of said business thereon, without charge or lability for damage therefor." No patent has ever issued from the government for the land in township 5. Parties applied to Reed and Henderson for the purchase of that land, but they declined and refused to buy, and a sale by them was defeated. Within two days of the 3d of September, 1891, and before the bringing of this action, Reed and Henderson ascertained that the plaintiffs were not the owners of, and had no title to, the land which the deed from Adams and Shilling purported to convey to them; that is, to the land in township 6. On or about the 4th day of September, 1891, Reed and Henderson notified Adams and Shilling that they rescinded the contract of sale, and demanded, not only the return to them of the moneys paid on account of their purchase, with interest, but the surrender of the two notes of $2,444.45 each, bearing date March 27, 1890, and the note for $391.10, dated June 26, 1891. All of those notes had been returned by the bank to Adams and Shilling. After Reed and Henderson notified Adams and Shilling of the rescission of the contract of sale, and before the bringing of this suit, Adams and Shilling tendered another deed, -a special warranty deed, containing a proper description of the land intended to be sold by them to Reed and Henderson. The latter refused to accept that deed, saying that they rescinded the contract of sale; that Adams and Shilling did not have a good title to the land described therein; and urging the objection, also, that the deed was not one of general warranty. The deed so tendered was dated September 29, 1891. At the time Adams and Shilling tendered the deed of special warranty, the title to the land therein described was incumbered by the above reservation, in the deed of 1889, made by the Union Pacific Railroad Company to Adams and Shilling, of an exclusive right in the Union Pacific Railroad Company to mine, under said land, for coal and other minerals, and to remove the same. Subsequently, the Union Pacific Railroad Company executed and delivered to Reed and Henderson a quitclaim deed dated November 2, 1891, and which was acknowledged November 17, 1891, and duly recorded on the 8th of January, 1892. This deed released the land in township 5 from the claim of that company under the coal reservation contained in the deed of 1889; but it -did not release the right of that company to prospect for and mine "other minerals" under that land. On the 28th of March, 1890, Reed and Henderson let, leased, and demised unto Adams and Shilling, who were occupying the land, for the term of six months from that date, the land in township 5. But neither Henderson nor Reed ever actually occupied any part of it. Neither of the notes described in the mortgage of March 27, 1890, made by Reed and Henderson, has been paid. Adams and Shilling are still the owners and holders of them, as well as of the mortgage. The amount unpaid on those notes is the principal of each one, with interest from September 26, 1890, at the rate of 8 per cent. per annum. The relief sought by the suit was a de-, cree reforming the mortgage given by Reed and Henderson so as to correctly* describe the land in township 5, and then a sale thereof in satisfaction of the costs of the action, and the balance of the purchase money, with a personal decree for any deficiency in purchase price that may be found to exist. The defendants controverted the right of the plaintiffs to any decree, and, by cross complaint, asked the cancellation of the above mortgage and notes, and a judgment for the amount they had paid to the plaintiffs, with interest. The decree rendered was in accordance with the prayer of the cross complaint. In legal effect, it was a decree rescinding the contract between the parties, because of the inability of the plaintiffs to make a sufficient title to the lands sold by them. J. M. Wilson, for appellants. C. C. Richards, for appellees. Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court. Under the facts stated, the case is within a very narrow compass. It is found, and the plaintiffs and defendants agree, that the former intended to sell, and the latter intended to buy, the land in township 5. By mistake, the vendors conveyed land in another township, which they did not intend to sell, to which they had no title, and which the defendants had no thought of buying; and by mistake the grantees, in order to secure the purchase price for the land they in fact purchased, mortgaged back to the plaintiffs the land in township 6 which the latter had assumed to convey to them. That a court of equity has power to correct this mutual mistake, make the Instruments given in execution of the contract conform to the real intention of the parties as established by clear and convincing proof, and hold the parties to their actual agreement, cannot be doubted. Snell v. Insurance Co., 98 U. S. 85, 88, 89; Simpson v. Vaughn, 2 Atk. 33; Henkel v. Royal Exchange, 1 Ves. Sr. 318; Gillespie v. Moon, 2 Johns. Ch. 585; Keisselback v. Livingston, 4 Johns. Ch. 144, 148; Inskoe v. Proctor, 6 T. B. Mon. 311, 316; Hendrickson v. Ivins, 1 N. J. Eq. 562, 568; Wesley v. Thomas, 6 Har. & J. 24, 26; Newson v. Buffertoor, 1 Dev. Eq. 383, 384; State v. George, 4 Ired. Eq. 430, 432; Barley v. Barley, 8 Humph. 