Neither the Secretary of War nor the Attorney General nor any
subordinate of either is authorized to waive the exemption of the
United States from judicial process, or to submit the United States
or their property to the jurisdiction of the court in a suit
brought against their officers.
In an action of trespass to try title under the statutes of
Texas, brought by one claiming title in an undivided third part of
a parcel of land, and possession of the whole, against officers of
the United States occupying the
Page 162 U. S. 256
land as a military station and setting up title in the United
States, a judgment that the plaintiff recover the title in the
third part, and possession of the whole jointly with the
defendants, is a judgment against the United States and against
their property.
The United States are not liable to judgment for costs.
In order to charge a purchaser with notice of a prior unrecorded
conveyance of land, he or his agent in the purchase must either
have knowledge of the conveyance or at least of such circumstances
as would, by the exercise of ordinary diligence and judgment, lead
to that knowledge; vague rumor or suspicion is not sufficient, and
notice of a sale does not imply knowledge of an unrecorded
conveyance.
A conveyance of land by a city to the United States in
consideration of the establishment of military headquarters thereon
to the benefit of the city is for valuable consideration.
A purchaser of land for valuable consideration and without
notice of a prior deed takes a good title although his grantor had
notice of that deed.
Even where, as in Texas, a purchaser taking a quitclaim deed is
held to be affected with notice of all defects in the title, a
purchaser from him by deed of warranty is not so affected.
The United States, by warranty deed duly recorded, purchased
land from a city for a military station in consideration of the
benefits to enure to the city from the establishment of the station
there. The attorney employed by the United States to examine the
title testified that the city acquired the land by quitclaim deed,
describing it as "known as the McMillan lot;" that he had
information of a sale to McMillan, but satisfied himself that he
had not paid the purchase money, and searched the records, and
ascertained that no deed to him was recorded, and advised the
United States that the title was good. There was no evidence that
the attorney had any other means of ascertaining whether a deed had
been made to McMillan.
Held that the evidence was
insufficient in law to warrant the conclusion that the United
States took no title as against an unrecorded conveyance to
McMillan.
Where the judgment of the highest court of a state against the
validity of an authority set up under the United States necessarily
involves the decision of a question of law, it is reviewable by
this Court on writ of error whether that question depends upon the
Constitution, laws or treaties of the United States or upon the
local law or upon principles of general jurisprudence.
An action to recover the title and possession of land against
officers of the United States setting up title in the United
States, and defended by the District Attorney of the United States,
was dismissed by the highest court of the state as against the
United States, but judgment was rendered against the officers upon
the ground that they could not avail themselves of the statute of
limitations. This Court, on writ of error, reversed that judgment
and remanded the case for further proceedings. The highest court of
the state thereupon held that the United States were a party to
Page 162 U. S. 257
the action, and decided, upon evidence insufficient in law, that
the United States had no valid title, because they took with notice
of a prior conveyance, and gave judgment against the officers for
title and possession and against the United States for costs. This
Court, upon a second writ of error, reverses the judgment, and
remands the case with instructions to dismiss the action against
the United States, and to enter judgment for the individual
defendants, with costs.
This was an action of trespass to try title, brought in the
District Court of Bexar County in the State of Texas by Mary U.
Schwalby, joining her husband, J. A. Schwalby, against David S.
Stanley, William R. Gibson, Samuel T. Cushing and Joseph C. Bailey,
to recover a parcel of land in the City of San Antonio.
The original petition was filed February 23, 1889, and, as
amended by leave of court December 2, 1889, alleged that Mrs.
Schwalby was seized and possessed in fee simple of an undivided
third part of the land, and she and her husband were entitled to
the possession of the whole, and that the defendants, without any
right or title, ousted them from the possession thereof, and
prayed
"judgment for the recovery of the title to one third of said
premises, and possession of the whole thereof, for costs of said
suit, and for general relief."
The individual defendants, and
"the United States, by their attorney, Andrew J. Evans, acting
by and through instructions from the Attorney General of the United
States, here exhibited to the court,"
(but not at that time made part of the record) filed an amended
answer in which they pleaded not guilty, and set up, among other
defenses, that the title to the land was in the United States, and
the individual defendants had and claimed no title therein, but
were lawfully in possession thereof as officers and agents of the
United States, and specially pleaded that the City of San Antonio,
in 1875, purchased the land and on June 16, 1875, conveyed it to
the United States with no notice of the plaintiffs' claim, and the
United States were innocent purchasers for valuable consideration,
and that from June 16, 1875, to the bringing of this action, the
United States had been in the actual, peaceable, and adverse
possession of the land, continuously enjoying and improving it, no
taxes being due thereon -- under deed duly recorded
Page 162 U. S. 258
and "under title, and color of title, from and under the
sovereignty of the soil, down to the defendant, the United States,
duly registered" -- and therefore pleaded the statutes of
limitations of the State of Texas of three, five, and ten years,
and also that the United States had made permanent and valuable
improvements on the land.
The plaintiffs, by supplemental petition, excepted to the
answer, so far as it was filed in behalf of the United States, upon
the ground that the United States were not a party defendant, and
that neither the district attorney nor the Attorney General of the
United States had authority to submit for adjudication in the
courts of the State of Texas the rights of the United States of
America, as well as upon the ground that the pleas of the statutes
of limitations of the State of Texas constituted no defense to the
action, because the United States were neither bound by nor
protected by those statutes, and because the plaintiffs could not
in any court bring suit against the United States, and to the pleas
of the statutes of limitations replied that on January 18, 1871,
and long before their adverse possession commenced, the plaintiff
Mary U. Schwalby was lawfully married to her co-plaintiff, and had
ever since continued to be a married woman.
Joseph Spence, Jr., intervened by leave of court and filed a
petition similar to the principal one, likewise claiming an
undivided third part of the land.
The parties submitted the case to the decision of the court
without a jury. At the trial, the following facts were proved or
admitted:
The common source of title, through whom all parties -- the
plaintiffs, the intervener, and the United States -- claimed this
land was Anthony M. Dignowity.
On September 13, 1858, he executed to Amanda J. Dignowity, his
wife, a general power of attorney to sell and convey his real
estate, and by virtue thereof she on May 9, 1860, executed a
warranty deed to Duncan B. McMillan of this parcel, reciting the
payment by him of a consideration of $100. This deed was
acknowledged on the same day before William H. Cleveland, notary
public, but was not recorded until September
Page 162 U. S. 259
30, 1889. McMillan died in Louisiana in February, 1865,
intestate, a widower, leaving three children. Mary, the female
plaintiff, who was born September 11, 1848, was married to J. A.
