The Supreme Court of the State of Missouri, on appeal, dismissed
a petition which sought to have the title to lands held by the
defendant, under a patent from the United States, divested, and
vested in the complainant. From this decree of dismissal a writ of
error brought up the case under the twenty-fifth section of the
Judiciary Act, the complainant claiming the land under a former
patent from the United States.
Page 84 U. S. 254
This Court determined that the legal title to the premises was
in the complainant under the second patent, reversed the decree,
and remanded the cause "for further proceedings in conformity to
the opinion of the court" (
75 U. S. 8
Wall. 672). The opinion given declared also that on the merits
(which were gone into, and in which utterance was given as to every
point which it was necessary to decide in order to dispose of the
case on them), the case was with the plaintiff or complainant.
On the presentation of the mandate to the supreme court of the
state, they directed it to be filed, and entered up an order
reversing their former decree, and the cause again coming up to be
disposed of, the court decided that the legal title to the premises
was vested by the second patent in the complainant, as declared by
this Court, and that on such a title under the laws and practice of
the state there was a plain and adequate remedy at law, and that
equity bad no jurisdiction of the case made by the petition, and
therefore decreed dismissing the petition.
To this decree the complainant sued out a second writ of error
under the twenty-fifth section.
Held:
That the legal sufficiency of the ground maintained by the
supreme court of the state for its decree, to-wit that by the laws
and practice of the state the complainant's remedy on a legal title
was at law, and not in equity, is a question within the
jurisdiction of this Court, and revisable under the twenty-fifth
section on a second writ of error.
That whether the legal title was in the complainant and whether
he had an adequate remedy at law are questions that could only have
been properly made in the court of original jurisdiction, or
"perhaps before this Court on the first writ of error; but it is
too late to raise such questions after the whole case had been
decided, and the cause remanded for final judgment."
That under the Judiciary Act, as well as under that of the 5th
February, 1867, amendatory of it, on a second writ of error to a
state court, this Court "may proceed to a final judgment and award
execution."
A decree was therefore entered up reversing the decree of the
state court and declaring the title to the lands in controversy to
be vested in the complainant and ordering a writ of possession to
be issued by the clerk of this Court directed to the marshal
thereof.
The Constitution of Missouri ordains:
"That the right of trial by jury shall remain inviolate."
The code of the same state enacts:
"There shall be in this state but one
form of action
for the enforcement or protection of private rights and the redress
or
Page 84 U. S. 255
the prevention of private wrongs, which shall be denominated a
civil action. [
Footnote 1]"
"Suits may be instituted in courts of record by filing in the
office of the clerk of the proper court a petition setting forth
the plaintiff's cause or causes of action, and remedy sought"
&c. [
Footnote 2]
"The first pleading on the part of the plaintiff is the
petition, which shall contain (1) The title of the cause,
specifying the name of the court and county in which the action is
brought, and names of parties to the action, plaintiffs and
defendants; (2) a plain, concise statement of the facts
constituting a cause of action, without unnecessary repetition; (3)
A demand of the relief to which a plaintiff may suppose himself
entitled. [
Footnote 3]"
"The only pleading on the part of the defendant is either a
demurrer or an answer. [
Footnote
4]"
"SECTION 6. The defendant may demur to the petition when it
shall appear upon the face thereof either (1) that the court has no
jurisdiction of the person of the defendant or the
subject of
the action or (2) that the plaintiff has no legal capacity to
sue, or"
&c.
"SECTION 10. When any of the matters enumerated in section six
(the last quoted section) do not appear upon the face of the
petition, the objection may be taken by answer. If no such
objection be taken either by
demurrer or answer, the
defendant shall be deemed to have waived the same, excepting only
the objection to the
jurisdiction of the court over the subject
matter of the action, and excepting the objection that the petition
does not state facts sufficient to constitute a cause of
action. [
Footnote 5]"
This provision of the constitution and these provisions of the
code being in force, one Magwire, on the 18th of September, 1862,
filed his petition in the court of common pleas of St. Louis,
Missouri, against Tyler and forty-three other defendants, stating
that on the 1st of June, 1794, Joseph Brazeau had a grant of 4 x 20
arpents of land along the bank of the Mississippi River, near the
Village of St. Louis; that on the 9th of May, 1798, he sold and
conveyed 4 x 16 arpents, being, the northern part of the tract, to
Louis Labaume,
Page 84 U. S. 256
reserving the 4 x 4 arpents at the southern end for himself;
that he, Magwire, the plaintiff, by a chain of conveyances, became
the owner of said 4 x 4 arpents; that Labaume, after purchasing the
said 4 x 16 arpents, February 15, 1799, procured an extension of
his limits west to the aggregate quantity of 360 arpents, and the
same was surveyed to him April 10, 1799; that this survey was made
contrary to the terms of the grant to Labaume, and so
that,
by mistake or design,, Labaume included in the
survey of his enlarged grant the Brazeau tract, which he did not
own; that on the 22d of September, 1810, the board of commissioners
for the adjustment of land titles in Missouri confirmed to Brazeau
his 4 x 4 arpents, and to Labaume his land; that afterwards, and
notwithstanding the said 4 x 4 arpents justly and honestly belonged
to the plaintiff, the defendants and others, in combination and
confederacy, procured a survey to be made under the authority of
the United States in such manner as to include the whole Brazeau
tract in the claim of Labaume, and procured under like authority a
patent to be issued granting the land covered by said survey to the
legal representatives of said Labaume;
that the said survey and
patent of the Labaume confirmation were issued and procured by said
defendants by fraud, covin, and misrepresentation; that on the
20th of May, 1862, the Brazeau confirmation of 4 x 4 arpents was
surveyed inside the exterior limits of the survey and patent of
Labaume, and on the 10th of June, 1862, a patent was issued to
Brazeau, or his legal representatives, therefor; that each of the
defendants claimed an interest in the said Brazeau tract, and was
in possession thereof, and had received the rents and profits of
the same; that everyone of them had notice of the rights of the
plaintiff under Brazeau, and that all the defendants had
confederated and combined to keep the plaintiff out of possession
of the lands claimed, and the rents and profits; that the patent
and survey to Labaume's representatives were older than the patent
and survey to Brazeau's representatives; that defendants
continually assert the validity of the Labaume title and the
invalidity of the Brazeau title, and that the said patent and
Page 84 U. S. 257
survey for Labaume's representatives, so procured by fraud,
covin, and misrepresentation, conflicted with the patent and survey
for Brazeau's representatives, and constituted a cloud upon the
plaintiff's title.
"Wherefore," -- thus ran the prayer of the plaintiff's petition
-- "to the end that
equity and justice may be meted out to
the plaintiff, and that he may be protected in his just rights,"
the plaintiff prayed:
1. That the court would divest out of the defendants all right,
title, and interest acquired
or claimed by them and each of
them under Labaume.
2. And would vest the same in the plaintiff.
3. And would put the plaintiff in possession.
4. And would cause an account to be taken of the rents and
profits of the land, and give to the plaintiff judgment
therefor.
5. And would give to him
"such other relief as might be
proper in the case."
The patent to Labaume's representatives granted all the land in
its exterior limits,
"saving and reserving any valid adverse
right that might exist to any part thereof."
The patent to Brazeau's representatives granted all the land
included in its exterior limits,
"saving and reserving any
valid adverse right which might exist to any part
thereof."
The defendants answered on the merits of the case to the
following effect:
1. That the 4 x 4 arpents confirmed to Brazeau were not properly
located by the United States survey thereof inside of Labaume's
survey.
2. That the confirmation to Brazeau was void.
3. That the survey for Brazeau's representatives was void for
want of legal authority in the officers to make it.
4. That the patent to them was void for the same reason.
5. That the plaintiff, claiming under the confirmation and
survey for Brazeau's representatives, was estopped to locate the
land inside the Labaume patent, by
matter in pais, long
before their date.
Page 84 U. S. 258
6. That the survey and patent for Labaume's representatives
vested a title in them in fee simple.
7. That the defendants had no notice of Brazeau's claim, and
were innocent purchasers of the Labaume title.
8. That the plaintiff, claiming under Brazeau, was barred by the
statute of limitations.
