,” are words of absolute donation; importan immediate transfer of title, and vest a present title in the grantee, though a location of the road and filing of its map is necessary to give precision and attach it to particular tracts. The location and filing accomplishes this.
    2. The condition in such a grant, that “if the road is not completed within a certain time, no further sale shall be made, but the land shall revert to the United States,” is a condition subsequent.
    
    3. Time not being the essence of the grant, it is not forfeited, ipso facto, by the failure of the company to perform the condition; but to enforce the forfeiture* action must be taken by authority of Congress.
    4. The company had still a right to construct the road out of time; and until in some way Congress takes advantage of the breach, it is the duty of the government to give the company the benefit of the grant. 8 Opin. Atty. Gen. 244-256; 11 Opin. Atty. Gen. 47; 16 Opin. Atty. Gen. 397-572; H. B. Ex. Dec. 47th Cong. 29* p. 85, Atty. Gen. Brewster; 9 Wall. 95; 94 U. S. 743; 97 U. S. 291; 103 U. S. 426; 104 U. S. 329; 106 U. S. 360; 113 U. S. 629; 115 U. S. 306.
    
    
      5. No one can take advantage of the non-performance of “a condition subsequent” hut the grantor or his heirs or successors; and if they do not; see fit to assert their right to enforce a forfeiture, the title remains unimpaired in the grantee.
    6. On the failure of the company to complete the work, a forfeiture of the grant, if it resulted therefrom, can he enforced only by the United States, by judicial proceedings, or the action of Congress. 21 Wall. 60; 115 U. S. 306; 32 Eed. Bep. 899.
    7. By the terms of a grant of land to a State to aid in the construction of a railroad within its hounds, the State is a mere trustee or mutual agent of the grantor and the beneficiary.
    8. The grant is to the enterprise, and upon the completion of a railroad between the termini named and on the route designated in the grant, its acceptance by the trustee, and certification thereof to the grantor, the trust is at an end, and is terminated ex necessitate.
    
    9. The road opposite to the premises in controversy having been completed and accepted, the title, however imperfect whilst encumbered, if it may he so termed, by the uses to which the lands were to be applied, has become perfect and indefeasible. 82 Eed. Bep. 907.
    10. Lists of lands selected by the grantee and certified by the General Land Office convey as complete title as patents. Legal title passes as completely by such certification, if patent is not expressly required by law, as though patent issued. U. S. Bev. Stat., Sec. 2449 ; 6 Land Dec. 543; 115 U. S. 102; 116 U. S. 381.
    
      11. An estate in fee can not be defeated for a breach of a condition subsequent by a legislative act, unless the condition is expressed in the deed. 2 Bl. Com., 158-4; 4 Kent Corn., 120,128; 16 Wall. 228.
    12. The condition subsequent is the resolutory condition of the civil law. The contract is not dissolved of right by failure to comply; the party complaining must either sue for a specific performance or dissolution of contract. C. O. 2046. Conditional obligations are such as arc made to depend on an uncertain event. * * * If the obligation takes effect immediately, but is liable to be defeated when the event happens, it is then the resolutory condition. O. O. 2021.
    The potestative condition is that which makes the execution of the agreement depend on an event which it is in the power of the one or the other of the contracting parties to bring about or hinder. C. O. 2024.
    The contract of which the condition forms a part is, like all others, complete by the assent of the parties; the obligee has a right of which the obligor can not deprive him; its exercise is only suspended, or may be defeated, according to.the nature of the condition. O. C. 2028.
    The condition being complied with luis a retrospective effect to the day that the agreement was contracted. O. C. 2041.
    If the conditions be potestative * * * their non-fulfilment does not of right operate a dissolution of the donation; it must be sued for. O. C. 1566.
    A resolutory condition is implied in all commutative contracts, to take effect in case either of the parties do not comply with his engagements; in this case the contract is not dissolved of right; the party complaining of a breach of the contract may either sue for its dissolution or demand a specific performance. C. O. 2046.
    The resolutory condition may be expressed in the contract, as well as implied; the principles which control are the same.
    In all cases the dissolution of a contract may be demanded by suit or exception, and when the resolutory condition is an event not depending on the u:iU of either part-u, the contract is dissolved of right; hut in other cases it must be sued for, and the party in default may, according to circumstances, have further time allowed for the performance of the condition. O. O. 2047.
    18. The act of the Legislature transferring* the lands to the company contained no provision in terms for forfeiture to the State, nor was there any subsequent agreement providing for forfeiture; therefore there could be no forfeiture by the State except by judicial proceeding*. 92 IT. S. 66.
    14. The State had a right, in furtherance of thd object of the grant, to make any disposition of the lands it saw fit, “so that it did not cut off the right of the United States to compel the application of the lands to the purposes for which they were granted or prevent their forfeiture in case the company failed to perform the conditions of the grant.” 82 Ifed. Itep. 906.
    15. The State transferred the lands to the company; specially authorized the mortgage of same to secure the loan to build the road; the mortgage was executed. Third parties became owners of the debt secured by this mortgage; the mortgage was closed, and the property and all its rights and privileges acquired by plaintiff, with the full permission and in the mode indicated by the State; the State then is privy to all these proceedings, and is estopped frotn divesting our vested right, destroying our right as third parties to comply with the condition subsequent, and thus earn the lands she held in trust for the enterprise. Therefore Act 89 of 1879 is null. 1 Kent 456; Cooley Cons., 857; 16 Wall. 203; Cons. La., 155.
    
