author: Mr. Justice CURTIS

text:
    William Christy, Plaintiff in error, v. William T. Scott; William Christy v. James D. Finley; William Christy v. William Young; William Christy v. Hiram Henly.
    Iü Texas, the technical forms of pleading, fixed by the common law, are dispensed with, but' the principles which regulate the merits of a trial by ejectment and the substance of a plea of title to such an action, are preserved.
    Therefore, where the plaintiff filed a petition alleging that he was seised in his demesne as of fee of land from which the defendant had ejected him, and the defendant pleaded, that if the plaintiff had any paper title, it was under a certain grant which was not valid, this plea was bad.
    So also Was a plea denying the right of the plaintiff to receive his title, becau :e he . was Wot then a citizen of Texas. These pleas would have been appropriate oojeetions to the plaintiff’s title when produced upon the trial.
    So also where, under a plea of the statute of limitations, the defendant claimed eer- ■ tain land by metes and bounds, and disclaimed all not included within them. There is nothing to show that the land so included, was part of the land claimed by the . 'plaintiff.
    So also where the plea was in substance that the plaintiff had no good title against Texas, no title in the defendant being shown. Tor the action may have been .maintainable, although the true title was not in the plaintiff.
    These four cases were brought up, by writ of error, from the District Court pf the United States for the District of Texa.s.
    They all involved the same principles, and were covered by the: decision in Scott’s case. It is necessary, therefore, to set out the pleadings in that case.
    Christy filed his petition, alleging that he was seised in his demesne as of fee, in a certain tract or parcel of land, (which he described by ihetes and bounds,) from which Scott ejected him ; and praying judgment for damages, and for the recovery of the lands.
    Scott filed the following answer: And now comes the said defendant, and answering the petition of the plaintiff, says,.that he denies all and singular the allegations in the said petition, and pr.ays that the plaintiff be held to strict proof of the same.
    2. And as to the trespasses and ejectments, or either or any of them, complained of by [the] plaintiff in his petition, the defendant says he is not guilty, and puts himself upon the country, &c.
    3. ' And the defendant further says, that as to the pretended grant or title of the plaintiff to the land described in his petition, (if any paper title he has) the same bears date, to wit, the twentieth day of September,. A. D. 1885, and the land described in said pretended grant or title, and in said petition, is, and was at the date of said grant, situated in the twenty frontier .leagues bordering on the United [States] line, and said pretended grant was made without the approbation or assent of the executive of the national government of Mexico.
    4. And the said defendant further answers, and says,, that if any such .grant or title was made, as by said plaintiff is pretended; the same was made, (as by said' plaintiff’s- pretended grant appears,) on, to wit, the twentieth ddy of September, A. D. 1835, and was not made by any public officer, commissioner, or authority, then, to wit, at the date of said pretended grant or title, existing in the State of Coahuila and Texas, competent to make the same.
    5. And the said defendant further says, that the plaintiff claims the land sued for under and through.a pretended grant from'the government of the State of Coahriiía and Texas, made to one Miguel Arceniega, as a Mexican and purchaser, and purporting to have been procured for the said Arceniega by one William G. Logan, as his agent. And the defendant says, that the said pretended grant or title of the plaintiff to' the land sued for is not .valid in law, because the same was procured from the government of the State of Coahuila and Texas by fraud, in this, that the said Miguel Arceniega and the said William G. Logan combined and confederated together for the purpose of evading the law, then in force, allowing the sale of lands to Mexicans, and to them only; and falsely and: fraudulently represented to the said government that the application by. said Arceniega for the said grant of land was really and bond fide made for him by the said Logan, and that the said Arceniega was to be the real purchaser of said land, and to hold and enjoy the same as a Mexican citizen; .while, in truth, the said Arcemega fraudulently permitted the said Logan to use his name, and in his name procure the said grant solely for the use and bene-' fit of him, the said Logan, who was not, at the time of procuring said grant, a Mexican citizen; and who, by the false and fraudulent practices aforesaid, procured the said grant, and appropriated the land granted to his (the said Logan’s) own use and benefit;
    6. And the said defendant says, that the plaintiff claims the premises described in his, petition by a pretended grant, purporting to have been made by authority of the government of the State of Coahuila and Texas to Miguel Arceniega, bearing date, to’ wit, the twentieth day of September, A. D. 1835; and that the said pretended grant was made upon the conditions that the said Arceniega, or the person or persons to whom he might alienate the land in said grant described, should cultivate the same within six years from the acquisition thereof by said pretended title, and pay for said land the price established by law. And the defendant, says, that the said Areeniega, and those claiming said land under him, wholly failed to comply with said conditions.
    7. And the said defendant says, that the said plaintiff claims the land described in his petition under and through a pretended grant purporting to have been made to one Miguel Areeniega by authority of the government of the State of Coahuila and Texas, bearing date, to wit, the twentieth day of September, A. D. 1835, and under and through a pretended claim of transfers from said Areeniega to plaintiff; and that within’six years from the date of said pretended grant, and before the annexation of- Texas to the United States, the said pretended transfers were made to said plaintiff; and that the plaintiff was not, at the date of said pretended grant to him, and previous thereto had never been, a resident citizen of Texas or Mexico, but was then, and thence hitherto continued to be, a resident and citizen of the United States of- America, owing and paying allegiance to the government, thereof.
    8. And the said defendant further answering says, that he is the owner of the following tracts or parcels of land, to wit: (setting out a tract of land by metes and bounds,'.but without saying.whether or not it was the land claimed by the plaintiff) and the defendant says that his possession of the said land is by virtue of the authority and title of the said John Graves,’ and as claimant under said Graves; and the said defendant says, that he and the said Graves, under whom he claims as to the said last-mentioned tract of land, and that he, in his own right and those under Whom he claims, as to the several parcels of land above described, have had peaceable adversé possession of said several-tracts of land, claiming the. same by virtue , of the certificates and files aforesaid, and the surveys aforesaid, with chains •of legal transfers from the government down to this defendant, and to. those under whom he claims, for more than three years next before the commencement of this suit; and the defendant disclaims ownership and possession of any portion of the land described in plaintiff’s petition, not included in the metes and bounds of the several tracts and parcels above set forth.
    9. Said defendant further says, that the land claimed by plaintiff in his petition is located within the territory designated as’the twenty frontier leagues, bordering on the United Slates of the North, in the act of the Congress' of the Republic of Texas, approved January 9th, 1841, and entitled “An act to quiet the land titles within the twenty frontier leagues bordering on the United States of. the North,” 'and is claimed by plaintiff by virtud of said location made prior to the seventeenth day of March, A. D. 1836 ; and that said plaintiff, and those under •whom he claims said land, did not commence an action to try the validity of said claim within twelve months from the passage of the act aforesaid.
    And the defendant suggests to the court that he has had adverse possession in good faith of the said several tracts or parcels of land, for more than one year next before the commencement of this suit; and that, during said possession, he has made permanent and valuable improvements in the same,, consisting of, to wit, one thousand acres, cleared and fenced, and divers good dwelling-houses, gin-houses, barns, corn-cribs, orchards, outhouses, &c., of great, value, to wit, of the value of ten thousand dollars.
    The plaintiff then filed the following replications and demur- ' rers:
    2. And the plaintiff, by attorney, comes, and as to the plea t>y the defendant, secondly by him in his answer pleaded, whereof .said defendant puts himself upon the country, he, said plaintiff, doth the like.

      Demurrer [to 3dpleb.] '

    And the said plaintiff, by attorney, comes and says, precdudi non, by’ reason of any thing in the defendant’s third plea, in his said answer pleaded; because he says the said plea, and the matters and things therein contained, are not sufficient in law to bar and preclude him from having and maintaining his action aforesaid, and this he is ready to verify; wherefore, he prays, judgment, &c.
    And for cause of demurrer, according to the form of the statute in such case made and ’provided, the said plaintiff sets down and .shows the following, to wit:
    1. The said plea in bar ■ of plaintiff’s action attempts to set up the want of the approbation or assent of the executive of the national government of Mexico, to the issuance of a grant within the twenty border leagues, when the national colonization law, under which is sought the benefit of-this bar, contains no prohibition-to the issuance of said grant; but if, at the time of the issuance of said grant, there was any such prohibition, it only extended to making settlements within said border leagues.
    2. The ..said plea m bar of plaintiff’s action attempts to set up the issuance of a grant under which the plaintiff claims, dated-20th September, 1B35, without the approbation of the supreme executive of Mexico, within the border leagues; but does not- show the nature or kind of said grant, so as to enable the court to judge of. its validity.