The defendants denied that any part of the 4 x 4 of Brazeau was
inside the Labaume patent; that the patent or survey for Labaume's
representatives was procured by fraud, covin, or misrepresentation;
that the plaintiff had the Brazeau title to the 4 x 4.
They set forth a former suit and judgment against the plaintiff
prior in date to the plaintiff's survey and patent, in bar of this
suit.
And finally denied every averment in the plaintiff's petition in
conflict with any part of their answer.
And
"so having fully answered, the defendants asked for
judgment and their costs."
The cause
"having been submitted to the court for a decision on the
plaintiff's petition, and the answers of all the defendants and the
exhibits and other evidence in the cause,"
the court found
"all the issues in the cause for the
plaintiff;" that the survey for Labaume in 1799 was made to
include the Brazeau's land by mistake or design; that the land was
situated inside of the Labaume survey and patent; and that the
Labaume survey and patent were issued and procured by fraud and
misrepresentation, and in combination and confederacy by the
defendants to keep the plaintiff out of possession of his property,
and its rents and profits.
The court then entered a decree extinguishing the claims of the
defendants in these words:
"The 4 x 4 arpents is hereby decreed to the plaintiff, and all
the right, title, and interest of each and everyone of said
defendants in and to said tract of land is hereby divested out of
said defendants, and each of them, and is vested in and passed to
plaintiff, to have and to hold to said plaintiff, his heirs, and
assigns,"
and
"it is ordered, adjudged, and decreed that plaintiff do have and
recover of defendants respectively the rents
Page 84 U. S. 259
and profits accrued during the respective possessions, and for
as much as the court is not advised what is the amount and other
particulars thereof, Alexander Martin is appointed commissioner to
take an account,"
&c.
As soon as this finding and decree was made, the defendants
moved for a new trial because the court had improperly received or
rejected evidence; because of an alleged erroneous holding which it
had made about the power of a Secretary of the Interior, and
because the decision was against
law and
equity
and against the evidence and the weight of evidence. The motion for
new trial was overruled and the defendants appealed to the Supreme
Court of Missouri. That court reversed the judgment of the court of
common pleas, and dismissed the plaintiff's petition. The grounds
on which this reversal was made were not stated in the judgment as
entered of record. [
Footnote
6]
Page 84 U. S. 260
The plaintiff claiming under a former patent from the United
States then brought the case here, [
Footnote 7] as within the 25th section of the Judiciary
Act, [
Footnote 8] under the
assumption, of course, that the Supreme Court of Missouri had
passed on his title set up under the United States and had decided
against it. It was here elaborately argued, and an opinion given by
MR. JUSTICE CLIFFORD in behalf of the Court, in which it was
decided
"that the legal title to the tract of 4 x 4 arpents remained in
the United States till June 10, 1862, and that on that day, by
virtue of a survey referred to and a patent of that date, Brazeau
'acquired the
legal title to the tract.'"
The opinion went, however, largely besides into the merits of
the case, any gave utterance upon every question at issue between
the parties which it was necessary to decide to dispose of the case
on their merits. These it declared were entirely with the plaintiff
or complainant, who, it said, was justly and honestly owner of the
land, and ended with an order of reversal of the decree of the
Supreme Court of Missouri, "with directions
to affirm the
decree of the St. Louis court of common pleas."
Immediately upon the announcement of this order,
Mr. P.
Phillips, for the defendants in error, remarking to the Court
that the mandate should be merely to reverse, and "to proceed in
conformity with the opinion of this Court," moved to reform the
order, and the question whether the order to "affirm" was a proper
one was directed by the Court to be argued. It was afterwards
argued at length, Mr. Phillips and Mr. B. R. Curtis contending that
it was not; but, as already said, that the decree in this Court
should be simply an order of reversal with directions to the
Supreme Court of Missouri to proceed in conformity to the opinion
that had been given here. The position of the counsel was that the
answer of the defendants set up special defenses involving the
statute of limitations,
res adjudicata, bona fide
purchase, and similar matters of a local kind purely, and over
which the state court alone had jurisdiction; that the decree
Page 84 U. S. 261
of the Supreme Court of Missouri had been silent as to the
grounds on which it dismissed the plaintiff's petition; that while
if that court passed
merely on the title derived from the
United States (as in view of this Court's taking jurisdiction of
the case was now to be assumed), this Court, under the twenty-fifth
section, had authority to review and reverse it, yet that under no
circumstances had this Court authority to pass on those defenses
set forth in the record which were of a local nature only, and that
no
opinion of the judges of this Court, separately or
collectively, bound by
authority the state court of
Missouri on those points, or could deprive the defendants in error
of the right to have that court pass upon them. Any mandate,
therefore (the learned counsel argued), directing the Supreme Court
of Missouri "to affirm the decree of the St. Louis court of common
pleas" would be a judgment by this Court upon questions upon which
it had no authority to pass.
MR. JUSTICE CLIFFORD, delivering the opinion of the Court on
this new matter of the propriety of the form of order, as he had
delivered that on the principal case, stated that the Court, in the
opinion delivered in that principal case, had "decided the
following propositions," reciting numerous propositions pertinent
to the merits, and reciting also, specifically, the decision as to
the
legal title's being in Brazeau. "Based upon these
conclusions of law," the learned judge said, "the Court gave the
directions recited in the order" objected to; but now, after the
argument upon the question of its propriety had "come to the
conclusion that a different direction would be more in accordance
with the usual practice of the court."
The order was accordingly reformed, and changed into an order
such as the counsel for the defendants in error had asked for --
that is to say, changed
from an order "to affirm the
decree of the St. Louis court of common pleas" into an order of
reversal, with a remand "for further proceedings in conformity with
the opinion of the Court." The learned Justice said, however:
"But the Court adheres to the several propositions of law
Page 84 U. S. 262
here recited and refers to the opinion of the Court delivered at
the time the decree was entered as to the ground on which these
conclusions rest."
The matter accordingly went back to the Supreme Court of
Missouri on this mandate, upon which, as well as on the pleadings
and proofs of record in the cause, it came on to be heard. Counsel
for the defendant insisted that the Supreme Court of the United
States having decided that the legal title was in the plaintiff,
his only remedy was at law; that the whole scope and very prayer of
the petition filed in the case was for equitable relief, and that
the petition should therefore be dismissed.
Counsel of the plaintiff answered that the code of practice
adopted by the State of Missouri would not countenance such an
objection; that under it, there was no "bill in equity or other
formal pleading;" that "justice was now administered without
forms;" that the defendants having denied the plaintiff's right and
submitted themselves to the judgment of the court, waived the plea
of "remedy at law," even supposing the forms of equity pleading
still to prevail in Missouri; that as the twenty-fifth section of
the Judiciary Act gave the Supreme Court at Washington jurisdiction
to pass on the questions involved in the construction of acts of
Congress, that court had
implied authority to pass also
upon all incidental questions which were necessary to be determined
in order to render a judgment in the case; that the said Supreme
Court had done so, as would be seen by the report of the case in
8th Wallace, and that this concluded the Supreme Court of
Missouri.
To this it was replied, that the Supreme Court of the United
States had no more power to reverse a decision of the supreme court
of the state on a local question than the latter court had to
reverse a decision of the former court on a federal one; that while
the court at Washington had assumed jurisdiction on a hypothesis
that no other than a federal question had caused the decree in the
Supreme Court of Missouri, and could assume it on no other
hypothesis, that hypothesis as matter of fact was not true;
that
Page 84 U. S. 263
the decree in the said court, which was the mere legal
conclusion of the opinion, was based upon several matters of purely
local jurisdiction; that the mandate of the Supreme Court of the
United States was entitled not to a blind submission, but to an
intelligent acquiescence, and that its meaning was to be
ascertained by a careful examination of the facts in the case and
the application of whatever opinion had been given to those facts.
[
Footnote 9]
The case having been fully argued before the Supreme Court of
Missouri, Mr. Justice Wagner delivered the unanimous opinion of
that tribunal. [
Footnote 10]
Having referred to the decision of the cause by that court here at
Washington as reported in 8th Wallace, he said:
"The only question which it was competent for the Supreme Court
of the United States to notice when the cause was removed there was
the question of title arising out of the respective confirmations
under which the parties claimed. Everything else set up in the bill
was peculiarly and exclusively of local state jurisdiction, over
which the national tribunal had no control and concerning which an
adjudication here is final."