      10. Under the terms of the act of Congress the lands have become the property of the railroad complying with the condition subsequent by constructing the road between the termini named and along the route designated.
    Failure to perform a condition subsequent is excused when it is prevented by ris major, the act of God or that of the obligee. 21 Pick. 889; 3 Denio 334; 8 Blackf. 139; Pothier on Obligations, 212; C. C. 2040; Willis vs. Smith, 3 La. 501; J9 La. 235; 6 R. 450.
    The courts of Louisiana will take judicial notice of the fact of the late war between the States from 1861 to I860, inclusive, and that the State of Louisiana was an active party thereto.
    It is well settled, indeed it is the textual provision of our Code, that where the resolutory condition when implied, or the condition subsequent expressly stipulated, is an event depending on the will of either party, the dissolution of the contract must he sued for in all cases when it embraces immovable property, and the party in default may, according to circumstances, have a further time for the performance of the condition. Noe vs. Taylor, 13 lia. 254. The case of Gayden vs. L., N. O. & T. R. R. Co., 39 An. 269, is directly in point, and wo commend it to the court as fully sustaining our position that the State was without authority to pass the Act 39 of 1879. We assume that the rules laid down by the .state in its Civil Code, for measuring and preserving the rights of its citizens, will bo observed when treating, itself a party, with one of its citizens. The parent should not disregard the rules of action he prescribes for his children. Then when the Code of Louisiana establishes so clear a rule as above stated, the State will not be permitted to violate it, thus disregarding the contractual rights of its citizens. The rights of the State are under the law, not beyond it. While the act of 3d of June, 1856, was a contract between the Federal government and the State of Louisiana, and may be governed by the common law, and the construction of the Federal courts, yet the act of lltli of March, 1857, was a contract between the State of Louisiana and the V., S. & T. R. R. Co., one of its citizens, and in its execution and enforcement the lex loci must govern. This being so, under the plain provisions of our Code arid its interpretation by our courts, the State was without authority to annul the donation or transfer of the rights it had received from the Federal government to the V., S. & T. Co., and therefore the Act 39 of 1879 is null and void and of no effect, as divesting the rights before conferred by the State on said company.
    17. As against a mere trespasser who sets up no title, plaintiff is not bound to show a title perfect against the world. 12 An. 748; 15 An. 76; 35 i\n. 612; 41 An. 898.
    18. A. mortgage made by a railroad company is binding in the several parishes through which it may pass, by the record of same in the parish of the domicil of the company. Act 1855, p. 205, Rev. Stat., Sec. 693. ‘
    
      J. A. Dorman and D. H. Patterson for Defendant and Appellee;
    1. In a grant of lands by Congress to a State to use in the construction of a railroad between certain termini the words, “there be and is hereby granted,” import a grant in presentí to the State, and vests the legal title in the State, of which it can not divest itself, except in the manner pointed out by the granting act. Schulenberg vs. Harrison, 21 Wall. 44; Farnsworth et ais. vs. R. R. Co., 2 Otto 49.
    
      2. Tlie provision in such a grant, “that the lands hereby granted to said State shall be disposed of only in the manner following; that is to say, that a quantity of land not exceeding 120 sections and included in a continuous length of 20 miles of said road may be sold, and when the Governor of said State shall certify to the Secretary of the Interior that any 20 miles are completed, then another like quantity of land hereby granted may be sold,” etc., make it a condition precedent that the road shall be completed opposite the lands granted before the State can dispose of them. Ibid.
    