      3. And the said plea is iñ oxher respects defective, informal, and insufficient, &c.

      Replication [to 4th plea.]

      4. Arid for replication to the fourth plea by the said defendant in his said answer pleaded, the said plaintiff says; precludi non, because he says the grant under which the plaintiff claims was issued by an authority, at the time of the issuance of the same, in the State of Coahuila and Texas, existing .and competent to issue; the same, and this, he prays, may be inquired of by the country.

      Replication [íq 5th plea.]

      5. And for replication to the fifth plea, by the said defendant in his' said answer pleaded, the said plaintiff says, precludi non, because he says that the said grant, under which the said plaintiff claims, was not obtained or procured to be issued by fraudulent misrepresentations; as in the said plea alleged, and this, he prays, may be inquired of by the country.

      Demurrer [to 6th plea.\

      . 6. And as to the sixth plea, by the said defendant in his said answer pleaded, the said plaintiff says, precludi non, because he says the said plea, and "the.matters and things therein con-, tained, are not sufficient in law to bar and ’preclude said plaintiff from having and maintaining his action aforesaid, and this he is ready to verify; wherefore he prays judgment, &c.
    And for, cause, of demurrer, according to the form of the statute in such case made* and provided, the said plaintiff sets down and shows the following, to wit:
    1. The conditions set forth in the said plea, as those .upon which said grant was issued, as is manifest by the said plea, were conditions subsequent, of which the defendant cannot take advantage upon a failure in their performance.

      2. A failure to perform the conditions in said plea set out, might have been- cause of the forfeiture of the, estate .passed by sa,id grant in said plea, set out on a proceeding in behalf of the State; bufrthis is no reason why the defendant, before forfeiture • declared, should, against the plaintiff, retain possession of the estate in said grant mentioned.
    ' 3; And the said plea is, in other respects, defective, informal, and insufficient, &e.-

      Demurrer [to Ith plea.]

    7. And as to-the seventh plea, by the said defendant in his said answer, pleaded, the said plaintiff says; precludi non, because he says the said plea, and thfe matters and things therein contained, aré not sufficient in law to bar and preclude him from having and maintaining his action aforesaid, and this he is .ready to verify; wherefore he prays judgment, &c.
    And for cause of demurrer, according, to the form of the statute in such case made and provided, the said plaintiff sets down and shows the following, to wit:
    1. The said plea in bar avers, that the estate in the premises, in the said petition mentioned, was transferred to said plaintiff while and during the time he was a citizen of the United States of America, and owing allegiance to the same, and an alien to the Republic of Texas; yet shows no forfeiture declared, on office found, so as to divest the estate vested by said transfer.-

      2. And the said plea is-in other respects defective, informal, and insufficient, &c.

      Replication [to 8th plea]

    Withdrawn, and the following demurrer substituted:
    And now, at this term, comes the plaintiff, by his attorney, and, by leave of the court first had and obtained, withdraws his replication to the eighth plea, by the defendant in this behalf pleaded, and says, precludi noii, by reason of any thing in the said defendant’s eighth plea in this behalf pleaded, because he says the said plea, and the matters and things therein contained, are not sufficient in law to bar and preclude him from having and maintaining his action aforesaid, and this he is ready to verify; wherefore he prays judgment, &c.
    And for causes of demurrer', according to the form of the statute in such case made and provided, the said plaintiff sets down and shows the following, to wit:
    1. The said plea avers, that the said defendant, and a certain John Graves, únder whom he, the said defendant claims, as to a part of the land in said plea mentioned, had and still held peaceable possession of the same, for more than three years next before the commencement’of this suit-under color of title; when, to produce a bar within the statute in such case made and provided, a possession, under the circumstances, and within the time prescribed by said statutes, by said defendant alone, should have been set up.

      2. The said defendant, by said plea, avers that, as to a part of the lands in said plea specified, the title is yet outstanding in a certain John Graves ; yet the said defendant, by his said plea as" to said land, attempts to set up in bar, by reason of possession of the same for three years, under color of title, next before the -commencement of plaintiff’s action.
    3. The said defendant, by his said plea, avers, that a portion of the land in said plea specified, and of which he, said defendant, claims to be the owner, by virtue of his, said defendant’s, own head-right certificate, has not been surveyed, as by law required, to vest title in the same in said defendant; yet said defendant,, as to the same, by his said plea, .attempts to sét up in bar an adverse possession, for .three years next before commencement of plaintiff’s action, finder color of title.
    4. The said defendant, by. his said plea, does not aver, that .he, said defendant, was- ever an actual settler upon the said land, of which, by his said plea, he claims to be in adverse possession.
    5. Though the said defendant, by his said plea, attempts to set up in bar an adverse possession, under color of title, for three years next before commencement of plaintiffs action herein, yet he does not show that said color of title was duly proven and recorded.
    - 6. The said defendant, by bis said plea, attempts to set up in bar of ■ plaintiff’s action'adverse possession, under color of title, -for three years next before the commencement of-said plaintiff’s said action, when, by the purview of the statutes in such case made and provided, there can be no such bar; but if any, the bar must be by such adverse possession, under such color of -title, for three years next after cause of action accrued, and .before commencement of action.
    7. The said plea, though in bar, does not make any case by which- the plaintiff is barred of his action, by reason of any possession adverse, within.the terms of the statute in such case made and provided.
    8.. And -the said plea, is, in other respects, defective, informal, and insufficient, &c¡

      Demurrer [to 2th plea.]

      2. And as to'the ninth plea, by the said defendant in his said answer pleaded, the said plaintiff says, precludi non, because-he says the said plea, and the matters and things therein contained, are not sufficient in law' to bar and preclude him, said plaintiff, from having and maintaining his action aforesaid, and this he. is ready to verify;. wherefore he prays judgment, &c.
    And for cause of demurrer, according to the form of the statute in such ease made and provided, the said plaintiff sets out'and- shows the following, to wit:
    1. The act of .Congress, referred to in said plea, at the time of the. approval thereof, since, and now, was not, and is, not, the law of. the land.

      2. The said act of Congress was made and intended to impair the obligation of contracts.
    3. And the said plea' is, in other respects, defective, informal, and insufficient..&e.

      In this state of the- pleadings; the cause was called for trial, when the following judgment was rendered :
    This day came the parties aforesaid, by their attorneys, and the questions of law, arising upon the demurrers of the plaintiff to the third, sixth, seventh, eighth, and ninth pleas, by the defendant in his answer pleaded, having been argued and submitted, because it seems to the court, that the law is for the defendant ; it is therefore considered by the court, that the said demurrers be overruled, and the plaintiff stating that he intended to abide by his demurrers, it is further considered by the court, that the defendant go hence without day, and that he recover of the plaintiff his costs, by him about his defence in this, behalf expended, to be taxed by the clerk, &c.
    The counsél for the plaintiff then filed the following argument of errors:
    1. The defendant’s third plea, by him in his answer pleaded, attempts to set up, in bar of plaintiff’s action, the issuance of the grant under which the plaintiff claims, without the -approbation of the executive of the Republic of Mexico, when, by the law of the State of Coahuila and Texas, under which said grant was issued, there was no prohibition to the issuance of said grant without such approbation, and the said fact pleaded is no bar; yet the said court overruled the plaintiff’s demurrer to said plea, and gave judgment for defendant, when said demurrer, according to the rules of law, should have been sustained.

