source: Caselaw Access Project

author: Mr. Justice McKINLEY

license: Public Domain

text:
    Lessee of Philip Hickey et al., Plaintiff in error, v. James A. Stewart et al.
    A defendant .in ejectment cannot protect himself by setting up the record in a prior chancery suit between the same parties7by which the plaintiff in the ejectmént had been ordered to cbnvey all his title to the defendant in the ejectment, but in consequence of the,party being beyond, the jurisdiction of the court, no such conveyance had been made!
    And this is so, although the Court of Chancery, in following .up its decree,'had legally issued a habere facias possessionem, and put the defendant in ejectment in possession of the land.
    By the treaty .of 1795, between the United Slates and Spain, Spain admitted that she had no title to land north of the thirty-first degree of latitude, and her previous grants of land, so situated, were of course void. The country, thus belonging to Georgia, was ceded to the' United States, in 1802, with a reservation that all persons who were actual settlers on 27th October, 1795, should have their grants confirmed. • Congress provided a board' of commissioners to examine these grants, and declared that their decision should be final.
    The Court of Chancery of the state of Mississippi'had no authority .to establish one of these grants which had not been brought within the provisions of the act- of Congress. The claim itself being utterly void, and no power having been conferred, by Congress on that court to take or exercise jurisdiction over it, for the purpose of imparting to it legality, the exercise of jurisdiction was a mere usurpation of judicial power, and the whole proceeding of the court void.
    The doctrine of this court in 1.Peters, 340, reviewed, and confirmed, viz., “that the jurisdiction of any court exercising authority over a subject may be inquired into in every other court where the proceedings of the former are relied on, and brought before the latter by the party claiming the benefit of such proceeding.” .

      This case was brought up, by writ of error, from the Circuit. Court of the United States, for the southern district of Mississippi.
    It was an ejectment brought by Hickey’s lessee against the defendants, as the heirs of Robert Starke, for two thousand acres of land in the state*of Mississippi.
    The facts in the' case are fully -set forth in the opinion of the court.
    The question was, whether or not the court below erred, in permitting to be read in evidence, on the part of the defendants, the record of a former chancery suit between the same parties, in which the court had decreed that all the title-of Hickey et al. should be ' conveyed to the heirs of Starke,

      Coxe and Walicer, for the plaintiff in error. .

      Henderson and Jones, for the defendants in error.

      Coxe said that the condition of the country where the land in question- Was situated was described in 12 Wheat. 524. The distinction is important between an acquired, countiy and that where a disputed boundary was settled. Different codes of laws prevail in the one and the other. 12 Wheat..535, another case.
    This being an adjusted boundary, there was no obligation td' recognise Spanish grants. -12 Wheat. 535.
    The United States derived all their proprietary title from Georgia, 1 Laws U. S. 488; and took it only upon certain conditions, 3 Laws U. S. 39,.380, 491, 546.
    The act-of'1803 providéd that the decisions of the commissioners should be final. Under it, our . claim was . registered and confirmed, in 1804,
    , Our title is therefore complete. But the defendants set up the decree of'a court of equity, and the first question , is, can the courts of the United States recognise-any power in a state court to-divest us of our title? The judgment of the commissioners was made final; and as to the effect of this, see 4 Cranch, 269; 9 Cranch, A27; 3 Whéat. 246 ; 6 Wheat. 109; 9 Peters, 8; 10 Peters, 449; 2 Bos. & Pul. 392;
    Decisions may be impeached for fraud; but it must be. fraud in obtaining the judgment,- and not pre-existing. Story’s Conflict of Laws; 590, 591, 592; 2 Kent’s Comm. 118.
    The state of Mississippi could not have divested us of' our title by an act of legislation. How then, can one of its courts do it ?
    - Again, it is a decree of a court 'of equity. The title óf the plaintiff is a statutory title-from the United States, whose authority no one doubts. Can equity interfere ?. The act of Congress says that the decision of the commissioners shall be'final. The rule of law is positive, and equity cannot relieve against a positive law. T Stoiy on Equity, sect. 10,. 1Í, 64.

      An action at iaw cannot be maintained upon a decree in equity. 8 Wheat. 6^7; 3 Bam. & Adolph. 52.
    _ If the party cannot maintain a suit, he cannot defend himself in ejectment. Levin on Trusts, 247, 482.

      (Coxe then objected to the decree in many points of formi)

      Henderson, for defendants.
    Of the- second and third instructions refused to the plaintiffs, we justify the,court’s refusal in the language of the decree itself:
    “ That the title of the defendant was obtained by fraud and force and violence, against the equity of .complainant’s ancestor, ... it is therefore ordered, adjudged, and. decreed, that the title of defendants to said tract of land be, .and the same is hereby declared to. be, fraudulent and void as against complainants.”
    The legal title of the plaintiffs herein does not, therefore, “remain unaffected at law by said decree,” .... and the decree does not limit its cancellation of title to equity merely; but it finds and adjudges the title “fraudulent and void,” as against our grantors and title. ,4nd so, too, we defend the court below in refusing the fourth instruction asked by plaintiffs below.
    The decree is, that the defendants shall “ deliver to. complainants the full, peaceable, and -actual possession' of said tract of land.”
    The presumption of law must arise, therefore, that the facts found, to subsist, in conformity-with the decree, were brought about in conformity with -its command, and possession so surrendered, and so taken, may assuredly be lawfully retained. It was so ordered to be' given, that it might-be retained.
    And of the charges given by the court, at the instance of the defendants, they vindicate themselves on reading — self-evident propositions- on théir face.
    Without further noting .these particular criticisms, we pass to meet the substantial propositions from which they proceed, viz.:
    1. Was the chancery-record admissible in evidence for any purpose? and if so,- -- 2. What was its legál effect?
    It is objected, that these chancery proceedings do not purport to. be a record at all. But besides, that the defendants have denomi- ' nated and regarded them as a record, .and acted upon them as a final decree of the highest court of law and equity in the state, and should therefore be estopped in' this objection, (see the case on thieir appeal, 1 Peters, 94;) it is-manifest, on'inspection, it -possesses all the elements of a formal and complete record. It is between all proper parties, and consists of a bill, answer,, plea, and replication. -
    Much testimony on. the matter in controversy appears to have been taken, on. .which the court exercised their chancery discretion in directing.an issue at law. This was duly tendered, joined in, and verdict thereupon rendered; exceptions, taken, argued, and oyen-ruled, and thence decree ordered, made out, and duly.enrolled, and then thereafter appealed' from to the Supreme Court of the United States. A judicial- proceeding with these forms and contents, duly certified as it is, must be d record. 7 Cranch, 408.
    It is assumed, too, that the Supreme Court, in treating the-case as with plenary ahd original powers, transcended their jurisdiction. This conclusion’is deduced from the assumption that, as.the decree was not pronounced till 1824,,the powers of the court were governed ■ by the laws of 1822, found in Poindexter’s Code.; and-that, by these laws, the Supreme’Court, in such a case,-could only certify its opinion to the inferior court to which the case had been referred; and the inferior court must adopt' and execute a final decree in conformity with the-opinion so certified.
    We do not Consider, if this -record were to be tested.by the acts of 1822, in- Poindexter’s Code, the conclusions of the appellants would follow, or that thé final jurisdiction exercised by the Supreme . Courtin this case would be rendered doubtful. See sect. 30, p. 91; sect. 8, p. 150; sect.-21; p. 154, of Poindexter’s Code.
    But, it is to bé observed, this bill in chancery was filed in the “ superior court of law and- equity,” in Adams county, as early as 1815. The date of filing the bill does not appear.’in the record, but the plea of one of the defendants is sworn to 14th of October, 1815. The controversy continued a lis-pendens till final decree at December term, 1824. -
    The territorial act of 22d December, 1809, (Turner’s Dig. p. 178, sect. 116,) gave .the jurisdiction under which this suit was insti* tuted.
    . A further act of the territory, of 20th January, 1814, (Turner’s Dig. p. 201, sect. 203,) gave the jurisdiction of the Supreme Court by which they took cognisance of the cáuse on reference, and which expressly authorized thenr“-t-o grant judgment thereon according'to the right of the matter, and award execution.”
    In the'year 1817, the territory became a state, and'the laws generally were soon afterward, in 1822, revised by Poindexter, to conform to the modified system of jurisprudence appointed by the new constitution; By this constitution, the jurisprudence of the Supreme ' Court- was not specified, but left to the- legislature to prescribe. See Constitution, title “ Judicial Department,” p. 550, Poindexter’s Code.
    . The act of 1822, (sect.- 5, pp. 149,150; Pain. Code,) established this jurisdiction. The Poindexter. Code was adopted ahd operative in 1823, and while this chancery case was yet pending. But the code expressly saved from its operation all such cases as-were pending, by providing, per sect. 7, p. 8, of-the Code,
    “That- all remedies, which shall have been commenced under former laws, shall be and remain as though the said' code had never been adopted:”

