The defendant in error filed a bill against the plaintiff in
error in a state court in Illinois to compel the performance of a
contract to convey to her land in that state. The case proceeded to
judgment in plaintiffs favor in the supreme court of the state, but
was remanded with directions to take an account for the purpose of
ascertaining for how much payment should be directed. A writ of
error, sued out from this Court to review that judgment was
dismissed here on the ground that the judgment was not final. It
does not appear that any right or title had been specially set up
or claimed under any statute of, or authority exercised under, the
United States in the courts below, or in the Supreme Court of
Illinois, prior to such judgment of that Court. It appeared on the
second hearing that, prior to September 10, 1884, the United States
had seized the property for revenue taxes due from a firm then
occupying it as a distillery, the defendant in error being in no
way connected with the firm, that the property was sold, the
government bidding it in and taking a deed for it, and that the
government conveyed to the plaintiff in error. In the account
stated, the defendant in error was required to repay the amount so
paid with interest. It also appeared that the plaintiff in error,
after the case went back, moved to amend its answer by setting up
that title as a right and title acquired and claimed under the
Constitution, statutes and authority of the United States, which
motion was refused, and the trial court disposed of the case on
other grounds. In the Appellate Court and in the Supreme Court, the
plaintiff in error contended that there was error in refusing its
motion, but the appellate court held, and
Page 169 U. S. 104
its decision was sustained by the Supreme Court, that it was
bound by the first decision, and that error could not be assigned,
on the second appeal, for any cause existing at the time of the
prior judgment. In this Court, it was contended that, at the second
trial, it appeared that plaintiff in error claimed to hold an
absolute title to the lots in question by virtue of the foreclosure
proceedings and of the master's deed obtained thereunder, and hence
that the title was claimed under an authority exercised under the
United States, that a federal question was thereby raised on the
record, that the decision of the case necessarily involved passing
on the claim of title, that the opinion of the Supreme Court of
Illinois showed that it was passed upon, and that the necessary
effect of the decree and judgment of the state court was against
the right and title of defendant sufficiently claimed under federal
authority.
Held that the point thus raised was certainly embraced
by the first judgment, and that this Court cannot revise the second
judgment on the ground that the plaintiff in error was thereby
denied any right, properly claimed, in apt time, in accordance with
Rev.Stat. § 709.
Oxley Stave Co. v. Butler County, 166 U.
S. 648, cited, quoted from, and approved to the point
that the words "specially set up or claimed" in Rev.Stat. §
709 imply that if a party in a suit in a state court intends to
invoke for the protection of his rights the Constitution of the
United States or some treaty, statute, commission or authority of
the United States, he must so declare, and unless he does so
declare "specially" -- that is, unmistakably -- this Court is
without authority to reexamine the final judgment of the state
court.
This was a bill filed by Elizabeth Kirchoff in the Circuit Court
of Cook County, Illinois, against the Union Mutual Life Insurance
Company, to compel a conveyance of two certain lots, in accordance
with an agreement between the company and herself, on payment of
the amount due thereunder, as provided for. The circuit court
dismissed the bill on hearing, and the cause, after an ineffectual
appeal directly to the state supreme court, 128 Ill. 199, was
carried to the appellate court, which reversed the decree of the
circuit court, and remanded the cause, with directions that an
account be taken, and that, when the amount due the company was
ascertained, a decree be entered that, on payment of such amount,
with interest, the company should convey to Mrs. Kirchoff. 33
Ill.App. 607. From this judgment the insurance company prosecuted
an appeal to the supreme court, and the judgment was affirmed. 133
Ill. 368. To review this judgment, a writ of error was sued out
from this Court, but was dismissed
Page 169 U. S. 105
on the ground that the judgment of the supreme court was not
final.
160 U. S. 160 U.S.
374.
The case had in the meantime gone back to the circuit court, an
accounting had been had, and a decree had been entered settling the
accounts between the parties, and ordering the insurance company to
convey the property in question on payment of the amount found due.
From this decree the insurance company appealed to the appellate
court, the decree of the circuit court was affirmed, 51 Ill.App.
67, and this second judgment of the appellate court was affirmed by
the supreme court, 149 Ill. 536. To review the latter judgment, the
insurance company prosecutes this writ of error.