      2. ' The said defendant, by his sixth plea in his said answer pleaded, attempts to set up, in bar of the plaintiff’s action aforesaid, the non-performance of conditions subsequent, without showing reentry, or other mode of enforcing a .forfeiture of the estate granted; yet the court overruled the plaintiff’s demurrer to said plea, when, according to the rules of law, the same should have been sustained.
    3. The said defendant, by his seventh-plea in his answer pleaded, attempts to set up, in bar of plaintiff’s action, the fact, that the lands claimed and sued for by the plaintiff', in his petition described, were sold and transferred to the said plaintiff while and during the time he was a citizen of the United S.tates of America, owing allegiance to the same, and an alien to the Republic of Texas, without showing any office found, or for-' feiture declared in any manner whatever; yet the court overruled the plaintiff’s demurrer to said plea, when, according to the rules of law, the same should have been sustained.'
    4. The said defendant, by his eighth plea in his said answer pleaded, insists' upon a bar, by and under the fifteenth section of an act of Congress of the Republic of Texas, entitled “An Act of Limitations,” approved February 5th, 1841; but, by said plea, does not show or allege that he was a settler on the land in question, having had and held continuous adverse possession of the same, under title duly proven and recorded, or under color of. title, for three years next after cause of action accrued, and before action brought, as by the rules of law he should have done ; yet the said court overruled the plaintiff’s demurrer to said plea, when, according to the rules of law, it should have been sustained.
    5. .The said defendant, by his ninth plea in his answer pleaded, attempts to set up, in bar of plaintiff’s action, the failure to commence action within twelve months after the passage of an act by the Congress of the Republic of Texas, entitled “An act to quiet land-titles within the twenty frontier leagues bordering on the United States of the North,” to ti-y the validity of the grant under which plaintiff claims, when it is apparentihat said grant, under which plaintiff claims, was a perfect, and not an imperfect or inchoate title, and as to which the government of the Républic of Texas had no legitimate power or authority to require, or prescribe the commencement of any suit in the form or manner the same was prescribed, to try the validity of the title vested by said grant, or create a bar in consequence of a failure to commence said suit; yet the demurrer to said plea was overruled by said court, when the same, according to the rules of law, should have been sustained.
    The plaintiff then sued out a writ of error, and brought the case up to this court.
    It .was argued by Mr. Bibb and Mr. Crittenden, (Attorney-General,) with whom was Mr. Hughes, for the plaintiff in error, and Mr. Hill, with whom was Mr. Henderson, for the defendant in error.
    , The argument, of course, turned entirely upon the validity or invalidity of the plea; but the discussion was so much involved with the laws and facts in the case, that a report of it is postponed until the record shall be brought up again in the shape suggested by the court.
   Mr. Justice CURTIS

delivered the opinion of the court.

This is a writ of error to the District Court of the United States for the District of Texas.

The plaintiff in error filed a petition, in which he avers, that on the 1st day of June, 1839, he was seised in his demesne as of fee of three tracts of land, described in the petition by metes and bounds, and that the defendant, with force of arms, ejected him therefrom, and has thenceforward kept him out of possession thereof; • and he prays judgment for damages and costs, and for the lands described. The defendant filed what is styled an answer, containing nine distinct articles, or pleas, each of which seems to have been intended, and has been treated, as a substantive defence.' The plaintiff demurred to the third, sixth, seventh, eighth, and ninth, of these pleas. There was no joinder in demurrer by the defendant, but the District Court treated-the demurrers as raising, issues in law, and gave judgment thereon for the defendant. The plaintiff has brought the record here by a writ of error.

Upon this record, questions of great difficulty, and understood to affect the titles to large quantities of land, have been elaborately argued at the bar. These questions involve and depend upon the interpretation of the Colonization Laws of the Republic of Mexico, and their practical administration; the relative rights and powers of-the central government, and of the. State of Coahuila and -Texas, in reference to the public domain; the rpodes of declaring and vindicating those rights, and exercising those powers under the constitution of the Mexican- Republic; the effect of the separation of the State of Coahuila and Texas from México, by the revolution of 1836, upon titles made by the State authorities before the revolution, arid alleged to be defective for want of the sanction of the central government; as well as several important laws of the Republic of Texas, framed for the protection of the public domain, and for the repose of titles in that country.

It is impossible that the court should approach an adjudication of a case, involving elements so new and difficult, without, much anxiety, lest they should have failed entirely to comprehend and fitly to apply them. And it is obvious, that before it is possible to do so, all the facts constituting the title of each parly, and essential to a complete view of- the case, and especially the documentary evidences of those titles, should be placed before us, in a determinate form.

This record is far from being sufficient -in these substantial, and, indeed, necessary particulars. The petition avers a seisin in fee, on a particular day, and an ouster by the defendant. •The defendant shows no title in himself to the land demanded, but asserts that the plaintiff claims title by a pretended grant, made on the 20th day of September, 1835; that the land was within the twenty frontier leagues bordering on the United States; that the approbation of the executive of the national government of Mexico was not given; and, in other pleas, avers other facts, to show that if any such grant had been made it would not have been valid. But no grant, under which either party claims, appears on the record, nor is the court informed, through an exhibition of any title papers, by what authority, or through what instrument, or for what consideration, or upon what conditions the title to these lands, originally passed from the State; or, whether more than one title thereto has, in fact, been made by the State ; nor how, .or when, if at all, any title came from the State to either of the parties.

Having thus stated what the record fails to show, we proceed to declare our- judgment on each of the issues in law raised by the demurrers.

The first plea which is demurred to, is in the following words: “ 3. And the defendant further says, that as to the pretended grant or .title of the plaintiff, to the land described in his petition, (if any paper title he has,) the same bears date, to wit, the twentieth day of September, A. D. 1835, and the land described in said pretended grant or title, and in said petition, is, and was, at the date of said grant, situated in the twenty frontier leagues bordering on the United States line, and said pretended grant was made without the approbation or assent of the executive of the national government of Mexico.”

According to the settled principles of the common law, this is not a defence to the action. The plaintiff .says he was seised in fee, and the defendant ejected him from the possession. The defendant, not denying this, answers, that if the plaintiff had any paper title, it wTas under a certain grant .which was not valid. He shows no title whatever in himself. But a.mere intruder cannot enter on a person actually seised, and eject him, and then question his title, or set up an outstanding title in another. The maxim that the plaintiff must recover on the strength of his own title, and not on the weakness of the defendant’s, is applicable to all actions for the recovery of property. But if the plaintiff had’ actual prior possession of the. land, this is strong enough to enable him to' recover it from a mere trespasser, who entered without any title. Ho may do so-by a writ of entry, where that remedy is still practised, (Jackson v. Boston & Worcester Railroad, 1 Cush. 575,) or by an ejectment, (Allen v. Rivington, 2 Saund. R. 111; Doc v. Read, 8 East, 356; Doe v. Dyboll, 1 Moody & M. 346; Jackson v. Hazen, 2 Johns. R. 438; Whitney v. Wright, 15 Wend. 171,) or, he may maintain trespass, (Catteris v. Cowper, 4 Taunt. 548; Graham v. Peat, 1 East, 246.)

Nor is there any thing in the form of the remedy, in Texas, which rendérs thése principles inapplicable to this case.

By the act of February 5th, 1840, (Hartley’s Digest, 909,) it is proved, that the method of trying titles to lands shall be- by action of trespass, and that .the action shall be tried on its merits, conformably to the principles of trial by ejectment; and where the defendant' sets up title to the land, he is. required to plead the same.. We understand that the technical forms of pleading, fixed by the common law, are dispensed with, but the principles which regulate the merits of a trial by ejectment, and the substance of a plea of title to such an action, are preserved. Tested by these principles, this plea is bad. ’

Without setting up any title in the defendánt, it pleads certain evidence or source of title, which, it avers, the plaintiff relies on, and then states facts, to show that such title is invalid. This is not admissible.

The office of a plea is, to state on the record the answer 'of the defendant to the allegations of the plaintiff, but not to the evidence by which the defendant conjectures the plaintiff will endeavor to support those allegations. We cannot concéive that such a mode of pleading could be admissible under any system. At the common law, if the allegation that the plaintiff’s paper title is- under a grant mentioned in the plea, had been traversed, it would have led to an issue which, if found .for the plaintiff, would determine nothing, and, therefore, the plaintiff cannot'be required to answer such a plea. And where pleadings are' so conducted as not to terminate in issues, as in Texas, such an answer neither, confesses and avoids, nor denies the seisin, or trespass, alleged in the declaration. United States v. Girault, 11 How. 22.