"
* * * *"
"In conformity with the decision of the national court, the
legal title is vested in the plaintiff, and his remedy is the next
question to be considered."
"That ejectment is the proper and appropriate remedy, where a
party has the title, to recover possession of real estate is a
principle too well established to require argument or the citation
of authorities. A bill in equity is not the proper remedy to
recover the possession of lands, and where there is an adequate and
complete remedy at law, a court of equity will not interpose unless
upon some matters coming under some peculiar head of concurrent
equity jurisdiction. [
Footnote
11]"
"In those cases where it is permissible under the code to
combine in the same proceeding or petition legal and equitable
claim, the matter in equity and the action at law must be
separately stated, and must necessarily be separately tried.
Each
Page 84 U. S. 264
count must be tried by itself, according to the prescribed mode
in such actions and suits. In an action at law, there is a
constitutional right of trial by jury, which has no existence in
equity. The courts in New York have held that an equitable cause of
action to remove -- as a cloud upon the plaintiff's title -- a deed
given by mistake by a third party to the defendants, under which,
having fraudulently obtained possession by connivance with the
plaintiff's tenant, he claims to hold as owner, and a claim to
recover the possession of the premises, may be united in the same
action and asserted in the same complaint. But it is also clearly
held that where legal and equitable causes of action are united
under the code, as to the former, on the trial of the causes, the
issues must be submitted to a jury. [
Footnote 12]"
"It has often been held in this court that in a bill to set
aside a deed as fraudulent, the plaintiff cannot sue for the
recovery of the possession of the land, and that proceedings
instituted for the purpose of vacating title, vesting it in the
plaintiff, and to eject a defendant and obtain possession, are
fatally erroneous on writ of error or appeal, and cannot be
sustained. When the decree is entered establishing the plaintiff's
title, he must then pursue his remedy in ejectment for the
possession. The defendant has a right to demand this. He has a
right to have a jury pass upon the question of rents and profits,
and upon other questions which may arise in that form of
action."
"In like manner it has been held that a cause of action in
ejectment cannot be united with a cause of action for partition of
the premises sued for. [
Footnote
13]"
"It is a grave error -- an entirely mistaken notion -- to
suppose that all distinction between law and equity is abolished by
our code of procedure. The line of demarcation -- the great and
essential principles which underlie the respective systems -- is
inherent, and exists in the very nature of things. Although legal
and equitable cases are to a certain degree blended as to form, the
principles remain the same, and the court will not interfere and
exert its equity powers in a strictly legal action."
"This principle is almost daily acted upon in our courts,
and
Page 84 U. S. 265
has been the uniform course of practice ever since the adoption
of our new system. In all the states where the code has been
instituted, the ruling has been harmonious in the same way. The
statute enacts that"
"There shall be in this state but one form of action for the
enforcement or protection of private rights, and the redress or
prevention of private wrongs, which shall be denominated a 'civil
action.'"
"In providing that there shall be but one form of civil action,
the legislature cannot be supposed to have intended, at one stroke
or sweeping enactment, to abolish the well recognized and long
established distinction between law and equity. Such a construction
would lead to perplexities and difficulties infinite and endless in
their character. The innovation extends only to the form of action
in the pleadings. While the difference in form and the
technicalities in pleadings have been dispensed with, and the party
need only state his cause of action in ordinary and concise
language, whether it be under assumpsit, trover, trespass, or
ejectment, without regard to the ancient forms, still the
distinction between these actions has not been destroyed, but
remains the same. So cases legal and equitable have not been
consolidated, although there is no difference between the form of
the bill in chancery and the common law declaration under our
system, where all relief is sought in the same way from the same
tribunal. The distinction between law and equity is as naked and as
broad as ever. To entitle the plaintiff to an equitable
interposition of the court, he must show a proper case for the
interference of a court of chancery, and one in which he has no
adequate or complete relief at law. The judgment vesting him with
the legal title shows that he has a complete, appropriate, and
ample remedy at law by ejectment. These plain principles were
entirely overlooked at the trial in the court of common pleas, but,
as before remarked, according to the decision of the majority of
the court, the case was instituted and tried upon a
misapprehension."
"It results that so much of the motion as asks for an affirmance
of the judgment of the court of common pleas will be overruled and,
in accordance with the mandate, the judgment of this court will be
reversed and the petition dismissed."
The decree itself, which as it was relied on here by the counsel
of the plaintiff below, as "the crucial test" of jurisdiction
Page 84 U. S. 266
in this Court, it may be best to insert, was in these words:
"1. In conformity to the said mandate the judgment and decree of
this Court therein mentioned is hereby reversed, and thereupon this
cause remains to be proceeded with in conformity to the opinion of
the Supreme Court of the United States
and the laws of the
State of Missouri."
"2. This court doth find, and adjudge, and decree, that under
and in conformity with the laws of the State of Missouri, the said
petition of the said Magwire is a proceeding to obtain equitable
relief only in respect to the lands in said petition mentioned, and
that no right or title to any equitable relief touching the said
lands, or any part thereof, is shown by the said petition and the
proofs adduced in support thereof."
"3. The court doth find, adjudge, and decree, that in conformity
with the laws of the State of Missouri the legal title to said land
cannot be tried and adjudged or determined under said petition, and
the proceedings thereunder, there being a plain, adequate, and
complete remedy by an action of ejectment in conformity with the
laws of the State of Missouri in that behalf, and no relief in the
proceedings in equity pending before this Court."
"4. The court doth find, adjudge, and decree, that in conformity
with the laws of the State of Missouri, the petition of said
Magwire is a proceeding for equitable relief only for the purpose
of vesting the legal title by decree in said Magwire to the lands
therein mentioned. The legal title to which was admitted by
plaintiff in his petition to be held by defendants, and the only
judgment that, under the laws of the State of Missouri, can be
entered therein, if supported by the proofs in the cause, would be
a decree vesting the title to said lands in said Magwire, and under
said laws the right to recover in that suit the possession of the
lands therein described could not be tried, adjudged, or determined
under the said petition and the proceedings thereunder."
"5. This court doth find, adjudge, and decree, that in
conformity with the laws of the State of Missouri, the petition of
said Magwire is a proceeding for equitable relief only for the
purpose of vesting the legal title to the lands therein described
(the legal title to which was admitted by plaintiff in his
petition
Page 84 U. S. 267
to be then in defendant), in said plaintiff, Magwire, and in
conformity with said laws the right to recover in said suit the
rents, issues, and profits of said lands, cannot be tried,
adjudged, or determined, under the said petition and the
proceedings thereunder."
"6. It is
therefore considered by the court, and the
court doth order, adjudge, and decree that the said"
"PETITION BE DISMISSED WITH COSTS."
From this decree Tyler now in turn appealed, and the case was
here for the third time, having been already twice before the
common pleas of Missouri and twice before the supreme court of that
state.
The new writ of error, following the language of the
twenty-fifth section, recited, that in the proceedings before the
state court there
"was drawn in question the validity of a treaty or statute of,
or an authority exercised under the United States, and the decision
was against their validity; or was drawn in question, the validity
of a statute of, or an authority exercised under any state, on the
ground of their being repugnant to the Constitution, treaties, or
laws of the United States, and the decision was in favor of such
their validity; or was drawn in question, the construction of a
clause of the Constitution, or of a treaty, or statute of, or
commission held under the United States, and the decision was
against the title, right, privilege, or exemption, especially set
up or claimed under said clause of the Constitution, treaty,
statute, or commission. "
Page 84 U. S. 272
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Power to reexamine, in a certain class of cases, final judgments
and decrees in the highest court of law or equity of a
Page 84 U. S. 273
state, and to reverse or affirm the same upon a writ of error,
was conferred upon the Supreme Court by the twenty-fifth section of
the Judiciary Act, and the same section provides that the writ of
error shall have the same effect as if the judgment or decree had
been rendered or passed in the circuit court, and that the
proceeding upon the reversal shall also be the same, except that
the Supreme Court, instead of remanding the cause for a final
decision, may, at their discretion, if the cause shall have been
once before remanded, proceed to a final decision of the same and
award execution. [
Footnote
14] Where the reversal is in favor of the original plaintiff,
and the damages to be assessed or matters to be decreed are
uncertain, the Supreme Court will remand the cause for a final
decision unless the same shall have been once before remanded, in
which case the Court may, at their discretion, proceed to a final
decision of the cause. Execution in that event may be awarded here,
but the Court, in all other appellate cases, will send a special
mandate to the subordinate court for all further necessary
proceedings.
