dence, the clear weight of evidence. The phrase usually employed in instructing juries, and the one that has been most frequently applied, and which in our judgment is the better way of stating the rule, is that the facts constituting the fraud must be established by clear and satisfactory evidence. We are inclined to favor that form of expression, though it means substantially the same as the one used by the trial court. Error is assigned because the trial judge reiterated the rule in instructing the jury, as to plaintiff being bound to establish the fraud by a clear preponderance of the evidence in order to entitle him to recover, and because, by his manner while instructing the jury, he prejudicially impressed them against the defendant. We have no way of seeing from here the manner of the trial judge in instructing the jury and since, the instruction reiterated was proper and was not unreasonably repeated, we cannot hold that there was any prejudicial or other error in the matter. Doubtless a correct rule of law in a case may be given to a jury, accompanied by such manifestations by the trial judge as to indicate how the judicial mind leans in respect to the right of the plaintiff or defendant; but there is nothing before us to indicate that any such thing occurred upon the trial in question. Appellant assigns error because the court refused to give this instruction: "You are instructed that if from the entire conversation had between the plaintiff and defendant at the time of the sale the defendant gave the plaintiff to understand that the horse was good and all right and suitable for the purpose to which plaintiff would reasonably be expected to put the horse, then that conversation as an entirety constitutes the warranty." The charge was properly refused because the elements referred to did not constitute the warranty charged. The instruction requested left out the element necessary to constitute the fraudulent warranty set up in the complaint. The instruction was presented to the court upon the theory that the complaint was upon contract. Our decision as to the character of the pleading in effect decided that the instruction asked, on the theory that the cause of action was upon contract instead of to recover for deceit, was properly rejected. Several minor matters are referred to in the briefs of counsel for appellant which we will not specially refer to. All that really merit attention are involved in the questions of whether the complaint was to recover on contract or for a tortious wrong, and whether the rule of law in respect to the quantum of proof required to entitle plaintiff to recover, was proper. The decision upon such questions renders the other matters referred to in appellant's brief immaterial The judgment is affirmed. 94 N.W.-5 COMMUJUDG LATION-INTERIOR DEPARTMENT-FINDINGS 1. Where, in a contest between conflicting claimants of public lands, it was determnied by the Supreme Court, on demurrer to the complaint, that an entry had been made in good faith, and that the entryman had resided upon the lands for six months, and that honest final proofs had been made, and at the subsequent trial of the case no change was attempted to be made by evidence as to the situation presented before the land officers at the time of their decision, such ruling on demurrer constituted the law of the case, and was binding on a subsequent appeal. 2. In a contest between conflicting claimants of public lands, a decision on the facts concerning the bona fides of the entry, the length of the entryman's residence, and his proofs, is within the jurisdiction of the local land officers, subject to appeal or other review. 3. Where a patent to public land was refused on the ground that fraud existed in the supplemental proofs, and it was subsequently held that, inasmuch as such fraud occurred after final proof of the entryman's claim had been prematurely made, it did not bar him from the rights acquired under Act Cong. June 3, 1896, c. 312, 29 Stat. 197 [U. S. Comp. St. 1901, p. 1409], declaring that when a commutation proof is prematurely made through mistake, and fraud had not been practiced, and the certificate had not been canceled or the land re-entered, the certificate should be confirmed, the fact that on a subsequent trial the proof showed that the question as to the fraud or concealment was different from that assumed on the prior appeal did not alter the effect of such prior decision. 4. Where, in a contest between conflicting claimants of public lands, the land officers did not pass on the bona fides of the entryman's original proofs, and his claim was disallowed for fraud in his supplemental proofs, and the decision so arrived at was never reversed, but it was subsequently determined that the entryman was entitled to a patent under Act Cong. June 3. 