There'are cases in which such allegations, showing the source or nature of the plaintiff’s title, are a necessary part of a defence. Whenever the defendant must plead specially any matter which is a good defence to one title, and not good to others, and the declaration does not show'on what particular title the plaintiff relies, the defendant must-, by proper averments, set out the plaintiff’s title and the answer to it; these averments then become material and traversable as part of the defence, and if found for the plaintiff, the defence fails. An instance of this is the defence of a statute of limitations,, barring only particular titles. In such a plea, if would be necessary to show, if ir did not appear in the declaration, that the plaintiff had only such a title. But this rule has no application to the defence under consideration. If the plaintiff really relies on such a title as is alleged, whenever fie shows it in support of his petition, the defendant will have opportunity to object to it, and to give in evidence any collateral facts bearing upon it. He has no occasion, nor is it regular, to plead specially,, for his general denial of the plaintiff’s title compels the plaintiff to produce his title, and thus opens to the defendant all legal objection to it. Moreover, this article in the answer does not admit, or deny, that the plaintiff had any grant, or any paper title whatever, but says, if he had any, it was of a certain description. If it was intended to make the case turn on the validity of a particular grant, its existence ought to be. admitted; for why should the court be called' upon to determine the sufficiency in law'of Such a grant, when it does not appear it exists ?

These objections are equally applicable to the sixth plea, which is therefore also insufficient.

• The next plea is as follows :

“ 7. And the said defendant says, that the said plaintiff claims the land described in his petition under and through a pretended grant purporting to have been made to one Miguel Arceniega, by authority of the, government of the State of Coahuila and Texas, bearing date, to wit, the twentieth day of September, A. D. 1833, and under and through a pretended chain of. transfers from said Arceniega to plaintiff, and that within six years from the.date of said pretended grant, and before the annexation of Texas to the United States, the said pretended transfers were made to said'plaintiff, and that this plaintiff was hot, at the date of said pretended giant .to him, and previous thereto, had never been a resident citizen of Texas or Mexico, but was then, and thence hitherto, continued to be a resident and citizen of the United States of America, owing and paying allegiance to the government thereof.” •

This plea alsoffis subject to the same objections as the others: so'far as it attacks the plaintiff’s title; and if it was intended as a plea to the action of the alienage of the plaintiff, it is manifestly bad, for the plaintiff, being a citizen of the United States, is. capable of maintaining an action to recover lands in the State of Texas, to which-he has title.

The éighth plea sets up a statute of limitations. In order to bring himself within it, the defendant avers, “ that he is the owner of the following tracts or parcels of land,.to wit; ” and he then gives the metes and bounds of sundry tracts of land, and makes certain other'averments-as to his'possession, and con-, eludes, “And the defendant disclaims-ownership and possession of any portion of the land described in plaintiff’s petition, not included in the metes and bounds of the several tracts and parcels above set forth.”

The court cannot treat this plea as an answer to the decláration. . |t is not averred therein, nor is there .any thing on the record to show, that the tracts of land described in it are parcel of the’ demanded premises. The defendant says he disclaims ownership and possession of any portion of the land described in the petition, and not, included in the bounds he sets out. For aught we can know, this disclaimer may cover the whole of the land described in the petition. And as it does not appear, -by any direct traversable averment, that, the disclaimer does not apply to all the. lands demanded, or that the defence applies to any, or if any, to what part of them, the court cannot know for what to give judgment, or whether it should be for the one party or the other.

The ninth plea is as follows:

“ 9. Said defendant further says, that the land claimed by plaintiff in his petition, is located in the territory designated as the twenty frontier leagues, bordering on the United States of the North, in the act of the Congress of the Republic of Texas, approved January 9th, 1841, and enticed ‘An act to quiet the land titles within the twenty frontier leagues boi-dering on the United States of the North,’ and is claimed by plaintiff hy virtue of said location, made prior to the seventeenth day of March, A. D. 1836, and that said plaintiff, and those under whom he claims said land, did not commence an action to try the validity of said claim within twelve months from the passage of the act aforesaid.”

Assuming what we do not decide, that this plea shows, that if the plaintiff claims under such a location as is mentioned, his title-is not good as against the State of Texas, still it is not a defence, because no title in the defendant is shown. If the plaintiff, as his petition avers, was' actually seised, and the defendant being a mere intruder, ejected him, it was an unlawful act, and the action is maintainable, notwithstanding the State of Texas may have the true title, or may have granted it to another.

For these reasons, we are of opinion the demurrer to each of these pleas must be sustained, the judgment of the District Court reversed, and the cause remanded; and as it will undoubtedly become necessary to amend the. pleadings, we think it proper to suggest, that in a case involving questions so new and of so much magnitude and importance, it would be more satisfactory, and more conducive to a just decision, for the parties to exhibit fully their respective titles, and all collateral facts bearing upon them, and have them placed upon the record, either by bill of exceptions, or a special verdict, to the end that the court may consider then title papers in connection with the extraneous facts, and not be required to decide upon partial or abstract views, which may occasion substantial injustice, not only to the one party or the other, but possibly to third persons having similar titles.

■Order.

This cause came on to be heard on the transcript of the record from the District Court of the United States for the District of Texas, and' was argued by counsel. On consideration, whereof, it is no.w here ordered and adjudged, by this court, that the judgment of the said District Court in this cause be, and the same is hereby, reversed, with cosfs, and that this cause be, and the same is hereby, remanded to the said District Court for further proceedings to be had therein, in conformity to the opinion of this court, and as to law and justice shall appertain.


source: Caselaw Access Project

author: Mr. Justice CURTIS.

license: Public Domain

text:
    William Christy, Plaintiff in error, v. James D. Findley.
   Mr. Justice CURTIS.

The amended pleas in this case, being five in number, are demurred to, and the demurrers are sustained for the reasons assigned in the'' opinion in the case of Christy v. Scott. The judgment of the District Court is reversed, and -the case remanded for further proceedings.

Order.

This cause came on to be heard on the transcript of the record from the District Court of, the United States for the District of Texas, and was argued by- counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said District Court in this cause be, and the same is hereby, reversed, with costs, .and that this cause be, and the same is hereby, remanded to the said District Court, for further proceedings to be had therein, in conformity to, the opinion of this court, and as to law and justice shall appertain.


text:
    William Christy, Plaintiff in error, v. William Young.
   Mr. Justice CURTIS.

In this case, -the sixth, eighth, ninth, and tenth pleas, are demurred to, and the demurrers are sustained, for the reasons assigned in the opiniondn the case-of Christy v. Scott. The tenth plea in this case of the ten years’ limitation law of Texas, is bad, for the same reasons, as the plea of the three years’ statute pleaded in that case. The judgment of the District Court is reversed, and'the case remanded for further procedings.

Order.

This cause came on to be heard on the transcript of the record from the District Court of the United States for the District of Texas, and was argued by counsel; On consideration whereof, it is now' here ordered and adjudged by this court, that the judgment of the said District Court in this cause. be, and the same is hereby, reversed, with costs, and that this cause be, and the same is hereby, remanded to the said District Court for further proceedings to be had therein, in conformity to the opinion of this court, and as to law and justice shall appertain..


text:
    William Christy, Plaintiff in error, v. Hiram Henley.
   Mr. Justice CURTIS.

In this case, the fourth, sixth, seventh, eighth, ninth, and tenth pleas, are demurred to, and the demurrers are sustained for the reasons assigned in the opinion'in the cases of Christy?;. Scott, and Christy v. Young. The'judgment of the District Court is reversed, and the case remanded for further proceedings.

Order.

This cause came on to be heard on the transcript of the record from the District Court of the United 'States' for the District pf Texas, and was argued by counsel. , On consideration whereof, it is now here ordered and adjudged by this cobrt, that the judgment of the said District Court in this cáuse- be, and the same is hereby, reversed, with costs, and that .this cause be,’ and the same is hereby, remanded to the said District- Court for further proceedings to be had therein, in conformity to the opinion of this court, and as to law and justice shall appertain.


author: Mr. Justice GRIER,

text:
    Stephen W. Doss and Stewart Newell, Appellants, v. William Tyack and Lindley Murray.
    A court has a right to set aside its own judgment or decree, dismissing a bill in chancery, at the same term in which the judgment or decree was rendered, ondigcovering its own error in the law, or that the consent of the complainants to such • dismissal was obtained by fraud.