Schwalby January 18, 1871, and was still his wife when this action
was tried; Sarah, who was born August 3, 1854, married to one Neely
February 14, 1875, and died August 17, 1878, leaving two children,
who were still living, and Duncan W. McMillan, born November 2,
1850, who by deed dated and acknowledged March 26, 1889, and
recorded March 29, 1889, conveyed his interest in this land to the
intervener, Joseph Spence, Jr.
Dignowity died in April, 1875, and by his will, admitted to
probate April 22, 1875, devised and bequeathed all his property to
his wife, and made her independent executrix, with full power of
sale and disposition of all his property, and requiring of her no
bond or inventory. By deed of quitclaim and release dated May 1,
1875, and recorded June 1, 1875, the widow, in her own right and as
independent executrix, for the consideration of $1,500, conveyed to
the City of San Antonio four lots of land, one of which was that
now in question, described as "lot number one, in block number two,
known as the
McMillan Lot,'" with special warranty against all
persons claiming by, under, or through Dignowity or his estate. By
warranty deed in the statutory form, dated June 16, 1875, and
recorded October 21, 1875, the City of San Antonio conveyed the
four lots to the government of the United States of America for
military purposes,
"in consideration of one dollar paid to the said City of San
Antonio by the said government, the receipt whereof is hereby
acknowledged, and for divers and other good and sufficient
consideration thereunto moving."
The defendant Stanley, being called as a witness for the
plaintiffs, testified as follows:
"Myself and the other defendants were in possession of the lot
when this suit was brought. I am a brigadier general in the United
States army. My codefendants are officers in the United States
army. We took, held, and hold such possession as such officers of
the United States army. The government of the United States
took
Page 162 U. S. 260
actual possession of the land in controversy in the year 1882.
The land sued for is part of the military reservation of the United
States of America at San Antonio. We hold possession under the
United States of America. According to my understanding, the United
States first took possession of this lot in the year 1875 or 1876.
It was then open prairie. We do not claim title to the land in our
own right, but hold it for the United States. The United States
have made the following improvements upon the lot in controversy
before the institution of this suit [stating them]. These
improvements were made since the year 1881. Before that, the lot
was open prairie. I never heard of a claim against this land until
the commencement of this suit."
Mrs. Dignowity, in a deposition taken by the plaintiffs July 23,
1889, before William H. Houston, notary public, but introduced in
evidence by the defendants, after being shown her deed to the City
of San Antonio, dated May 1, 1875, testified as follows:
"Lot 1 in block 2, named in that deed, was called by me the
'McMillan Lot' because it was the habit of my husband during his
lifetime, whenever he sold a city lot, to mark the name of the
purchaser in pencil on the map and, when the lot was paid for, to
write the name in ink. I presume I found this lot marked in the
name of McMillan in pencil, and therefore called it the 'McMillan
Lot.' This is the only explanation I am now able to give. . . . I
must have known in some way that the lot had been sold, and a
payment made on it, and I know of no other way I should have known
it except as stated above. . . . I have no recollection of ever
making a deed to Duncan B. McMillan of lot 1 in block 2, though I
may have done so. If such a deed was made by me twenty-nine years
ago, I do not see why it was not recorded, unless perhaps the full
purchases money had not been paid. . . . I do not know who was in
possession of the lot from 1860 until my husband's death in 1875,
but believe it was unoccupied. I do not know that it was claimed by
anyone but him. I paid the taxes on it during that time. I never
took actual possession of the lot, but continued to pay the taxes
until it was sold to the city. I never had said lot in
Page 162 U. S. 261
actual possession, and never had a tenant on it. . . . Neither
Duncan B. McMillan nor anyone for him nor any of his heirs ever
claimed an interest in the lot in suit in this case from 1860 to
1875 to my knowledge. When I sold the lot in controversy to the
City of San Antonio, I acted in good faith. I believed for some
reason that Duncan B. McMillan had some claim on the lot, or I
should not have specially quitclaimed it to the city."
In a second deposition, taken by the defendants December 31,
1889, she testified:
"I am in my seventieth year, and reside in San Antonio. . . . I
have seen the original of the deed from me to Duncan B. McMillan,
dated May 9, 1860. I was shown the deed by Captain William Houston.
I have never seen it but that one time, since it was executed by
me, until today. I carefully examined it, and it is a genuine deed.
I don't know why said deed was never recorded until a few months
ago. I don't know whether I ever delivered possession of the lot in
controversy to Duncan B. McMillan, or his agent for him, formally,
or not. I paid taxes on the land until it was sold subsequently. I
don't remember of receiving but fifty dollars on the transaction,
and think that was paid before the date of the deed. I don't
recollect anything more than that I was paid fifty dollars on the
trade, and I executed the deed, and acknowledged it before Mr.
Cleveland, and left it with him. . . . I have not seen Duncan B.
McMillan since 1860. He was then on his way home to Louisiana. . .
. I do remember W. H. Cleveland. He was a lawyer in good standing
about the year 1860. He did at times attend to business both for
myself and husband. I have owned and sold considerable real
property in Texas, and still own property, and have experience in
dealing in lands and city lots. . . . The deed from me to McMillan
recites a consideration of $100, but I do not recollect of
receiving but fifty. I received fifty dollars, as before stated. My
husband never received a cent. I don't know anything about what
other persons may have received. I know nothing of any note. I
don't know anything about the money having been paid to Cleveland.
If it was, I don't know anything about it. "
Page 162 U. S. 262
George C. Altgelt, being called as a witness for the defendants,
testified:
"I am plaintiff's attorney. I do not know Mrs. Mary U. Schwalby
personally. I received the deed to Duncan B. McMillan from Amanda J
Dignowity, attorney in fact for Anthony M. Dignowity, by mail. It
was sent to me by Joseph Spence, Jr., who is a lawyer and land
agent of San Angelo, Tom Green County, Texas. I never saw Mrs.
Schwalby."
James H. French, a witness for the defendants, testified:
"I was mayor of the City of San Antonio in 1875, at the time the
city purchased the property from Mrs. Dignowity. The city paid the
consideration, $_____, to Mrs. Dignowity in 1877. The government
building -- -the officers' quarters -- were placed upon the
Dignowity property. The city had the title examined by A. J. Evans.
When the city purchased from Mrs. Dignowity and paid the money, the
city had notice of this claim -- that is, the claim of D. B.
McMillan. We had this notice from Mrs. A. J. Dignowity. Mrs.
