States, and was engaged five or six years in the active prosecution of their claim. That these services continued until about the time McKee interposed in the business as the leading agent of the nation. That after that date his services were apparently not needed or desired by the other attorneys and he did but little, but is informed and believes that McKee, and those working with him prosecuting the case which he had previously prepared, and, with the use of the results of his professional skill and industry, secured the payment of the claim. That, if the McKee contract were held to be valid, then McKee was bound in equity and justice to pay the complainant a fair and just compensation for the services theretofore rendered, for which McKee should be charged as trustee. That it was agreed, in 1866, between himself and the Choctaws, that his services should be rendered in conjunction with Cochrane, and that he subsequently agreed with Cochrane that his compensation should be paid out of the percentage reserved to Cochrane by his contract, and that he is reasonably entitled 329]to receive $75,000, which had been*agreed upon between himself and McPherson, Cochrane's executor, as his proper compensation. In his answer, McKee denied the general employment of the complainant by the Choctaw Nation, and averred that, if he were ever employed at all, it was only to assist and advise with the authorities of said Nation in regard to the negotiation of the treaty of April 28, 1866, and denied that under such treaty the claim for net proceeds was secured, or that it had been prosecuted to a successful conclusion through the provisions of such treaty. Upon a hearing upon pleadings and proofs, the case resulted in a decree for $75,000 against McKee, with the further provision that if anything were paid to the complainant, Latrobe, out of the fund deposited in the court by McKee in the interpleader suit, such sum should be credited in favor of McKee on the decree. Upon the following day, a decree was entered in the interpleader suit, to which Latrobe was a party defendant, awarding him his distributive share of the entire amount, $75,000, out of the general fund of $147,057.63 in controversy in that case. McKee appealed from the decree in this case. Messrs. John J. Weed and Jefferson Chandler for appellant. Messrs. Enoch Totten and Reginald Fendall for appellee. Mr. Justice Brown delivered the opinion of the court: This is another one of the claims made under the trust expressed in the McKee contract "to adjust the claims of all parties who have rendered services heretofore in the prosecution of said claim, upon the principle of equity and justice, according to the value of the services so rendered." McKee's argument in this connection is that this was a personal agreement and obligation of himself and Blunt with the Choctaw Nation; was not for the benefit of Latrobe; vested in no one any interest in the money which might become payable under that contract; and was not an assignment or dedi330]cation of *any part of the money which they might receive from the Choctaw Nation, in consideration of the performance by them of their contract-in other words, that it was 8 contract of indemnity, by which McKee undertook to save the Choctaw Nation harmless from any claim that should be made for serv ices that had been theretofore rendered by other agents and attorneys. We do not so read it. A trust so plainly declared would be of no avail, if the class of persons who are described therein could not take advantage of it. It was not needed to indemnify the Choctaws, since no possible action could lie against them after the contract had been abandoned by Black. It was evidently intended to satisfy any moral obligation for services which had been performed, but not completed, and to throw the burden of adjusting and paying them upon McKee. His theory, too, is inconsistent with his repeated statements to leading members of the Choctaw council, whose affidavits, received in the place of depositions, show that he declared to the leading authorities of the nation that he considered himself obligated under his contract to pay all outstanding obligations to persons for the services rendered in the prosecution of the claim prior to his own contract. In addition to that, and in corroboration of his own statements, he exhibited a letter written by his own attorney, and by his direction, to Leflore, in which he stated that "so far as I know, or have ever heard, every lawyer who has ever rendered service, or pretends to have rendered service, in regard to the net proceeds claim expects to get his pay out of the thirty per cent, and to get it through McKee. For myself, I expect to be paid by Mr. McKee out of his thirty per cent. I have no claim against the Choctaw Nation if Mr. McKee's thirty per cent is paid, even if he should not pay me, but of this I have not the slightest doubt. McKee's contract requires him to stand between the Choctaws and their attorneys who have rendered service. He would be liable to suit in the courts, here and elsewhere, wherever he could be found, if he should neglect or fail to carry