      A verdict on an issue to try whether a sale was fraudulent, finding the same to be fraudulent, will not he sot aside 'on a certificate or affidavit of some of the jurors, afterwards made, as to what they meant.
    A Chancellor does not need a verdict to inform his conscience, when the answer denies fraud in the abstract, whilst it admits all the facts and circumstances necessary to constitute it, in the concrete.
    This was an appeal from the District Court of the United States for the State of Texas.
    A. statement of the facts is contained in the opinion of the court.
    It was argued by Mr. Allen and Mr. O. F. Johnson, with whom was Mr. Hale, for the appellant, and Mr. Sherwood, for the appellee.
    tu
    The points, raised by the counsel for the appellant, were he following:
    I. The complainants having utterly failed to make out their case, by proving the material allegations and charges contained in the original and amended bills of complaint, the defendants were entitled to a decree of dismissal.
    II. The property of the copartnership confided to Newell, and especially the goods sold to Edgar, were not misapplied, but disposed of in conformity with the intendment of the co-partnership agreement. By this it is manifest that the partnership was not intended as a pure mercantile establishment, but one for the transaction of a “ commission, general, and auction business.” Part. Agree’t. Art. 1, P. R. 2; of a business “new and experimental in its nature” — Id. Art. 9'; a business connected with the operations of the “ Galveston Company,” which Newell, by more than two years’ labor and great expense, had “paved the way for;” and which the fifth article of the. said agreement refers to (there being nothing else in the case to which it could by possibility refer,) in express terms, viz.: that, in.consideration of “the-expense and labor heretofore incurred by Stewart Newell, in paving the way for the contemplated business, he shall be entitled to one quarter of the net profits, before division.”
    III. ,The creditors, in their instructions, refer to “agreements and understandings ” of Newell, with his partners and themselves ; thereby, admitting themselves to be privy to the said partnership agreement, and that they gave credit to the co-partners, in the business thereby eontémplated. The case contains no proof of any other ■ agreement or urderstanding, to ■which they could pretend to refer.
    . I V. The creditors .obtained, by a speeies of moral coercion, which their position enabled them to use, the primary concurrence of Tyack & Murray with themselves, in the appointment of William E. Warren as their mutual agent, and in their instructions, which Tyack approved, prescribing the management to be used by Warren, in his interviews with Newell, and in conducting the business confided to him, after his arrival in Texas. The suit was manifestly the result of a conspiracy between the creditors and complainants; the object being to obtain a dissolution of the partnership, a distribution pf the assets in Newell’s hands, or to cause him “ to place the' merchandise in the hands” of Warren, “as trustee for the.creditors, or Captain Tyack';” the creditors, on their part, agreeing not to proceed against the firm of “ William Tyack & Co.,” in' New York, for the space, of sixty days; and, that the interests of Tyack should be protected, and his instructions, touching the suit against Newell, strictly followed.
    V. The purchase of the goods by Doss, was for a valuable and adequate consideration, without notice of any intended fraud, on the part of Newell, made for the benefit of all the partners, and within the scope of the “ new, experimental, and general ” business, described in the partnership agreement. The verdict does not find the purchaser guilty of'any fraud, and- the jurors depose that they did not intend to charge him with fraud. It declares the “ sale,” but not the purchase, fraudulent as to the complainants. Anderson & Wilkins v. Tompkins et al. 1 Brock. 456. This finding did not authorize the annulling of the sale. •
    VI. Referring to the direction • of the creditors, requiring their agent to be governed by the instructions of Captain Tyack, the several letters of Tyack & Murray to Newell, advising and urging him to sell the.goods; their subsequent approval of the sale, after ample time to judge, and referring to their confederacy. against Newell, before mentioned; the sale was authorized before, sanctioned at the time, and confirmed, after it was • consummated, in the most deliberate manner by both the complainants and the creditors.
    VIL All matters of complaint, embraced in the bill in this cause, excepting the said sale, were included find adjudicated in the suit of these complainants against Newell, commenced and tried in the State Court. The judgment decides the merits of the cause, is -conclusive of all the said matters, and remains in full force. It directed a restoration of the goods to Newell — they having been taken out óf-his hands by process in the cause. After such restoration, the said goods were sold to Doss, and this judgment was a full authority for him to purchase them.
    VIII. The price- paid by Doss for the goods, was near $2,000 more than their value as estimated by the complainants, and near $4,000 more than that estimated by the witnesses. It consisted of $4,000 equivalent to cash advanced, and the remainder in lands, amounting to 6,485 acres, and worth much more than $7,753, as testified by the witnesses. One of the tracts, containing 177 acres, is estimated by Mr. Thompson, a witness well qualified to judge,'as worth $30 per acre. Newell, in the exercise, of a sound discretion, arising from his business connections with the complainants, and expressly devolved' upon him by their advice and directions, and acting in conformity with the professed desire of the creditors contained in this 5th instruction, declaring that they wished “ no wanton sacrifice of property for the immediate payment of the whole or a portion of their claims,” could not have made a sale of the goods more-beneficial to all the parties interested, than the -one negotiated with Mr. Doss.
    IX. It is respectfully insisted, that the issue directed ' by tne court “ to determine whether the sale of the goods was of was not fraudulent as to the complainants,” was defective and immaterial; and, for this cause, improperly granted.
    The verdict must conform to, and correspond with, the issue — that is, find its affirmative or negative, and nothing else. If the jury find the former, viz., that the sale was fraudulent as to the complainants, it would be incompetent for them, under this issue, to -go further, and determine also which of the defendants perpetrated the, fraud, or whether they combined together, and were jointly chargeable. Such a finding could not authorize a decree setting aside the sale, nor in any way properly influence the conscience of the court. Such a decree would have to rest on proof in the cause, dehors the verdict, that the purchaser was a party to the fraud ; and whether such proof existed or not, the verdict could be of no possible service or'utility to the-court.
    Hence the eoui"t will reverse or disregard the order directing the issue, and determine itself the character of the sale. Nichol v. Vaughan, 2 Dow & Clark, 420; Townsend v. Graves, 3 Paige, 457; Belknap v. Trimble, 3 Paige, 601; Gardiner v. Gardiner, 22 Wendell, 526.
    X. The verdict, viz., “ In this case, we, the jury, find the sale fraudulent,” does not determine or satisfy the issue, and is for this cause void..- It does not find as to whom the sale was fraudulent, and may as reasonably be construed to apply to the creditors or to one of the defendants as. to the complainants.
    XI. If the verdict could be so interpreted as to charge either or both of the defendants with fraud against the complainants, which we deem impossible, it would be- contrary to. the entire body of evidence adduced at the trial, and is void at iaw.

      XII. No. effect can be given to the verdict prejudicial to the ■interests of Mr. Doss, without disregarding or inverting what the jury solemnly intended its effect to be, as appears by their affidavit. An application and construction of a verdict, opposed to the intention and moral sense of the jurors who found, it, cannot quiet the conscience of a court of equity.
    XIII. The issue, as tried, does not answer the purpose for 'which it was intended. Indeed, it was so framed that the verdict throws no light upon the question for the determination of which it was directed. The whole matter is before the court with sufficient precision, and all the proofs to enable it to come to a decision, without another referentíe to a jury. The court, under these circumstances, will decide the matter at once, unless in its discretion some new issue or issúes be deemed expedient in order to attain substantial justice. Armstrong v. Armstrong, 3 M. & K. 45; Blackbourn v. Gregson, 1 Bro. C. C. 423, 424; Dan. Chan. 1316.
    XIV. The court below erred in setting aside the decree of the 3d of August, 1849, dismissing the causé. The decree was made by consent, and is not subject to appeal or.review. Webb v. Webb, 3 Swanst. Ch. R. 658; French v. Shotwell, 5 Johns. Ch. 564; Atkinson v. Manks, 1 Cowen, 691; Kane v. Whittick, 8 Wend. 219.
    1. Notwithstanding the position taken by counsel, viz., that the powers of attorney, by the complainants and creditors appointing William E. Warren their mutual agent, the agreement and expenditures of money by the-creditors in the prosecution of the cause, were sufficient to prevent the complainants, without the assent of the creditors, from dismissing the bill; and whether the suit be treated as a creditor’s suit or not, under the authority of Williamson v. Wilson, 1 Bland, 418; still the complainants, until the final decree, retained absolute dominion over the suit, and might dismiss the bill at pleasure. Handford v. Story, 2 Sim. & Stu. 196.
    2. The complainants, by their several powers of attorney, revocations, and other instruments under seal, emphatically required and obtained the dismissal of said cause, through solicitors specially employed and instructed for that purpose, and for reasons fully declared. The decree of dismissal was a mere execution of those powers. At the moment of its rendition it became a vested right of the defendants, granted and confirmed by the .respective deeds of the complainants. A power executed by decree is no more revocable than one executed by grant or conveyance of land.
    3. The decree was opened upon motion, founded on the application of Murray alone — it was error to open it as. to Tyack. The order could not properly vacate the decree generally; besides, it was a regular- decree On the merits, and could not be set aside by a motion. Radley v. Shaver, 1 Johns. Ch. 200,
    4. Murray, excepting by his petitions, does not attempt to revoke his prior deeds. This is no revocation." He prays the court to restore the suit, "and to declare those deeds null and void, alleging that the same were obtained by fraud' practised by' Newell and others.
    We respectfully insist that the court could not, so long as those deeds remained in force as executed powers, vacate the decree of dismissal or restore the suit; and that the deeds, themselves, and the manner in which they were obtained or executed, could not be'inquired into or pronounced void by the court, except by regular suit, against the parties charged, whereby the alleged frauds could be put in issue, and the whole matter fairly tried.
    The petitions of Murray and Tyack, and the supposed revocation of the latter, filed on the 7th of January, 1850, cannot obviate any objections to the said order of the previous term vacating-the decree of dismissal.
    6. The affidavits of Messrs. McGreal and Andrews, filed by the defendants in opposition to the said petitions of Murray, contradict all the essential statements therein contained, and effectually impeach their veracity, showing them untrue and not entitled to credit. .
    XV. The effect of the solemn admissions and declarations, deliberately made by both of the complainants in their several letters and instruments under seal, before referred to as evidence in favor of the defendants, is not affected or weakened by the last-mentioned petitions of the same parties contradicting and garbling these said admissions' and-declarations.
    1. Because their said admissions and statements were opposed to their interests as complainants ; whereas the contents of their said petitions tend to aid their recovery in this cause, and are justly liable to the suspicion of .having been manufactured in order to accomplish their own purposes.
    2. Because they are disingenuous and prevaricating in their character, and were manifestly made under influence which they, in their former statement, pronounced compulsory, coercive, and such as they were unable to resist.
    3. Because_ they are not entitled, in law, to -any weight or credit, as evidence for the complainants, who are estopped from denying or averring any thing in contradiction to what they had before solemnly and deliberately acknowledged. Sprigg v. Bank of Mount Pleasant, 10 Peters, 257; Lajoye v. Priman, 3 Miss. 529.