1896, c. 312, 29 Stat. 197 [U. S. Comp. St. 1901, p. 1409], notwithstanding such fraud, the contestant was not entitled to contest the validity of such patent for mala fides in the original proofs. 5. Where one of two contesting claimants to public land, after having been beaten in a contest before the Interior Department, signed a written agreement with the successful entryman's grantee that, for a consideration received, he would make no claim to the land, he was thereby estopped to claim title to the land under a previous settlement on the ground that the entryman's possession was not in good faith. and that his title was acquired by fraud and false swearing in his proofs in commutation of his entry. 6. Where an entryman's rights in public lands did not arise from an application to enter filed in February, 1901, as alleged in the complaint, and allowed at a later date, but it was proved that prior to July, 1892, he settled on the land, and successfully contested another's application therefor, he thereby secured a mere preference right, which did not constitute an entry, so as to entitle him to commute the same on September 20, 1892, under Rev. St. U. S. § 2301, as amend ed by Act June 9, 1880, c. 164, 21 Stat. 169 [U. S. Comp. St. 1901, p. 1407], authorizing the commutation of pre-emption entries after 14 months' residence from the date of the entry. 7. Findings by the court on conflicting evidence will not be reversed on appeal. Appeal from Circuit Court, Douglas County; E. W. Helms, Judge. Action by Warren E. McCord against John F. Hill. From a judgment in favor of plaintiff, defendant appeals. Affirmed. This is the same action considered upon demurrer to the complaint, reported in 111 Wis. 499, 84 N. W. 27, 85 N. W. 145, 87 N. W. 481. It has since been tried; the evidence upon the trial consisting in the main of the records of the proceedings and profert of the documents referred to in the complaint, with some oral evidence in addition. The findings are substantially in accordance with the facts as set forth in the complaint, so far as the same are material. Certain variances between the facts stated in the complaint and those appearing on the trial and certain additional facts are sufficiently stated in the opinion. Judgment was rendered in favor of the plaintiff on July 10, 1902, adjudging that the legal title held by the defendant, John F. Hill, be set over and transferred to the plaintiff, Warren E. McCord, as of the date of the patent from the United States, and that the defendant and all claiming under him be barred from having or claiming any interest, either legal or equitable, and be restrained from setting up or claiming any right, title, or interest in the land, or in any timber standing or growing thereon on January 12, 1897, or at any time thereafter. From that judgment the defendant appeals. W. F. Bailey (W. H. Stafford, of counsel), for appellant. Luse, Powell & De Forest and Sanborn & Sanborn, for respondent. DODGE, J. (after stating the facts). Upon a former appeal in this case, considering the complaint upon demurrer (111 Wis. 499, 84 N. W. 27, 85 N. W. 145, 87 N. W. 481), we rendered decision upon certain questions raised as to the rights of the parties, dependent upon facts set forth by the complaint. Upon familiar principles, closely approximating those of res adjudicata, and not infrequently so called, that decision became the law of this case, both for this court and the lower court, at all subsequent stages, except so far as the situation disclosed by the complaint and considered upon the demurrer was altered in respects material to the conclusions then reached. Parker v. Pomeroy, 2 Wis. 112; Keystone L. Co. v. Kolman, 103 Wis. 300, 79 N. W. 224; Crouse v. C. & N. W. Ry., 104 Wis. 473, 480, 80 N. W. 752; So. Bend Co. v. Cribb Co., 105 Wis. 443, 81 N. W. 675. It is therefore necessary, in considering the present appeal, to start with such former decision, and ascertain how far the situation has been modified by the introduction of evidence, and whether such modi fications are material. The propositions decided on the former appeal may be summarized as follows, namely: That in September, 1892, the officers of the Land Department, in granting Jacobus the privilege of pre-emption entry in commutation of his previous homestead entry, decided that his entries were made in good faith; that he had resided upon the land in compliance with the homestead laws for at least six months prior to said commutation; and that his final proofs, upon which the pre-emption entry was allowed, were not fraudulent. Such entry could not have been allowed in absence of those facts. We next decided, after a careful examination of the proceedings upon the contest raised by Hill over the attempt to make supplemental proofs, so far as the complaint set them forth, that neither the local land officers, the commissioner, nor the Secretary, had ever reversed this finding of fact, but that