    3. Any disposition of the granted lands by the State prior to the happening of the condition precedent was null and void and inoperative for any purpose. Ibid.
    4. The words “shall be disposed of only in the manner following” restrict the State to the manner pointed out, and prohibit any other disposition by the State; therefore any disposition made by the State in violation of the prohibition is null.
    5. The words “no further sales shall be made” are a positive prohibition of the State’s making any sale of the land after ten years, if the road has not been completed prior to the expiration of that time; and any disposition made before the expiration of this time is a violation of this prohibition, and therefore null.
    6. A forfeiture by the State of an interest in lands and other franchises granted for the construction of a public work may be declared for non-compliance with the condition annexed to the grant by legislative enactment. 21 Wall. 44; 2 Otto 49.
    7. So after a State has made a grant to a railroad of certain lands granted to it by Congress upon certain conditions to use for the purpose of aiding in constructing a railroad upon a certain line upon the same conditions, it may declare the grant forfeited for non-compliance with the conditions of the grant; and this may be done by legislative enactment. Ib. lieports of Attorney General, and Commissioner of General Land Office. See Public Domain, pp. 831-844.
    8. In such case the fact that said railroad company had mortgaged its road with its franchises and privileges is no estoppel to the State, for the mortgagees acquired their mortgages subject to the right of the State to declare such forfeiture. 2 Otto 49.
    9. The mortgagees can not claim therefore that Act No. 89 of Acts of 1879 impaired a right vested in them, forthey acquired. their rights subordinate to the-Stace’s right to declare the forfeiture.
    10. A private statute must be offered in evidence on the trial of a suit, and can not be judicially noticed. 33 An. 963, Workingmens Bank vs. Converse.
    11. After the Legislature had passed Act No. 39 of 1879 forfeiting the grant to the V., S. &P. It. It. Co., the Governor of the State was without authority to accept the road from the present company as a compliance with the terms of the grant originally made, but which were repealed by said act.
    12. The passage of Act No. 39 leaves the legal title to the lands in controversy in the State of Louisiana subject to congressional action, either to take them back and open them for entry and settlement, or grant them to the present railroad company, as may to them seem best.
    13. Plaintiff must recover on the strength of his own title, and not on the weakness of his adversary.
    
      14. The petitory action corresponds in character with the writ of ejectment at common law, and can be maintained only where the right of xoossession can be shown. The petitioner in a petitory action must recover on the strength of his title, and this must be a legal, in contradistinction from an equitable, title. 10 II. 257.
    15. Plaintiff must show a title which can be traced back to another who had in himself the right of property in the thing sold or claimed. Brown vs. Brown, 15 An. 159.
    16. An action of rovendication may be defeated by proof of an outstanding title in a third person. Baines vs. Burbridgc, 15 An. 454.
    17. The holder of an incomplete title has no standing in court, and courts can not confirm a title, for this would be legislative action. Bois vs. Bransell, 4 JEL 449.
    18. One entitled to the benefits of the homestead laws settling upon the lands belonging to the United States government, with the bona fule intention of acquiring a home for himself, is not a mere trespasser.
    19. It has long been the policy of the government to encourage bona fide settlers to acquire homesteads on lands belonging to it.
    20. Where one brings a petitory action for the recovery of land, and claims in the same suit a money judgment for the use of said land, he is in equity and justice estopped from disputing the claims of defendant for the enhanced value of the soil when the improvements put on the land by defendant are the only thing that rendered the land fit for such use. 26 An. 589.
    21. ’To allow plaintiff in such case to take the improvements made by defendant without paying for them, and at the same time receive pay from defendant for the use of them, would be as inequitable and repugnant to justice as to allow one to claim both the thing and the price.
    22. The decree of the United States Court filed did no more than to recognize such mortgage rights as the bond holders had, and did not decree that they had a mortgage on these unearned lands.
    23. The purchasers at master’s sale bought several months after Act Xo. 89 of 1879 was passed, and therefore had full notice, and acquired no other rights than the mortgage company had.
   The opinion of the court was delivered by

Watkins, J.

This is a petitory action for the recovery of a small tract of land situated in the vicinity of the route of the Vicksburg, Shreveport & Pacific Railroad, with its rents and revenues; and the plaintiff also claims damages for the destruction of timber.

Defendant is sued as a naked trespasser, without color of title or right in the property.