out his agreement with the Choctaws to settle and adjust the claims of other attorneys, who have rendered *service, upon princi [331 ples of equity and justice. The Choctaws would not be liable to any such suit anywhere. follows a list of parties who had rendered service in the prosecution of the claim, among which is the name of John H. B. Latrobe, with the statement that "he looks to Mr. McPherson, executor of Mr. Cochrane, for his fee. Whatever sum Mr. Latrobe or Mr. Cochrane gets, comes out of McKee's thirty per cent.' McKee's prompt repudiation of this promise, and his vigorous defense to all these claims, argues either a serious impairment of memory with reference to the transaction, or a deliberately dishonest purpose. Here The services of Mr. Latrobe in this connection seem to have had their origin in a visit made by the Choctaw delegation on their way to Washington, at Latrobe's residence in Baltimore. It seems that they expressed to him the fear that all their treaties with the government had been abrogated by the war that had just ended; that he expressed some doubt upon the point, said he would look into the matter, and a short time afterwards called upon the delegation and told them that he had made up | aid of the construction of certain railroads. 11 his mind that their treaties had not been abro- Stat. at L. 9, chap. 28. gated by the war; that the right had been given to the President to abrogate them by proclamation, and that he had not done so; that the occasion had passed, and that the treaties were still in force. The value of his services were subsequently agreed upon by McPherson, executor of Cochrane's estate, and fixed at $75,000. This was the value put upon them by the court below, and we see no occasion to disturb it. The decree of the court below is therefore affirmed. The question of title cannot be fully understood without examining various enactments, Federal and state, under which the parties respectively claim the lands in dispute, as well as some of the decisions of this court. We are the more disposed to enter upon this examination because of the statement by counsel in argument that many cases in the supreme[333 court of the state depend, in whole or in part, on the determination of the questions involved in this suit. By the Swamp Land Act of 1850 Congress granted to Arkansas, to enable it to construct the necessary levees and drains for reclaiming the swamp and overflowed lands within that state, the whole of such lands made "unfit 332]ROBERT MCCORMICK, Piff. in Err., thereby for cultivation." § 1. The Act made V. J. D. HAYES. (See S. C. Reporter's ed. 332-348.) Parol evidence, when not admissible. tion to the concurrent action of Federal and state it the duty of the Secretary of the Interior to make out, as soon as practicable after its passage, an accurate list and plats of those lands, and transmit it to the governor of the state, and, at the request of the latter, to cause a patent to be issued to the state therefor. "On that said lands shall vest in the said state of Arpatent," the Act declared, "the fee simple to kansas, subject to the disposal of the legislature thereof." 2. The required list and plats, it was provided, should include all legal subdivisions, the greater part of which were wet and unfit for cultivation, and exclude each subdivision, the greater part of which was not of that Decided October character. § 3. The provisions of the Act were extended to and their benefits conferred upon each state in which swamp and overflowed lands were situated. § 4. Parol evidence is inadmissible to show, in opposiofficers having authority in the premises, that certain lands were in fact, at the date of the Swamp Land Act of 1850, swamp and overflowed lands. IN ERROR to the Supreme Court of Iowa affirmed a judgment of the District Court of error. Mr. D. E. Voris for defendant in error. Mr. Justice Harlan delivered the opinion of the court: This writ of error brings up a judgment of the supreme court of Iowa, which affirmed a judgment of the district court of Linn county in that state, declaring the defendant in error, who was the plaintiff in the suit, to be the owner of the southwest quarter of the northwest quarter of section nineteen, township eighty-five, range eight, west of the fifth principal meridian. same. By a subsequent statute of the state, approved January 13, 1853, all the swamp and overflowed lands granted to Iowa were granted to the counties respectively in which they were situated, for the purpose of constructing the necessary levees and drains for reclaiming the had been sold by the United States after the If it appeared that any of such lands passage of the Act of 1850, the counties in the purchasers, the county court taking from which they lay were authorized to convey to the purchaser an assignment of all his rights in the premises, with authority to receive from the United States the purchase money. Where and report of swamp lands within his county,. a county surveyor had made no examination in compliance with instructions from the gov ernor, the county court was directed to appoint a competent person with authority to examine such lands, and make reports and plats to the *county court, which should transmit lists[334 The plaintiff Hayes claimed title under the of the lands in each of the counties, "in order to Swamp Land Act of Congress of September the part of the United States, which lists, procure the proper recognition of the same, on 28. 