      '. This, decree is therefore in conformity to the laws" in.Turner’s Digest, and. this exception of the appellants is manifestly groundless. And full to this point, see Blanchard’s Adm. v. Buckbolt’s Adm., Walk. Miss. Rep. 64: °
    ■ Jt is further objected to-this record and decree,- that the Chancery Court of Mississippi-had 90 jurisdiction of the subject-matter, on the ground that the title'of the patentee was fixed by the government or sovereign.power: 1st, by the decision of the Spanish governor; 2d, by the 1st article of the compact of cession.from Georgia to the United States, of 1802; and 3dly, by the ascertainment of those entitled to confirmation' under said article by the board of commissioners, as per section 6 of act of Congress of 3d .March, 1803.
    ■ To this we answer, 1st, that no title, emanating from this or any other government,- for lands now within the United States, can claim immunity from investigation and adjudication in thei courts. And if the wilful -wrong .or mistake of the ministerial officers of gov,eminent, or the fraud and "misrepresentation of the donee or .grantee, has induced the issuance of a patent to, one who, by the laws and policy of the government, was not equitably entitled to receive it, the-court may; as they'perpetually do, redress the-wrong. And 2dly, as to the claim under the act of cession, -the appellants cannot be heard to invoke any -protection to their title from that article, to the prejudice of the court’s jurisdiction, as they did not show them.selves within the provision of that article on that occasion. See the casé on appeal, 1 Peters, 94. And- showing it now, could in no ■degree, impair the jurisdiction then exercised.- The patentee .did not, in the chancery suit, prove himself a settler on 27th October, 1795. But had it been shown, by the finding of the board' of commissioners under the 6th section of the act of 1803, such proceeding - could not preclude Starke from his judicial inquiry into his rights for the same lands; .and.so the Supreme Court in Mississippi had previously adjudged. See case of Winn v. Coles’ heirs, Walker’s Rep-119; 2 Howard, 603.
    . It having been thus shown, the court in Mississippi had rightful ■jurisdiction of the cause, their .decision upon the matters in issue, and embraced in the decree, is final and conclusive until, reversed. 16 Peters, 87; 6 Wheat. 109; 1 Mason C. C. R. 515; 3 Wash. C. C. R. 28; 1 Brock. C. C.-R. 126; 3 Dal. 101; 2 Howard, 338 to 342.
    What then shall be adjudged the proper and legal effect of our record, as offered in defence to the plaintiffs’ action. The. decree entitled those under, whom we claim to have had a formal, conveyance of the legal title from the patentee.. The order in .this behalf "having been disregarded, this aot of contumacy is now relied on as . remitting the parties to their .patent right of title, unaffected by the ■ decree pronouncing it fraudulent and .void as against us.
    In the view, we entertain of this point, the inquiry is not regarded essential, whether our decree has qualified the legal title with a trust to our use or not; or whether, in this relation of trustee and cestuis que trust, our equitable title is a bar in ejectment to the recovery of oiir trustee against us. We think ''the authorities would sustain uS in this position. A mortgagee, whose debt has been paid to him, dr a party holding the legal title as a resulting trust,' of that of a |Eustee by deed, after the trust is fully-executed, cannot maintain ejectment against his cestui que trust, so entitled to call for the immediate conveyance of the legal estate. 2Harris and McHenry* l?; 7 Wendell, 379; 3 -Johns. Rep, 2222 Wendell, 134; .6 Munford, 41; -1 Cowper,- 46; 18 Johns. Rep. 12.
    And an equitable title, of Jike description, is also adjudged in Mississippi, (whose decisions must furnish -the law to this court in this case,) as a bar to this action. Brown v. Weast’s heirs, 7 Howard’s Rep., here in manuscript.
    Clear, however, as our defence may be, under this aspect of the authorities, we think it more obviously sustained, on grounds less technical and of inore ready comprehension, viz.: upon the -rule* that whatever takes- away the plaintiff’s right of possession, must bar his recovery in ejectment, notwithstanding his legal title. This rule is displayed in its-most simple instances, when the defendant claims as a lessee, or tenant in dower, or by the courtesy, &c. But it holds whenever the right to possession exists in one party) though right of property be in another. 6 Peters, 441, 442 ; 9 Wheat. 524 ; 3 Wash. C. C. R. 204; 16 Johns.-Rep. 200. <

    Now the decree offered in evidence has expressly found, that the patent is fraudulent and void as against the better right of our vendors. And - the defendants therein, besides being commanded to convey their title to the complainants, are required also, within sixty days thereafter, to “deliver to complainants the full and peaceable and actual possession of said' tract of land.”
    Our derivative title under those complainants, anchoar actual possession of the said tract of land being admitted, our right to the possession must be sustained at law or equity.’
    In the Cincinnati common case, 6 Peters, 441, the defendant’s claim-to right of possession was established tty no such .formal and solemn proof as here presented, and yet sustained as a bar to the ejectment. .The matters put in issue by the parties in our record, and found by the decree, are proven and established conclusively,‘till the judgment be reversed. 6 Wheat. 113, 114, 117; 3 Wash. C. C. R. 28; 1 Brock. C, C. R.JL29. And, in deraignment of title before a court, a decree of title is good evidence even against a stranger to the record. ■ 4 Wheat. 217."
    . The appellants maintain, however, that the matters decreed in a court of chancery are only available as evidence in a chancery court; oor if admissible at all, in a court of law, must be received with diminished consideration, than if adjudged in a court of law. Not so.