Such were the directions of the Judiciary Act, but the Congress,
on the 5th of February, 1867, amended that section in several
particulars and provided that the writ of error in such a case
shall have the same effect as if the judgment or decree had been
rendered or passed in a federal court, and that 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 same
and award execution or remand the same to the inferior court.
[
Footnote 15]
Titles to lands claimed by individuals in Louisiana, at the time
the province was ceded to the United States, were in many cases
incomplete, as the governor of the province never possessed the
power to issue a patent. All he could do was to issue to a donee an
instrument called a concession or order of survey, and as the
claimants had never obtained patents from the supreme government,
it became necessary for a plaintiff, in a suit to recover the land,
to prove that his
Page 84 U. S. 274
claim had been confirmed under some act of Congress. Complete
titles, of which there were a few at the date of the cession,
required no such confirmation, as they were protected by the third
article of the treaty of cession. [
Footnote 16] It was stipulated by the treaty that the
inhabitants of the ceded territory should be admitted into the
Union as soon as possible and that in the meantime they should be
maintained and protected in the free enjoyment of their property.
Congress accordingly passed the Act of the 2d of March, 1805, to
ascertain and adjust the titles and claims to land in the ceded
territory. [
Footnote 17]
Prior to the passage of that act, however, the province ceded by
the treaty had been organized by Congress into two territories, and
the fifth section of the act to ascertain and adjust such titles
and claims made provision for the appointment of commissioners in
each of those territories to ascertain and adjudicate the rights of
persons presenting such claims. Such commissioners were required by
that act to lay their decisions before Congress, but a subsequent
act provided that the decision of the commissioners when in favor
of the claimant should be final against the United States.
[
Footnote 18]
Both parties in this case claim under the same concession, which
was issued by the governor to Joseph Brazeau. On the 1st of June,
1794, he presented his petition to the governor, asking for a tract
of land situate in the western part of the Town of St. Louis,
beyond the foot of the mound called La Grange de Terre, of four
arpents in width, to extend from the bank of the Mississippi in the
west quarter, southwest, by about twenty arpents in depth,
beginning at the foot of the hill on which stands the mound and
ascending in a northwest course to the environs of Rocky Branch, so
that the tract shall be bounded on the east side by the bank of the
river and on the other sides in part by the public domain, and in
part by the lands reunited to that domain.
Page 84 U. S. 275
Ten days later, the governor executed an instrument in which he
declared that the tract belonged to the public domain, and
certified that he had put the petitioner in possession of the same,
specifying in a general way the boundaries of the tract and
describing it as four arpents front by twenty arpents in depth. On
the 25th of June in the same year, the governor issued a concession
to the petitioner in which he formally granted to the donee in fee
simple, for him, his heirs or assigns, or whosoever may represent
his rights, a tract of land of four arpents front by twenty arpents
in depth situate north of the town, to begin beyond the mound,
extending north-northwest to the environs of Rocky Branch; bounded
on one side by the bank of the river and on the opposite by lands
reunited to the public domain through which the concession passes,
of which one end is to be bounded by the concession to one Esther,
a free mulatto woman. Five years before the treaty of cession, on
the 9th of May, the donee, by a deed of that date, duly executed
before the governor, sold, ceded, relinquished, and transferred to
Louis Labeaume "a concession of land to him given" as aforesaid,
consisting of four arpents of land, to be taken from the foot of
the hill called La Grange de Terre, by twenty arpents in depth,
bounded by the Rocky Branch at the extremity opposite the hillock,
east by the river, and west by the land belonging to the royal
domain, the said Brazeau reserving to himself four arpents of land
to be taken at the foot of the hillock in the southern part of said
land, . . . selling only sixteen arpents in depth to said Labeaume,
who accepts the sale on those terms and conditions; and the record
shows that the instrument was signed by both parties. Four by
sixteen arpents were vested in the purchaser by that deed, but he
desired to enlarge his possession, and he asked the governor to
grant him an additional tract of three hundred and sixty arpents,
including the tract he acquired by that conveyance, and the
governor, on the 15th of February following, made the concession
and directed in the same instrument that the surveyor should make
out the survey in continuation of his antecedent purchase,
Page 84 U. S. 276
and that he should put the interested party in possession of the
described premises. Pursuant to those directions, the surveyor made
the requisite survey, but he included the whole of the former
concession in the certificate, overlooking the undisputed fact that
the grantor of the deed reserved to himself 4 x 4 arpents of the
same, "to be taken at the foot of the hillock in the southern part
of said land," which shows the origin of this long-protracted
controversy. Special consideration was given to that survey in the
first opinion delivered in this case, in which the court decided
that such a survey, however the error may have arisen, cannot have
the effect to enlarge the rights of the purchaser or to diminish or
impair the rights of the donee of the concession, to the 4 x 4
arpents reserved in the said deed, and which were never conveyed to
the grantee of the residue of the tract.
Enough has been remarked to show that the premises in
controversy are the 4 x 4 arpents reserved in the deed from Joseph
Brazeau to Louis Labeaume, and that the plaintiff claims title
under the former and that the defendants claim under the latter.
Conflicting claims to the premises existing, the plaintiff, on the
18th of September, 1862, commenced the present suit in the land
court of the county, but the suit was subsequently transferred by a
change of venue to the court of common pleas of the same county,
the claim of the plaintiff being for 4 x 4 arpents of land, as
described in the petition, and which, as alleged in the petition,
was confirmed to the plaintiff by the land commissioners. Full
description of the premises as confirmed to the donee is given in
the petition, as follows:
"Beginning at a point on the right bank of the Mississippi
River, the northeast corner of survey No. 3342, in the name of
Esther, a free mulatress woman, or her legal representatives, and
the southeast corner of Louis Labeaume, survey No. 3333; thence
south 74�30' west with the southern boundary of the Louis
Labeaume survey and the northern boundary of the Esther survey, to
the northwest corner of the Esther survey; thence north 23�
west 776 feet 8 inches, to a stone; thence 74�30' north 776
feet 8 inches, to a point on the right bank of the
Page 84 U. S. 277
Mississippi River; thence down and along the right bank of said
river, to the beginning corner."
Having described the premises, the plaintiff then proceeded to
allege that the tract of land so meted and bounded justly and
honestly belongs to him as the claimant under the original donee,
and charges that the defendants, on the 26th of February, 1852,
procured a survey of the same to be made, under the authority of
the United States, for the other claimant, which embraces the
described tract, and caused the same to be set apart for such other
claimant, and that they afterwards, on the 25th of March, 1852,
procured a patent to be issued to that same party upon the said
survey; that the said 4 x 4 arpents, as reserved in the deed of the
original donee, was, on the 8th of May, 1862, again surveyed by the
proper authorities and that the same was laid off in the southeast
corner of the survey, with its southern boundary coincident with
the northern boundary of the Esther tract, and that said survey was
duly approved and that a patent was duly issued for the said 4 x 4
arpents of land to the original donee or his legal representatives;
that the survey and patent to the other claimant, so far as they
conflict with the survey and patent to the original donee, are a
cloud upon the title of the plaintiff, as they are older than the
latter, and that the defendants continually assert the validity of
the former and the invalidity of the latter; that they have
combined and confederated to keep the plaintiff out of the
possession of the premises, and that they have received the rents
and profits thereof to an amount not less than $25,000; and he
prays that he may be protected and established in his just rights,
and that the court, by its judgment and decree, will divest out of
the defendants all the right, title, and interest acquired or
claimed by them from the other claimant, or anyone claiming under
him, and invest the same in the plaintiff and put him in possession
thereof, and that an account may be taken of the rents and profits
which have accrued while the defendants were in possession of said
premises and that the plaintiff may have judgment therefor; and he
also prays for such other relief as may be proper in
Page 84 U. S. 278
the case. Service was made and the defendants appeared and filed
an answer, denying pretty nearly every material allegation of the
petition. They admitted, however, that the governor made the
concession of the 4 x 20 arpents to Joseph Brazeau, and they set up
as the source of their title the deed of the 4 x 16 arpents,
deducting the reservation from the original donee to the other
claimant.