1850 (9 Stat. at L. 519, chap. 84); the after an acknowledgment of the same by the defendant, under an Act of Congress, approved May 15, 1856 (and the acts amendatory general government," were to be recorded. thereof), granting lands to the state of Iowa in Iowa Laws 1852, chap. 12, p. 29, §§ 1-3. NOTE-As to pre-emption rights, see note to United States v. Fitzgerald, 10: 785. It is assigned as error that the judgment of the state court deprived the defendant of rights secured to him under the laws of the United States. As to land grants to railroads, see note to Kansas P. R. Co. v. Atchison, T. & S. F. R. Co. 28: 794. A subsequent act, approved January 25, 1855, authorized the governor to draw all moneys due or that might become due to the state, arising from any disposition of its swamp lands by the government of the United States, to provide for the selection of the swamp lands of the state, and to secure the title to the same, and also for the selection, in the name of the state, of other lands in lieu of such as had been or might thereafter be entered with warrants; the selections made by organized counties to be reported by the governor to the authorities at Washington. Iowa Laws 1854-55, chap. 138, p. 261. Such was the legislation-so far as it need be noticed at the time Congress, by an Act approved May 15, 1856, granted to Iowa, to aid in the construction of certain lines of railroad in that state, every alternate section of land, designated by odd numbers, for six sections in width on each side of said roads, with liberty to the state to select, subject to the approval of the Secretary of the Interior, from the lands of the United States nearest to the tiers of sections above specified, so much land, in alternate sections, or parts of sections, as should be equal to such lands as the United States had sold or otherwise appropriated, or to which the rights of pre-emption had attached at the time the lines or routes of the respective roads were definitely fixed; the land so located to be in no case farther than fifteen miles from the lines of the roads. But the Act expressly exempted from its operation, and reserved to the United States, any and all lands theretofore reserved by any Act of Congress, or in any manner by competent authority, for the purpose of aiding in any object of internal improvement, or for any other purpose whatsoever, except so far as it was found necessary to locate the routes of the railroads through such reserved lands, in which case the right 335] of *way only was granted, subject to the approval of the President of the United States. 11 Stat. at L. 9, chap. 28. By an Act of Congress, approved March 12, 1860, it was provided that the selection to be made from lands then already surveyed in each of the states, under the authority of the Swamp Land Act of 1850, and of the Act approved March 2, 1849, to aid Louisiana in draining the swamp lands therein, "shall be made within two years from the adjournment of the legisla ture of each state at its next session after the date of this Act; and as to all lands hereafter to be surveyed, within two years from such adjournment, at the next session, after notice by the Secretary of the Interior to the governor of the *state that the surveys have been se-[336 lected and confirmed." 12 Stat. at L. 3, chap. 5. At the trial in the district court the plaintiff introduced witnesses having more or less knowledge of the land in dispute. Their evidence, it is claimed, showed that at and ever since the passage of the Act of 1850 this land was, within the meaning of that Act, swamp and overflowed land. The parties stipulated that the land in controversy was seventeen miles in a direct line from the Cedar Rapids & Missouri River Railroad (now the Chicago & Northwestern Railroad), as constructed, built, and operated; that the railway was built, constructed, and was being operated on the present line of the latter road, for a distance of about 100 miles west of Cedar Rapids, Iowa, on and prior to the 2d day of June, 1864; and that the assessed value of the land in controversy for each and every year since 1866 to the present time, as returned by the assessor, as shown by his assessment books, is $95. The northwest quarter of the northwest quarter of section 19, township 85, range 8, was selected as swamp and overflowed land. The land here in dispute is the southwest quarter of the northwest quarter of the same section, township, and range, and is covered by a quitclaim deed to Hayes, acknowledged September 4, 1888, from the supervisors of Linn county, state of Iowa, the consideration recited being one dollar. The present suit was commenced within a few days after the making of that deed. The defendant's witnesses stated facts tend The next enactment in point of time was the Act of