      ■ XVI. By the master’s report, $4,473.62 were allowed Tyack on account of capital paid in by him; whereas the amount he advanced did not exceed $2,200. Nothing was allowed Newell on account of the $7,000 standing to his credit on the books of William Tyack & Co. The report further finds him indebted to the firm on account of partnership property received and not accounted for by trim. Exceptions filed by him for these causes were overruled, and in this and in the final decree in this behalf there are, as we conceive, error and injustice.
    XVII. The master ought to have reported fully and correctly, the proof on which the several'items contained in it are found, and the claims of the. alleged creditors ascertained and allowed, as suggested in the exceptions taken by Mr. Doss. The items making up the amount found against Newell cannot be gathered from the report. There can be no doubt, however, although it does not definitely appear that Newell was charged with the $2,000 he paid in goods to Edgar under the authority of the complainants, and in due course of the partnership business. These errors affect the final decree, and render it fatally erroneous and unjust. Williamson v. Wilson, 1 Bland, 418.
    XVIII. The bill contains no prayer for ascertaining the names of the creditors or the amounts due them severally. It prays merely that the receiver be directed by the final decree to apply the property to the payment of the said copartnership debts. This is deemed an insufficient basis for the specific provisions in favor of the alleged creditors embraced in the decree.
    XIX. The decree annuls the sale made to Stephen W. Doss, as fraudulent against the complainants. But the restoration of the money and property paid by him for the goods, as sought by his motion, (P. R. 324,) is wholly denied. The copartners, by virtue of the decree, not only keep the goods they sold to Doss, but keep also the price or consideration they received for them, amounting to eleven thousand seven hundred and fifty-three dollars, ($11,753,) without the possibility of his obtaining the slightest compensation or reimbursement at their hands, if the decree be affirmed.
    Relying upon the points suggested, the appellants respectfully ask for a reversal of the decree and a dismissal of the cause; or, instead of an absolute dismissal, that the cause may be restored to the same condition that it was placed in .by the procuration of the complainants themselves, under the decree of the 3d of August, 1849, dismissing the same. If this be done, the appellees cannot be prejudiced, since they would retain the right to bring suit by original bill, as they might at first, to vacate their powers of attorney, and the decree obtained in execution of them, on account of the pretended mistakes and frauds averred in their petitions subsequently filed, in order to attain their object in a too summary manner.
    The counsel for the appellee made the following points:
    1. So far as the question of fraud is concerned, the answers of both defendants, and the depositions used on the trial, are replete, with the evidence of it. After putting forth the matters stated and admitted in the defendants’ answers, and the exhibits made a part of them, no proof would have availed them, on the hearing, to escape the conclusion of fraud. Thq bad completion of the whole transactions between Newell and Doss’s agent, McGreal, is only equalled by the recklessness with which they attempted to take the property of the firm, divert it from its proper direction, and to place the proceeds of it beyond the reach of the copartners and creditors. The property, as copartnership property, was in. the nature of trust property, and the principles declared in the ease of Wormley v. Wormley, (8 Wheat. 422,) apply fully to this case.
    2. The contracts between Newell and McGreal were individual contracts. It was incompetent for them to vary them, as evidence, or their complexion by parol proof, or their sworn answers. They were estopped from setting up the pretence, that they fairly intended to create a bond fide trust in favor of complainants. The complainants might have brought the aspect of a trust over the property to be conveyed by McGreal, had they elected to take the lands agreed to be sold by McGreal to Newell, The character of the transactions, however, between Newell and McGreal, must be evidenced by the contracts they made. ' The same rule would hold in reference to 'the absolute assignment to Franklin, and the draft in favor of Knight. Under the circumstances, they will bear no other construction than intention,-on the part of Newell and McGreal, to place the co-partnership property beyond the reach of complainants and the creditors.
    3. So far as Newell was concerned, the payment of his individual debt,' of $1,400, to Edgar, out of the store of Stewart, Newell, & Co., and his offering to mortgage the whole of the goods to Edgar, a? security for his individual indebtedness, would have been sufficient cause for dissolving the copartnership.
    4. Should the question be raised, whether his Honor, the District Judge, erred in setting aside the-decree dismissing the bill, and in reinstating the cause, it may be replied, that the court below had power over the decree at any time during the term, at which it-was entered. The order, entered on the suggestion of complainants, on motion, was a mere voluntary dismissal of the suit, under' a delusion created by defendants, without trial on its' merits, and without the effect of prejudicial laches. It was not in its nature res adjudícala, or final, as to the rights of the parties. No enrolment had taken place, nor had the minutes of the court been signed by the Judge, at the time he vacated the order of dismissal.
    5. No decree can be regarded in its effect as final, that has been obtained by fraud, practised by one of the litigating parties on the other. Fraud will vitiate the judgment or decree of any court; and the court will set it aside, and allow a party to come in at any time, where the subject-matter has not passed beyond the reach or control of the court. The proper way of. applying to the court is by motion, where the order sought to be vacated has been obtained on motion.
    6. It was entirely evident, in this case, at the time of the order dismissing the bill, that the complainants had been imposed upon, or that they were in collusion with the defendants. In either cáse, it was proper for the court to vacate'its order, and reinstate the cause the moment the complainants requested it.
    7. Should it be urged, that the complainants and defendants were in collusion on the application to dismiss the bill, it may be answered, that it matters not as to the extent of collusion or degree of turpitude, between parties in pari delictu, where one comes in a.nd asks the court to take jurisdiction for the protection of creditors or innocent persons. In such case, it has been well said, “ The fraudulent party is not entitled to a standing in court on his own account, but to subserve the purposes of justice towards those he has attempted to injure.”
    8. The best reason, perhaps, for setting aside the decree dismissing the bill is, that the Judge erred in listening to the application and granting the order to dismiss it. At the time of the application it had been fully shown by the bill, answers, affidavits, and depositions taken, what the character of the transactions were between Newell and McGreal. In addition to this, the complainants had asked, in the bill, that the property of the firm might be given to the creditors. They had asked for the appointment of á receiver, and prayed that the property might be delivered over to him. They had executed an assignment on their part to the receiver, that he might the better collect the assets. The creditors had paid a consideration for the protection of their interest through this suit. It was too late, therefore, for the complainants to recall what they had done. Hunt v. Eousmanier’s Administrators, 5 Cond. Eep. 401.
    9. What the complainants had done was equivalent to the execution of a power of attorney, coupled with an interest; and had all the effect of a contract or deed, with a trust in-grafted on the instrument. It was not .revocable eyen by the death of the party. The trust had been created; the trust-fund had been placed in the hands of the receiver under the order of the court; and no imposition on the complainants, nor collusion on their part, should have been permitted by the court to work a devastavit on the property placed in the custody of the court for the' benefit of the creditors. The doctrine implied in the language of the court, in the case of Williamson v. Wilson, (1 Bland. 418,) well applies to this case.
    In aid of this would also come the rule, “ That a naked licensees not revocable where it has been once acted on, or where an encouragement to spend money has been given, and the expenditure has taken place.”
    Even in an action at law, where one man says to another, “ Bring the suit in .my name; let the property recovered be applied to the discharge of my indebtedness to you,” has always been held to operate as an equitable. assignment, not revocable. Canfield v. Munger, 12 Johns. Rep. 346. The creditor has also, in such case, the right to continue the name of the assignor as a party to the suit, notwithstanding, the nominal plaintiff should attempt to countermand the license.
    10. In general, persons not parties to a suit in equity, cannot come in and ask for relief or protection. There are exceptions, however, to this rule. Creditors are quasi parties to a suit brought for the dissolution of a copartnership, an accounting, and the distribution of the partnership property. They are -entitled to come in under the decree for distribution, and prove up. their demands before the master; and they thus become incidentally the objects of protection by the court. In the case of a creditor’s bill suit, it is not necessary that all the creditors should be made parties complainants. It is sufficient that one creditor files the bill, with the suggestion that others who voluntarily come in and share the expenses, may participate of the proceeds on distribution. All the creditors, thus contributing, are entitled to equal favor, and it would not be insisted that collusion, between the complainant.and defendants on the record, would-be allowed by the court to work a defeat of the objects of the bill, by hastily dismissing the cause.
    11. The bill in this case sets forth the names of the creditors prayed to be made the beneficiaries, and the respective amounts due each. The answer of the defendant, Newell, admitted them as stated in the bill. It is insisted, that this alone gave the demands of the creditors the effect of a judgment and lien on the assets in the hands of the receiver, the same as on a decree for an accounting, and the report of a master as to amounts due creditors, in a case where they had not been in form made parties ito the suit. In such case, after decree for accounting, and the establishment of the demands of creditors on reference to a master, the suit cannot be dismissed by the consent of complainants and defendants. Lashley v. Hogg, 11 Vesey, Jr. 602. What the creditors were entitled to by way of decree, as shown by the bill and answer, it is urged, could not be defeated by the fraud or collusion <?f the parties named as complainants and defendants on the record.
    12. There is a large class of suits in equity where the power of the court must of necessity extend far beyond the immediate parties named as complainants and defendants. Of this class, are the bill for dissolution and accounting — the creditor’s bill'*, bills against insolvent corporations, and others, where the proceedings are attended with the distribution of assets that have-assumed-the aspect and nature of trust property. ,-The parties named in such suits as complainants, are consideredfas 'the representatives' of all the interests that may be beneficially affected by the decree. After they have brought the matters into court, and invoked its aid and power, it would be too late to withdraw the subject-matter of litigation from the court. Were it otherwise, there would often be no remedy, from the impossibility to make parties. The most a court of equity-could possibly" do, under a sound discretion, would be, to allow a-complainant, acting in bad faith, to retire from the suit on, terms, in the mean time retaining the fund, and allowing others to come in, whose fidelity could be better depended upon, in carrying the trust property to a fair distribution.
    13. Copartnership property (more especially in cases of insolvency) is strictly regarded as trust property, and the creditors of the copartnership, the cestuis que trust, or beneficiaries ; and this, independent of any. instrument or agreement making an assignment, or declaring the trust; hence the uniform practice of courts of equity in extending protection to their interests.
    14. In the case at bar, it will be seen that the copartnership property had been placed, and tied up, on the application of complainants, for more than one year, in the hands of the receiver, in a condition that made it invulnerable to the creditors, except through distribution by the court. It was in the custody of the law, and could not be levied on. The remedy of the creditors against the property was suspended. The dismissal of the bill and delivery of the copartnership property to Doss, would have given the effect of having' used the court to delay the creditors^ and then, of prostituting its powers to defeat them. It, is believed that courts of equity have power to exempt themselves from being used, as instruments for such purposes.