233; Clopton v. Martin, 11 Ala. 187. But before the mortgage executed 581 *580 by the defendants can be reformed so as to properly describe the land which the plaintiffs intended to sell, and which the defendants intended to buy and mortgage back, it must appear that the plaintiffs have such title as they represented themselves to have when selling the land. A good and indefeasible title in fee imports such ownership of the land as enables the owner to exercise absolute and exclusive control of it as against all others. That the plaintiffs have no such title is too clear to admit of dispute. They hold under the Union Pacific Railroad Company. They accepted a conveyance from that company which expressly reserved, in its favor, and without limit of time, an exclusive right, not only "to prospect for coal and other minerals" under the land in question, and "to mine for and remove the same if found," but "a right of way over and across said lands, a space necessary for the conduct of said business thereon, without charge or liability for damage therefor." It does not appear that the railroad company is under any legal obligation to surrender or waive this reservation. The plaintiffs cannot compel it to do so. It is true that the reservation was subsequently released or withdrawn so far as it related to coal, but it is in full force as to other minerals. So that the plaintiffs, in effect, ask that, instead of a good and indefeasible title in fee simple, the defendants shall take and pay for land incumbered with the right of the railroad company, for all time, to pass over and across it for the purpose of prospecting for and mining minerals other than coal. A court of equity could not compel the defendants to take and pay for land thus incumbered without making for the parties a contract which they did not choose to make for themselves. "Equity," this court said in Hunt v. Ronsmainer's Adm'r, 8 Wheat. 1, 14, "may compel parties to perform their agreements, when fairly entered into, according to their terms; but it has no power to make agreements for parties, and then compel them to execute the same. The former is a legiti mate branch of its jurisdiction, and in its exercise is highly beneficial to society. The latter is without its authority, and the exercise of it would be not only a usurpation of power, but would be highly mischievous in its consequences." Reference was made in argument to the fact that no patent has ever been issued to the railroad company for the land in question, and it has been suggested by the defendants that if it was discovered, before a patent issued, that it was mineral land, the title of the company would fail altogether; for the grant made by congress to the company did not include mineral lands. Barden v. Railroad Co., 154 U. S. 288, 381, 14 Sup. Ct. 1030. We do not think it necessary to consider this aspect of the case, nor to determine whether the plaintiffs would be entitled to the relief asked if the mineral reservation had not been made by the railroad company, and nothing else appeared affecting the title except the fact that no patent had been issued by the United States, together with a possibility that, before the issuing of a patent, the land might be ascertained to be mineral land, which did not pass under the grant by congress. We forbear any expression of opinion upon that point, because, if it be assumed for the purposes of this case that the fact just stated would not stand in the plaintiffs' way, we are of opinion that the mineral reservation made by the railroad company is in itself such an incumbrance as prevents the plaintiffs from making a good and indefeasible title to the land. It is suggested that the reservation as to "other minerals" ought not to be deemed an obstacle to the relief asked, because it may never appear that there are any minerals under the land; that it cannot be assumed, in the absence of proof, that the defendants are likely to be disturbed in the full and complete enjoyment of the land for every purpose for which it is adapted. On the other hand, it cannot be affirmed, in view of the discovery of valuable minerals in many parts of the West, that there are no minerals, other than coal, under the land in question. What the defendants are entitled to is a marketable title,-a good and indefeasible title in fee. But that they will not obtain if forced to take the land subject to the railroad company's right of way over it for the purpose of prospecting for and mining minerals, which may be taken off when found. From that burden they cannot be relieved in any way except by the voluntary action of the railroad company. But it is contended by the plaintiffs that the act of March 3,*1887, entitled "An act to provide for the adjustment of land grants made by congress in and of the construction of railroads and for the forfeiture of unearned lands, and for other purposes" (24 Stat. 556, c. 376), the act of March 2, 1896 (29 Stat. 42, c. 39), and the concurrent resolution of June 10, 1896 (29 Stat. Append. 