The facts as found by the state courts were substantially these:
in May, 1871, the Union Mutual Life Insurance Company loaned
$60,000 to Elizabeth Kirchoff, her husband, Julius Kirchoff, and
her mother, Angela Diversey, upon their judgment note, secured by
trust deed, conveying many parcels of land belonging to them in
severalty, among which were the lots in question, which lots
belonged to Elizabeth Kirchoff. Default having been made in the
payment of interest and taxes, judgment was taken against Mrs.
Diversey, and later a bill was filed by the insurance company in
the circuit court of the United States to foreclose the trust deed.
The bill, in addition, sought to cure a misdescription of the
property belonging to Mrs. Diversey, who filed an answer denying
the right of the company to correct the misdescription and averring
that the note and mortgage were procured from her by
misrepresentation. While this bill was pending, an agreement was
reached by the parties pursuant to which the company released to
Mrs. Diversey its claim upon forty acres of the land belonging to
her, and she executed to them a warranty deed for the remainder,
while Mrs. Kirchoff and her husband executed a quitclaim deed of
all the property belonging to them and included in the trust deed,
it being agreed as part of the transaction that Mrs. Kirchoff might
purchase from the company the two lots above named for $10,000, one
thousand dollars in cash and nine thousand dollars in annual
payments, for which Mrs. Kirchoff was execute her notes,
extending
Page 169 U. S. 106
over a period of nine years, bearing interest at six percent and
secured by mortgage upon the two lots. But as there was an
intervening claim on one of the lots growing out of a sheriff's
deed in pursuance of a sale on a judgment against Mrs. Kirchoff,
rendered subsequently to the original trust deed but prior to the
deed from Kirchoff and wife to the company, it was agreed that the
foreclosure proceedings should continue to be prosecuted; that as
soon as the company got a deed from the master it would convey to
Mrs. Kirchoff, and take the mortgage from her, and the company
would thus and convey clear title, and the mortgage back would be a
first lien.
No defense was made to the foreclosure, the case went to decree
and sale, and a master's deed was issued to the insurance
company.
During the prosecution of the foreclosure proceedings, a
receiver had been appointed of all the property, and about nine
months after the confirmation of the report of sale, the receiver
filed a petition stating that Julius Kirchoff was in possession of
the premises and refused to pay rent therefor, and asking for a
writ of assistance to put the receiver in possession, to which
Julius Kirchoff filed an answer setting up the agreement and
objecting to the issue of the writ lest his rights be prejudiced,
but the writ was nevertheless issued.
It appeared on the second hearing that prior to September 10,
1884, the United States had seized the property for certain revenue
taxes due from a firm then occupying it as a distillery, Mrs.
Kirchoff being in no way connected with the firm; that the property
was sold, the government bidding it in and taking a deed for it,
and that the government conveyed to the insurance company. In the
account stated, Mrs. Kirchoff was required to repay the amount the
insurance company paid the government, with interest. The Supreme
Court of Illinois held, on the second appeal, on the authority of
Mansfield v. Excelsior Refining Co., 135 U.
S. 326, that the United States took no title by its deed
as against Mrs. Kirchoff, and further, that the insurance company
could not set up any right under the deed from the
Page 169 U. S. 107
government, because of its acquisition long prior to the
submission of the case upon the first appeal. No question was
raised in this Court in respect of this transaction.
MR. CHIEF JUSTICE FULLER, after stating the facts in the
foregoing language, delivered the opinion of the Court.
When this case was before us on the prior writ of error, we were
obliged to dismiss the writ because the judgment sought to be
reviewed was not final.
Union Mut. Life Ins. Co. v.
Kirchoff, 160 U. S. 374. And
the question whether, had this been otherwise, the jurisdiction
could have been maintained was necessarily not considered. That
inquiry, however, now meets us on the threshold, as in order to
invoke our jurisdiction on the ground of the denial of a title or
right claimed under the Constitution, or any treaty or statute of,
or commission held or authority exercised under, the United States,
such title or right must be specially set up or claimed at the
proper time and in the proper way.
The judgment of the Supreme Court of Illinois, when the case was
first before it, 133 Ill. 368, established the agreement between
Mrs. Kirchoff and the insurance company, as claimed by her, and
determined that she was entitled to the relief she sought by reason
thereof, and the cause was remanded for the purposes of an
accounting merely. And although the fact that the case was sent
back for further proceedings deprived the judgment of that finality
deemed essential to the issue of a writ of error from this Court,
yet it does not follow that the prior determination on the merits
can be overhauled on the ground of the existence of a federal
question which was not raised when that determination was arrived
at.