Congress, approved March 2, 1857 (11 Stat. at L. 251, chap. 117), providing that the selection of swamp and overflowed lands granted to the several states by the Swamp Land Act and by the Act of March 2, 1849, giving aid to the state of Louisiana in draining the swamp lands within its limits, and theretofore reported to the Commissioner of the General Land Office, so far as such lands remained va-ing to show that the land in controversy was cant and unappropriated, and were not interfered with by an actual settlement under any existing law of the United States, "be and the same are hereby confirmed, and shall be approved and patented to the said several states, in conformity with the provisions of the Act aforesaid, as soon as may be practicable after the passage of this law." The trust conferred upon Iowa by the Act of Congress of May 15, 1856, was accepted by the state by an Act approved March 26, 1860. And by the latter Act so much of the lands, interests, rights, powers, and privileges as were granted by Congress in aid of the construction of a railroad from Lyons City northwesterly to a point of intersection with the main line of the Iowa Central Air Line Railroad, near Maquoketa, thence on said main line running as near as practicable to the 42d parallel across the state to the Missouri river, were granted and conferred upon the Cedar Rapids & Missouri River Railroad Company, an Iowa corporation. Iowa Laws 1860, chap. 37, p. 40. I not and never was swamp or overflowed land. He introduced in evidence a list of lands, aggregating 1,809 acres, certified as having been granted by Congress to Iowa for the Iowa Air Line Railroad, afterwards the Cedar Rapids & Missouri River Railroad. This list designated lands within the six mile limit and included the land in controversy, was signed by the Commissioner of the General Land *Office, [337 December 23, 1858, and approved by the Secretary of the Interior, December 27, 1858. The defendant read in evidence a list of lands in Linn county, aggregating 668 acres, certified and approved in 1881 to the state by the Secretary of the Interior, under the Act of May 15, 1856, as having enured to the Cedar Rapids & Missouri River Railroad Company. This list included the land in suit, was in the form required by the Iowa statutes, and was signed by the governor and register of the state land office. He also read in evidence a deed dated March, 1870, from the Cedar Rapids & Missouri River Railroad Company to the Iowa Railroad Land | improvement, or for any other purpose whatCompany, and also a deed to him from the ever, the court, among other things, said: Iowa Railroad Land Company, dated October "These reservations clearly embrace the previ30, 1885,-both deeds covering the land in dis-ous *grant of the swamp and overflowed [339 pute. lands for the purpose of enabling the state to reIt appears that the parties made the follow-deem them and fit them for cultivation by levees ing stipulation, which was read in evidence by the defendant, to wit: "In order to avoid the introduction of evidence upon the subject hereinafter mentioned, it is stipulated and agreed by and between the parties: That the county of Linn, prior to 1875, made selections of swamp lands as shown by the records of the register of the state land office, which selections so made embrace certain tracts in section 19, township 85, range 8, in Linn county, and among them the northwest quarter of N. W. quarter and the southeast quarter of the N. W. quarter of said above-named section. The said selections so made, or a copy thereof, are on file in the secretary of state's office in the state of Iowa, and that the tract in controversy [the southwest quarter of the northwest quarter of the same section] was not included in any such selections, and that, so far as shown by any record of the state or county, the tract in controversy has never been patented to the state nor by the state to the county." It was also proved by the defendant that the Cedar Rapids & Missouri River Railroad Company and the Iowa Land Company and himself had annually paid the state, county, and other taxes assessed and levied on said land from 1866 to 1888, both inclusive. 338] *Each party objected to the evidence introduced by the other on the ground of incompetency. This was the case on which the district court gave judgment establishing and quieting the plaintiff's title. and drains. At the time of the passage of this Act (May 15, 1856) a moiety of the lands in controversy had been selected and reported to the land department; and the authorities of the state, under instructions from that department, were engaged in the selection of the remainder. The lands already selected and returned had been withdrawn from sale, and were not in the market at the time of the passage of the Act; and as soon as the remaining lists were returned, which was January 21, 1857, they were also withdrawn from the market. In the language of the railroad Act, the whole of the lands in controversy were otherwise appropriated,' and were 'reserved❜ for the purpose of aiding the states in their objects of internal improvements." Many decisions