Such an instrument granted only an incomplete title, as the
governor never possessed the power to issue a patent. Consequently
the legal title to the land vested, under the treaty of cession, in
the United States, as the successor of the former sovereign, and
the court decided, in the prior opinion in this case, [
Footnote 19] that a donee of an
incomplete title, in the territory ceded by the treaty, could not
convert such a title, as derived from the former sovereign, into a
complete title under the United States in any other mode than that
prescribed by an act of Congress. Such being the law, it became
necessary for the respective parties to prove that their respective
claims had been confirmed, and they accordingly introduced in
evidence the proceedings in respect to the concession in
controversy before the board of commissioners for the adjudication
of such claims. Most or all of those documents are material in this
investigation, but inasmuch as they will all be found in the former
opinion of the Court in this case, they will not be reproduced. All
of those documents were examined by the Court in the prior opinion
given in the case, and the Court decided that the effect of the
proceedings was to correct the error committed by the surveyor of
the former government and place the rights of the litigants upon
their true basis. Proceedings of various kinds in respect to the
tract also took place, under the direction of officers in the land
department, subsequent to the treaty of cession, but it will be
sufficient to remark upon that subject that the history of those
proceedings is fully given in the former opinion and that the
proceedings resulted in the survey and the patent to the original
donee
Page 84 U. S. 279
or his legal representatives, under which the plaintiff now
claims. None of the proceedings is referred to with any other view
than to enable the parties to understand the propositions of law
and fact which were decided by the Court in the former opinion, as
it is not proposed to reexamine any of those questions.
Apart from the matters already mentioned, the Court also decided
that the incomplete title to the whole tract of 4 x 20 arpents was
granted by the governor to the claimant mentioned in the concession
evidencing the grant; that the deed from the donee of the tract to
the other claimant did not convey the 4 x 4 arpents now in
controversy, but that the title to the same, as acquired by the
concession, still remained in the donee of the tract, by virtue of
the reservation contained in the deed; that the survey made by the
surveyor under the former sovereign did not have the effect to
impair the incomplete title of the donee nor to convey, assign, or
transfer any interest whatever in the tract of 4 x 4 arpents to the
grantee in that deed; that the tract of 4 x 4 arpents was confirmed
to the original donee by the decree of the commissioners, of
September 22, 1810, and that the same was never confirmed to the
other claimant; that the other claimant did not acquire the legal
title to the tract of 4 x 4 arpents under the patent granted to
him, as the saving clause in the same reserved any valid adverse
right which existed to any part of the tract; that the patent
granted to the original donee at the same time never became
operative, as he refused to accept the same, and it was returned to
the land department; that the subsequent action of the secretary in
cancelling the same and in ordering a new survey was authorized by
law; that the original donee, by virtue of that survey and the
patent granted to him, acquired the legal title to the tract of 4 x
4 arpents, as he was the rightful owner of the incomplete title;
that the land reserved is bounded on the south by the concession to
the mulatto woman and north by the south line of the "sixteen
arpents in depth" conveyed by the deed, and lies north of the
ditch; that the legal title to the tract of 4 x 4 arpents remained
in
Page 84 U. S. 280
the United States until the 10th of June, 1862, when the patent
was granted to the donee of the incomplete title under the former
sovereign; that the title of the donee before he obtained the
patent was incomplete, and attached to no particular parcel of
land, and consequently the respective defenses of the statute of
limitations and of a former recovery were inapplicable to the case,
as the legal title was in the United States as derived by the
treaty of cession. [
Footnote
20]
Lastly, the answer set up the defense of innocent purchasers,
but the Court decided that the record furnished no evidence to
support the defense, or to show that the decision of the state
court turned upon any such ground, and that the conclusion, in view
of those facts, must be, that no such question was decided, as this
Court will not presume that the court below decided erroneously in
order to defeat their own jurisdiction. [
Footnote 21]
Having overruled all of those special defenses, the Court
proceeded to say in the first opinion that the incomplete title to
the tract remained unextinguished in the original donee or his
assigns throughout the whole period of the litigation; that he
never sold the 4 x 4 arpents to the other claimant, nor did he ever
request that it should be surveyed or located in any other place
than the one where it was, by the first survey, ascertained to be;
that the other claimant never had any concession of the tract, that
he never purchased it and never had any title of any kind to any
part of the concession, except the sixteen arpents as described in
his deed from the rightful owner of the residue of the tract.
Viewed in the light of these several suggestions, as the case
must be, it is plain and undeniable that this Court, in the former
opinions delivered in the case, disposed of every material question
at issue in the record between the parties, and decided "that the
said tract of land so meted and
Page 84 U. S. 281
bounded justly and honestly belongs to the plaintiff," as
alleged in the petition.
Removed here, as the cause then was, by writ of error to the
supreme court of the state, it becomes necessary to advert briefly
to the proceedings in the state courts.
By the bill of exceptions it appears that the issues of law and
fact were heard by the judge of the court of common pleas, trying
the cause without a jury, and the bill of exceptions states at its
commencement that "The following are all the proceedings, evidence,
and testimony offered, given, and had before the court." Then
follows what purports to be all the proceedings, evidence, and
testimony, and the bill of exceptions also states at its conclusion
that the foregoing is all the evidence, testimony, and proceedings
in the cause on the trial thereof before the court, and all, every,
and each of said deeds, documents, papers, plats, and depositions,
testimony, evidence, records, patents, and all other instruments of
writing set forth and copied in the foregoing bill of exceptions,
and that the same were duly read in evidence on the trial of this
cause, and that the said cause was thereupon submitted to the court
for decision and decree. It also appears by the decree that the
cause was submitted for decision upon the petition and answers of
all the defendants, and the exhibits and other evidence in the
cause, and that
"The court finds that, out of the claim presented to the board
of commissioners by Labeaume, the tract of 4 x 4 arpents claimed by
the plaintiffs was confirmed to Joseph Brazeau, or his legal
representatives, and that the court also found the issues in this
cause in favor of the plaintiff, and therefore it was ordered,
adjudged, and decreed that the tract of land, meted and bounded as
follows,"
describing it as before stated,
"be and the same is hereby decreed to the plaintiff, and that
all the right, title, and interest of each and everyone of said
defendants in and to said tract of land, is hereby divested out of
them and vested in and passed to the plaintiff, to have and to hold
to the plaintiff, his heirs and assigns, the said tract of land so
passed to the plaintiff, his heirs and assigns forever, the same
being the tract covered by the
Page 84 U. S. 282
survey No. 3343, approved May 8, 1862, and patented to Joseph
Brazeau or his legal representative, the 10th of June in the same
year."
Rents and profits were also decreed to the plaintiff, and the
cause was sent to a master to report the amount. Two motions for
new trial were filed by the defendants, but they were both denied
and the court, having amended and confirmed the report of the
master, entered a final decree for the plaintiff, and the
defendants having filed a bill of exceptions, as before explained,
appealed to the supreme court of the state. Hearing was had in the
supreme court upon the exhibits, proofs, evidence, and testimony
set forth in the bills of exceptions, and the supreme court
reversed the decree of the court of common pleas and dismissed the
petition. Whereupon the plaintiff sued out a writ of error and
removed the cause into this Court, and this Court reversed the
decree of the supreme court of the state, and by the order, as
amended, remanded the cause for further proceedings in conformity
to the opinion of the Court. [
Footnote 22] Pursuant to the mandate of this Court
remanding the cause, the supreme court of the state reversed their
former decree reversing the judgment and decree of the court of
common pleas and dismissing the petition, but they did not proceed
and dispose of the case in conformity to the opinion of this Court,
as directed in the mandate.
By the directions of the mandate they were as much bound to
proceed and dispose of the case in conformity to the opinion of
this Court as to reverse their former decree, but instead of that
they entered a new decree dismissing the petition, which in effect
evades the directions given by this Court, and practically reverses
the judgment and decree which the mandate directed them to execute.
Argument to show that a subordinate court is bound to proceed in
such an event and dispose of the case as directed, and that they
have no power either to evade or reverse the judgment of this
Court, is unnecessary, as any other rule would operate
Page 84 U. S. 283
as a repeal of the Constitution and the laws of Congress passed
to carry the judicial power conferred by the Constitution into
effect.