Page 169 U. S. 108
As observed by the supreme court when the case was a second time
before that tribunal, 149 Ill. 536, 542:
"Nothing is better settled than that where a cause has been
reviewed by this court, and remanded with directions as to the
decree to be entered, the party on a subsequent appeal cannot
assign for error any cause that accrued or existed prior to the
judgment of this court. All errors not assigned will be considered
as waived, and cannot afterwards be urged.
Hook v.
Richeson, 115 Ill. 431;
Village of Brooklyn v.
Orthwein, 140 Ill. 620, and cases cited."
The record does not disclose that any right or title was
specially set up or claimed under any statute of, or authority
exercised under, the United States in the courts below or in the
Supreme Court of Illinois prior to the decision of the latter court
on the first appeal.
The original bill after setting up the agreement to the effect,
among other things, that the title was to be perfected in the
company by the foreclosure proceedings, as well as by complainant's
deed of release and quitclaim, prayed that the company might be
compelled to specifically perform the agreement and convey the lots
to her on performance on her part. To this defendant filed a
demurrer, assigning as cause that the bill did not show a contract
enforceable either at law or in equity. The demurrer was overruled
and defendant answered, denying the averments of the bill, pleading
the statute of frauds, and asking "the same right by its answer as
if it had pleaded or demurred to said bill of complaint." The bill
was subsequently amended, and prayed that complainant might be
allowed
"to redeem said premises according to the terms of said
agreement; that said defendant may be compelled by the decree of
this court to perform the said agreement with your oratrix, and
convey to her the said two lots of lands hereinbefore specifically
described, according to the terms thereof, as before stated,"
and for an accounting.
When from the judgment of the appellate court reversing the
circuit court and directing the entry of a decree in complainant's
favor on payment of the amount due from
Page 169 U. S. 109
her to the company as ascertained on an accounting, the first
appeal was taken to the supreme court, the errors there assigned
nowhere in terms raised a federal question, and, in affirming the
judgment of the appellate court, the supreme court did not consider
or discuss any federal question, as such, in its opinion. The
supreme court held that the agreement was fully made out, and that
complainant was entitled to a conveyance of the lots; that it was
not material whether the agreement was called an agreement to
redeem or an agreement of repurchase, "as the form of the
transaction, in a court of equity, is not to be regarded;" that the
bill need not be treated as strictly a bill for specific
performance, but it was enough that complainant was entitled to
have her property restored to her upon discharging the burden upon
it fixed in amount by the agreement.
The Supreme Court of Illinois further said:
"it is also claimed that complainant's failure to assert the
alleged agreement in the foreclosure proceedings is a bar to its
assertion here; that the proceedings in the foreclosure are
conclusive. We are unable to concur in this position. It was part
of the arrangement under which the complainant was to obtain the
two lots in controversy that a decree of foreclosure should be
entered, and that the premises should be sold under such decree.
The decree was rendered and the sale made by consent, for the
purpose of clearing the different tracts mentioned in the quitclaim
deed from certain encumbrances. The decree was not adverse to the
interest of complainant, but in harmony with her interest. She is
not attacking the decree, but claiming the enforcement of an
agreement under which it was rendered, and, in our judgment, there
is no ground for holding that the rights of plaintiff were cut off
or in any manner impaired by the decree."
It is now contended that it then appeared that defendant claimed
to hold an absolute title to the lots in question by virtue of the
foreclosure proceedings and of the master's deed obtained
thereunder, and hence that the title was claimed under an authority
exercised under the United States; that a federal question was
thereby raised on the record; that the
Page 169 U. S. 110
decision of the case necessarily involved passing on the claim
of title; that the opinion of the Supreme Court of Illinois showed
that it was passed upon, and that the necessary effect of the
decree and judgment of the state court was against the right and
title of defendant sufficiently claimed under federal authority.