Dignowity refused to give a warranty deed to the lot in
controversy. I, as mayor of the city, had notice of the McMillan
claim at the time the city purchased. There was no consideration
paid direct from the government to the city for the property. It
was a donation from the city to the government. The city never
received any consideration from the government for the conveyance,
but, by reason of the establishment of the military headquarters
here, the city has received a thousandfold benefit on the
consideration paid by it to Mrs. Dignowity."
Andrew J. Evans, being called by the defendants, testified:
"I, as United States District Attorney for the Western District
of Texas, in 1875 made an examination of the title to the lot in
controversy and traced the title back to the case of
Lewis v.
City of San Antonio. I examined the records of deeds for Bexar
County, Texas, and did not find any deed of record from Dignowity,
and after I had made the examination, I believed the title was
good. I so advised the department at Washington, and upon my advice
the government took the deed from the city in good faith."
Upon cross-examination, Evans testified:
"I made the examination
Page 162 U. S. 263
of the title as United States attorney, and advised that the
title was good. I saw the deed from Mrs. Dignowity as executrix,
etc., to the City of San Antonio, read it, and had notice of all
its recitals. I had information of the sale to Duncan B. McMillan,
but I satisfied myself that he had never paid the purchase
money."
He was then asked,
"When you read the deed from Mrs. Dignowity to the City of San
Antonio, and saw there the lot in dispute was quitclaimed, and
described as being "known as the
McMillan Lot,'" did not these
facts create in your mind a suspicion that the title to this lot
was not all right?"
To this question the witness answered, "They did not."
There was no evidence beyond that above stated bearing upon the
question whether the deed from Dignowity to McMillan was ever
delivered, or upon the question whether the United States took the
deed from the City of San Antonio with notice of a previous
conveyance to McMillan.
The District Court of Bexar County sustained the plaintiff's
exceptions to the pleas of the statutes of limitations and ordered
those pleas to be struck out, overruled the other exceptions of the
plaintiffs, and gave judgment for the plaintiffs and the intervener
against the individual defendants and the United States for
two-thirds of the title to the land, and for possession jointly
with the defendants of the whole, and for costs, and allowed to the
United States the value of their improvements. On March 24, 1890,
the United States and the other defendants appealed to the Supreme
Court of the State of Texas, which on March 4, 1892, ordered the
judgment to be set aside and the action dismissed as against the
United States, and affirmed the judgment as against the individual
defendants.
Stanley v. Schwalby, 85 Tex. 348. Upon a writ
of error sued out by the United States and the other defendants,
the judgment of the Supreme Court of Texas was reversed by this
Court at October term, 1892, and the case remanded for further
proceedings not inconsistent with its opinion, reported
147 U. S. 147 U.S.
50. The supreme court of the state thereupon vacated its own
judgment, reversed the judgment of the district court, and
remanded
Page 162 U. S. 264
the case to that court for such further proceedings.
In that court, leave to file an amended answer was then
requested by the individual defendants, with whom, as the record
stated,
"come also the United States of America, by their attorney,
Andrew J. Evans, who is United States Attorney for the Western
District of Texas, duly appointed and commissioned as such, and who
so appears for the said United States of America by direction of
the Attorney General of the United States of America,"
and who, as evidence of such direction, exhibited and filed a
letter dated April 18, 1889, from the Secretary of War to the
Attorney General, relating to this suit, and requesting that "the
proper United States attorney be instructed to appear and defend
the interests of the United States in this matter," and a letter
dated April 20, 1889, from the Attorney General, enclosing the
letter of the Secretary of War, and, "in compliance with his
request," instructing the district attorney "to appear and defend
the interests of the United States involved therein."
Leave being granted, the United States, by the district
attorney, "by direction of the Attorney General, as heretofore
exhibited to the court," together with the individual defendants,
filed two pleas in bar: (1) that this was an action, nominally
against the individual defendants, "but in fact against the United
States of America, a sovereign corporation not liable to suit in
this Court, or any other, in the absence of an act of Congress;"
(2) that the action was against the property of the United States,
and, in connection with each of these pleas, alleged that the
individual defendants were officers in the military service of the
United States, in possession as such of this land, under and by
direction of the President of the United America, the commander in
chief of the army and navy of the United States, and not of their
own volition, will, or wish, and that neither of them ever
pretended to hold or have possession, or right of possession, or
title, or color of title, of the land as individuals, and that this
suit was but a palpable device to maintain an action at law against
the United States and their
Page 162 U. S. 265
property, and should not be further maintained, and also pleaded
not guilty, and that the United States had held adverse possession
in good faith, under a warranty deed made to them in 1875 by the
City of San Antonio, and without knowledge or suspicion of any
adverse title, and that the United States were innocent purchasers
of the land for a valuable consideration, without notice of the
plaintiffs' unrecorded claim, and set up the statutes of
limitations, and a claim for improvements, as in their former
answer.
The case was again tried by the district court without a jury,
and the same evidence introduced as at the first trial. The court
overruled the first and second pleas in bar and adjudged that
Spence, the intervener, take nothing by his petition; that the
plaintiffs recover from the individual defendants one undivided
third part of the lot in question, and the sum of $126.66 for their
use and occupation of that part, and costs, and be put in joint
possession with the defendants, and that the United States be
allowed the sum of $333.33 for improvements.
Thereupon, as the record stated,
"all parties, to-wit, the plaintiff, the intervener, the
defendants, and the United States of America in open court excepted
to the judgment of the court and gave due notice of appeal."
And a report or statement of the case, called in the Texas
practice a "Statement of Facts, or Agreed statement of the
Pleadings and Proof" (the material parts of which are given above),
was made up by the parties and certified by the judge.
Tex.Rev.Stat. of 1879, §§ 1377, 1414; Stat. April 13,
1892, c. 15, § 24.
Upon a writ of error sued out by the United States, and an
assignement of errors by the defendants, and upon cross assignments
of errors by the plaintiffs and by the intervener, the case was
taken to the court of civil appeals for the Fourth supreme Judicial
District of the State of Texas, which affirmed the judgment, except
as to the allowance for improvements, and thereupon, "proceeding to
render such judgment as should have been rendered by the court
below," adjudged that the plaintiffs recover of the individual
defendants one undivided third part of the land [describing it],
and the sum of $126.66 for the use and
Page 162 U. S. 266
occupation of that part, with interest thereon from the date of
the judgment below, and costs, and
"have their writ of possession against said defendants, and all
other persons who have entered said premises since the filing of
this suit on the 23d day of February, 1889, placing them in joint
possession with the defendants;"
that Spence, the intervener, take nothing by his suit, and
"that the plaintiff in error, the United States of America, who
voluntarily made itself a party in the court below, take nothing by
its plea, and pay all costs of this Court and of the court
below."