the rejection of such supplemental proofs went upon the ground of fraud occurring therein; that under the act of June 3, 1896, 29 Stat. 197, c. 312 [U. S. Comp. St. 1901, p. 1409], such fraud was no obstacle to Jacobus' right to a confirmation of such prematurely allowed entry of September, 1892; hence that the refusal of such confirmation, and the allowance of Hill's entry and subsequent patent, were all by mistake of law, and conferred upon the latter merely the empty legal title which the United States at that time held in trust for the holder of the full equitable title which the act of 1896 had conferred upon Jacobus by virtue of the facts so found to exist. Upon the trial no change whatever was made, or even attempted to be made, by evidence as to the situation presented before the land officers at the time of their decision in September, 1892, though some attempt is now made to argue that they neither had the power nor attempted to decide anything then-a position which seems to be not only in contravention of our former decision, but of the holdings of the federal courts that the decision of the facts, under such circumstances, rests with the local land officers, subject to appeal or other review. Moore v. Robbins, 96 U. S. 530, 532, 24 L. Ed. 848; Parsons v. Venzke, 164 U. S. 79, 92, 17 Sup. Ct. 27, 41 L. Ed. 360. Hence our former ruling that the facts of goodfaith entry, six months' residence, and honest final proofs had been decided to exist by the land officers, must control now. The decision of the second question, namely, that of the construction to be given the various rulings of the land officers, but especially the final order of the Secretary of the Interior, of August 4, 1896, denying motion to confirm the entry of September, 1892, rested upon many facts of more or less cogency. In these, as they appeared or were deemed to appear from the allegations of the complaint, there has been some change shown by the evidence. Thus, it is urged by the appellant that the evidence shows facts variant from the assumption contained in the former opinion that Jacobus, in his attempted supplemental proofs, concealed or attempted to conceal from the land officers the fact of his abandonment of the premises as a home, and of the transfer thereof to McLeod and McCord. It now appears from the evidence that his affidavits on this occasion did disclose that he temporarily left the land, in the belief that his title was complete, and conveyed the same to McLeod and McCord, but that the same had been reconveyed to him, and his residence resumed. The only materiality of the fact, assumed or stated in the former opinion, was to establish that there were acts in Jacobus' supplemental proofs which were deemed fraudulent as against the United States, and which could serve as the basis for the decision of the Secretary of the Interior that confirmation must be refused by reason of fraud in making proofs. Examination now made of the entire record of this contest shows that the fraud which the local land officers pointed out in their opinion, to which reference was made in the affirmance of that opinion by the Commissioner of the General Land Office, and in the affirmance of his decision by the Secretary of the Interior, was in attempting to impress those tribunals with the idea that he (Jacobus) had in good faith reacquired the title to these premises, and had renewed his residence thereon for the purpose contemplated by the homestead lawsof making the premises his home-and not for the forbidden purpose of acquiring title for some one else. Thus it is declared by the register and receiver, after reciting these conveyances and Jacobus' conduct, "The bare statement of facts points to the conclusion that the sale of the land in December, 1892, was absolute, and that the subsequent residence of Jacobus on the land was as agent of the transferees, and for the purpose of acquiring title for them." And again, that the various facts recited "show that the land was not reconveyed to Jacobus in good faith, but for the purpose of enabling him to make supplemental proof for the benefit of the grantees. We are of opinion, therefore, that Jacobus' supplemental proof cannot be sustained, and that the entry should be canceled, and a preference right of entry awarded to the contestant here." Hence there is now presented the same circumstance as on the previous appeal, namely, that the supplemental proofs did contain elements of concealment which the land officers deemed fraudulent. That is all that was or is material to the conclusion reached on the former appeal. Counsel for appellant argue that no such fraud existed, in fact, because there is not sufficient evidence of any agreement on Jacobus' part at the time of receiving the reconveyance from McCord and McLeod that he would again convey the premises to them when he had perfected title. That, however, is