But we cannot accept this conclusion
In the recent case of
Oxley Stave Company v. Butler
County, 166 U. S. 648,
166 U. S. 654,
this Court, speaking by MR. JUSTICE HARLAN, said:
"The only remaining question was not otherwise raised than by
the general allegation that the decree was rendered against dead
persons as well as in the absence of necessary parties who had no
notice of the suit and therefore no opportunity to be heard in
vindication of their rights. Do such general allegations meet the
statutory requirement that the final judgment of a state court may
be reexamined here if it denies some title, right, privilege, or
immunity 'specially set up or claimed' under the Constitution or
authority of the United States? We think not. The specific
contention now is that the decree of the Butler County Circuit
Court in the suit instituted by the County of Butler was not
consistent with the due process of law required by the Fourteenth
Amendment of the Constitution of the United States. But can it be
said that the plaintiffs specially set up or claimed the protection
of that amendment against the operation of that decree by simply
averring -- without referring to the Constitution or even adopting
its phraseology -- that the decree was passed against deceased
persons as well as in the absence of necessary or indispensable
parties?"
"This question must receive a negative answer if due effect be
given to the words 'specially set up or claimed' in section 709 of
the Revised Statutes. These words were in the twenty-fifth section
of the Judiciary Act of 1789 (1 Stat. 85), and were inserted in
order that the revisory power of this Court should not extend to
rights denied by the final judgment of the highest court of a state
unless the party claiming such rights plainly and distinctly
indicated, before the state court disposed
Page 169 U. S. 111
of the case, that they were claimed under the Constitution,
treaties, or statutes of the United States. The words 'specially
set up or claimed' imply that if a party intends to invoke for the
protection of his rights the Constitution of the United States, or
some treaty, statute, commission, or authority of the United
States, he must so declare, and unless he does so declare
'specially' -- that is, unmistakably -- this court is without
authority to reexamine the final judgment of the state court. This
statutory requirement is not met if such declaration is so general
in its character that the purpose of the party to assert a federal
right is left to mere inference. It is the settled doctrine of this
Court that the jurisdiction of the circuit courts of the United
States must appear affirmatively from the record, and that it is
not sufficient that it may be inferred argumentatively from the
facts stated. Hence the averment that a party resides in a
particular state does not import that he is a citizen of that
state.
Brown v. Keene, 8 Pet. 112,
33 U. S. 115;
Robertson
v. Cease, 97 U. S. 646,
97 U. S.
649. Upon like grounds, the jurisdiction of this Court
to reexamine the final judgment of a state court cannot arise from
mere inference, but only from averments so distinct and positive as
to place it beyond question that the party bringing a case here
from such court intended to assert a federal right."
Tested by this rule, it is quite apparent that defendant did not
specially set up or claim a federal right or title within the
meaning of section 709, and that no right or title so claimed was
denied by the supreme court on the first appeal.
And as the judgment of that court determined the rights of the
parties, and left open only the amount due on the accounting, the
suggestion of the disposition of a federal question by that
judgment comes too late.
After the case went back to the circuit court for the entry of
decree in favor of Mrs. Kirchoff and the accounting, defendant
moved for leave to amend its answer by inserting the following:
"And the said defendant, further answering, says that, by reason
and in virtue of the said foreclosure decrees in the said
Page 169 U. S. 112
United States court, the sale thereunder, the confirmation
thereof, and all the acts and doings of said court therein, the
said Union Mutual Life Insurance Company acquired a title and right
to the lands aforesaid; that said right and title was acquired and
is claimed under the Constitution, statutes, and authority of the
United States; that a decree for redemption or specific performance
of the contract alleged in said bill would be against the right and
title of said company thus acquired and hereby claimed under the
Constitution, laws, and authority of the United States; that a
decree for redemption or specific performance, as prayed for in
said bill, or either of them, would fail to give full faith,
credit, and effect to the said decrees, orders, and acts of the
United States circuit court in the foreclosure proceedings
aforesaid; that a decree for redemption or specific performance, as
prayed for, or either of them, cannot be entered without attacking
and pretending to nullify or impair the said decrees, orders, and
acts of the said United States circuit court, and that, for the
foregoing reasons, this court is without jurisdiction of the
subject matter of the action set forth in the bill of complaint,
and is without jurisdiction to enter a decree for redemption or
specific performance, as prayed for in said bill of complaint."
But the circuit court refused to allow the amendment.