The opinions on rendering that judgment, and on denying a motion
for a rehearing, are reported, under the name of
United States
v. Schwalby in 8 Tex.Civ.App. 679, 685.
The Supreme Court of the State of Texas denied a petition of the
United States for a writ of error from that court to the court of
civil appeals. The Chief Justice of the court of civil appeals
refused to allow to the United States a writ of error to bring up
the case to this Court. The present writ of error was thereupon
sued out by the individual defendants and the United States, and
was allowed by a justice of this Court.
MR. JUSTICE GRAY, after stating the case, delivered the opinion
of the Court.
This action was brought in a district court of the State of
Texas by Mary A. Schwalby and her husband against General Stanley
and other officers of the army to try the title to a parcel of
land, part of the military reservation of the United States at San
Antonio. The plaintiffs claimed title in one-third of the land, and
possession of the whole, and Joseph Spence, Jr., intervening, also
claimed title in one-third. The district attorney, professing to
act in behalf of the United States under instructions from the
Attorney General, joined with the defendants in an answer setting
up these
Page 162 U. S. 267
defenses: (1) that the action was really against the United
States, who were not liable to be sued; (2) not guilty; (3) title
in the United States; (4) the statutes of limitations of Texas; (5)
permanent and valuable improvements by the United States.
At the first trial, the inferior court gave judgment for the
plaintiffs and the intervener against the United States as well as
against the original defendants for two-thirds of the title in the
land, and for joint possession with the defendants of the whole,
and allowed the United States for their improvements. On appeal
from that judgment, the supreme court of the state, on March 4,
1892, held that the district attorney could not submit the rights
of the United States to the jurisdiction of the court; that the
plaintiffs and the intervener had made out their title; that the
United States were not innocent purchasers, and had no title to the
land, and that the statutes of limitations, as they did not bind
the United States, could not be pleaded by the United States, or by
their officers acting under them, and therefore disallowed the
claim for improvements, set aside the judgment, and dismissed the
action as against the United States and affirmed the judgment
against the other defendants. 85 Tex. 348. But this Court, at
October term, 1892, upon writ of error, held that the United States
and their agents were entitled to the benefit of the statutes of
limitations, and therefore, without any consideration of the case
upon its merits, reversed the judgment and remanded the case for
further proceedings not inconsistent with its opinion.
147 U. S. 147 U.S.
508.
The case having been remanded accordingly to the supreme court
of the state, and by that court to the district court, an amended
answer, setting up substantially the same defenses as before was
filed by the individual defendants and by the district attorney,
purporting to act in behalf of the United States under the
instructions of the Attorney General. Those instructions (then
first filed in the case) appear to have been given by the Attorney
General at the request of the Secretary of War, and to have been
only "to appear and defend the interests of the United States
involved" in this suit. The
Page 162 U. S. 268
district court, upon the same evidence as at the first trial,
adjudged that the plaintiffs recover from the individual defendants
one undivided third part of the land and costs, and be put in joint
possession with them, and that the United States be allowed for
their improvements.
The case was taken by writ of error to the court of civil
appeals, which had been vested, by the statutes of Texas of April
13, 1892, with appellate jurisdiction from the district courts,
with a provision for the review of its decisions by the supreme
court of the state upon petition for a writ of error. Texas
Rev.Stat. §§ 1011a-1011c; Stat. 1892, c. 14, § 1; c.
15, § 5; Gen.Laws, 1st Sess. 22d legislature, pp. 19, 20,
26.
The court of civil appeals affirmed the judgment of the district
court except as to the allowance for improvements, and, "proceeding
to render such judgment as should have been rendered by the court
below," adjudged that the plaintiffs recover judgment against the
individual defendants for one undivided third part of the land, and
for costs, and
"have their writ of possession against said defendants, and all
other persons who have entered said premises since the filing of
this suit, placing them in joint possession with the
defendants,"
and that the United States pay all the costs in the case. The
views of that court are shown by the following extracts from its
opinion:
"In 1881 or 1882, the United States went into possession of the
lot by virtue of the deed [from the City of San Antonio], and were
occupying, using, and enjoying the same up to the time the suit was
instituted, on February 23, 1889. The United States had actual
notice that the land had been conveyed by Mrs. Dignowity to Duncan
B. McMillan at the time the deed was made to them by the City of
San Antonio, and did not make the improvements in good faith. The
claim of Joseph Spence was barred by five years' limitation, but,
Mrs. Schwalby being under the disability of coverture, the statute
did not run as to her. . . . The United States were not sued, and
neither was it attempted to subject the property of the United
States to suit, and neither of these propositions was advanced or
held by the district court. Stanley and others were sued
individually as trespassers, not as
Page 162 U. S. 269
officers of the United States, and the United States voluntarily
made themselves parties to the suit. That this suit was properly
brought has been decided in a number of cases, and has been
reaffirmed in this identical case by the Supreme Court of the
United States. The jurisdiction of the court is not ousted because
the individuals sued assert authority to hold possession of the
property as officers of the United States government. They must
show sufficient authority in law to protect them. The mere fact
that individuals have been placed in possession by the government
would not be a valid defense unless the government had the lawful
authority to so place them. . . . If McMillan had not paid the
purchase money, that did not place appellants in any better
position as to notice. They had actual notice of his claim, and
took the risk in making the improvements."
8 Tex.Civ.App. 679, 681-682, 684.
A petition for a writ of error to the court of civil appeals
having been presented to the supreme court of the state and denied,
the present writ of error from this Court was properly addressed to
the court of civil appeals, in which the record remained. Rev.Stat.
§ 709;
Gregory v.
McVeigh, 23 Wall. 294;
Polleys v. Black River
Co., 113 U. S. 81;
Fisher v. Perkins, 122 U. S. 522.
It is contended by the Solicitor General in behalf of the United
States that upon the facts shown by the record, the judgment should
be reversed for several reasons, all of which are worthy of
consideration, and may conveniently be considered in the following
order:
First. That the suit is against the United States, and against
property of the United States.
Second. That the claim of the plaintiffs was barred by the
statute of limitations.
Third. That the deed from Dignowity to McMillan, under whom the
plaintiffs claim, was never delivered.
Fourth. That the United States, when they took their deed from
the City of San Antonio, had no notice of a previous conveyance to
McMillan.
