sider the question in a technical aspect, we think that the plaintiff was entitled to treat the contract as on foot, notwithstanding the defendant's act, and go on with it cypres. Under the circumstances it could not comply literally with the words, and was justified in doing the best thing that could be done for the interest of both. The defendant by its abdication put the plaintiff in its place with all its rights. To limit its liability as if its only promise was to pay a loss paid upon a judgment is to neglect the meaning and purpose of the reference to a judgment, and even the words of the promise. The promise in form is to indemnify against loss by certain kinds of liability. The judgment contemplated in the condition is a judgment in a suit defended by the defendant in case it elects not to settle. The substance of the promise is to pay a loss which the plaintiff shall have been compelled to pay, after such precautions and with such safeguards as the defendant may insist upon. It saw fit to insist upon none.

We assume that the settlement was reasonable, and that the plaintiff could not expect to escape at less cost by defending the suits. If this were otherwise no doubt the defendant would profit by the fact. The defendant did not agree to repay a gratuity, or more than fairly could be said to have been paid upon compulsion. But a sum paid in the prudent settlement of a suit is paid under the compulsion of the suit as truly as if it were paid upon execution.

But there is another aspect of the eighth condition of the slip which requires a few words more. It is said that this condition expressly contemplates a breach of contract by the company and defines the plaintiff's rights in that case. The words "no action shall lie against the company as respects any loss under this policy unless," etc., certainly do contemplate a case in court in which the company may turn out to be in the wrong, and therefore technically guilty of a breach of contract. But notwithstanding the contrary suggestion in Sanders v. Frankfort Marine, Accident & Plate Glass Ins. Co., 72 N. H. 485, 498, 499, we think that the only breach which that condition has

in view is a refusal by the company to pay after the decision in a case of which it has taken charge, when, notwithstanding the judgment, it conceives itself to have a defense. The action referred to is an action for money alleged to be due under the policy. Contracts rarely provide in detail for their nonperformance. It would be stretching the words quoted to a significance equally hurtful to both parties, and probably equally absent from the minds of both, to read them as having within their scope an initial repudiation of liability by the defendant and a requirement that in that event the plaintiff should be bound to try the case against itself, although it should be plain that by a compromise it could reduce its claim on the defendant as well as its own loss.

If there is anything in the doubt whether the defendant, by assuming the defense of the original suit, would not lose its right to deny that the policy applied, even if it purported to save that right, it does not change our opinion. The requirement of a trial and judgment would not accomplish the object suggested, to make collusion impossible. The objections to thus hampering the dominus litis have been touched upon, and there would be presented the anomaly, if not the monstrosity, of a party attempting to provide by contract that if he should do what by general principles of contract forfeited his right to make further requirements of the other side, his conduct, on the contrary, should impose new obligations on the other side. If the defendant kept its contract, it would defend the suit, and the plaintiff would have no duties. If it refused to do as it had promised, we cannot think that it was entitled to complain that the plaintiff did not do it when the interest of both was the other way. Before a policy should be construed to have such an extraordinary effect honesty requires that the assured should be notified of his duties in unmistakable words.

We answer the first, second, fourth and fifth questions in the affirmative, the third in the negative and the sixth in the affirmative, so far as the question is warranted by the facts set forth. It will be so certified.

Statement of the Case.

201 U. S.

BROWN v. GURNEY.

SMALL v. BROWN.

BROWN v. SMALL.

ERROR TO THE SUPREME COURT OF THE STATE OF COLORADO.

Nos. 97, 98 and 99. Argued December 5, 1905.-Decided April 2, 1906.

The Land Department refused to issue a patent on a mining lode location for which the local office had issued final certificate on the ground that the entry embraced two tracts separated by a placer claim; but gave the applicant the privilege for a definite period of electing which tract he would take, the entry to be cancelled on one of the tracts specified unless he meanwhile appealed or made his election. Within the period he waived his appeal and elected to take the other tract. Subsequently the Land Department entered a formal order cancelling the entry as to the tract abandoned. Meanwhile three entries were made of the abandoned tract. The first immediately after the Land Department had refused the patent; the second immediately after the election and relinquishment was made; and the third immediately after the final order of cancellation was entered. In consolidated adverse proceedings between these three entrymen, held, that:

In adverse proceedings each party is practically a plaintiff and must show his title.