There was no contention that any federal question arose on the
accounting itself. The case having reached the appellate court the
second time, the insurance company assigned, among other errors,
that the circuit court erred
"in that it did not dismiss complainant's bill for want of
jurisdiction; . . . in not holding that it was without jurisdiction
to enter a decree allowing redemption; . . . in entering a decree
which would, in effect, nullify the decree and doings of the
Circuit Court of the United States for the Northern District of
Illinois; . . . in entering a decree in conflict with the decree of
the United States circuit court; . . . in refusing to the defendant
leave to file the proposed amendment to its answer; . . . in
entering a decree against the validity of titles claimed by
defendant under the authority of the United States."
It will be perceived that, so far as federal questions were
Page 169 U. S. 113
thus attempted to be raised, they were all covered by the prior
judgment.
The appellate court on the second appeal held itself bound by
the previous decision, and declined to enter on matters of defense
which might have been then availed of. The supreme court was of the
same opinion, for it ruled that where a case had once been reviewed
by the court, and remanded with directions as to the decree to be
entered, error could not be assigned on a subsequent appeal for any
cause existing at the time of the prior judgment. Nevertheless the
supreme court said:
"Much of the argument of counsel for appellant is devoted to an
effort to show a want of jurisdiction in the Circuit Court of Cook
County over the subject matter of this litigation. Whether upon
this second appeal that is an open question we do not deem it
important to determine, being clearly of the opinion that the
position of counsel is untenable. It is said the suit is brought to
review and set aside a decree of the United States circuit court,
and the bill is treated throughout the discussion as hostile to the
foreclosure proceeding in that court, or as attempting to obtain
relief properly available in that action."
"This is a misapprehension of the scope and purpose of
complainant's bill. In our former opinion, we said:"
"after the settlement had been concluded, it turned out that
certain encumbrances existed against some of the property which
were subsequent to the trust deed, but which would take priority to
the quitclaim deed executed by complainant and her husband. It
therefore became necessary, in order to obtain a perfect title, to
go on with the foreclosure proceedings, which was done."
"This statement is based upon an allegation of the bill to the
effect that, it being represented to the complainant by the
attorney of the company that it would be necessary to foreclose the
trust deed in order to make good the title in the company to the
lots before they could take a mortgage thereon for the installments
of redemption money, it was agreed between the parties that the
agreement for redemption should not be executed until after the
title had been perfected
Page 169 U. S. 114
in the company by foreclosure, but in the meantime complainant
should execute and deliver to the company her quitclaim deed, and
should interpose no defense to such foreclosure. The allegation was
found in the opinion above referred to, sustained by proofs, and is
conclusive of that fact upon this appeal. The foreclosure decree in
this federal court was therefore as much the result of the
agreement relied upon by complainant as was the making of the
quitclaim deed by her. So far from this being an attempt to review,
modify, or set aside the decree of the United States circuit court,
the right of action is predicated in part at least, upon it."
"Whether the bill be called a bill to redeem or given another
name can in no way affect the question of jurisdiction in the state
court. The relief sought is the enforcement of a contract to
reconvey the property in question, which we have already held the
complainant entitled to. Her rights grow out of the alleged
contract, and not by reason of anything that was done or could have
been done in the federal court in the foreclosure suit."
"That a court of equity has jurisdiction to enforce the
contract, whether it be called a contract to redeem or to reconvey,
is, we think, too clear for argument."
The supreme court did not decide that the case was reopened as
to matters previously adjudicated, and we cannot regard these
observations as amounting to such disposition, on a second appeal,
of federal questions which might have been, but were not, raised on
the first appeal, as would justify us in taking jurisdiction.
It was further argued at this bar that the agreement was
fraudulent and illegal as respected the foreclosure decree, and
that the decree of the state court upholding an agreement thus
tainted ascribed to that decree an operation which would not have
been permitted in the courts of the United States, and, in that
view, involved a review thereof or a refusal to give it its due
effect.
We do not find that the state courts were asked to pass on any
such question. If it was really contended before them that the
agreement was invalid on the ground that it provided
Page 169 U. S. 115
that the United States court should go to decree and sale in
order to cut off intervening liens, it may be conceded that those
courts held, on the facts appearing, that the agreement was not
open to that objection, but it would not follow that thereby a
federal question was disposed of, and the point was certainly
embraced by the first judgment.
We are of opinion that we cannot revise the present judgment on
the ground that plaintiff in error was thereby denied any right
properly claimed, and in apt time, in accordance with section 709
of the Revised Statutes.
Writ of error dismissed.