of this court are to the same effect. The controlling question, therefore, in this case, so far as the plaintiff is concerned,-and he must recover upon the strength of his own title, even if that of the defendant be defective, is whether, under the circumstances disclosed by the record, the particular lands in controversy, in the absence of any selection and certification of them by the United States to the state under the Swamp Laud Act can be shown by parol testimony to have been, in fact, at the date of that Act, swamp and overflowed lands. Congress having made it the duty of the Secretary of the Interior to make out accurate lists and plats of the lands embraced by the Swamp Land Act, and transmit the same to the governor of the state, and, at the request of the latter, to cause a patent to be issued to the state therefor, and having provided that "on that patent the fee simple to said lands shall vest in said state subject to the disposal of the legislature thereof," did the title vest in the state, by virtue alone and immediately upon the passage of the Act, without any selection by or under the direction of the Department of the Interior, so that the state's grantees could maintain an action to recover the possession of them? Undoubtedly, the certification to the state by the Department of the Interior, of the lands in controversy, under the railroad Act of May 15, 1856, as having enured to the Cedar Rapids & Missouri River Railroad Company, was urauthorized by law, if the lands at the date of the Swamp Land Act of 1850 were swamp and overflowed lands, whereby they were unfit for cultivation; for lands of that character were expressly reserved from the operation of the railroad grant of 1856. If they were not granted to the state for the benefit of the rail- At the term of the court at which Burlington road company, because previously granted to & M. R. R. Co. v. Fremont County, 76 [340 the state as swamp and overflowed lands, they U. S. 9 Wall. 89 [19:563], was determined, the could not be legally certified or transferred to case of Hannibal & St. J. R. Co. v. Smith, 76 the state to be applied in aid of the construc-U.S. 9 Wall. 95 [19:599], was decided. The lattion of the railroad. This is made clear by the decision in Burlington & M. R. R. Co. v. Fremont County, 76 U. S. 9 Wall. 89, 94, 95 [19:563, 564]. That was a suit in equity to quiet the title to a tract of land in Iowa, both parties claiming under grants by Congress-the plaintiff, the county of Fremont, under what is known as the Swamp Land Act of 1850; the railroad company, under the above Act of Congress of May 15, 1856, granting lands to Iowa to aid in the construction of railroads. After referring to that part of the Act reserving from its operation any and all lands theretofore reserved to the United States by any Act of Congress, or in any manner by competent authority for the purpose of aiding in any object of internal ter case was ejectment by a railroad company to recover certain lands in Missouri. It deduced title from an Act of Congress, approved June 10, 1852, granting public lands to that state to aid in the construction of certain railroads. The state accepted the grant, and by statute vested in the railroad company the lands so granted, without any description of their boundaries. The defendant, Smith, asserting title under the Swamp Land Act, introduced parol evidence tending to show that, at the date of that Act, the lands in dispute were, in fact, wet and unfit for culti vation, and therefore were to be deemed swamp and overflowed lands within the meaning of the Act of Congress. It was admitted that the title had vested in the railroad company, unless the land was of the class that was reserved by we are of opinion that, in this action at law, it would be a departure from sound principle, and contrary to well-considered judgments in this court, and in others of high authority, to permit the validity of the patent to the state to be subjected to the test of the verdict of a jury on such oral testimony as might be brought be fore*it. It would be substituting the jury,[342 or the court sitting as a jury, for the tribunal which Congress had provided to determine the question, and would be making a patent of the United States a cheap and unstable reliance as a title for lands which it purported to convey." In the argument of French v. Fyan great re the above Act of 1852, which, in that respect, was similar to the Act of 1856 granting lands to lowa to aid in the construction of railroads. The court held this evidence to be competent. Mr. Justice Clifford did not concur in the judgment of the court, being of opinion that, as special power was conferred upon the Secretary of the Interior to make out an accurate list and plats of the lands, it was quite clear that a jury was no more competent to ascer tain and determine whether a particular subdivision should be included or excluded from the list and plats required to be made under that section, than they would be to make the list and plats during the trial of a case involv-liance was placed by the counsel on Hannibal ing the question of title; and