Page:Federal Reporter, 1st Series, Volume 5.djvu/338

 323 FEDEBAIi BBPOBTëB. �it would bring. As and when it was sold, the proceeds do not appear to have paid more than two-thirds of the debt, whereas, if the trustee had been admitted into possession, he might have applied the rents and profits on the interest, and ultimately paid the whole debt by a favorable disposition of the property. However this may be, the person directly and pri- marily interested in the matter was the plaintiff, and the agreement ought to be construed so as to allow him to exer- cise his judgment whether to hold the property or sell it. The debtor could always protect himself against any abuse of this discretion, to his prejudice, by paying the debt and redeem- ing the property, or by the interference of a court of equity. �As to the claim for damages on account of the plaintiff's being oompelled, by reason of the defendant's refusai to sur- render the possession, to bring and maintain a suit in equity to procure a sale of the property, it was not argued by coun- eel, and need not now be considered. �It, at least, appears from the complaint that the plaintiff is entitled to reeover damages for witbholding possession of the property during the peribd alleged, and therefore the complaint states a cause of action. ���Cahn V. BarnSS. �(Circuit Court, D. Oregon. January 17, 1881.) �1. Patent — Conieadiction of bi Oeal Evidence. — On March 12, 1860, (12 8t. S,) eongress granted the swamp and overflowed lands in Oregon to the state, to be identifled and patented by the secretarj of the interior. On July 5, 1866, (14 St. 89,) congreSs granted to the State, to aid in the construction of a wagon road from Albany to the eastern line thereof, three sections per mile of the public lands, to be selected within six miles of said road, as the same might be located, and on June 18, 1874, (18 St. 80,) authorized patents to issue therofor as fast as the same should be selected and certifled; and on June 19, 1876, a patent was issued under said wagon-road grant to the state or its assigns, for the premieeàin controversy. HM, that the patent was conclusive evidence at law that the premises were included in the wagon-road grant, and were therefore not swamp land, the latter con- clusion being a necessary element of the former. ����