The order refusing to grant the patent did not of itself restore the land to the public domain during the period of election, but the relinquishment of the original entryman to the abandoned tract operated to do so eo instanti, and the formal order of cancellation merely recorded a preexisting fact, and the rights of the party entering the land immediately after the relinquishment were superior to those of the other entrymen. Rulings of the Land Department as to land covered by a location cannot be challenged collaterally in separate proceedings and the principle of freedom from collateral attack is equally applicable in cases of final entry as in those where patent has issued.

A final certificate issued after submission of final proof and payment of purchase price is for many purposes equivalent to a patent.

BROWN applied for a patent on a mining claim, known as the Scorpion, and Gurney adversed this application as the owner and claimant of the Hobson's Choice, as did Small,

also, as the owner and claimant of the P. G. claim. Thereafter each brought suit in support of his adverse claim in the District Court of Teller County, Colorado. The cases were tried together on an agreed statement of facts. This showed that the Scorpion, Hobson's Choice and P. G. locations covered substantially the same tract of ground, and were all made in compliance with law, with the exception repeated in connection with each of said locations: "Provided, however, that it is not admitted that at the time of said location the ground enbraced in said location was a part of the vacant and unappropriated public domain.”

It appeared that prior to May 28, 1895, a mining lode location called the Kohnyo was owned by the Cripple Creek Mining Company, which claim was divided into two non-contiguous tracts by the Mt. Rosa placer claim. The north end of the Kohnyo, comprising five hundred feet of the claim, was where the discovery of mineral was made, and it also contained a discovery shaft and the other workings and improvements of the claim. The south end being seven hundred feet in length, did not show mineral, and was without development work of any kind.

The following diagram illustrates the situation:

The local Land Office permitted the claimant of the Kohnyo to enter the two tracts as one claim, but the Department ultimately refused to issue a patent for such tracts, basing the refusal upon the ground that two portions of a lode mining claim, separated by a patented placer, could not be included within one patent. The Land Office gave the applicant, however, the privilege to apply for a patent upon either of

the segregated tracts, and directed that, in default of an election or appeal by the claimant within sixty days from the date of the order, the entry of that portion of the claim lying south of the Mt. Rosa claim should be cancelled without further notice. This decision was rendered May 28, 1895, and no appeal was taken from it; but the claimant of the Kohnyo instituted proceedings against the claimant of the Mt. Rosa placer, the purpose of which was to secure title to the vein of the Kohnyo, which, it was claimed, passed through the portion of the placer claim which conflicted with the Kohnyo location. These proceedings were prosecuted before the Land Department, with the result that on May 7, 1898, a decision was rendered against the Kohnyo claimant's contention of a known vein in the placer conflict.

June 14, 1898, the claimant of the Kohnyo filed in the Land Office a written instrument, dated June 10, by which it elected to retain and patent the north end of the Kohnyo claim, and in which it also waived any right to further question or review the decision of the Secretary of the Interior of May 7, 1898, affirming the decision of May 28, 1895.

July 15, 1898, the Commissioner of the General Land Office cancelled the entry of the Kohyno claim as to that portion south of the Mt. Rosa placer.

May 13, 1898, Brown located this seven hundred feet as the Scorpion lode claim. June 23, 1898, Gurney located the same premises as the Hobson's Choice lode claim, and July 16, 1898, Small located the same ground as the P. G. lode claim. July 15 and 16, 1898, the claimant of the Scorpion filed amended and second amended certificates.

On these facts, judgment was rendered for defendant in each case, from which plaintiffs appealed to the Supreme Court of the State. That court reversed the judgment in Gurney v. Brown, and entered judgment that Gurney recover the premises included in the Hobson's Choice location, and for costs; and reversed the judgment in Small v. Brown, and entered judgment “that neither party has established any right to the