      ■ The eases of 6 Wheat. 113, 1.14, and 3 Wash. C. C.' R, 28, were of decrees offered in evidence in courts of law, and held of equal validity as judgments at. law. And the former speculative opinions, that debts, and charges'on real' estáte, established by de- . cree, were of less dignity and validity than judgments at law, no longer prevail. 3 P. Wms. 401, n. (F.)
    In the view we have taken of the sufficiency of our defence -in showing our right of possession, it is of course unnecessary to maintain that a decree of title, in legal. consideration, is equivalent to. a conveyance of title. Yet on principle, it must be so. A-'commissioner’s' deed, executed under a decree, is in itself form without substance. ' It has no force or validiiy,' but'- in virtue of the ■ decree. ' 6 Peters, 400,401., ■ In 10 Peters, 245, it was decided, that a-deed of- conveyance^ made pursuant to a decree, was in effect cancelled nd annulled by a reversal of the - decree under which it was executed. But if, as the appellants would maintain, the deed so executed passed the legal title, it is adjudged in this case that the mere reversal of the decree cancels and revests the legal title. Why, then, when the decree, (as in our record,) acting directly on the legal title, cancels it in the hands-of the 'holder, and expressly adjudges it to belong'to. another; why does it not transfer the legal title ? In .1-Peters, 558, 559, 560, this principle is fully maintained. True, the statute of Ohio is referred.to for its authority, but. qucere, if that .státute should be regarded as any thing more than declaratory of the legal effect of a decree of title.’
    Chancellor'Kent considered the decree, even on the foreclosure .of a mortgage, to operate so directly on' the land and-the title, that on motion of the purchaser of the land (sold under the decree) to have possession awarded him ¿gainst the mortgagor’s wife who refused to surrender, it was adjudged the decree concluded the question of possession,- as against all- parties and -privies, and the’ court’s writ of assistance was. directed in favour of the application, and. this,. though the decree had not directed the pbssession, should be so surrendered. .4 Johns. Ch. Rep. 614.
    We believe, therefore, our case is so fortified in every aspect, both. in its 'equity and at law, that this court must affirm-the judgment of the court below.
   Mr. Justice McKINLEY

delivered the opinion of,the cburt.

This case is brought before the court by a writ of error to the Circuit Court for the southern district of Mississippi.

The plaintiffs brought, an action of ejectment against-the defend-, ants in the court below; and upon the trial, the plaintiffs read in evidence, to the jury, the' copy of a plat and certificate of survey, signed by Charles Trudeau, royal surveyor of the province of'Louisiana, for .two thousand acres of land, French measure; and a patent, issued by the Spanish governor-of that province, thereupon, to James Mather, dated the 3d of April, 1794; and a deed- of conveyance from James Mather to George Mather, dated the 26th day of April, 1803, for the same tract of land; and. they , also read in evidence a certificate, dated the 10th day of April, 1806, signed, by. the commissioners, appointed by the Presicj.ent.of the. United "States, nrfder the act of Congress, of the 3d of March, 1803, and the act, supplemental thereto, of .the 27th of March, 1804, .confirming to George Mather the said tract of land, by virtue of the articles of agreement and cession between-the United States and “the state of Georgia. . It was' also proved that George Mather died, about the .year 1812, and that James Mather was his heir; and that James Mather had died' pending the suit; and it was admitted by the defendants, that the plaintiffs were the heirs of James Mather, iC and whatever title he had ' .at his death vested in them or any others, his heirs, to be shown.”

And it was admitted by the plaintiffs, “ that the defendants were in possession of the land .in controversy, and were so at' the time this suit was brought, under derivative .titles from Robert Starke’s heirs, valid so far as Starke’s title was valid.” And the defendants in support of the issue, on their part, offerecTtO read the record of the proceedings in a suit in chancery, in the Supreme Qourt of the state of\Mississippi; in which the heirs of Robert* Starke were complainants), and the heirs of James Mather-defendants. t And by which record it. appeared,-that the complainants set up and claimed title to the land, here in controversy,’ under a warrant ^ order of survey, for two thousand acres of land, dated .about'toe 29th day of December, 1791, and the survey thereon; and the defendants claimed title under the survey and patent, of the Spanish government tó James Mather. And by the order and decree of that Court, toe land, in controversy in this suit, was adjudged and decreed to the heirs of Robert Starke.

To toe reading of which record and proceedings, as evidence to the jury, the plaintiffs objected, on these grounds: “ First. That it does not purport to be a record on its face, and in its context. Secondly. That said record does not disclose, nor contain a. final ' decree ; neither the said record, nor the said decree therein being signed by toe judges of the said Supreme Court of Mississippi. Thirdly. That the pleadings and context .of said record show, that the chancery suit was entertained and treated by said Supreme Court as a matter of original jurisdiction ; whereas the statutes of Mississippi expressly provide,^that toe opinion of the Supreme Court shall be certified to toe’court below, whose action and'adoption alone can render toe opinion of the Supreme Court final upon a question of law adjourned for its opinion. Fourthly. That toe facts and toe law of toe case, did not give the Chancery Court jurisdiction, inas-.rnuch as, after the treaty of 1783, a Spanish warrant or order was a ' mere nullity, and could only be rendered valid, by the holder bringing himself within toe first section of toe act of Congress of 1803, by -.íesidence and cultivation; whereas, as the'record shows, that Starke was not within that act; nor, if he had been, could he have derived any equity against á title, confirmed by the articles of agreement and cession between Georgia.and the United States, of the 14th of April, 1802. Fifthly. That jurisdiction, legal and equitable, was vested elsewhere, by the 6th section of the act of 1803; such investiture of jurisdiction in an inferior-tribunal being exclusive of that of any other tribunal. Sixthly. 'That a.record or decree out- of .chancery is not evidence of a legal,.but an equitable title only, and is, therefore, not pertinent to the issue joined. Seventhly. That the decree, if read at all, must he read as an estoppel by the record, and subject to the rules as to estoppels. ' Eighthly. That a decree in chancery must be read on the same footing as a judgment at-law; and unless carried out by a conveyance, can have no greater effect than a judgment in ejectment.”