14), confirmed as against the United States the right and title of bona fide purchasers of lands contained within the limits of railroad grants; so that, as against such bona fide purchasers, the United States, by the acts cited, expressly disclaims any rights whatever, and confirms absolutely the title of such bona fide purchasers. By this contention is meant that the act of March 3, 1887, as the same has been construed by this. court in U. S. v. Winona & St. P. R. Co., 165 U. S. 463, 466-469, 17 Sup. Ct. 368, protects the title of Adams and Shilling as bona fide purchasers, even if, before a patent was issued by the United States, the lands in question should prove to be mineral lands. It is sufficient upon this point to say that, If the legislative enactments referred to have any reference whatever to mineral lands,-if they were held applicable to lands purchased in good faith from the railroad company, and which turned out to be mineral lands that *582 congress never granted,-that would only remove one of the difficulties which, it is insisted, are in the way of plaintiffs; for, if the plaintiffs' title is, under the legislation of 1887 and 1896, good as against the United States, there will still remain the incumbrance upon it arising from the right reserved by the railroad company, for all time,-whether the plaintiffs or their vendees consented or not,-to go upon the lands in question, for the purpose of prospecting and mining for minerals other than coal, and removing any found there. patent would convey the interest of the United States in the land; but it would not destroy or release the mineral reservation made by the Union Pacific Railroad Company in its deed to Adams and Shilling. Purchasers from Adams and Shilling would be bound by that reservation, even if the United States issued a patent to the railroad company or to its vendees. A The result of these views is that the defendants were not bound to accept the deed tendered by the plaintiffs; and as it appears that the plaintiffs cannot make such a title as they agreed to give, as the cash payment was made upon the basis of a good and indefeasible title in the plaintiffs, the defendants were entitled upon their cross complaint, framed in accordance with the established modes of procedure in the territory, to have a decree which, in effect, rescinds the contract, and gives them back what they paid. The decree is affirmed. (168 U. S. 532) BRAM v. UNITED STATES. CRIMINAL LAW-EVIDENCE-CONFESSIONS-STATE- 1. Objections and exceptions taken both when a witness is offered to prove a confession, and also after he has been examined as to the circumstances under which the confession was made, are sufficient to raise the question in the appellate court, though the objection is not renewed after the witness has testified to the confession. 2. In determining whether the proper foundation was laid for the admission of evidence offered as a confession, the reviewing court is not concerned as to how far the evidence tends to prove guilt. If illegally admitted, reversible error results, since the prosecution, after securing the admission of evidence as a confession, will not be heard to assert that it does not tend to prove guilt. 3. Whenever a question arises in the federal - courts as to whether a confession is incompetent because not voluntary, the issue is controlled by the declaration in the fifth amendment to the constitution that no person "shall be compelled in any criminal case to be a witness against himself"; this being the constitutional embodiment of the doctrine of the inadmissibility of involuntary confessions. 4. To render a statement offered as a confession admissible, the rule is not that the proof must establish that the particular communications contained in the statement were volun tarily made, but it must establish that the making of the statement was voluntary; that is to say, that, from causes which the law treats as legally sufficient to engender in the mind of the accused hope or fear in respect to the crize charged, he was not involuntarily impelled to make a statement when, but for the improper influence, he would have remained silent. 5. The mere fact that a confession is made to a police officer while the accused is under arrest, in or out of prison, or is drawn out by his questions, does not necessarily render the confession involuntary; but, as one of the circumstances, such imprisonment or interrogation may be taken into account in determining whether or not the statement was voluntary. 6. Statements offered as a confession of murder held inadmissible where it appeared that they were made to a police officer, in the latter's office, no other persons being present, after the prisoner had been stripped of his clothing, and after the officer had said to him that his cosuspect had made a statement that he saw him commit the deed; that the officer was satisfied that the prisoner had killed the deceased; that it was thought that he could not have done it alone, and, if he had an accomplice, he should say so, "and not have the blame of this horrible crime on your own shoulders." 7. An objection that an indictment recited that it was presented "upon the oath" of the grand jurors, when in fact it was presented upon the oath of all but one, who affirmed instead of making oath, is a merely formal defect, without prejudice, which is cured by the provisions of Rev. St. § 1025. 8. An objection that neither in the indictment nor in the proof at the hearing of pleas in abatement did it affirmatively appear that a grand juror, who was permitted to affirm instead of making oath, had conscientious scruples against taking an oath, is without merit, in view of the curative provisions of Rev. St. § 1025, and in view of the fact that the mode of ascertaining the existence or nonexistence of such scruples is committed to the discretion of the officer who affirmed the juror. 9. Where the evidence is purely circumstantial, it is proper for the prosecution to show, as a circumstance in the case, the fact that another person, who was in the vicinity at the time of the killing, could not have committed the crime. The fact that such testimony might operate indirectly to fortify the credit of such person as a witness could not affect its admissibility. 