To this suit defendant first filed an exception of no cause of action, which having been referred to the merits, he filed an answer, in which he averred that he was in possession of the property, that plaintiff was without any legal or valid title to said land, and had no such interest therein as to entitle him to sue him for its recovery. He further averred that he is entitled to the -benefit of the homestead laws of ^he United States government, and, believing that this land had reverted to the government, or that the title thereto was in the State of Louisiana, and therefore would so revert, as the railroad had not been completed within the time required by the granting act of Congress, he made a settlement and located on this land, with the bona fide intention of acquiring a home for myself and family, and of entering same under the homestead law, as soon, as it was declared subject to entry; or, if said land should be confirmed to said railroad company, that he would purchase same from it; and that he had repeatedly offered to buy it from, said company, if it could make him a clear, warranty title — but it could not do so.

He makes claim for §1200 as the value of his improvements in case of eviction, and pleads the prescription of one year against plaintiff’s demands for revenues and value of timber destroyed.

The cause was tried by á jury of the vicinage, and from an adverse verdict and judgment plaintiff has appealed.

The history of plaintiff’s title is as follows: In 1887 plaintiff acquired title from the Vicksburg, Shreveport & Pacific Railroad Company; and it acquired by purchase at master’s sale, made on the 1st of December, 1879, in the foreclosure of a mortgage, which was executed on the 1st of September, 1857, by the Vicksburg, Shreveport and Texas Railroad Company, whose right, title, interest aud franchises the said Vicksburg, Shreveport & Pacific Railroad Company had in the meanwhile acquired.

This mortgage of the said lands, appurtenances and franchises of the Vicksburg, Shreveport & Texas Railroad Company, was specially authorized by an act of the Legislature of date March 19, 1857.

There had been another act of the Legislature passed on the 11th of March, 1857, formally accepting the benefits of the act of Congress of date of June 8, 1856, donating certain lands to the State of Louisiana, for the purpose of aiding in the construction of a railroad from the Texas State line to the Mississippi river, at a point opposite Vicksburg, in the State of Mississippi; and upon the same terms disposed of the same to the said railroad company.

On defendant’s answer, and this chain of title thus traced back to the United States government, his contentions are as follows:

That there is no evidence in this record of any special authorization by the State to the Vicksburg, Shreveport & Texas Railroad Company to execute a mortgage on the granted lands; no evidence to show that the railroad company ever issued any bonds for the security of which said act of mortgage was executed; that, if granted, said mortgage was absolutely null and void, because, under the granting act of Congress, the State was only authorized to sell lands opposite each twenty miles of completed road, but she was powerless to grant any right or make any disposition whatever of other lands until the road had been completed for another twenty miles, and so on, to the end of the route; and that the completion of said road, as aforesaid, was made by said act a condition precedent to any disposition thereof by the State. Then, as there has been no act of the State since the completion of the road opposite the land in controversy, divesting herself of the legal title to same, it must be in the State, subject to be reclaimed by the government of the United States, and disposed of as it may deem best, as the terms of the grant are, that if said road is not completed within ten years no further sales shall be made, and the land unsold shall revert to the United States. He further contends that the grant of the State in 1857 to the railroad company, the act authorizing the mortgage, if any, the act of mortgage itself, and the sale to the railroad company, were subjected to the condition precedent, that the State had the right to declare the grant forfeited if the road was not completed within ten years, thereby destroying all intermediate rights that the company had acquired thereunder. That all parties contracting with the company were bound to know that this condition was thus imposed, and they must have been aware that their acquisition of it was cam onere. That in 1879 an act of the Legislature was passed repealing the act of 1857, disposing of these lands to the railroad company, that the master’s sale of the property was not made for some months thereafter, and that the railroad company had full knowledge of such reservation when it became the adjudicatee thereof.

At our last term of court we had under consideration and decided case entitled Vicksburg, Shreveport & Pacific Railroad Company Sledge, 41 An. 896, which was a case quite similar to the instant She, and in which we rendered an opinion adverse to the claims and pretensions of the defendant, who was a settler upon these railroad lands, like this defendant, claiming to be a bona fide possessor, with # an intention to acquire a title from the United States government under the homestead laws.

In that case we held, on a-careful consideration of the issues involved, that the State did, by a special act of the Legislature, of date March 19, 1857, grant to the Vicksburg, Shreveport & Texas Railroad Company “the full and perfect right to mortgage and hypothecate all or any part of the lands granted by the United States to the State of Louisiana, to aid in the construction of said railroad, by virtue of an act of Congress making a grant of lands to the State of Louisiana, to aid in the construction of railroads in said State, approved June 3, 1856.” 41 An. 900.