The court overruled these objections, and permitted the record to go to the jury, as evidence of any fact decided by it To which opinion of the court the plaintiffs excepted. ' The plaintiffs, among other instructions, some of which' were refused and some granted, but which need not be noticed here, moved the court to instruct the jury,- “ that the decree read in evidence, by the defendant’s counsel, does not per se divest the plaintiffs,, or the ancestors of the plaintiffs, of the. legal title, but that said title remains unaffected at law by said decree, and is still in plaintiffs, if the jury believe them to be' the he'irs of said Mather.”

There wére several instructions moved by the defendants, some of which were granted, and some refused; but as they-are either included in the ruling of th court, already noticed, or unnecessary to the decision of the points, on which we think this'.case ought to be decided, they- will not be noticed in the investigation of the subject.

Two questions -are distinctly presented by the ruling of the Cir- ' cuit Court. First. Whether the' decree in the suit in chancery was a bar to the action of the plaintiffs. Secondly. Whether the Court of Chancery had jurisdiction of the subject matter, in controversy before it in that case. For the plaintiffs in error, it has been insisted, that the decree is not evidence of -a legal title, even if it were otherwise valid, and, therefore, no bar to the fiction of ejectment ; and that the possession of the defendants under the decree, without a deed of conveyance as directed by it, whether by the writ of habere facias possessionem or otherwise, gave no legal title to the defendants; and, theréfore, opposed no legal bar to the plaintiffs’ action. And, secondly, it was insisted, that neither the Court of Chahcery, nor the Supreme Court of the state of Mississippi, .had jurisdiction of the subject matter presented by the bill of the complainants. The whole power to confirm Spanish titles, protected by the contract of cession by the state of, Georgia to the United States, having been conferred, by act of Congress, on a board of commissioners, whose decision was by law made fina], no other court could decide upon the validity .of those claims.

The converse of these propositions was -maintained by the counsel for the defendants. • And it was insisted, that the decree operated as a conveyance, and also as adjudgment in ejectment, the Court of Chancery having the power by statute to award the writ of habere facias; and, therefore, the decree, and possession under it, is a legal bar to' the action of ejectment.. And upon the .second point it was. insisted, that the jurisdiction of the court over the subject matter of the decree could not be inquired into-by the court below, nor by this court, when brought before either collaterally. .To arrive at the legal effect of the decree, we must inquire into , the object and intention of the complainants, in bringing the suit in chancery. They charge in their bill, that. James. Mather had obtained froni the Spanish government the legal title to the land in' controversy, in fraud of.the rights of their ancestor, Robert Starke; ■ and they pray that by decree of the court, Mather may be compelled to surrender to them -the full and entire possession of the land, together with the evidences of title which he has-th ereto,, and that they maybe quieted in their title; “ and such other and farther relief in the premises as to the court shall seem meet.”

The court by its decree established the right’of the complainants to the land in controversy, and ordered'Mather’s heirs, who were all non-residents of the state of Missisippi, to convey the land to the complainants, and to deliver to them the possession, and awarded the writ of habere facias ; .which writ the Court of Chancery1 is authorized to order by a statute of the state.. Without the aid of this writ, the court could-not have put the complainants into possession^ the defendants' being out of their jurisdiction; nor could they for the same reason compel a conveyance of the title to the land. - The decree is, therefore, if otherwise valid, nothing' more than an.equitable right, ascertained by the judgment and decree of a.court of chancery; and until executed by a conveyance of the legal title, according to the decree, Starke’s heirs, 'and those claiming .under them, have nothing but an equitable title to the land in controversy.

To enable the defendants in this case to defend their, possession successfully, upon their own title, that title must be shown to-be a good and subsisting.legal title, and superior in law to that set up by the plaintiffs.; otherwise it opposes no legal bar to the recovery in the action of ejectment. And conceding, what was contended for in-argument, that the decree and possession under it, by the writ of habere facias, is equivalent to á judgment in ejectment, followed by like possession, it would avail the defendants nothing in this case ; because such a judgment and possession are no bar to another action of ejectment for the same premises. The defendant in ejectment can never defend his possession against the plaintiff upon a. .title in himself, by which-' he could not recover the possession, if he were out, and the plaintiff in possession. . Reversing the positions of the parties ‘in this case, could the defendants, if plaintiffs, recover the land.in controversy upon this decree, and evidence of • possession under it, against the title of the plaintiffs ? We have no. hesitation in saying they could not; and, therefore, the decree, if founded upon a valid equitable title, would' be no legal bar to the action of the plaintiffs. " ” .

To a correct understanding of. the question of jurisdiction, argued •at the bar, it is necessary to ascertain the character of the grant set up by Starke’s heirs in the suit in chancery. This grant was obtained from the Spanish governor of' Ebuisiana, prior to the treaty between the United States and Spain, of the 27th of October, 1795. By this treaty, Spain admitted she had no right to the territory north of the thirty-first degree of north latitude'. In consequence of which, all the grants made by her authority, within that territory, were void. ’ This territory thenhelonged to the state of Georgia-; but by deed, bearing date the 24th day ,f April,' 1802, she ceded it to the United States. And in that deen it was stipulated, “ that all persons -who, on the 27th of'October, 1795, were actual settlers within the territory thus ceded, shall be confirmed in all the grants legally and fully executed prior to that day, by the former British government, or the government of Sp- in,” &c. The first section of the act of Congress of the 3d of March, 1803, chap, 80, (2 Story’s Laws,' 893,) enacts, “That any person ox persons that were residents in the Mississippi territory on the 27th of October, 1795, and who had prior to that day obtained, either from the British government of West Florida, or the Spanish government, any warrant or order of survey for lands lying within said territory, to which the Indian title had been extinguished, and which, on that day, had been actually inhabited and cultivated by such person' or -persons, or for'.his or their use, shall be confirmed in .their claims to such lands in the same manner as if their claims had been completed.” This section places those who had obtained a warrant or order of survey upon the same ground' with those who had complete titles. The 5th section of the act declares, “ That every person claiming lands By' virtue of British grant, or of the three first sections of this act, or of the articles of agreement and cession' between the United States and the state of Georgia, shall, before the last day of March, 1804, deliver to the register of the Land-office, within whose district'the' land may be, a notice in writing, stating the nature ¿nd extént of his claims, together with a plat of the tract or tracts claimed; and shall also, béfore that day, deliver to said register, for the purpose of being recorded, every grant, order, of survey, deed of convey--anee, or other written evidence of his claim, and the.same shall be recorded -by the said register in books to be kept for that purpose..” And upon the failure of the claimant to comply with these requirements, his claim is declared to be void, and shall never “ be received or admitted as evidence in any court in the United States against any grant derived from the United States.”

. The 6th section of the act provides for the appointment of two boards of commissioners, for the purpose of ascertaining the rights of persons claiming the benefit of the -articles of agreement and cession between the United States and the state of Georgia, and of the three first sections of the act. Each board was authorized to hear and decide, in a summary-manner, all matters respecting such claims within their respective districts, and their determination was declared to be final.