It is a fundamental principle of public law, affirmed by a
Page 162 U. S. 270
long series of decisions of this Court and clearly recognized in
its former opinion in this case, that no suit can be maintained
against the United States, or against their property in any court
without express authority of Congress.
147 U. S. 147
U.S. 512.
See also Belknap v. Schild, 161 U. S.
10. The United States, by various acts of Congress, have
consented to be sued in their own courts in certain classes of
cases, but they have never consented to be sued in the courts of a
state in any case. Neither the Secretary of War nor the Attorney
General nor any subordinate of either has been authorized to waive
the exemption of the United States from judicial process or to
submit the United States or their property to the jurisdiction of
the court in a suit brought against their officers.
Case v.
Terrell, 11 Wall. 199,
78 U. S. 202;
Carr v. United States, 98 U. S. 433,
98 U. S. 438;
United States v. Lee, 106 U. S. 196,
106 U. S. 205.
The original instructions from the Attorney General to the district
attorney, having now been filed and made part of the record, are
shown to have been, as they were at the former stage of this case
supposed by the Supreme Court of Texas and by this Court to be, no
more than "to appear and defend the interest of the United States
involved" in this suit -- that is to say, by appearing and taking
part in the defense of the officers and, if deemed advisable, by
bringing the rights of the United States more distinctly to the
notice of the court by formal suggestion in their name. 85 Tex.
354,
147 U. S. 147
U.S. 513. As the present CHIEF JUSTICE then remarked, repeating the
words of Chief Justice Marshall in the leading case of
The Exchange,
7 Cranch 116,
11 U. S. 147,
"There seems to be a necessity for admitting that the fact might be
disclosed to the court by the suggestion of the attorney for the
United States." The answer actually filed by the district attorney,
if treated as undertaking to make the United States a party
defendant in the cause and liable to have judgment rendered against
them, was in excess of the instructions of the Attorney General and
of any power vested by law in him or in the district attorney, and
could not constitute a voluntary submission by the United States to
the jurisdiction of the court.
Page 162 U. S. 271
The judgments of the courts of the State of Texas appear to have
been largely based on
United States v. Lee, above cited.
In that case, an action of ejectment was brought in the circuit
court of the United States against officers occupying, in behalf of
the United States, lands used for a military station and for a
national cemetery. The Attorney General filed a suggestion of these
facts and insisted that the court had no jurisdiction. The
plaintiffs produced sufficient evidence of their title and
possession, and the United States proved no valid title. This Court
held that the officers were trespassers, and liable to the action,
and therefore affirmed the judgment below, which, as appears by the
record of that case, was simply a judgment that the plaintiffs
recover against the individual defendants the possession of the
lands described, and costs. And this Court distinctly recognized
that if the title of the United States were good, it would be a
justification of the defendants, that the United States could not
be sued directly by original process as a defendant except by
virtue of an express act of Congress, and that the United States
would not be bound or concluded by the judgment against their
officers. 106 U.S.
106 U. S. 199,
106 U. S. 206,
106 U. S.
222.
In an action of trespass to try title under the laws of Texas, a
judgment for the plaintiff is not restricted to the possession, but
may be (as it was in this case) for title also. By section 4784 of
the Revised Statutes of the state, "the method of trying title to
lands, tenements or other real property shall be by action of
trespass to try title." By section 4808,
"upon the finding of the jury, or of the court where the case is
tried by the court, in favor of the plaintiff for the whole or any
part of the premises in controversy, the judgment shall be that the
plaintiff recover of the defendant the title or possession or both,
as the case may be, of such premises, describing them, and where he
recovers the possession, that he have his writ of possession."
By section 4811, the judgment
"shall be conclusive, as to the title or right of possession
established in such action, upon the party against whom it is
recovered, and upon all persons claiming from, through, or under
such party by title arising after the commencement of such
action.
Page 162 U. S. 272
And it has been declared by the supreme court of the state that,
by the statutory action of trespass to try title,"
"it was unquestionably the legislative intention to provide a
simple and effectual remedy for determining every character of
conflicting titles and disputed claims to land irrespective of the
fact of its actual occupancy or mere pedal possession,"
and "a method of vesting and divesting the title to real estate,
in all cases where the right or title, or interest and possession,
of land may be involved," by partition or otherwise.
Bridges v.
Cundiff, 45 Tex. 440;
Titus v. Johnson, 50 Tex. 224,
238;
Hardy v. Beaty, 84 Tex. 562, 568.
In the case at bar, the United States and their officers in
their behalf claimed title in the whole land. The plaintiffs
claimed title in one undivided third part only. The final decision
below was against the claim of the intervener for another third
part of the land. It was thus adjudged that the United States had
the title in that part, if not also in the remaining third, to
which no adverse claim was made. Such being the state of the case,
the final judgment in favor of the plaintiffs for the third part
awarded to then, and for possession of the whole jointly with the
individual defendants, was directly against the United States and
against their property, and not merely against their officers.
The judgment for costs against the United States was clearly
erroneous in any aspect of the case.
United
States v. Hooe, 3 Cranch 73,
7 U. S. 91-92;
United States v.
Barker, 2 Wheat. 395;
The
Antelope, 12 Wheat. 546,
25 U. S. 550;
United States v.
Ringgold, 8 Pet. 150,
33 U. S. 163;
United States v.
Boyd, 5 How. 29,
46
U. S. 51.
But, with a view to the ultimate determination of the case, it
is fit to proceed to a consideration of the other questions arising
therein.
That the United States and their officers were entitled to avail
themselves of the statutes of limitations was adjudged when this
case was first brought before this Court.
147 U. S. 147 U.S.
508. The court of civil appeals of the state has now held that
those statutes did not run against Mrs. Schwalby, because she was
under the disability of coverture.
The principal grounds upon which the Solicitor General
Page 162 U. S. 273
contends that this conclusion was unwarranted by the facts of
the case are as follows: Dignowity, under whom all parties claimed
title, had the title and the consequent right of possession of the
land at the time of his supposed deed to McMillan in 1860. The
possession is to be presumed to have continued in him, and in those
claiming under the subsequent deed of his widow to the City of San
Antonio in May, 1875, and the city's deed to the United States in
June, 1875. There was no evidence that McMillan or anyone claiming
under him was ever in actual possession of the land. If the title
and the right of possession were ever in McMillan, they descended
to his daughter Mary and her co-heirs upon his death in 1865. She
was then under the disability of infancy, having been born
September 11, 1848. On September 11, 1869, she became of age, and
the statutes of limitations began to run against her, and could
not, by a general rule of law recognized alike by this Court and by
the Supreme Court of Texas, be again suspended by the new
disability created by her subsequent marriage to Schwalby on
January 18, 1871.
