(after stating the facts as above). Upon the foregoing facts two questions arise: First, did the appellant acquire title to the bark prior to the executive order of June 30,1917; and, second, if so, could he acquire a valid title as against the United States, through judicial proceedings instituted in a state court, after the adoption of the joint resolution by Congress, and before the date of the executive order? If the first question is answered in the negative, a consideration of the second question becomes unnecessary.

It seems quite apparent to us that the appellant has never acquired title to the bark. A sale on credit was at no time contemplated by the parties. While a one-day note was deposited in escrow, the escrow agreement itself provided that, upon delivery of the bill of sale and the canceled German registry, the bank should place $90,000 of the proceeds of the sale to the credit of the German owner for transfer to it, and $20,000 to the credit of Orrisch. This shows very clearly that cash was to be substituted for the note before the contract was finally consummated. Furthermore, the complaint in the action in the state court made no reference to a sale on credit, and the final decree directed the commissioner to execute and deliver to the appellant, on behalf of the German owner, a good and sufficient conveyance of the bark and to deposit the purchase price thereof, to wit, the sum of $110,000 in-a depositary to be selected by the government of the United States to be there held subject to its order.

This shows very clearly that the delivery of the bill of sale and the payment of the purchase price in cash were to be concurrent acts. No consideration was in fact paid to or received by the commissioner at the time of the execution of the bill of sale. Indeed, there was no consideration paid at any time, aside from the promissory note of February 7, 1917, and that did not find its way into the hands of the commissioner until more than a year after the alleged sale took place. The letter to the commissioner of June 10, 1918, shows very clearly that even at that' late day *214the sale had not been consummated. Furthermore, the commissioner testified that the bill of sale executed by him was never delivered to the appellant. There was no testimony to the contrary, and such an abuse of trust or duty on his part will not be presumed.

For these reasons the appellant utterly failed to establish either title or right of possession, and the decree is therefore affirmed.