The record of the chancery .suit between Starke’s heirs and Má* ther’s heirs, shows that Starke was not resident -in the Mississippi territory on the 27th of October, 1795, but had removed therefrom some years before that period; that no notice of his claim had been given to the, register of the Land-office, within whose district it lay, together with a plat of the tract claimed and delivered to the register, to be recorded as required by law. 'Nor .does it appear that the claim was ever submitted to the board of commissioners for their determination.' Many years afterwards, the exact time not appearing by the imperfect record read in evidence, the court of chancery for the Mississippi territory, without any authority having been conferred on it by act of Congress for that purpose, took cognisance of Starke’s claim, and established its validity by its own judgment and decree.

In the case of Henderson v. Poindexter, 12 Wheat. 543, 544, the court says, The whole legislation en this subject requires that every title to lands in the country which had been occupied by Spain, should be laid before the board of commissioners. The motives for this regulation are obvious; and as the titles had no intrinsic validity, it was opposed by- no principle. Claimants could not complain, if the law which gave validity to their claims should also provide to examine-their fairness, and should make the validity depend upon their being laid before that board. The plaintiff in error has failed to bring, his case before the tribunal which the legislature had provided for its examination, and has, therefore, not brought himself within the law. No act of Congress applies to a grant held by a non-resident of the territory in October, 1795, which has not been laid before the board of commissioners. It is true that no act has declared such grants void; but the legislature has ordered the lands to be sold which were not appropriated in a manner recog-nised by law, and the land in controversy.^ of that description.

“ If this view of the subject be correct, no Spanish grant, made while the country was wrongfully occupied by Spain, can be valid, unless it was confirmed by the contract with Georgia, or has been laid before the board of commissioners.” This tribunal was created for the express purpose of deciding all questions arising under the deed 'of cession by Georgia, securing to a particular class-of claimants the lands they occupied anch cultivated at the date, of the treaty between the United States and Spain, of the 27th of October;, 1795, and its decision was to be final; find therefore its jurisdiction was exclusive; unless, by express words,. Congress had conferred concurrent jurisdiction on some other judicial tribunal. From these propositions results the inquiry, Whether thé decree in the chancery suit was void, the court having no jurisdiction of the subject-mattér of the decree, or only erroneous and voidable ? If the former, then its validity was inquirable into in' the- current court, when' offered as evidence, .and it ought to have been rejected.

, According to the decision in the case of Henderson v. Poindexter, above referred to, Starke’s claim, when submitted by his heirs to the Court of Chancery,'was utterly void; and no ppwer having been conferred by Congress, on that court, to take or exercise jurisdiction over it for the purpose of imparting to it legality, the exercise of jurisdiction was a mere usurpation Of judicial power, and the'whole proceeding of the court void.

In the case of Rose v. Himely, Chief Justice Marshall said, “ A sentence professing on its face to be the sentence of- a judicial tribunal, if rendered by a- self-constituted body, or by a body not empowered by its government to take cognisance of the subject it had decided, could hayé no legal effect whatever. The power of the court then is, of necessity, examinable to a certain extent by that tribunal, which, is compelled.to decide whether its sentence has changed the -right of property. The’ power under which it acts' must be looked into, and its authority to decide questions which it professes to decide, must be considered. ” “ Upon principle, it would seem, that the operation of every judgment must depend on the power of the" court to render that judgment ;• or, in other-words, on its jurisdiction over the subject-matter which it has determined.” In the case of Elliott and others v. Piersol and others; 1 Peters, 340, it was-held by this court, that “ Where a court has jurisdiction, it has a right to decide every question which occurs in the cause; and - whether its decisions be. correct or- otherwise, its judgment; until reversed, is regarded'as binding in every other court. But if it acts without authority, its judgments and orders are regarded as nullities. They are not voidable but simply void, and form no bar to a recovery sought, even prior to a reversal, in opposition to them. They constitute no justification; .and all persons concerned in executing such judgments or sentences are considered, in law, trespassers. This distinction runs through all the cases on the subject; and it proves, that the jurisdiction of any court exercising authority over a subject, may be inquired into in every other court when the proceedings of the former are relied on, and brought before the latter by the party claiming the benefit of such proceedings.”

The same doctrine was maintained, by this court, in the case of Wilcox and Jackson, 13 Peters, 511, and the case of Elliott and others v. Piersol and others, referred to, and the decision approved. These cases being decisive of the question of jurisdiction, we deera - it unnecessary to refer to any other authority-.on that point. From the view we have taken of the whole subject, it is our opinion, the decree of the Supreme Court of Mississippi would have been no bar - to the action of the plaintiffs in this case, if the subject-matter of .the.suit had been within its jurisdiction.' But we are of the opinion, that court had no jurisdiction of the subject-matter, and that .the' whole proceeding is a nullity. The Circuit Court erred, therefore, in permitting the record to be read to the jury, as evidence for any ‘ purpose whatever. Wherefore the judgment of the Circuit Court is reversed.-


author: . Mr. Chief Justice TANEY

text:
    Thomas Wilson and Company, Plaintiffs, v. Horace Smith, Defendant.
    Whenever, .by express agreement of the parties, a sub-agent is to be employed by an agent to receive money1 for the principal; or where an authority to do so may fairly be-implied from the usual course of trade, or the nature of the transaction; the principal may treat the sub-agent ás his agent, and when he has received the money, may recover it ,in an action for money had and received.
    If, in such ease, the sub-agent has made.no advances and given no new credit to the agent on account of the remittance of the bill,'the sub-agent cannot •' protect himself against such an action by passing the amount of the bill to the general credit of the' agent, although the agent may be his debtor.
    . This case came up on a certificate of division in opinion between the judges of the Circuit Court of the United, States for the district ' of Georgia.-
    The record being very short, it will be inserted entire.--
    “ This was an action of assumpsit brought, in this court by the plaintiffs, to recover from the defendant the sqm of eight hundred dollars and interest, being the amount of a draft or bill of exchange drawn by one Henry B. Holcombe, Of Augusta, in .the state of ■Georgia, upon one Charles F. Mills, of Savannah, in said state, and , accepted by him, and paid to the defendant. The declaration contained two counts. The first'Was for-money collec ted and received by the defendant, to and for the use of the plaintiffs, upon the particular Bill, of exchange set' out and ^escribed in the declaration; the second count was generally for money had and received. The plea of non-assumpsit was pleaded by the defendant in bar of the action, £it being -proved that the draft or bill of exchange' upon which the money was collected and received by the defendant was the property of the plaintiffsthat it had been by them placed in fhé hands of- their agent, David W. St. John,- at Augusta^ Georgia, for collection, and by him, ■ St. John, forwarded to the defendant, St. John’s agent, at Savannah, Georgia, for acceptance and collection; that it was accepted and paid to the defendant, by whom the proceeds were received and credited to the account of St.; John, frojtn whom the defendant received the draft or bill for collection, and who was indebted to the defendant at the time. That at the time the- said bill was so paid to the defendant, and by him credited to the. account of St. .John, he, St. John, had failed in business, and had departed this life; that he failed, and had not recovered his affairs at the. time of his death, and was insolvent; that the credit for the amount of1 the bill, carried by the defendant to St. John’s account, was made in payment of a previously, existing debt due by St. John to the defendant, no new transaction having arisen between the defendant and St. John after the payment of the said bill to the defendant; ‘ that to secure the paymént of his debt to the defendant, St. John had trans- ■ ferred to the defendant three hundred shares of the capital stock of the Augusta Insurance and Banking Company, upon which $100 per share had been paid; that the defendant appeared satisfied with this ■security, and that St. John would then have given additional security had the' defendan required it.’ That the draft or bill of exchange was made payable to the order of Henry B. Holcombe, the drawer, and by him endorsed in blank, and endorsed by St. John to H. Smith, Esq., (the defendant,) or order. That when the'' draft was sent to the defendant for collection he was not apprized to whom it belonged, nor were any. instructions or directions given to him as to the disposition of the money when collected.
    “ The following point was presented, during the progress of the trial for the opinion of the judges,- on which the judges were opposed in opinion, viz.: Whether there was such privity of contract between the plaintiffs and defendant, either express or implied, as would' enable the plaintiffs to maintain the action for money had and received.
    ■ “Which said point, upon which the disagreement has happened, is stated above, under the direction of the judges of the said court, at the request of the counsel for the parties in the cause, and ordered to be certified into the Supreme Court of the United States at the next session, pursuant to the act of Congress in such case made and provided.”