      15. It may be said, perhaps, that the case at bar is sui-generis; that there is no- precedent, in all respects, applicable to the questions involved in the motion to dismiss this cause in the court below. If so, it is resped fully submitted whether principles, applicable to the circumstances of this case, should not be declared, as well for the benefit of courts of original jurisdiction, as for the instruction of solicitors and counsel respecting their rights, duties, and responsibilities.
   Mr. Justice GRIER,

delivered the opinion of the court.

A short history of the facts of this case, extricated from the numerous allegations of the pleadings' and the mass of testimony contained in the record, will better qxhibit its merits than a more formal abstract of the pleadings and proofs.

The appellees, who were complainants below, entered i.nto articles of agreement with Samuel Newell, one of the respondents below, on the 25th of September, 1847, in which they engaged to form a copartnership under the form and style of William Tyack & Cq., in New York, and Stewart, Newell & Co., in Galveston, Texas. “ The nature of the business to' be transacted by said firm to be a commission, general, and auction business.” The parties each to contribute towards the capital stock the -sum of five thousand dollars,- within ninety days; the capital to be augmented as the business required; Newell, “ in consideration'of his expense and labor in paving the way for the contemplated business, as well as his influence in the State of Texas, to be entitled to one fourth of the profits, and the balance to be equally divided betweén the three partners. Tyack and Murray to take charge of the business in New York, and Newell in- Galveston.

At the time these parties entered into this contract of partnership, their several ability to perform their agreement of advancing capital and supporting the credit of the firm, as shown by the pleadings and evidence, would appear to be as follows: Tyack was worth, in all, probably twenty thousand dollars; Murray had nothing, and owed about five thousand dollars; Newell, while resident in Texas, “ had become interested in -a claim belonging to Alexander Edgar, to a league of land,” on which it was supposed that the city of Galveston was'built. He had come to New York, at this time, with a power of attorney from Edgar, to form a stock company of persons, who were to have ah interest in this litigated claim. He had divided it into one thousand shares, to be sold at one hundred dollars each, payable in instalments. He was to have half of all the money received for the stock, over twenty thousand dollars. A few persons had been persuaded to subscribe for some of this stoek, and among others, Tyack and Murray had each agreed to take a few shares; and Tyack was appointed treasurer of the company under the name of “ The Galveston Land Company.” Newell’s property or capital consisted in the anticipated profits' of this speculation, and some stock in another company, called the Wilson Joint Stock Land Company.”

The partners soon afterwards commenced business on about four or five thousand dollars, advanced by Tyack. Murray had nothing, and Newell’s stocks would produce nothing in the market; those who had before subscribed for it, refusing to pay, on the plea or suspicion that it was good for nothing, as the citizens of Galveston had probably a better title to the land than the company. Thus the source from which Newell’s, capital was anticipated, wholly failed;

In the mean time a stock of goods was purchased for the house in Texas, costing about twenty thousand dollars, for' the payment of which Newell had drawn bills on Tyack & Co. for some seventeen thousand dollars, which Tyack had accepted, in-expectation of remittances of cotton ot other produce from Texas, by Newell, to meet the bills at maturity.-. The business expected to be transacted by Tyack & Co. in New York, was the disposal of these consignments from the Texas house — of cotton and other merchandise purchased with the funds of the firm.in Texas.

In March, 1848, the acceptances in- New York being near maturity, and the consignments received from Newell to meet these large liabilities, .amounting only to about eight hundred dollars, Tyack, to avoid impending bankruptcy, if possible, called together-the creditors of the firm and made a statement of its situation.'' In consideration of the creditors agreeing to give further time on the acceptances about to mature, Tyack & Murray executed a power of attorney to William E. Warren, an agent chosen by the creditors, authorizing him to take possession of the property and effects ■ of the firm in Texas, and secure them for the benefit of the' creditors. Warren was authorized by the creditor^ to act for them, and to collect, secure, or .compromise their claims, in any way he thought best; with instructions .to proceed to Texas, and examine into the state of the firm, and if it was found that there was any probable prospect that the firm' could eventually pay their debts, to make any reasonable arrangement for that purpose, and suffer Newell to continue the business: on the contrary, if Newell could hold out no such prospect, or if he was found to be wasting the goods of the firm, and appropriating them to any other purpose than the regular mercantile business of the firm, the agent, was instructed to get possession, by all legal means, of the partnership assets, and hold thorn ox dispose of then*1 in the best manner for the. interests of thé creditors and all concerned..