McDonald v. Hovey, 110 U.
S. 619;
White v. Latimer, 12 Tex. 61.
See
also McMasters v. Mills, 30 Tex. 591;
Jackson v.
Houston, 84 Tex. 622.
But the statutes of limitations of Texas do not appear to run
against a suit to recover real estate except in favor of one in
"adverse possession," which is defined to be "an actual and visible
appropriation of land, commenced and continued under a claim of
right inconsistent with and hostile to the claim of another."
Paschal's Digests, arts. 4621-4624; Rev.Stat. §§
3191-3199. There was no affirmative evidence showing that such
adverse possession of the United States, or of their predecessors
in title, the City of San Antonio and Dignowity, began before 1882,
at which time Mrs. Schwalby was under the disability of coverture,
or who, if anyone, before that time was in actual possession of the
land, although Mrs. Dignowity testified that she paid the taxes
upon it from 1860 until she conveyed it to the city in May, 1875.
The conclusion that the plaintiffs' claim was not barred may
therefore have rested upon a possible inference of fact, rather
than upon a determination of law.
Page 162 U. S. 274
Upon the question whether the deed from Dignowity to McMillan
was ever delivered to the grantee or to anyone in his behalf or
claiming under him the evidence was in substance as follows: the
deed was executed May 9, 1860, by Mrs. Dignowity under a power of
attorney from her husband, was acknowledged by her on the same day
before William H. Cleveland, who was a notary public and was a
lawyer who had sometimes done business for her husband and herself,
and was left by her with Cleveland. The consideration named in the
deed was $100, only $50 of which was paid, and that was received by
her about the time of executing the deed. She testified that she
did not know whether or not she ever formally delivered possession
of the land to McMillan or his agent, but that she continued to pay
the taxes on the land until she sold and conveyed it to the City of
San Antonio, in May, 1875. The deed to McMillan was not recorded
until September 30, 1889 -- more than twenty-nine years after its
execution. There was no evidence where the deed was during that
time, or by whom it was left for record, nor was there any
explanation of the delay in recording it. Mrs. Schwalby's attorney
testified that he never saw her and did not know her personally,
and that he received the deed by mail from Spence, a lawyer and
land agent. Spence was the intervener in this case, claiming title
in one-third of the land under a deed from McMillan's son executed,
acknowledged, and recorded in March, 1889.
This evidence is far from satisfactory as proof of an actual
delivery of the deed. But considering that the deed to McMillan may
possibly have come from him into the hands of his son and thence
into those of Spence, and that some presumption of delivery may
arise from the plaintiffs' possession of the deed, we are not
prepared to say that the evidence was insufficient as matter of law
to warrant the conclusion that the deed was in fact delivered.
See Sicard v.
Davis, 6 Pet. 124,
31 U. S. 137;
Gaines v.
Stiles, 14 Pet. 322,
39 U. S.
327.
The more serious question is whether there was any evidence that
the United States took the deed from the City of San Antonio in
June, 1875, with notice of a previous conveyance
Page 162 U. S. 275
to McMillan. All the evidence which can be supposed to have any
bearing upon this point was as follows:
The deed from Mrs. Dignowity to the City of San Antonio was a
quitclaim deed, and the mayor testified that at the time of the
purchase by the city he had notice from Mrs. Dignowity of
McMillan's claim. But the deed from the city to the United States
was a deed of warranty, conveying this and other lands to the
United States for military purposes. The consideration recited
therein was not merely the payment of the nominal sum of one
dollar, but "divers and other good and sufficient considerations
thereunto moving," and the conveyance was in fact, as appears by
the uncontradicted testimony of the mayor, for the very valuable
consideration inuring to the city from the establishment of the
military headquarters there.
The district attorney, who made the examination of the title for
the United States, testified that he examined the records of the
county, that he read the quitclaim deed from Dignowity to the city
and had notice of all its contents, that he found no record of any
other deed from Dignowity, and that, after making the examination,
he believed the title was good and so advised the department at
Washington, and upon his advice the government took the deed from
the city in good faith. Upon cross-examination, he testified that
he "had information of the sale to McMillan," but satisfied himself
that he had never paid the purchase money, and that the facts that
the deed from Dignowity to the city was a quitclaim deed, and
described the land as "known as the
McMillan Lot,'" created no
suspicion in his mind that the title was not all right.
By the statutes of Texas, lands cannot be conveyed from one to
another, except by instrument in writing, and unrecorded
conveyances of lands are void as against subsequent purchasers for
valuable consideration without notice, but are valid as between the
parties and their heirs and as to all subsequent purchasers with
notice thereof or without valuable consideration. Paschal's Digest,
arts. 997, 4988; Rev.Stat. §§ 548, 549, 4332. These
provisions have not been regarded
Page 162 U. S. 276
as introducing a new rule, but only as declaratory of the law as
recognized in the chancery jurisprudence of England and of the
United States.
Parks v. Willard, 1 Tex. 350.
A purchaser of land for valuable consideration may doubtless be
affected by knowledge which an attorney, solicitor, or conveyancer
employed by him in the purchase acquires or has while so employed,
because it is the duty of the agent to communicate such knowledge
to his principal and there is a presumption that he will perform
that duty.
The Distilled
Spirits, 11 Wall. 356,
78 U. S. 367;
Rolland v. Hart, L.R. 6 Ch. 678, 682;
Bank v.
Barry, L.R. 7 H.L. 135;
Kauffman v. Robey, 60 Tex.
308. But, in order to charge a purchaser with notice of a prior
unrecorded conveyance, he or his agent must either have knowledge
of the conveyance or at least of such circumstances as would, by
the exercise of ordinary diligence and judgment, lead to that
knowledge, and vague rumor or suspicion is not a sufficient
foundation upon which to charge a purchaser with knowledge of a
title in a third person.
Wilson v. Wall,
6 Wall. 83;
Flagg v. Mann, 2 Sumner 486, 551;
Montefiore v. Browne, 7 H.L.Cas. 241, 262, 269;
Bailey
v. Barnes (1894), 1 Ch. 25;
Wethered v. Boon, 17 Tex.
143. Notice of a sale does not imply knowledge of an outstanding
and unrecorded conveyance.
Mills v. Smith,
8 Wall. 27;
Holmes v. Stout, 10 N.J.Eq. 419;
Lamb v.
Pierce, 113 Mass. 72.
A valuable consideration may be other than the actual payment of
money, and may consist of acts to be done after the conveyance.