      Berrien, for the plaintiffs.

      Nelson, (attorney-general,) for the defendant.

      Berrien. The question is, whether there is such a privity, of contract, between the plaintiff and defendant, either express or implied, as will enable the plaintiff to sustain the action for money had and received.
    It is not necessary that the relations of contract should exist between the parties.

      There are many cases in which the defendant, has received the money óf plaintiff, under circumstances which would render'him liable ex delicto, in which plaintiff is permitted to waive the tort, and •sue in thié action. 1 Leigh’s N. P. 45, 46. Wherever defendant has received money, the property of. plaintiffs, which defendant is bound ex aguo et bono to refund, it may be recovered in this action. Moses v. McFarlane, 2 Burr. 1012. The true question is the right of plaihtiff to receive, or of defendant to retain the money.
    In-the eye of the law, there is always such privity of contract as is necessary to sustain this action,- between a person who holds the money of another, which in equity and good conscience he is bound to refund, and the person whose money is thus withheld. Camp v. Tompkins, 9 Comí. Rep. 553.
    Again. "Where one has received the money of another, and has not the right to retain it, the law will imply privity of contract. Mason v. Waite, 17 Mass. Rep. 560-;. Hall v. Marston, 17 Mass. Rep. 575.
    Two propositions may be.laid down.
    . 1. On the facts stated, Smith, defendant, was the agent of plaintiffs, bound to account to them, on notice of their claim; and, therefore, the amount collected by him was money -had and received to their use.
    2. That his ignorance of the real owner of the bill cannot affect the right of plaintiffs to Recover in this action, on notice and proof of their title, so long as defendant stands .in his original situation, and until there has been a change of circumstances, by his having paid over the money to his immediate employer, or done something equivalent to it.
    •1^ Smith, the defendant, was .the agent of plaintiffs. The case states,—
    1st. That the bill, was the property of plaintiffs.
    . 2d. That it was collected by defendant, who received it from St. John, the agent of plaintiffs. -
    .On this state of facts, did the necessary privity exist ? or, in other words, had defendant the right- to retain after- notice of plaintiffs’ claim.?
    It is .objected that delegated power cannot be delegated without authority for that, -purpose,' because it implies trust and confidence, which cannot be assigned to a stranger.' That the sub-agent has no claim upon the principal, fiar commissions, advances, &c., therefore is under no responsibility to him, his sole remedy being against his immediate employer, and' therefore that his sole responsibility is to him. For qualifications, of the rule, see Story on Agency,’ sect. 14, p. 16.
    Authority implied..
    Licensed auctioneer. — 4; When indispensable by the laws to accomplish the end.