Beyond all question, this Court decided every question at issue
between the parties which it was necessary to decide to dispose of
the case upon the merits, and it is clear that it is not competent
even for this Court, after the term expired, to review and reverse
such a decree. Repeated decisions of this Court have established
the rule that a final judgment or decree of this Court is
conclusive upon the parties, and that it cannot be reexamined at a
subsequent term except in cases of fraud, as there is no act of
Congress which confers any such authority. Second appeals or writs
of error are allowed, but the rule is universal that they bring up
only the proceedings subsequent to the mandate, and do not
authorize an inquiry into the merits of the original judgment or
decree. Rehearings are never granted where a final decree has been
entered and the mandate sent down, unless the application is made
at the same term, except in cases of fraud. Appellate power is
exercised over the proceedings of subordinate courts, and not over
the judgments or decrees of the appellate court, and the express
decision of this Court in several cases is that "the court has no
power to review its decisions, whether in a case at law or in
equity, and that a final decree in equity is as conclusive as a
judgment at law," which is all that need be said upon the subject.
[
Footnote 23] On receipt of
the mandate, it is the duty of the subordinate court to carry it
into execution even though the jurisdiction do not appear in the
pleadings. [
Footnote 24]
Deprived of the fruits of the decree of this Court, as ordered
in the mandate, the plaintiff sued out a second writ
Page 84 U. S. 284
of error, and removed the cause a second time into this
Court.
Brought here, as the cause is, by a second writ of error, it is
settled law in this Court that nothing is brought up for
reexamination and revision except the proceedings of the
subordinate court subsequent to the mandate. [
Footnote 25] It has been settled, says Mr.
Justice Grier, by the decisions of this Court, that after a case
has been brought here and decided and a mandate issued to the court
below, if a second writ of error is sued out, it brings up for
revision nothing but the proceedings subsequent to the mandate.
None of the questions which were before the court on the first writ
of error can be reheard or examined upon the second, as it would
lead to endless litigation. [
Footnote 26]
Different theories are put forth as to the ground assumed by the
supreme court of the state in refusing to proceed with the case as
directed in the mandate, and in entering the decree dismissing the
petition, but the explanations given in the order of the court show
that the court decided that the petition was a proceeding to obtain
equitable relief in respect to the lands therein described, and
that the legal title to the premises cannot be tried and adjudged
under such a petition, and that inasmuch as the plaintiff had a
plain, adequate, and complete remedy at law, the suit could not be
maintained.
Presented as the proposition was as a reason for not executing
the mandate of this Court, the question as to its sufficiency is
one which must necessarily be determined by this Court, else the
jurisdiction of the court will always be dependent upon the
decision of the state court, which cannot be admitted in any
case.
State courts have no power to deny the jurisdiction of this
Court in a case brought here for decision and sent back with the
mandate of the court, which is its judgment. Such a question, that
is, the question whether the legal title was
Page 84 U. S. 285
in the plaintiff, and whether or not he had a plain, adequate,
and complete remedy at law, might have been raised in the court of
original jurisdiction, and perhaps it might have been raised here
when the case was before the court upon the first writ of error,
but it is clear that it was too late to raise any such question
after the whole case had been decided and the cause remanded for
final judgment. [
Footnote
27] Confirmation of that proposition of the most decisive
character is found in the statute law of the state. Prior to the
commencement of this suit, the legislature of the state abolished
all forms of pleading based on the distinction between law and
equity and enacted that
"there shall be in this state
but one form of action
for the enforcement or protection of private rights and the redress
or prevention of private wrongs, which shall be denominated a civil
action. [
Footnote 28]"
Suits may be instituted in courts of record by filing in the
office of the clerk of the proper court a petition setting forth
the plaintiff's cause of or causes of action and the remedy sought.
[
Footnote 29]
Section three of article six enacts that the first pleading on
the part of the plaintiff is the petition, which shall contain:
(1) The title of the cause, specifying the name of the court and
county in which the action is brought, and the names of the parties
to the action.
(2) A plain and concise statement of the facts constituting a
cause of action, without unnecessary repetition.
(3) A demand of the relief to which the plaintiff may suppose
himself entitled. [
Footnote
30]
Corresponding regulations are also enacted in the next section
in relation to defenses, which provides that the only pleading on
the part of the defendant is either a demurrer or an answer; and
the forty-eighth section provides that every material allegation in
the petition not specifically controverted in the answer, and every
material allegation in the answer of new matter, constituting a
counter claim, not
Page 84 U. S. 286
specifically controverted in the reply, shall, for the purposes
of the action, be taken as true. [
Footnote 31]
By the same statute it is enacted that the defendant may demur
to the petition when it shall appear upon the face thereof,
either:
(1) That the court has no jurisdiction of the person of the
defendant or the subject matter of the action.
(2) That the plaintiff has not legal capacity to sue.
(3) That there is another action pending between the same
parties for the same cause of action in the state.
(4) That there is a defect of parties plaintiff or
defendant.
(5) That several causes of action have been improperly
united.
(6) That the petition does not state facts sufficient to
constitute a cause of action.
(7) That a party, plaintiff or defendant, is not a necessary
party to a complete determination of the action. [
Footnote 32]
No other grounds of demurrer are allowed by the statutory rules
of pleading. Those rules demand only a cause of action, but it need
not be designated as legal or equitable, as a demurrer for want of
form is not allowed; nor is the jurisdiction of the court in any
way affected by forms.
Such objections as those enumerated in the sixth section, if
they do not appear on the face of the petition, may be taken by
answer, and the tenth section expressly enacts that "if no such
objection be taken,
either by demurrer or answer, the
defendant shall be deemed
to have waived the same,"
excepting only the objection to the jurisdiction of the court over
the subject matter of the action, and excepting the objection that
the petition does not state facts sufficient to constitute a cause
of action.
It is not denied, nor can it be, that the plaintiff stated a
good cause of action in his petition, and it is equally clear that
he proved it and that he prayed for the very relief he is entitled
to receive; and as the law of the state allows of but one form of
action for the enforcement or protection of private rights, the
Court is of the opinion that the objection under consideration is
entirely without merit, as such an
Page 84 U. S. 287
objection is not a valid one under the statutory rules of
pleading prescribed in that state.
Suppose the general rule, however, to be otherwise, still the
Court is of the opinion that the objection, even if it had been
made earlier, could not avail the defendants, as they did not make
it
by demurrer or in the answer, as the express provision
of the statute is that unless it is made by demurrer or answer,
"the defendant shall be deemed to have waived the same."
Justice requires that that rule shall be applied in this case,
as the case has been pending more than ten years, having been twice
heard in the common pleas, once in the supreme court of the state,
twice before the present hearing, including the hearing on the
motion, in this Court, and a second time in the supreme court of
the state, and is now here on a second writ of error after this
Court has decided that the plaintiff has a complete, perfect, and
unqualified right under the patent granted to the original donee or
his legal representatives.
Unless the rule suggested is applicable in this case, it is
difficult to imagine a case where it would be, as the petition
presents every fact constituting the cause of action, and it cannot
be denied that the relief prayed is appropriate to the cause of
action alleged, and the practice in such a case is, under the
system of pleading adopted in that state, that the court will give
the relief, no matter whether it be legal or equitable, if the
facts alleged are fully proved, as the rule is that if the facts
stated in the petition give a right of action the plaintiff ought
to recover. [
Footnote 33]
Where a cause is tried by a court without a jury, the supreme court
of the state will affirm the judgment if the facts found support
the judgment. [
Footnote 34]
Under the code, the plaintiff is entitled to all the relief that
would formerly have been afforded him both by a court of law and
equity. [
Footnote 35] If the
defendant has answered,
Page 84 U. S. 288
the court may grant the plaintiff any relief under the code
consistent with the case made by the complaint and embraced within
the issue. [
Footnote 36] So,
where the facts are sufficiently stated in the petition, the
supreme court of the state hold that the plaintiff may have such
judgment as the facts stated will give him, although he may have
asked for a different relief in the prayer of his petition.