immaterial. The question before us is not so much whether fraud existed, as whether it might have been and was decided to exist by the land officials. The record discloses now, as on the former appeal, that there was in the supplemental proofs concealment of a purpose which the land officers decided to exist, and that such concealment was by them decided to constitute a fraud. That, as we held before, was the fraud in making proofs which the register and receiver found to exist and reported in their opinion, which the commissioner affirmed, and to which it must be held the Secretary of the Interior referred when declaring in his order refusing confirmation, August 4, 1896, that such refusal was upon the ground of the practice of fraud in making proofs. The change resulting from the evidence as to the mere subject of the concealment practiced does not modify the situation so as to relieve us from the controlling effect of our former judgment. Again, it was said in our former opinion that Hill's protest against the supplemental proofs made no suggestion "that the original proofs offered and accepted in September, 1892, were characterized by any fraud or fraudulent practice, and no issue as to the bona fides of Jacobus in tendering those proofs was presented." This statement was apparently borne out by the allegations of the complaint, but is shown to be incorrect by the introduction in evidence of Hill's affidavit of protest, which, while still throwing special weight upon the fraudulent prac tices occurring thereafter, expressly alleged that "Jacobus and his witnesses testified falsely in making his final proofs"; hence the assumption made in the former opinion that there was no issue upon which the land officers could have inquired or decided with reference to fraudulent practices in the proof of September, 1892, must disappear from present consideration, and those decisions be construed in the light of the fact that an issue was raised by Hill's contest, upon which the land officers might have again considered and decided upon the good faith or fraud of the original proofs made in September, 1892, upon which Jacobus was allowed to pre-empt and received his certificate. That no such question was in fact considered, however, seems to be settled by the report of the local land officers, where, after reciting that charges had been made, they declare the issues upon which they deem it necessary to express their opinion as: "(1) Did Jacobus abandon the land? Was the sale of the land to McCord and McLeod a bar to the offering of supplemental proof?" We still think it plain, therefore, that no questions involving Jacobus' proceedings up to and including the final proof of September, 1892, were passed upon in the consideration of the contest had in 1894. Indeed, this seems to be the view of appellant's counsel as well, for he declares in his brief that "no question of mala fides (2) was found in the making of proofs [of September, 1892], nor was the subject considered. Simply, from the evidence, which was the same as the affidavits, they determined the second question which they stated at the outset, that the sale of the land to McCord and McLeod was a bar to the offering of supplemental proof." It was for this reason, and for no other, that the local land officers reached the conclusion, and declared their opinion, that the supplemental proof could not be sustained, and that Jacobus' entry should be canceled. The Commissioner of the General Land Office made no order in this connection, except to affirm that opinion. The final order of the Secretary of the Interior denied confirmation on the ground of practice of fraud in making final proofs, "as fully set forth in your [commissioner's] office decision of January 23, 1895." Thus the final decision of the Secretary is, by a series of references, tied back to the practice of fraud in making the supplemental proofs described in the opinion of the local land officers, and made the ground of their recommendation against Jacobus. We therefore adhere to the conclusion formerly reached, that nowhere in any of the proceedings subsequent to the commutation proofs was there any reconsideration of the facts then passed on certainly no reversal or attempted reversal of the decision then necessarily made of the facts essential to the allowance of the pre-emption entry. Those facts entitled Jacobus to confirmation and patent under the act of 1896, thus creating in him full equitable title. 