      Ship-broker. — 2.. Ordinary usage of trade. -
    Factor. — 3. Where.uhderstóod.by parties as the mode in which .the'-business woiild or might be done. •
    The authority exclusively personal, unless from express provision, 'legal necessity, usage of trade, or fair presumptions growing out of .. particular transaction, a broader power .was intended to-be conferred. Story on Agency, seet. 14, p, 17.
    Test the present case, by this rule, thus qualified.’
    A foreign- house, holding a bill drawn on a citizen of Savannah, in Georgia, Has a. correspondent át Augusta, in the same state, to whom he remits it for collection, and by whom it is sent to his correspondent in Savannah, where'the drawee resides.
    Is othis not conformable to the usual course of such transactions ? . Could plaintiffs have expected that St. John, abandoning his own place of business, should have repaired to the distant residence of the drawee, to present this bill personally ? Would not the remit- ■ tance of it there, to his correspondent, be “understood ‘by the parties, to "be the mode in which this particular business would or might be. doné ?” Was St. John bound- to do more than select a competent and trust-worthy agent to receive the contents of the bill ? If with the-bill he. had stated plaintiffs’ interest, would any have doubted that defendant would’ have been the agent of plaintiffs in r this matter ? and does this not settle the right to delegate his autho-' rity? What effect, withholding that information .would have, will - be considered hereafter.
    It- suffices at present, in order to sustain the first position, to show, that this bill, was dealt-with according to the usual mode of transacting such business. That in appointing a sub-agérit, St. John did no more than plaintiffs designed and intended. If so, defendant was agent of plaintiffs, by an authorized substitution '; -an authority, implied from the circumstances, and as strong'as.if expressly given; and, as their agent, is, therefore, directly accountable to them for the money received tinder that agency, as money had and received.to their use. • ’
    2. Defendant’s ignorance of the real , owner of the bill, and St. John’s-prior indebtedness to him, cannot affect plaintiffs’ right to recover, unless, before notice of their claim, defendant had made advances to St. John, or delayed his prior claim against him,"rely, ing for reimbursement or payment on this fund.
    St. John, in remitting the bill, did not . state that plaintiffs were owners of it. He was indebted to defendant, who, on receiving its contents," credited him in account, and now claims to-retain the . money of plaintiffs, in payment of the debt due to him by St. John.
    The defendant’s having passed the money, in account, cannot affect this question;/Buffer v. Harrison, Gowp. Rep. 665; Coxe.r. Prentice, 3 Maulé & Selw. 348. Lord Elleoborough. says,;“ I take it that an agent who receives money for. his principal, is liable as a principal so long as he stands in' his original situation, and until there has been a change of circumstances,” &c., &c.
    This money is, therefore, to be considered as iñ the hands of defendant, without any disposition having been made of it. Defendant’s want of knowledge that the money belonged to thé plaintiffs, cannot affect their right after notice and proof of their title. De Válengin’e Adrá’r v. Duffy, 14 Peters, 282,290. This was a case where money was réceived -by an. administrator, as property'belonging to his intestate, though it belonged in fact to', anóthe'r. The court said,- that “the want of knowledge, or the possession of knowledge, on the part of the administrator, as to the rights or claims of other persons, on the money thus received, cannot alter the'rights of the party to whom it is ultimately due.”
    Something more is necessary to enable a sub-agent to retain for his general balance against, his immediate- employer, than his mére want of knowledge of the real principal. Story on Agency, sects. •389, 390, pp. 481,483, and the authorities there cited. The- lien exists for advances made, and (as it seems)'for his.general balance.
    But why ? The reason is given. It is the presumption that the advances were made, or the demand delayed, relying, on the credit of the fund allowed to remain in his hands. No advances were made in this case. Defendant did not rely on this fund for the pay-, ment of his demand. He did not delay it. That demand was prior, and had been secured to the satisfaction of defendant by a pledge of bank stock.
    When St. Johri failed,, and the security became (as is to be presumed) inadequate, then, for the first time, defendant looked to this fund, but he had undertaken the agency without any such reliance. The presumption is, therefore, negatived by the facts of the case; The Bank Metrop. v. New. England,Bank, 1 How. Rep. 234. This will' probably be'relied on. The court held:
    1. That the paper in question continued the property of the New England Bank, notwithstanding the endorsement, these having been made to enable the agent to collect.
    2. That a long course of dealing and repeated settlements in conformity to it, in which the parties were mutually credited with the proceeds of bills remitted by them, balances being suffered to remain, until -they were reduced by the proceeds of bills and notes deposited, made this case the same in principle as if money had been advanced on the- paper deposited.
    The court said there was no difference in principles,' between an advance of money, and a balance suffered to remain upon the faith •of these mutual dealings.
    -The case under consideration is unaecompanied-by any of these .circumstances. Here there was no advance made,'or.demand delayed in reliance upon this fund ;. or any course of dealing and usage founded upon it, by which balances were suffered to remain undrawn for, looking to reimbursement from.'the proceeds' of bills or notes to be collected, which would be deemed equivalent, as in that case, to advances actually made.
    Nelson, (attorney-general,) for the defendant.
    The bill was drawn by Holcombe on Mills, accepted by Mills, and endorsed by Holcombe, and sent to Augusta- for collection. All that was necessary was for St. John to endorse it in blank, but he endorsed it specially to Smith. In this state of the. case, whose agent was Smith? to whom would he have written to give information of the'payment or non-payment of the bill? Certainly to St. John, who would have compelled him to pay over thé money. A defence by Smith, that he was not the proper person tó be .paid, would not have been listened to. A sub-agent cari be created, and •in this case. Smith must have been the agent of St. John. The question of agency must settle that of privity of contract. Story on Agency, 395 to 400, where the subject is discussed.
    An agent is responsible only to his employer. Paley’s Agency, 48; 1 Livermore on Agency, 64, 65, 66.; 6 Taunt. 148; 1 Vesey, jun., 291, 292; where a son was employed as sub-agent by his father, who was agent, and.it was held that the son could not be an. accounting party to the owner of the mine,, because there was no. pri-vity. 14East,582; 1 Crompton & Jervis,-83; 3 Bam. & Ad. 354; 4 Ibid. 375; 2 Campbell, 123.
    It is said, by the other side, that usage must govern. This is admitted. But what usage or-facts does the record shpw? Not that Smith was a factor or broker, but only that he was a creditor of St. John. .The court cannot presume usage, and there..is nothing in the record to show it..
    . What are the respective equities of the parties? The action for money had arid received is analogous to. a bill in equity. Suppose that the bill had belonged to St. John, ■ pould he have claimed to. receive the. amount of it whilst, he was a debtor ? The creditor had -a right to apply the fund to pay himself.. It is admitted .that if Smith had forborne to press St. John.for the amount of this debt, he would have a right, to retain the amount of this bill. But the plaintiff, by his acts, has been ..the. cause of lulling Smith into'a false security. Story, 483, 484.
    Where a party-may be supposed' to rely on a-particular security, it is enough.' -Case .of New England Bank, 1 How. 234.1
    The death of St. John does not defeat the lieu. Story' on Agency, -378 to- 388, authorities collected.
    It is a general rule, that where a factor holds property as his own, foe real owner cannot come in and ‘claim, where third persons are concerned, having claims upon the agent. 5 Taunt. 56; 2 Bell’s Comm. sect. 807 to 812; Chitty’s Commercial Law, 544,545,646; 2 Bell’s Comm. 789 to 806..

      Bei'rien, in reply;
    The controversy here is not about general principles, but their • application. The cases in Taunton and 6 -Vesey establish, that between a sub-agent and principal'there is no .privity. I do not deny - the existence of the general rule' which these cases support, but say. that there are exceptions-to the ride, of which this is one. (Mr. Ber-rien here examined the cases.) ’ One of the exceptions is, where it is manifest that some other person would be employed.
    As-to the equitiesiof the parties.- Shall the defendant retain money which confessedly belongs to the plaintiff,’ when ,the position of the defendant has undergone no change in consequence of getting-this money?. Tf his circumstances had been changed upon.this account, I have conceded that he could retain it. Smith could not have'befen lulled into a false security, because the statement affirms that no new transaction happened. St. John, therefore, could not have received a fresh advance.' The case of the New England Bank was decided upon the ground that there had been “mutual and extensive dealingsthat they “ did not drawahd that these things were like an “ actual advance.” Strike these facts out of the case, and it would not have been decided as it was, but would then have resembled ours. Here is an insulated transaction, .without any evidence of advance or forbearance;
   . Mr. Chief Justice TANEY

delivered the opinion of the court.