that courts and juries were not empowered to make the required list and plats, nor determine what particular lands shall be included in the list and plats before they were prepared by the officer designated by law to perform that duty; otherwise, he said, the states could select for them. selves, and if their title was questioned by the United States or by individuals they could claim of right that the matter shall be determined by jury. The next case is that of French v. Fyan, 93 U. S. 169-172 [23:812, 813]. That was also ejectment, and the question was, whether, as 341] *against a patent for the lands there in controversy, issued by the United States to Mis souri under the Swamp Land Act of 1850, it was competent to show by parol testimony that the lands so patented were not, in fact, swamp and overflowed lands within the meaning of the Act. In that case the plaintiff by purchase in 1872, became vested with such title as had passed in 1854 to the Missouri Pacific Railroad Company under the Act granting lands to aid that corporation in the construction of its road. The defendant based his claim on a patent issued by the United States in 1857 under the Swamp Land Act of 1850. It thus appeared on the face of the paperstreating the grant by the Swamp Land Act as one in præsenti, and any patent issued under it, no matter when issued, as relating to the date of the grant-that the better title was with the defendant, because the grant under which the railroad company claimed was not made until after the passage of the Swamp Land Act. In this view, the question arose whether, in an action at law, in which these evidences of title came in conflict, parol testimony could be admitted that the land was never, in fact, swamp and overflowed, and, in that way, collaterally impeach the patent issued to the state under the Act of 1850. In considering that question, the court, in French v. Fyan, reaffirmed the general doctrine, to which there are some recognized exceptions not important to be here stated, that when the law bas confided to a special tribunal the authority to hear and determine certain matters arising in the course of its duties, the decision of that tribunal, within the scope of its authority, was conclusive upon all others. Speaking by Mr. Justice Miller, who delivered the opinion in the previous case of Hannibal & St. J. R. Co. v. Smith, 76 U. S. 9 Wall. 95 [19: 599], the court, in French v. Fyan, said: "We see nothing in the case before us to take it out of the operation of that rule; and & St. J. R. Co. v. Smith, above cited, in which, as we have seen, parol evidence was held to be competent to prove that a particular piece of land was swamp and overflowed land within the meaning of the Act of Congress. Upon this point the court, in French v. Fyan, said: "But a careful examination will show that it was done with hesitation, and with some dissent in the court. The admission was placed expressly on the ground that the Secretary of the Interior had neglected or refused to do his duty; that he had made no selection or lists whatever, and would issue no patents, although many years had elapsed since the passage of the Act. The court said: "The matter to be shown is one of observation and examination; whether arising before the Secretary, whose duty it was primarily to decide it, or before the court whose duty it became, because the Secretary had failed to do it, this was clearly the best evidence to be had, and was sufficient for the purpose.' There were no means, as this court has decided, to compel him to act; and if the party claiming under the state in that case could not be permitted to prove that the land which the state had conveyed to him as swamp land was in fact such, a total failure of justice would occur, and the entire grant to the state might be defeated by this neglect or refusal of the Secretary to perform his duty. Gaines v. Thompson, 74 U. S. 7 Wall. 347 [19: 62]; Cox v. United States, 76 U. S. 9 Wall. 298 [19: 579]; Litchfield v. Richards, 76 U. S. 9 Wall. 575 [19: 681]. There is in this no conflict with what we decide in the present case, but, on the contrary, the strongest impli cation that if, in that case, the secretary had made any decision, the evidence would have been excluded." 93 U. S. 173 [23: 814]. The same general question arose, under somewhat different circumstances, in Ehrhardt v. Hogaboom, 115 U. S. 67, 69 [29: 346], which *was an action to recover possession of[343 a tract of land in California; the plaintiff deraigning title through a conveyance by one to whom the United States bad issued a patent in 1875; the defendant contending that the lands in controversy, although covered by the above patent, were, in fact, lands that passed to the state under the Swamp Land Act of 1850. The question was whether the defendant, who did not connect himself in any way with the title, and was a mere intruder, without color of title, could be admitted to show by parol evidence that the lands were in fact swamp and overflowed. The court said: "In that case (French v. Fyan, 93 U. S. 169 [23:812]), parol evidence to show that the land covered by a patent to |