[
Footnote 37] Exactly the
same rule is laid down in numerous adjudications in other states,
and those of very high respectability, showing that such is the
general rule in many jurisdictions, and it is believed that no case
can be found where a different rule has ever been adopted in a case
finally determined in the Supreme Court of Errors, and remanded to
the subordinate court under a mandate directing the subordinate
court to execute the decree of the appellate tribunal. Where a
defendant put in his answer, instead of a demurrer, and the cause
came to be heard on the merits, Chancellor Kent held that it was
too late to object to the jurisdiction of the court on the ground
that the plaintiff might have pursued his remedy at law. [
Footnote 38] After a defendant has
put in an answer to a bill in chancery, submitting himself to the
jurisdiction of the court, it is too late, says Chancellor
Walworth, to insist that the complainant has a perfect remedy at
law, unless the court is wholly incompetent to grant the relief
sought by the bill. [
Footnote
39]
Such a defense was never made in the case until the first
opinion of the Court heretofore delivered in the case was read in
Court and published. In that opinion, the Court decided that
Labeaume did not acquire the legal title to the tract of 4 x 4
arpents, under the patent granted to him, as
Page 84 U. S. 289
the saving clause in the patent reserved any valid adverse right
which may exist to any part of the tract; that the patent granted
to Joseph Brazeau at the same time never became operative, as he
refused to accept the same, and returned it to the land department;
that the subsequent action of the Secretary of the Interior in
cancelling the same, and in ordering a new survey, was authorized
by law; that Joseph Brazeau, by virtue of that survey, and the
patent granted to him June 10, 1862 acquired the legal title to the
tract of 4 x 4 arpents, notwithstanding the saving clause in the
patent, as he was the rightful owner of the incomplete title to the
same, as acquired by the concession granted under the former
sovereign. Directed, as the court below was, to proceed in
conformity to the opinion of the court, it is quite clear that it
was their duty to reverse their judgment and to grant to the
plaintiff the relief prayed in his petition -- that is, to enter a
decree divesting out of the defendants all the right, title, and
interest acquired or claimed by them and each of them form the
other claimant or anyone claiming under him, and invest the same in
the plaintiff, and to put him in possession of the premises.
Such being the conclusion of the Court, it only remains to
decide what disposition shall be made of the case. Having been once
before remanded and the cause being here upon a second writ of
error, the court, under the Judiciary Act, may at their discretion
remand the same a second time or "proceed to a final decision of
the same and award execution." [
Footnote 40] Somewhat different rules are enacted in the
second section of the Act of the 5th of February, 1867, which
justify the conclusion that the court in such a case, under that
regulation, may at their discretion, though the cause has not
before been remanded, proceed to a final decision of the same and
award execution, or remand the same to the subordinate court.
[
Footnote 41] 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
Page 84 U. S. 290
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. [
Footnote 42] In causes remanded to the circuit courts, if
the mandate be not correctly executed, a writ of error or appeal,
says Mr. Justice Story, has always been supposed to be a proper
remedy and has been recognized as such in the former decisions of
this Court. Writs of error from the judgments of state courts have
the same effect as writs of error from the circuit courts, and the
act of Congress, in its terms, provides for proceedings where the
same cause may be a second time brought up on a writ of error to
this Court. It was contended in that case that the former judgment
of this Court was rendered in a case not within the jurisdiction of
the Court, to which the learned Justice, as the organ of the Court,
gave several answers. In the first place, he said, "it is not
admitted that, upon this writ of error, the former record is
before" the Court, as the error now assigned is not in the former
proceedings, but in the judgment rendered upon the mandate issued
after the former judgment. He also proceeds to show that a second
writ of error does not draw in question the propriety of the first
judgment, adding that it is difficult to perceive how such a
proceeding could be sustained upon principle, and that it had been
solemnly held in several cases that a final judgment of this Court
is conclusive upon the parties, and cannot be reexamined. Suffice
it to say the rule is there settled that where the cause has once
before been remanded and the state court declines or refuses to
carry into effect the mandate of the Supreme Court, the court will
proceed to a final decision of the same and award execution to the
prevailing party; nor is that a solitary example,
Page 84 U. S. 291
as the decree in
Gibbons v. Ogden, [
Footnote 43] was also entered in this
Court.
It follows that that part of the decree of the supreme court of
the state dismissing the petition must be reversed, with costs, and
that a decree be entered in this Court for the plaintiff, that the
tract of 4 x 4 arpents claimed by the plaintiff was confirmed by
the commissioners to Joseph Brazeau, and that the final survey, and
the patent of June 10, 1862, issued to him or his legal
representatives, gave him a complete title to the tract, and that
the same tract, as meted and bounded in the petition, be decreed to
the plaintiff, and that all the right, title, and interest of each
and everyone of said defendants in and to said tract of land be
divested out of said defendants and be vested in and passed to the
plaintiff, to have and to hold to the said plaintiff, his heirs and
assigns, forever.
Apart from that, a claim is also made by the plaintiff for the
rents and profits, and the record shows that the cause in the court
where the original decree was entered was referred to a master to
ascertain the amount, and that the master made a report which was
confirmed by the court, but the decree of that court was reversed
in the supreme court of the state, which would make it necessary
that a new estimation of the rents and profits should be made
before the claim can become the proper subject of a decree. Some
reference was made to the subject in the argument, but it was by no
means fully discussed. Years have elapsed since the hearing was had
before the master, and in the meantime many changes no doubt may
have taken place in respect to the occupation of the premises, and
many of the occupants of the different portions of the tract may
have deceased; great changes may also have taken place in the value
of the property and in the state and condition of the improvements
which plainly renders it impracticable to do justice between the
parties without a new reference, which is a matter of jurisdiction
that this Court is not inclined to exercise except
Page 84 U. S. 292
when it becomes absolutely necessary to prevent injustice.
Evidently such a claim must depend very largely upon the statutory
provisions of the state, and to those the court has not been
referred. Unless the statutes present some insuperable difficulties
in the way of such a recovery, no doubt is entertained that the
plaintiff will be entitled to enforce that claim in such form of
remedy as is allowed by the local law. Whoever takes and holds
possession of land to which another has a better title is in
general liable to the true owner for all the rents and profits
which he has received, whether the owner recover the possession of
the premises in an action at law or in a suit in equity. [
Footnote 44] Depending, as such a
claim necessarily must, very much upon the statutes of the state,
the Court, on the authority of the case of
Miles v.
Caldwell [
Footnote 45]
as well as for the other reasons suggested, deems it proper to
leave the party to prosecute the claim as he may be advised in the
tribunals of original jurisdiction as better suited to investigate
and adjudicate such a claim than a court of errors. Besides the
relief already described, the decree will also direct that the
plaintiff be put in possession of the premises, and for that
purpose he will be entitled to a writ of possession to be issued by
the clerk of this Court.
Decree reversed and the following
"
DECREE ENTERED"
The cause having heretofore been argued by the counsel of the
respective parties, and submitted to the Court for a decision upon
the plaintiff's petition and the answer of the defendants and the
proofs, exhibits, documents, stipulations and other evidence in the
cause, as appears by the authenticated transcript of the record
annexed to and returned with the writ of error, and mature
consideration having been had thereon, it is:
Ordered, adjudged and decreed that so much of the
decree
Page 84 U. S. 293
of the supreme court of the state as dismissed the petition of
the plaintiff be, and the same is hereby, reversed with costs. And
it is further ordered, adjudged, and decreed, that the tract of 4 x
4 arpents claimed by the plaintiff was confirmed by the board of
commissioners to Joseph Brazeau or his legal representatives, and
that the said tract of land as meted and bounded, justly and
equitably belongs to the plaintiff, as alleged in his petition, and
as shown by the survey of the 8th of May, 1862, and by the patent
of the 10th of June following, duly executed and signed by the
President.