We think the question certified has been settled by.the decision of this court, and that it .is unnecessary to go into an examination of 'the English laws which were cited in the argument. It is admitted that 'the bill was the property of the plaintiff, and was transmitted to St. John, at Augusta, for collection, and by him transmitted to the defendant, at Savannah; where the, drawer resided; and.that no consideration was paid for the bill, either by the defendant or St. John. According to the usual course of dealing among , merchants, the transmission of the paper to St. John gave him an implied authority to send it for .collection to a sub-agent at Savaiinah, for it could not have-been expected by the plaintiff that St. John was to go there in person, either tp procure the acceptance-of the bill, or to receive the money, nor could St. John have so .understood it. JSo far, therefore, as the question «of privity is concerned, the ease before us is precisely the game with that of the Bank of the Metropolis v. The New England Bank, 1 How. 234. In that case, the bills upon which the money had been received by the plaintiff in error, were the property of the New England Bank, and had been placed by it in the hands of the Commonwealth Bark for-collection, and were . transmitted by the last mentioned bank to thé Bank of the Metropolis, in Washington, where the bills were payable. Arid upon referring to the case,'i.t will be-seen that the court entertairied no doubt of the right of the New England Bank to maintain the action for money'had and received, against the Bank of the Metropolis; and the difficulty in the way of its recovery-in the action was not a want of privity, but arose from the right of the Bank of the Metropolis to retain, under the circumstances stated in the case, for its general balance against the Commonwealth Bank. In .that case, as in the present, the agent' transmitting the paper appeared, by the endorsements upon it, to be the real owner, .and the party to whom it was transmitted- had no notice to the contrary, and the money received was credited to the Commonwealth Bank. We think, the rule very - clearly established, that whenever, by express agreement between the parties, a sub-agent is to be employed by the agent to receive money for the principal, or where an authority to do so- may fairly be implied from the usual course of trade, or the nature of the transaction, the principal may treat the sub-agent as his agent, and when he'has received the money, may recover it in an action for money had and received.

Another question has been .raised in the argument, that is, whether the defendant has a right to retain on account of the money due to him from St. John? As this point has not been certified, it is not regularly before the court, yet as it has been-fully argued on both sides, and evidently arises in the case, it seems proper to- express our opinion upon it, as it may save the parties from further litigation and expense.

-Upon this part of the case, as well as upon the question certified, we ffiink the case of the Bank of the Metropolis v. The New England Bank, decisive against the "defendant. It appears from the statement that he made no advances, and gave no new credit to St. John on account of this bill. He merely passed it to his credit in account. Now if St. John had owed him nothing, upon the principles we have already stated, the plaintiff would be entitled to recover the money; and we see no reason why he should be barred of his action-because St.John was debtor to. the defendant, since the case shows that he incurred no new responsibility upon the faith of this bill, and his transactions with St. John remained in all respects the same as they, would have been if this bill had never been-transmitted to him. . In the case of the Bank of the Metropolis arid the New England Bank, it appeared in evidence that there had for a long time been inutual dealings between these two banks, in the collection of money for each other, and that, balances were suffered to remain and credit given upon the faith of the paper transmitted or expected-to be received, according to the usual course- of their business with one another. And the court held, that if credit had been so given, the party giving it hád the same right to retain as if he ha.d piade an, advance of money; the hazard he ran by the extension of the credit giving him as just and equitable a right to retain, asfif he had incurred responsibility by an advance of money. The right to retain, in that case, depended upon the fact that credit was given. But in the case at bar this fact is expressly negatived, and there is no ground, therefore, upon which he can retain, according to the principles decided in the case referred to.

• As this point, however, is not in.strictness regularly before this court, we shall confine our answer to the question sent here for decision, and shall direct it to be certified to the Circuit Court, that there was such a privity of contract between the plaintiffs and defendant, as would enable the former to maintain the action for money had and received.


author: Mr. Chief-Justice. TANEY.

text:
    Thomas B. Winston v. The United States.
    Where the matter in dispute is below the amount necessary to give jurisdiction to this court, the writ of error must be-dismissed, on motion.

      Nelson (attorney-general)
    moved to dismiss this case for want of jurisdiction, tinder the circumstances stated in the opinion of the court, which was delivered by
   Mr. Chief-Justice. TANEY.

A motion has been made to dismiss the case for want of jurisdiction.

It appears that an action was brought by the United States against the plaintiff in error, in the District Court of the United States for the northern district of Mississippi, (the said court having the powers of a Circuit Court,) for the purpose of recovering damages against the plaintiff in error, who was a notary public, for having failed to give notice to the endorsers of a promissory note,-put into his bands for protest, whereby-the United States lost their remedy against them. The nóte was for $537; 27 cents, and the. damages' in the declaration laid at one thousand' dollars. There was a verdict and judgment for the sum’of $750 36 cents, and it is upon this judgment that the writ of error is brought.

The matter in dispute is below the amount necessary"to,give jurisdiction to this court, arid the writ, of error must therefore be. dismissed. -


author: Mr. Chief Justice TANEY.

text:
    Hugh Ross, administrator of Hiram Pratt, deceased, Appellant, v. William Prentiss, Marshal, Defendant.
    .Where a bill was- filed on the equity side of the court below, to enjoin the marshal from levying an execution upon certain property, which execution was for a less sum than two thousand dollars, an appeal from a decree dismissing the bill will,not lig. to this court, although'the entire value of the property may be more than two thousand dollars.
    The jurisdiction of the court does not depend upon the amount of any contingent loss or damage which one of the parties may sustain by a decision against him, but upon the amount in dispute between them.

      It was; moved .by Nelson (attorney-general)
    to dismiss the- ease for want of jurisdiction, under- the circumstances stated in the opinion of the court, which was delivered by
   Mr. Chief Justice TANEY.

It. appears from the record in this ca'sejhat a bill in chancery was filed in the Circuit Court for the district of Illinois, by the appellant against the appellee, who .was the marshal for that district, stating among other things that the United States had recovered a judgment in,the District Court for the district of Illinois, against one John S. C. Hagan and. Gholson Kirehenal, for the sum of $600 damages, and $35 .25 cents'costs, upon which an execution had been issued, directed to,the said'marshal, who had levied it upon-a certain lot of ■land and premises described in the bill, upon which the complainant, as administrator as aforesaid, held a mortgage to a large amount mentioned in the bill,-and which he was then proceeding to foreclose; and averring that the said property was not chargeable with the said judgment, and - that he was in danger of losing the benefit of his mortgage, by a sale under the.execution/and praying that the marshal might be enjoined from making such sale.

Upon this -bill án injunction was granted, and the appellee after-wards put in his answer, and the cause was 'proceeded in Until a final hearing, when the .injunction was dissolved' and the bill dismissed.

It is unnecessary to state more- particularly the character of the controversy, because the' case how comes before, us on a motion to dismiss, upon-the ground that the matter in dispute is not sufficient in amount to give jurisdiction to this court.

The- motion is resisted by the appellant, who insists that the jurisdiction depends on the value .of the property upon which the exe- •• cution has been laid, .and. the amount of the appellant’s, interest in it. And .as the property is worth much more than .the sum required to give jurisdiction, and the mortgage also for a larger amount, he has a right to appeal to this court ffom the decree of the Circuit Court; because, as he allows, he may lose the vahóle benefit of his' mortgage by a forced sale under the execution.

We think otherwise. The only -matter in • controversy between the parties is-the amount claimed on the execution. The dispute is whether the property in question is liable -to be charged with "it or not. The jurisdiction does not depend -upon the amount of-any contingent loss or. damage which one. of the parties may sustain by a decision- against him, but upon the amount in dispute between theta;. and as that amount is in this case below two thousand dollars, the- appeal must be dismissed.