10. A question asked of a medical expert as to whether, in his opinion, a man standing at the hip of a recumbent person, and striking blows on his head and forehead with an ax, would necessarily be spattered or covered with blood, held to have been properly admitted; the assumed state of facts being warranted by the proofs. Mr. Chief Justice Fuller, Mr. Justice Brewer, and Mr. Justice Brown, dissenting. master of the vessel. The bill of exceptions, after stating the sailing of the vessel from Boston on the 2d of July, 1896, with a cargo of lumber, gives a general summary of the facts leading up to and surrounding the homicide, as follows: "She had on board a captain, Charles I. Nash; Bram, the defendant; a second mate, August W. Blomberg; a steward; and six seamen; also the captain's wife, Laura A. Nash, and one passenger, Lester H. Monks. "The vessel proceeded on her course towards her port of destination until the night between July 13th and July 14th. On that night, at 12 o'clock, the second mate's watch was relieved by the mate's watch, of which L Bram, the defendant, was the officer in charge. The captain, his wife, the passenger, Monks, and the first mate and the second mate, all lived in the after-cabin, occupying separate rooms. The crew and the steward slept forward in the forward house. "When the watch was changed at midnight, Bram, the defendant, took the deck, the seamen Loheac and Perdok went forward on the lookout, and Charles Brown (otherwise called Justus Leopold Westerberg, his true name) took the wheel, where it was his duty to remain till two o'clock, at about which time he was relieved by Loheac. The second mate went to his room and the seamen of his watch to their quarters at twelve midnight, and there was no evidence that any of them or the steward appeared again till daylight. 536 "The passenger, Monks, who occupied a room on the starboard side of the cabin, between the chart room where the captain slept and the room on the forward starboard side where Mrs. Nash slept, with doors opening from the passenger's room into both the chart room used by the captain as his room and that of Mrs. Nash, was aroused not far from two o'clock (the exact time is not known, as he says) by a scream, and by another sound, characterized by him as a gurgling sound. He arose, went to the captain's room, and found the captain's cot overturned, and the captain lying on the floor by it. He spoke, but got no answer; put his hand on the captain's body, and found it damp or wet. He then went to Mrs. Nash's room; did not see her, but saw dark spots on her bedding, and suspected something wrong. He went on deck, and called the mate, the defendant, telling him the captain was killed. Both went below, took down the lantern hanging in the main cabin, burning dimly, turned it up, and went through the captain's room to the passenger's room, and the passenger there put on a shirt and pantaloons. They then both returned to the deck, the mate on the way stopping a brief time in his own room. Bram and Monks remained talking on deck till about daybreak, when the steward was called, and told what had happened. Up to this time no call had been made for the second mate, nor had any one visited his room. Later it was found that Captain Nash, his wife, and *Blom berg, the second mate, were all dead, each with several wounds upon the head, apparently given with a sharp instrument, like an ax, penetrating the skull, and into the substance of the brain; and the second mate lying on his back, with his feet crossed, in his berth; Mrs. Nash in her bed, in her room, and at the back side of the bed; and Captain Nash in his room, as already stated. "The whole crew was called at or about daylight, and were informed of the deaths. "The bodies were removed from the cabin, and placed in the jolly boat, and the boat was towed astern to Halifax. The cabin was then locked, Bram taking the keys, and it remained locked till the vessel reached Halifax. "At first, after the discovery of the murders, there was some hesitancy as to where the vessel should go. At the defendant's suggestion, she was headed to go to Cavenne, in French Guiana; but the plan was changed, and she steered for Halifax, Nova Scotia, where she arrived July 21st, and was taken possession of by the local authorities, at the instance of the consul general of the United States. "At first, after the discovery of the murders, Bram, on whom had devolved the command of the ship, made Brown chief mate and Loheac second mate. "No blood or spots of blood were ever discovered on the person or the clothing of any person on board, nor did anything direct suspicion to any one. "In a day or two, suspicion having been excited in respect to the seaman Brown, the crew, under the supervision of Bram, seized him, he not resisting, and put him in irons. All the while the officers and seamen remained on deck. Bram navigated the ship until Sunday before they reached Halifax, on Tuesday, and after the land of Nova Scotia was in sight, when, Brown having stated to his shipmates, or some of them, that he saw into the cabin through a window in the after-part and on the starboard side of the house, and saw Bram, the mate, kill the captain, in consequence of this statement of Brown, the crew, led by the steward, suddenly overpowered the mate, and put him in irons, he making no resistance, but declaring his innocence. Bram and Brown were both carried into Halifax in irons." The bill of exceptions further states that, when the ship arrived at Halifax, the accused and Brown were held in custody by the