Wherefore this Court proceeding to render such decree in the
case as the supreme court of the state should have rendered, it is
ORDERED, ADJUDGED, AND DECREED that the said tract of land, being
the said 4 x 4 arpents claimed by the plaintiff, and meted and
bounded as follows,
viz.: beginning at a point on the
right bank of the Mississippi River, the northeast corner of survey
No. 3342, in the name of Esther, a free mulatress, or her legal
representatives, and the southeast, corner of Louis Labeaume's
survey, No. 3333; thence south 74 degrees 30 minutes west, with the
southern boundary of said Labeaume's survey, and the northern
boundary of the said Esther survey, to the northwest corner of the
said Esther survey; thence north 23 degrees west, 776 feet 8
inches, to a stone; thence north 74 degrees 30 minutes east, 776
feet 8 inches, to a point on the right bank of the Mississippi
River; thence down and along the right bank of said river to the
beginning; be and the same is hereby decreed to the plaintiff, and
all the right, title, and interest of each and everyone of said
defendants, in and to said tract of land, is hereby divested out of
said defendants, and each of them, and that the same is vested in
and by virtue of the patent passed to the plaintiff; to have and to
hold to the said plaintiff, his heirs and assigns, the said tract
of land so passed to him and his heirs and assigns forever, being
the same which is covered by the survey No. 3343, approved May 8,
1862, and patented to Joseph Brazeau 10 June in the same year, as
appears by the record.
AND IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the
plaintiff recover the possession of the said tract of land as
herein meted and bounded, and that a writ of possession issued for
that purpose in the usual form, directed to the marshal of this
Court, duly executed by the clerk, and under the seal of this
Court.
Page 84 U. S. 294
MR. JUSTICE SWAYNE, MR. JUSTICE STRONG, and MR. JUSTICE BRADLEY,
dissented.
MR. JUSTICE HUNT did not hear the argument, and took no part in
the judgment.
[
Footnote 1]
1. Revised Statutes of Missouri 1216.
[
Footnote 2]
Ib., 1222.
[
Footnote 3]
Ib., 1229.
[
Footnote 4]
Ib., 1230.
[
Footnote 5]
Ib., 1231.
[
Footnote 6]
The
opinion of the court, which, however, according to
the well settled rule of this Court, would not, even if inserted in
the transcript, make any part of the
record, disclosed the
grounds of the reversal. (
See 40 Missouri 433.)
The opinion opens with the declaration that the suit is one
"in the nature of a bill of equity, seeking to divest out of the
defendants the title held by them, and to vest the same in the
plaintiff, and to put him in possession"
&c.
"The answer denies the equities . . . pleads in bar a final
decree in chancery, in a former suit, between the same parties, and
insists that the suit is barred by the great lapse of time."
The court then enters into a comparison of title under the
patents to the respective parties, and considers the equities lying
behind the patents.
It then says:
"Courts of equity in this state exercise jurisdiction according
to the principles of equity jurisprudence, excepting only as the
same may have been modified by some special statute. . . . There is
really no case made on the record which can entitle the plaintiff
to relief under any head of equity jurisprudence."
The court then sustains the plea of
res judicata,
saying that "the former decree in chancery between these parties
proceeded upon the same substantial facts and grounds of equity
that are here alleged again."
As respects the plea of the statute of limitations the court
says:
"The great lapse of time and the statute of limitations have
been urged on our consideration. On this it will be enough to say
that the defense resting upon a Spanish possession, under a
concession and recorded survey, and continued to the present time
under an absolute title from the United States, dated from the year
1806, needs no help, and could derive no additional strength from
any statutes of limitations."
The judgment for these reasons was reversed and the petition
dismissed.
[
Footnote 7]
See Magwire v.
Tyler, 8 Wall. 650.
[
Footnote 8]
See Appendix, where the section is set forth.
[
Footnote 9]
Davis v.
Packard, 8 Pet. 323;
Mitchel
v. United States, 15 Pet. 84.
[
Footnote 10]
47 Mo. 125, October Term 1870.
[
Footnote 11]
Janney v. Spedden, 38 Mo. 395.
[
Footnote 12]
Bradley v. Aldrich, 40 N.Y. 510;
Lattin v.
McCarty, 41
id. 107.
[
Footnote 13]
See Peyton v. Rose, 41 Mo. 257;
Curd v.
Lackland, 43
id. 139;
Young v. Coleman, ib.,
179;
Gray v. Payne, ib., 203;
Wynn v. Cory, ib.,
301;
Jones v. Moore, 42
id. 413;
Lambert v.
Blumenthal, 26
id. 471;
Gott v. Powell, 41
id. 416.
[
Footnote 14]
1 Stat. at Large 86.
[
Footnote 15]
14
id. 387.
[
Footnote 16]
8 Stat. at Large 202;
United States v.
Wiggins, 14 Pet. 350.
[
Footnote 17]
2 Stat. at Large 326.
[
Footnote 18]
Ib., 283, 327, 353, 391, 440.
[
Footnote 19]
Magwire v.
Tyler, 8 Wall. 658-661.
[
Footnote 20]
United States v.
King, 3 How. 786;
Same v.
Forbes, 15 Pet. 173;
Landes
v. Brant, 10 How. 370;
West
v. Cochran, 17 How. 414;
Stanford v.
Taylor, 18 How. 412;
Bissell v.
Penrose, 8 How. 334.
[
Footnote 21]
Neilson v.
Lagow, 12 How. 110;
Magwire v. Tyler, 40
Mo. 433;
Magwire v.
Tyler, 1 Black 199.
[
Footnote 22]
Magwire v.
Tyler, 8 Wall. 650,
75 U. S.
672.
[
Footnote 23]
Washington Bridge Co. v.
Stewart, 3 How. 424;
Ex
Parte Sibbald, 12 Pet. 492;
Peck v.
Sanderson, 18 How. 42;
Leese v. Clark, 20
Cal. 417;
Hudson v. Guestier, 7 Cranch 1;
Browder v.
McArthur, 7 Wheat. 58.
[
Footnote 24]
Skillern's Executors v. May's
Executors, 6 Cranch 267;
Livingston
v. Story, 12 Pet. 339;
Chaires v. United
States, 3 How. 618;
Whyto
v. Gibbes, 20 How. 542;
Sibbald v.
United States, 2 How. 455.
[
Footnote 25]
Roberts v.
Cooper, 20 How. 467.
[
Footnote 26]
Sizer v. Many,
16 How. 98;
Corning v. Iron
Co., 15 How. 466;
Himely v.
Rose, 5 Cranch 313;
Martin
v. Hunter, 1 Wheat. 355.
[
Footnote 27]
Hipp v.
Babin, 19 How. 278;
Parker
v. Woollen Co., 2 Black 551.
Noonan
v. Bradley, 12 Wall. 129.
[
Footnote 28]
2 Revised Statutes 1216.
[
Footnote 29]
Ib., 1222.
[
Footnote 30]
Ib., 1229.
[
Footnote 31]
2 Revised Statutes 1230-1238.
[
Footnote 32]
Ib., 1231.
[
Footnote 33]
Scott v. Pilkington, 15 Abbott's Practice Reports 285.
[
Footnote 34]
Robinson v. Rice, 20 Mo. 236;
Butterworth v.
O'Brien, 24 Howard's Practice Reports 438.
[
Footnote 35]
Rankin v. Charless, 19 Mo. 493;
Winterson v.
Railroad Co., 2 Hilton 392;
Patrick v. Abeles, 27 Mo.
185.
[
Footnote 36]
Marquat v. Marquat, 12 N.Y. 341.
[
Footnote 37]
Miltenberger v. Morrison, 39 Mo. 78;
Meyers v.
Field, 37
id. 434.
[
Footnote 38]
Underhill v. Van Courtlandt, 2 Johnson's Chancery 369;
Livingston v. Livingston, 4
id. 290.
[
Footnote 39]
Grandin v. Le Roy, 2 Paige 509;
Hawley v.
Cramer, 4 Cowen 727;
Ludlow v. Simond, 2 Caines'
Cases 56;
Le Roy v. Platt, 4 Paige 81;
Davis v.
Roberts, 1 Smedes & Marshall's Chancery 550;
Osgood v.
Brown, 1 Freeman's Chancery 400;
May v. Goodwin, 27
Ga. 353;
Burroughs v. McNeill, 2 Devereux & Battle's
Equity 300;
Rathbone v. Warren, 10 Johnson 595.
[
Footnote 40]
1 Stat. at Large 86.
[
Footnote 41]
14
id. 387.
[
Footnote 42]
Martin v.
Hunter, 1 Wheat. 354.
[
Footnote 43]
22 U. S. 9 Wheat.
239.
[
Footnote 44]
Green v.
Biddle, 8 Wheat. 70;
Chirac
v. Reinicker, 11 Wheat. 296;
Same
Case, 2 Pet. 617.
[
Footnote 45]
69 U. S. 2 Wall.
44.