Prewit v. Wilson, 103 U. S. 22;
Hitz v. Metropolitan Bank, 111 U.
S. 722,
111 U. S. 727;
4 Kent Com. 463; Dart on Vendors (6th ed.) 1018, 1019. The
advantage inuring to the City of San Antonio from the establishment
of the military headquarters there was clearly a valuable
consideration for the deed of the city to the United States.
A purchaser of land for value and without notice of a prior deed
holds and can convey an indefeasible title, and therefore the title
either of one who without notice purchases from one who purchased
with notice or of a purchaser with notice from a purchaser without
notice is good.
Harrison
Page 162 U. S. 277
v. Forth, before Lord Somers, Pre.Ch. 51;
Boone v.
Chiles, 10 Pet. 177,
35 U. S. 209;
Flynt v. Arnold, 2 Met. 619, 623; 4 Kent Comm. 179. While
it is held in Texas that a purchaser who takes a quitclaim deed of
his grantor's interest only is affected with notice of all defects
in the title, yet mere knowledge that the deed is in that form
cannot affect the title of one claiming under a subsequent deed of
warranty from the grantee.
United States v. California Land
Co., 148 U. S. 31,
148 U. S. 46-47;
Moore v. Curry, 36 Tex. 668;
Graham v. Hawkins,
38 Tex. 628. Still less could oral notice to the mayor of
McMillan's claim, not shown to have been communicated to the United
States or their attorney, affect their title under the subsequent
deed of warranty from the city.
The attorney's "information of the sale to McMillan," with the
purchase money unpaid, was evidently no more than of a bargain
between Mrs. Dignowity and McMillan, and not of any deed of
conveyance. He searched the records and found no such deed, and
advised the United States that the title was good. The deed from
Mrs. Dignowity to McMillan, now produced, had then already remained
unrecorded for fifteen years, and there is no evidence in whose
custody it was or that the attorney had any reason to suppose that
it existed, or could have learned anything about it from Mrs.
Dignowity, or knew, or had the means of ascertaining, where
McMillan lived or whether he was living or dead. The mere
description of the land as "known as the McMillan Lot" raised no
inference that it was still owned, if it ever had been, by anyone
of that name.
The evidence appears to us wholly insufficient, in fact and in
law, to support the conclusion that the attorney had any notice of
the previous deed to McMillan, or any knowledge of such
circumstances tending to prove the existence of such a deed that he
should have considered or treated them as of any weight, or have
reported them to the authorities at Washington. The inevitable
conclusion as matter of law is that the United States acquired a
good and valid title as innocent purchasers for valuable
consideration and without notice of a previous conveyance to
McMillan.
Page 162 U. S. 278
As was said by this Court when this case was brought here
before,
"The validity of an authority exercised under the United States
is drawn in question, and where the final judgment or decree in the
highest court of a state in which a decision could be had is
against its validity, jurisdiction exists in this Court to review
that decision on writ of error."
147 U.S.
145 U. S. 519;
Rev.Stat. § 709.
The validity of the authority exercised by the defendants as
officers of the United States depends, according to the decision in
United States v. Lee, before cited, upon the question
whether the United States had or had not a good title in the
land.
In
United States v. Thompson, 93 U. S.
586,
93 U. S. 588,
Chief Justice Waite said:
"Judgments in the state courts against the United States cannot
be brought here for reexamination upon a writ of error except in
cases where the same relief would be afforded to private
parties."
This dictum, in so general a form, is in danger of misleading,
and it went beyond anything required by the decision of that case,
in which the only issue understood to have been decided in the
state courts was one of payment, and no authority under the
Constitution, laws, or treaties of the United States was set up an
decided against. The United States are in the same condition as
other litigants, in the sense that neither can invoke the
jurisdiction of this Court by writ of error to a state court unless
that court has decided against a right claimed under the
Constitution, laws, or treaties of the United States. But surely
the United States have and may assert a right, privilege, or
immunity under the Constitution of the United States which private
parties could not have.
We do not undertake to review the conclusions of the state court
as to the effect of Mrs. Schwalby's disability under the statutes
of limitations, or as to the delivery of the deed to McMillan, both
perhaps depending, as has been seen, upon question of fact.
Dower v. Richards, 151 U. S. 658;
Israel v. Arthur, 152 U. S. 355;
In re Buchanan, 158 U. S. 31,
158 U. S. 36.
But so far as the judgment of the state court against the
validity of an authority set up by the defendants under the
Page 162 U. S. 279
United States necessarily involves the decision of a question of
law, it must be reviewed by this Court whether that question
depends upon the Constitution, laws, or treaties of the United
States or upon the local law or upon principles of general
jurisprudence. For instance, if a marshal of the United States
takes personal property upon attachment on mesne process issued by
a court of the United States, and is sued in an action of trespass
in a state court by one claiming title in the property, and sets up
his authority under the United States, and judgment is rendered
against him in the highest court of the state, he may bring the
case by writ of error to this Court, and as his justification
depends upon the question whether the title to the property was in
the defendant in attachment or in the plaintiff in the action of
trespass, this Court, upon the writ of error, has the power to
decide that question so far as it is one of law, even if it depends
upon local law or upon general principles.
Buck v.
Colbath, 3 Wall. 334;
Etheridge v. Sperry,
139 U. S. 266;
Bock v. Perkins, 139 U. S. 628.
And see McNulta v. Lockridge, 141 U.
S. 327,
141 U. S. 331;
Dushane v. Beall, 161 U. S. 513.
The decision of the court of civil appeals that the United
States had notice of the deed to McMillan, and therefore had no
title in the land, and judgment should be rendered against their
officers for both title and possession, was a decision in matter of
law against the validity of the authority set up by those officers
under the United States, and as such was reviewable by this Court,
and, being erroneous, must be reversed.
The proper form of the judgment to be entered by this Court
remains to be considered, and, in order to ascertain this, it will
be convenient to trace the history of the statutes and decisions
upon that subject.
Under the Judiciary Act of September 24, 1789, c. 20, § 25,
a final judgment or decree in the highest court of a state in which
a decision could be had might "be reexamined and reversed or
affirmed" in this Court upon a writ of error,
"in the same manner and under the same regulations, and the writ
shall have the same effect, as if the judgment or decree
complained
Page 162 U. S. 280
of had been rendered or passed in a circuit court, and the
proceeding upon the reversal shall also be the same, except that
the supreme court, instead of remanding the cause for a final
decision as before provided, may at their discretion, if the cause
shall have been once remanded before, proceed to a final decision
of the same, and award execution."