In pursuance of this authority, Warren proceeded to Galveston. He there found the assets in Newell’s possession insuffi-' cient to- pay the debts, and that the firm was hopelessly insolvent; and moreover, that Newell had appropriated a portion of the assets of the firm to the payment of his personal debts, incurred in his land stock, speculations,' and was unwilling to comply with any reasonable terms of compromise, to secure the creditors, or save Ibis partner, Tyack, from insolvency and ruin.

Warren then instituted proceedings in the State Court on behalf of Tyack and the creditors, and obtained an injunction and a writ of seizure against Newell, on which the sheriff took possession of the property of the firm. On the 10th of July, 1848, on motion of Newell’s counsel, the court, for some reason, set aside the injunction and' writ of seizure. The counsel for Tyack and the creditors, immediately discontinued their proceedings in the State Court, and commenced proceedings in the District Court of the United States. While the bill, for that purpose was being prepared, and application being made for an -injunction and the appointment of .a receiver, Newell and one Peter McGreal proceeded in hot haste from the court house, got possession of the goods from the sheriff; and had the following instrument of writing executed :

“ Received, Galveston, July 10, from S. W. Doss, of Brazoria, the following amounts: Two thousand dollars, in good notes, mortgages, liens, and judgments, and seven thousand seven hundred and fifty-three dollars in lands, full payment of. the . stock of goods, wares, and merchandise now in our store in Galveston. Stewart Newell. .

Recap.,— Cash,' $2,000/ Notes, $2,000; Lands, $7,753•^-To-tal, $11,753.

“ In presence of John Warrin, Isaac D. Knight.” .

No notes, judgments, or liens, were in fact assigned by McGreal to Newell, nor any conveyances of land made; but McGreal gave his written promise to assign and convey securities and lands to that amount within thirty days. The production of the two thousand dollars cash, was also dispensed with, as the parties appear to have been in too great haste to be particular.' The answer of Newell attempts to account'for the cash as follows:

“ This, defendant states, that the said first payment in cash of $2,000, mentioned in said receipt, was secured and made to this defendant by Peter McGreal, Esq., the agent of said Doss; 'that a portion of said sum of' $2,000, to wit, about $1,200, was paid by the said McGreal, agent as aforesaid, to Benjamin C. Franklin, Joseph A. "Swett, and John B. Jones, in pursuance of, and in accordance with, an order given by this defendant to said McGreal for that purpose; that forty-two dollars and fifty cents were paid upon the order of this defendant to J. A. Sauters for rent of said store, due by said firm; and the balance, to wit, about seven hundred and fifty dollars, was directed by this defendant to be paffi over, or secured to Isaac, P Knight, to be by him held to the use of the'firm of S. N. & Go., to be paid over for the said use upon the order of this defendant, in like manner as the said book debts and other choses in .action assigned to said Franklin, as above mentioned.”

"What right Franklin, Swett, and Jones had, to receive this money, or how,■ or why it was paid to them, (if it was paid,) or how Knight, the brother-in-law of Newell, became a trustee for the creditors of the .firm, the answer does not disclose.

McGreal appears also to have treated Newell with the same unbounded confidence which Newell had reposed in him. He took the goods on trust, as to quantity and quality; required no invoice or schedule, being content with one which the sheriff had made; and immediately commenced to pack them up and seek for assistance and means for carrying them off.' The transaction commenced after twelve o’clock in the day, and by twelve o’clock at night, a large portion of the goods were put on board the sloop Alamo, which set sail before morning. In the ¡mean time the bill in this case had been filed, and a receiver appointed, who, on the following day, (11th July,) w.as enabled by means of a writ of assistance, to arrest the sloop and get possession of the goods.

It is unnecessary to enumerate all the charges of-the bill, and the answers thereto, as it is amply sufficient for the purposés of the decision in this case, that the facts we have already stated .were either admitted by the answers, or undeniably proved.

The plaintiff in error, Stephen W. Doss, who claims- to -be the owner of the goods, thus alleged to have been purchased by Peter McGreal, was made a party to the suit. .Both he and Newell deny, in their answer, all fraud in the transaction, and-Doss avers, that the said transaction was made in the regular, mode of conducting such business, and at a time when there •was ño lawful restraint existing to prevent the sale and delivery of the go'ods.”

On this case the court below, at the.March term, 1850, rendered a decree for the complainants, dissolving the- partnership, setting aside the sale to McGreal, or Doss, as fraudulent, and ordering the receiver to pay over the proceeds of the -goods, (which had been previously sold by order of the court,) to the creditors of the firm.

But, in order rightly to apprehend the points relied on by the counsel for appellants, in claiming a reversal of the decree, it will be necessary to state some of the intermediate proceedings in the case, as exhibited by the record. During the pendéiicy ..of the suit, Newell aid McGreal had gone to New,York,-and persuadéd Tyack & Murray to revoke the power of attorney given to Warren, and to execute one to the respondents’ counsel, authorizing them to dismiss the bill; and a motion was made by them, for this purpose, in August, 1848. This motion was resisted, on the. ground that the firm was wholly insolvent; that the power to Warren was given on a contract with the creditors, and for, a- valuable consideration, and was, therefore, irrevocable; as. it would be a fraud • in Tyack to dismiss the proceedings, for the benefit of the ■ creditors, after the ' great trouble and expense incurred by them for the purpose of protecting Tyaék from ruin: .Notwithstanding these - objections, the court' ordered'the suit .to .be dismissed; but,, some days after, at the same term, vacated and’ set aside this order or decree, on' proof, that the revocation of the .power to- Warren, and the order given to discontinue or dismiss the proceedings, were obtained from the complainants .by gross misrepresentation and fraud. Afterwards, an issue, was ordered, on prayer of respondents’counsel,, to try the question of fraud. This, issue was tried before a j ary, who rendered a verdict that “ the sale was fraudulent..’’ Whereupon, the respondents moved -for a new trial, on the ground-that the-verdict was given “junder'a misconstruction and -misunderstanding of the charge" of the court.” This motion was founded .on an- affidavit of some of the jurors that, “ on their retirement, they did not, inquire into the right and power of Doss to purchase, nor of the question of fraud on Doss’s part, but only into the right and power of Newell -to make the sale.”

We are now prepared to examine the points relied upon for the reversal- of this decree.- •

- They are, 1st. That the court had .'no power to set aside the order Or decree, dismissing the, bill, unless, on a new and original bill, filed for. the purpose. 2d. That, on this certificate of the jury, the court should-have granted a hew trial on the question of fraud.

1. As regards the first point, we perceive no error in the action of the court, except in their first order dismissing the s.uit. It did not require an original bill, to authorize- the court to vacate an order or decreé, at the sanie term in which it was made, on. discovering tliat they have committed an error, or that the consent of the complainants to such dismissal was obtained by the. fraud of the respondents, or their agents. In fact, under such circumstances,- it cannot be said that the act was done by the consent or will of the complainants, at all. The court, in vacating the decree, were correcting an error both of fact' and of law; and, during the term at which it was rendered, they ha,d full power to amend, correct, or vacate it, for either of these reasons.

2. The second point is equally without foundation. It is true, that the answers of the respondents denied fraud in the,, abstract, but they admitted all the facts and circumstances necessary to constitute it in the concrete. The general denial of the answer, only showed that the definition of fraud was much narrower, in the estimation of the respondents, than in that of courts of law and equity. In this case, a verdict was wholly unnecessary, to inform' the conscience of the Chancellor; and, the verdict being perfectly correct, the court very properly refused to set it aside, on any .representation from jurors thus obtained.

Any argument to vindicate the correctness of the verdict and the decree of the court below, after the exhibition of the merits of this case, which we have given, would be entirely superfluous.

The decree of the District Court of Texas, is therefore affirmed,

Order:

This cause came on tó be heard, on the transcript of the record, from the District Court of the United States for the District of Texas, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed, by this -court, that' the decree of the said District Court in this cause be, and.the same is hereby, affirmed, with costs.