chief of police at that place, and that, while in such custody, the accused was taken from prison to the office of a detective, and there questioned, under circumstances to be hereafter stated. Subsequently to this occurrence at Halifax, all the officers, the crew, and the passenger were examined before the American consul, and gave their statements, which were reduced to writing and sworn to. They were thereafter, at the request of the American consul, sent to Boston, where the accused was indicted for the murder of Nash, the cap tain, of Mrs. Nash, and the second mate, Blomberg. The trial and the conviction now under review related to the first of these charges. The errors which are here assigned as grounds for reversal are more than 60 in number, and are classified by the counsel for the accused as follows: (a) Questions raised preliminary to the trial; (b) questions raised during the trial; (c) questions raised in connection with two motions for a new trial. We first examine the error relied on which seems to us deserving of the most serious consideration. During the trial, a detective, by whom the accused was questioned while at Halifax, was placed upon the stand as a witness for the prosecution, for the purpose of testifying to the conversation had between himself and the accused at Halifax, at the time and place already stated. What took place between the accused and the detective at the time of the conversation, and what occurred when the witness was tendered in order to prove the confession, is thus stated in the bill of exceptions: "Nicholas Power, of Halifax, called by the government, testified that he was connected with the police department of Halifax, and had been for thirty-two years, and for the last fifteen years of that time as a detective officer; that after the arrival of the Herbert Fuller at Halifax, in consequence of a conversation with Charles Brown, he made an examination of Bram, the defendant, in the witness' office, in the city hall at Halifax, when no one was present besides Bram and the witness. The witness testified that no threats were made in any way to Bram, nor any inducements held out to him. "The witness was then asked: 'What did you say to him and he to you?' "To this the defendant's counsel objected. The defendant's counsel was permitted to cross-examine the witness before the court ruled upon the objection, and the witness stated that the conversation took place in his office, where he had caused the defendant, Bram, to be brought by a police officer; that up to that time the defendant had been in the custody of the police authorities of Halifax, in the custody of the superintendent of police, John O'Sullivan; that the witness asked that the defendant should be brought to his office for the purpose of interviewing him; that at his office he stripped the defendant, and examined his clothing, but not his pockets; that he told the defendant to submit to an examination, and that he searched him; that the defendant was then in custody, and did everything the witness directed him to do; that the witness was then a police officer, acting in his official capacity; that all this took place before the defendant had been examined before the United States consul; and that the witness did not know that the local authorities had at that time taken any action, but that the defendant was held for the United States,-for the corsul general of the United States. *539 "'Q. No influence on your part exerted to* persuade him one way or the other? "A. None whatever, sir; none whatever.' "The defendant then renewed his objection to the question what conversation had taken place between Bram and the witness, for the following reasons: That, at the time, the defendant was in the custody of the chief of police at Halifax; that the witness, in an official capacity, directed the police authorities to bring the defendant as a prisoner to his private office, and there proceeded to take extraordinary liberties with him. He stripped him. The defendant understood that he was a prisoner, and he obeyed every order and direction that the witness gave. Under these circumstances, the counsel submitted that no statement made by the defendant while so held in custody, and his rights interfered with to the extent described, was a free and voluntary statement, and no statement as made by him bearing upon this issue was competent. "The objection was overruled, and the defendant excepted on all the grounds above stated, and the exceptions were allowed. "The witness answered as follows: ""When Mr. Bram came into my office, I said to him: "Bram, we are trying to unravel this horrible mystery." I said: "Your position is rather an awkward one. I have had Brown in this office, and he made a statement that he saw you do the murder." He said: "He could not have seen me. Where was he?" I said: "He states he was at the wheel." "Well," he said, "he could not see me from there." I said: "Now, look here, Bram, I am satisfied that you killed the captain from all I have heard from Mr. Brown. But," I said, "some of us here think you could not have done all that crime alone. If you had an accomplice, you should say so, and not have the blame of this horrible crime on your own shoulders." He said: "Well, I think, and many others on board the ship think, that Brown is the murderer; but I don't know anything about it." He was rather short in his replies. "'Q. Anything further said by either of you? "A. No; there was nothing further said, on that occasion.' "The direct examination of this witness |