1 Stat. 86.
The qualification "if the cause shall have been once remanded
before" restricted only the power to proceed to a final decision
and award execution in this Court, and did not restrict the power
of this Court to reverse or affirm the judgment of the state court,
as justice might require. Accordingly, in the leading case upon the
subject of the appellate jurisdiction of this Court from the courts
of a state, this Court, upon the first writ of error to the Court
of Appeals of Virginia, not only reversed the judgment of that
court, but affirmed the judgment of the inferior court of the
state, which had been reversed by the Court of Appeals, and issued
its mandate to the Court of Appeals accordingly; and, upon that
court's declining to obey the mandate, this Court, upon a second
writ of error, rendered judgment in the same terms as before.
Fairfax v.
Hunter, 7 Cranch 603,
11 U. S. 628;
Martin v.
Hunter, 1 Wheat. 304,
14 U. S. 323,
14 U. S.
362.
The Act of February 15, 1867, c. 28, § 2, revising the
subject, omitted the qualification, "if the cause shall have been
once remanded before," and put the last clause of the section in
this form:
"And the proceeding upon the reversal shall also be the same,
except that the supreme court may, at their discretion, proceed to
a final decision of the case, and award execution, or remand the
same to an inferior court."
14 Stat. 386. The sections of the acts of 1789 and 1867 are
printed side by side in 17 Wall. 681-682 [see printed volume].
In
Maguire v. Tyler, this Court, at December term,
1869, adjudged that a decree in equity of the Supreme Court of
Missouri be reversed, and the case remanded with directions to
enter a decree affirming the decree of an inferior court of the
state, but, upon motion of counsel, modified its judgment so as to
remand the cause of further proceedings in conformity to the
opinion of this Court, and declared this to "be more
Page 162 U. S. 281
in accordance with the usual practice of the court in such
cases."
75 U. S. 8 Wall.
650,
75 U. S. 658,
75 U. S. 662.
The Supreme Court of Missouri, after receiving the mandate of this
Court, entered a decree dismissing the suit because there was an
adequate remedy at law, and thereupon this Court, at December term,
1872, upon a second writ of error, entered judgment here reversing
that decree, with costs, and ordering a writ of possession to issue
from this Court, and speaking by Mr. Justice Clifford, after
referring to the difference between the provisions of the acts of
1789 and 1867, said:
"Much discussion of those provisions is unnecessary, as it is
clear that the Court, under either, possesses the power to remand
the cause or to proceed to a final decision. Judging from the
proceedings of the state court under the former mandate, and the
reasons assigned by the court for their judicial action in the
case, it seems to be quite clear that it would be useless to remand
the cause a second time, as the court has virtually decided that
they cannot, in their view of the law, carry into effect the
directions of this Court as given in the mandate. Such being the
fact, the duty of this Court is plain, and not without an
established precedent."
84 U. S. 17 Wall.
253,
84 U. S.
289-290,
84 U. S. 293.
The precedent referred to was
Martin v. Hunter, above
cited.
Section 2 of the act of 1867 was substantially reenacted in
Rev.Stat. § 709. By the act of February 18, 1875, c. 80,
entitled "An act to correct errors and to supply omissions in the
Revised Statutes of the United States," § 709 of the Revised
Statutes was amended by striking out this provision,
"and the proceeding upon the reversal shall be the same except
that the supreme court may at their discretion, proceed to a final
decision of the case and award execution, or remand the same to the
court from which it was so removed."
18 Stat. 318; Rev.Stat. (2d. ed.) p. 133.
The repeal of this provision may not have revived that provision
of the act of 1789 which had been superseded by the act of 1867.
Rev.Stat. § 12. But it did not affect the general power,
conferred by § 709 of the Revised Statutes, as by all former
acts, by which the judgment of the state court may be "reexamined
and reversed or affirmed" by this
Page 162 U. S. 282
court, and in the exercise of which this Court, in
Fairfax
v. Hunter and
Martin v. Hunter, above cited, ordered
the proper judgment to be entered in the state court.
Under the statutes and practice of the State of Texas, the
appellate court, upon a statement of the case certified by the
judge, may, as the supreme court and the court of civil appeals did
in this case, and as this Court does upon a finding of facts by the
circuit court of the United States in cases tried by the court upon
a jury being duly waived, render such judgment as should have been
rendered by the court below. Texas Rev.Stat. Tex. § 1048;
Stat. April 13, 1892, c. 14, § 1; Stat. April 13, 1892, c. 15,
§ 36;
McIntosh v. Greenwood, 15 Tex. 116;
Creager
v. Douglass, 77 Tex. 484;
Fort Scott v. Hickman,
112 U. S. 150,
112 U. S. 165;
Rolling Mill v. Rhodes, 121 U. S. 255,
121 U. S. 264.
In the present case, the previous course of the proceedings has
been such as to make it proper that the usual practice, by which,
upon reversing a judgment of the highest court of a state, the case
is remanded generally for further proceedings not inconsistent with
the opinion of this Court, should be departed from, and that this
Court should instruct the state court to enter a judgment finally
disposing of the case.
The Supreme Court of Texas, after the first trial, held that the
United States were not a party to the action, and dismissed it as
to the United States, but held that the United States were not
innocent purchasers for value, and denied to the United States and
their officers the benefit of the statutes of limitations, and
therefore gave judgment for the plaintiffs against those officers.
This Court, upon the first writ of error, reversed that judgment,
and, assuming the statutes of limitations to afford a conclusive
defense, refrained from considering the case upon its merits and
remanded it for further proceedings in the courts of the state. The
case was then submitted to the inferior court of the State of
Texas, and to the court of civil appeals, upon the same facts as
before, and the court of civil appeals held that the United States
were a party to the action, thereby in effect overruling the former
judgment of the supreme court of the state, and decided, upon
evidence wholly insufficient in law, that the
Page 162 U. S. 283
United States had no valid title to the land, because they took
with notice of a prior conveyance to McMillan, and gave judgment
for the plaintiffs against the individual defendants, acting under
lawful authority of the United States, for the title in an
undivided third part of the land demanded, and for joint possession
of the whole, and also gave judgment against the United States for
costs, to which the United States are never liable. The supreme
court of the state denied a petition for a writ of error to review
that judgment; the Chief Justice of the court of civil appeals
refused to allow a writ of error from this Court to review it, and
the allowance of the present writ of error was obtained from a
justice of this Court.
Judgment of the court of civil appeals reversed, and case
remanded to that court, with instructions to dismiss the action as
against the United States, and to enter judgment for the individual
defendants, with costs.