Thereunder we found that a large quantity of bonds were issued by the company, for the security of which a mortgage was regularly executed. We found that on due proceedings had, the validity of this mortgage was recognized by the Supreme and Circuit Courts of the United States, and that all the lands and franchises acquired by said company under that grant, and under the. assignment of the State, were purchased by the Vicksburg, Shreveport & Pacific Railroad Company, at a judicial sale, made under and in pursuance of decrees of the Circuit Court, and that it went into possession thereunder.

While it may be true, as a.general.proposition, thatThe act of the Legislature authorizing the execution of this act of mortgage, being a private act, should have been introduced in evidence; yet, that it was not, can make no difference, as we are bound to take judicial cognizance of our own decisions, and by the terms of the decision just quoted we are informed that the mortgage was duly authorized .and executed.

With regard to the right of the Legislature to authorize the company to execute meh a mortgage, whereby the title might be irrevocably divested, before the - conditions of the grant were fulfilled, a sufficient answer is found, in our opinion, in the Sledge case; for, in that case, we «held that the State made the disposition of the lands granted to the railroad company on precisely similar conditions to those under which Congress made the grant to her; and we held that “the act of June 3,1856, by the Congress of the United States, passed a present interest in the lands to the State of Louisiana, which became certain by identity, when the sections were located, and maps were filed with the Secretary of the Interior.”

We also found that the State conveyed these sections to the railroad company in 1857, and that “it was a condition precedent to the conveyance of any of the sections, that the road should be first constructed in sections of twenty consecutive miles each, before the road could get title to any portion of the land coterminous with its constructed line.” We found that “ the road had completed (only) a portion of its line,” and that the “portion between Shreveport and Monroe (Louisiana) was not constructed within the ten years.” We held that the “ Federal government, neither by legislative act or judicial construction, has declared the forfeiture of the grant, and under the well recognized jurisprudence of the Federal courts, the Legislature of the State of Louisiana — if the State had done no act to estop her from setting up an adverse claim to the present grant to the plaintiff — could forfeit the grant to the railroad, on the ground of the non-fulfilment of the condition subsequent to said grant, the completion of the road within the fixed limit of ten years.”

We held that “the United States government could have complained of the manner of the execution of the trust by the State, but it has made no objection to the’ interpretation placed upon the act donating the lands by the State of Louisiana to the Vicksburg, Shreveport & Texas Railroad Company.” That “the present plaintiff (the railroad company) acquired title through the decree of the United States Supreme Court, which recognized the validity of said mortgage, and ordered all the property included therein to be sold to satisfythe same.” That “ the State having authorized this act of mortgage, under and by virtue of which said parties acquired rights, is estopped from impeaching the same, and declaring it a nullity. Rights thus acquired can not be destroyed by subsequent legislation.” 41 An. 902 and 903.

On this hypothesis we held, in that case, that “ the plaintiff has an apparent legal title to the land by virtue of the sale to satisfy a mortgage specially authorized by the State of Louisiana. By the act of the General Assembly authorizing said mortgage, the State is estopped from disputing the title and setting up title in herself; the original grantor (of the railroad company) and the United States government can only take advantage of the non-performance of the condition subsequent attached to the grant. This may be done by legislative act or judicial construction. The government of the United States has made no assertion of the forfeiture, and the legal title to said land will remain in the plaintiff until there is some assertion of ownership on the part of the Federal government for the breach of the condition by directing the possession and appropriation of the land, or that it be offered for sale, or for settlement.”

In reference to this question, upon deliberate reflection, our minds remain fixed and unaltered. Defendant’s counsel cite us, with great reliance, to the opinions of the Supreme Court in Schulenburg vs. Haniman, 21 Wall. 44, and Farnsworth vs. Minnesota and Pacific Railway Company, 92 U. S. 49, as announcing a different doctrine.

But our reading of the former serves only to confirm our previously expresssed opinion, for in the opinion we find the following, viz:

“ The provision in the act of Congress of 1856, that all lands remaining unsold after ten years shall revert to the United States, if the road be not then completed, is no more than a provision that the grant shall be void if a condition subsequent is not performed.

And it is settled law that no one can take advantage of the nonperformance of a condition subsequent annexed to an estate in fee but the grantor or his heirs, or the successors of the grantor, if the grant proceed from an artificial person; and if they do not see fit to assert their right to enforce a forfeiture on that ground, the title remains unimpaired in the grantee. * * * And the same doctrine obtains when the grant upon condition proceeds from the government; no individual can assail the title it has conveyed on the ground that the grantee has failed to perform the conditions annexed.”