2. A further ground which the circuit court found to support its judgment is that the defendant is estopped from making any claim or asserting any title to the land in question as against the plaintiff. The facts whereon this conclusion is based are substantially as follows: The defendant, knowing that plaintiff and McLeod had in contemplation the purchase from Jacobus in December, 1892, and being inquired of as to the rights of Jacobus and his own claims, stated that he had been fairly beaten in his contest; that he had no claim; that Jacobus had a good claim, which he advised them to buy; and that if they would do so, and would let him (Hill) take away some logs already cut, he would make no claim. Thereafter, in expressed consideration of said logs, he made written relinquishment to the United States of all rights in the land. The trial court finds that plaintiff and McLeod relied on such assurances. In our decision upon the demurrer, we ruled that this could not estop Hill from setting up subsequent conduct of Jacobus which might defeat his title, nor from acquiring new title himself, not depending upon facts existing at the time of making the declarations. That decision is, of course, the law of this case. Upon the trial it appeared, however, that he did not content himself with either opposing Jacobus' patent, or basing his own claims upon such subsequent facts. He attacked the good faith of Jacobus' original entry, and asserted fraudulent practices and false swearing in his proofs for commutation made in September, 1892, and alleged his own settlement on the land in July, 1891. If, therefore, we should concede appellant's contention that a patent was denied Jacobus, and his entry canceled, because, upon Hill's said contest, it was made to appear that the original entry was in bad faith, and the commutation proofs fraudulent, whereby he was accorded preference right of entry, it would seem obvious that Hill's title has been acquired by virtue of acts and claims on his part wholly inconsistent with his assertions made to the plaintiff, in reliance on which the latter paid Jacobus $4,300, and gave Hill a quantity of logs. We cannot doubt that the doctrine of estoppel precludes him from such change of front to his benefit and respondent's injury. Vilas v. Mason, 25 Wis. 310; Kingman v. Graham, 51 Wis. 232, 248; Two Rivers Co. v. Day, 102 Wis. 328; Leather M. Bank v. Morgan, 117 U. S. 96, 109, 6 Sup. Ct. 657, 29 L. Ed. 811; Beatty v. Sweeney, 26 Mich. 217; Mayer v. Erhardt, 88 Ill. 452; Hendricks v. Kelly, 64 Ala. 388; Mayer v. Ramsey, 46 Tex. 371; Downer v. Flint, 28 Vt. 527; Pendleton v. Grannis, 14 Land Dec. Dep. Int. 381. When appellant declared that Jacobus' claim was a good one, and encouraged respondent to purchase upon such supposition, and the latter acted upon such assurance, he acquired a right, as against Hill, that he should not assert the contrary, at least upon the basis of any facts then existing. While this right could not be urged against the United States to prevent it from reclaiming the land, it is enforceable against Hill to prevent him from profiting at the expense of respondent by means of denial of the fact declared by him to exist; and a court of equity can require him to hold any benefits acquired by such means as constructive trustee for the benefit of plaintiff, to the extent, at least, of the rights which the latter would have acquired, had the repudiated assertions been true. We concur in the conclusions of the trial court that on this ground, as well, appellant must be charged as constructive trustee of the whole title for the respondent, and decreed to convey it to him, if the construction we have placed on the various decisions of the land office be erroneous, and that contended for by appellant be correct. 3. The court below also decided, as a basis for the judgment, that Jacobus, having made application to enter this land in February, 1891, and having established his residence thereon at that time, and continued it up to September 20, 1892, was entitled to commute into a pre-emption entry at that time, not only under the provisions of section 2301, Rev. St. U. S., as amended in 1880 (Act June 9, 1880, c. 164, 21 Stat. 169 [U. S. Comp. St. 1901, p. 1407]), but also under the act of March 3, 1891, 26 Stat. 1098, c. 561 [U. S. Comp. St. 1901, p. 1406], which required 14 months' residence "after the date of entry." This conclusion was reached by applying the rule contended for by the plaintiff upon the former appeal, and mentioned, but not decided, in the opinion upon rehearing, to the effect that when an applicant, having the right to enter, completes all the acts required of him to effect that result, delay of the land officers to note on their books such entry cannot affect his rights, whether such delay results from hearing and deciding the contest, or from any other cause; that a rightful application to enter is tantamount to entry, and the real date of applicant's entry is when he completes all of the acts on his part necessary thereto. We find ourselves unable to agree with the trial court that there is any showing of the conditions to which this rule is applicable. It is alleged in the complaint that Jacobus made application to enter this land in February, 1891, but the