This opinion was rendered in 1874, and that in the Farnsworth case in 1875, Mr. Justice Field being the' organ of the court in each case. To show the distinguishing characteristics of the latter case from those of the instant case, we will make the following pertinent extract, viz:

“The parcels thus earned were excepted from forfeiture. It was certainly competent for any company to subject its property, rights and franchises conferred or attempted to be conferred by the act of May 22, 1857, or derived from any other source, to this liability. Its assent, in this respect, was one of the conditions upon which it received the loan of the State credit, provided by the constitutional amendment. When the assent was given, the relation of the State to the land and connected franchises was precisely as though a condition had been originally incorporated in the grant. (Italics are ours.)

“The mortgage or deed of trust not having been'executed until after the amendment was accepted, and the holding of the lands of the company, with its rights, privileges and franchises, having been thus made dependent upon the completion of the road within the periods prescribed, the beneficiaries under that instrument took whatever security it offered, in subordination to the rights of the State, to enforce the forfeiture provided.”

In that case it is manifest that a State constitutional amendment supervened whereby additional conditions were imposed upon the grant than those which were originally stipulated in the granting act of Congress, and hence the difference in the opinion from ours in the Sledge case, the granting act of the State in 1857 being identical with that of Congress.

But in the Sledge case we found that the road “was not completed within the ten years prescribed by the act of Congress, but was completed and finished out of time,’ in July, 1884, when the Governor certified to the Secretary of the Interior of its entire construction between the termini and along the line proposed in the act of Congress donating the land for the construction of said road.” 41 An. 900.

In this manner the condition subsequent was fulfilled. The company certainly had the right to construct the road “out of time,” as no intervening effort to forfeit the land had been made by act of Congress or judicial proceedings. 97 U. S. 291; 9’Wall. 96; 115 U. S. 307; 106 U. S. 361; 103 U. S.430.

When lands thus granted have been listed, at the instance of the grantee, and maps thereof are made and filed with the Secretary of the Interior, they are withdrawn from sale and entry, and are not, thereafter, subject to settlement or homestead by settlers. Lists of land thus certified to the State by the Commissioner of the General Land Office convey as complete titles as patents, and are not thereafter susceptible of preemption. U. S. Rev. Stat. 2449; Frasher vs. O’Connor, 115 U. S. 102; Morrow vs. Fletcher, 116 U. S. 381.

Recognizing this principle, we said in Sledge’s case:

“The land in controversy was withdrawn from public sale and entry before the defendant went on the same. His entry thereon was unlawful, and as he sets up no title other than his trespass, he can not dispute the apparent title of the plaintiff. Stilse vs. Sehull, 41 An. 816.”

The defendant is exactly in Sledge’s situation.

At most, the repealing act of 1879 had the effect of repealing the .grant of the State to the railroad company of 1857, and of restraining heT grant from the government of the United States.

That grant having never been revoked by act of Congress or judicial decree, it is impossible for the defendant to take anything thereby, because the condition subsequent has been fulfilled by the completion of the road and the acceptance of the State as grantee; and the trust is at an end, and the title of the company completecF- .and rendered indefeasible. Under this state of facts, the United' States government could not, in our opinion, recover the lands by' •suit or forfeiture from the company; and the defendant could not « by any length of possession acquire a homestead upon it.

Confessedly, the defendant has no title, and does not occupy the'' position of a good faith possessor. True it is that our predecessors • have held frequently, and correctly held, that actual settlers on the ■■ publie domain open to sale and preemption, can not be considered as; trespassers even as against the government. 6 An. 648; 5 An. 686,-Certainly not. But defendant’s case is different. Plaintiff holds a paper title out of the government, and the lands were previously -withdrawn from sale and homestead. They have passed into the «domain of private property quoad this controversy and the homestead laws are, at least, held in suspense. Defendant is a trespasser, and not entitled to the value of improvements. But we think it equitable and right that he should be relieved from the plaintiff’s claim for rents and damage, considering one demand as the just equivalent of the other.

The judgment must be reversed on the principles of law herein assigned, as well as on those announced in Railroad Company vs. Sledge, which is unreservedly affirmed.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed;' and it is further ordered and adjudged that the plaintiff be and he is hereby decreed the owner of the property claimed in his petition, and all the improvements thereon; and that • all the other demands of the plaintiff for rents and damages be extinguished and compensated by the defendant’s reconventional demand, and that the defendant and appellant be taxed with all costs in both courts.  