fact is not proved. It does appear, however, from the order of the Commissioner of the General Land Office of April 29, 1892, that Hill made application to locate the same under his military warrant, and that Jacobus contested that application. The final order upon that proceeding was that the contest be sustained, and that Hill's declaratory statement be canceled, and that Jacobus be allowed, withir 30 days, under a preference right, to enter the land-not that any prior application of his be allowed. Thereupon Jacobus did, on July 6, 1892, make application to enter, which application was allowed, and the entry based on it constituted the basis for his subsequent commutation and pre-emption in the September following. Thus it fails to appear that his rights arise out of an application to enter filed in February, 1891, allowed at a later date, but merely that during the period prior to July, 1892, he had settled on the land, and contested Hill's application therefor; thus securing a mere preference right, which, as decided upon the former appeal, did not, of itself, constitute entry. Appellant assails many of the findings of fact, some of which, we confess, are not very material, and therefore the assault thereon need not be considered. Amongst others, however, is the finding by the trial court, as an independent fact, that Jacobus' original proofs were honest and free from fraud, and preceded by more than 14 months of actual residence upon the land as and for a homestead. It suffices to say that upon these questions the evidence is at least fairly conflicting, and we are unable to say that there is any clear preponderance against this finding, which, in the view we have taken of the decisions of the land officers, is not very material, unless it should be deemed essential to the standing of the plaintiff in a court of equity to invoke its aid to charge the defendant with a trust in his favor. The finding that McCord and McLeod pur chased the interest of Jacobus in good faith is also assailed, but here, also, we are satisfied that the evidence is sufficient to support the finding. Indeed, there is very little to throw doubt upon their good faith in the original purchase in December, 1892, to which they both testified; and the transactions are sufficient to warrant the inference drawn by the trial court, and also, apparently, drawn by the land officers, that the reconveyance to Jacobus in September, 1893, and the taking of a mortgage from him, followed later by conveyance back to McCord and McLeod, were all colorable and merely formal; leaving them at all times, as between Jacobus and themselves, the real owners of his equitable interest in the land, so that their present title really dates from the original conveyance to them in December, 1892. The finding that McCord and McLeod relied on Hill's statements to them with reference to his own and Jacobus' claims against the land at the time when they purchased from the latter is also assailed by appellant. The finding has support in the direct testimony of both McLeod and McCord, which stands almost without contradiction, save for a somewhat ambiguous answer made by McCord upon examination before trial-certainly not sufficient to constitute that overwhelming preponderance against his direct testimony upon the trial which could justify us in repudiating the finding by the circuit court. We therefore reach the conclusion that upon either the first or the second of the grounds above discussed, in the alternative, the judgment appealed from is correct. Judgment affirmed. LUTHER et al. v. C. J. LUTHER CO. et al. (Supreme Court of Wisconsin. March 21, 1903.) CORPORATIONS - DIRECTORS BREACH OF DUTY-ISSUE OF STOCK-EQUITY-AC TIONS-ISSUES-JUDGMENT. 1. Where two of the directors of a corporation, being a majority at a board meeting, for the purpose of taking the control of the corporation from those who then owned a majority of the stock, caused the issue and sale to a friend of a number of shares, which, with those owned by them, would make a majority, such issue and sale conferred no rights on the purchaser, who knew and participated in the unlawful act. 2. When promptly applied to, equity should decree the invalidity of the stock so issued, and of an election of directors which was determined by voting such stock, and should require the stock to be returned and canceled, and the amount paid therefor to be returned to the purchaser. 3. Where, in an action by stockholders in a corporation to set aside the issue and sale of stock made by two of the directors to a friend in order to obtain control of the corporation, the complaint alleged, among other breaches of duty by such directors, the taking, by one of them, of a patent in his own name which ought to belong to the corporation, but no issue was raised as to the title to such patent, or relief in regard thereto was asked, the ad |