XX HOWARD.

20 How. 1-8, 15 L. 823, MORGAN v. CURTENIUS.

Courts. Construction of State statutes relating to land titles by State courts must be followed by Federal courts sitting in that State, p. 8.

Cited and applied in New Orleans Water-Works Co. v. Southern Brewing Co., 36 Fed. 835, following State construction of statute giving certain exclusive rights to water corporation; O'Brien v. Wheelock, 95 Fed. 904, of statute relating to levy of special assessments.

Distinguished in Wade v. Travis County, 174 U. S. 509, 19 S. Ct. 718, holding Supreme Court not necessarily bound by decisions affecting validity of bonds.

Courts. Where a Circuit Court has adopted, as a rule of property, a construction placed upon a State statute by a State court, a different construction, subsequently placed upon it by the State court, will not authorize the Supreme Court to reverse the judgment of the Circuit Court, p. 3.

Cited and followed in Burgess v. Seligman, 107 U. S. 34, 35, 27 L. 365, 366, 2 S. Ct. 22, 23, refusing to follow change in construction of statute regarding liability of stockholders, made after decision in Circuit Court adopting first construction; Forsyth v. Hammond, 71 Fed. 454, 34 U. S. App. 552, holding Circuit Court not bound to follow change in settled construction of State statute, made after argument, and before decision of cause pending in Circuit Court. See also note, 58 Am. Dec. 587. Cited approvingly. but without particular application, in Roberts 7. Bolles, 101 U. & 129, 25 L. 884, and Loring v. Marsh, 2 Cliff. 320, F. C. 8,514.

20 How. 8-6, 15 L. 800, WYNN v. MORRIS.

Supreme Court.— Writ of error to a State court, under twentyfifth section of judiciary act, does not lie, where it does not appear that the judgment of the court was against the right or claim asserted under United States laws, p. 5.

Supreme Court has no jurisdiction of a writ of error under twenty-fifth section of judiciary act, if plaintiff in error has no interest in the right asserted under the United States laws, pp. 5, 6.

Cited and followed in Miller v. Lancaster Bank, 106 U. 8. 544, 27 L. 290, 1 S. Ct. 538, dismissing writ where party claimed right for party in whose title he had no interest.

[725]

U. S. Notes, 20 How. 15 L. ed. 1042-80 p.

20 How. 6-8, 15 L. 801, GARLAND v. WYNN.

Public lands.- Patent obtained by fraudulent imposition upon officers of the land department will be set aside by a court of equity, and title decreed to the party legally entitled to it under the pre-emption laws, p. 8.

Cited and reaffirmed in Lytle v. Arkansas, 22 How. 203, 16 L. 310, where entry obtained by false affidavits as to residence and cultivation; Silver v. Ladd, 7 Wall. 224, 19 L. 140, holding, in such case, patent is not annulled, but title transferred by decree of court; Monroe Cattle Co. v. Becker, 147 U. S. 57, 37 L. 77, 13 S. Ct. 221, cancelling entry flied before expiration of statutory period, and decreeing title to party having better claim; United States v. Winona, etc., R. R., 67 Fed. 959, 32 U. S. App. 272, holding equity may set aside patent issued by mistake; Chism v. Price, 54 Ark. 258, 15 S. W. 885, holding settler on swamp lands with preferred right of purchase, may maintain bill to set aside patent issued in fraud of his rights; Bisson v. Curry, 35 Iowa, 78, holding patent is always attackable for fraud; Moody v. Arthur, 16 Kan. 428, decreeing reconveyance upon showing that patentee held merely in trust for another; Sensenderfer v. Kemp, 83 Mo. 587, where patentee acquired title with knowledge that another person had equitable title; Saunders v. Niswanger, 11 Ohio St. 310, holding military warrant cannot convey title to land previously surveyed; dissenting opinion, Rutledge v. Murphy, 51 Cal. 400, majority holding equity will not review findings of fact if decision of commissioner is correct upon matters of law in contest as to pre-emption rights. See also valuable note on this subject in 12 Am. Dec. 566, 567, 20 Am. Dec. 273, 174, and 87 Am. Dec. 133. Cited, arguendo, in Boyce v. Danz, 29 Mich. 151, Magwire v. Tyler, 40 Mo. 439, Parsons v. Venzke, 4 N. Dak. 470, 50 Am. St. Rep. 682, 61 N. W. 1042, dissenting opinion, and Kahn v. Old Telegraph Mining Co., 2 Utah, 208.

Distinguished in Stark v. Starrs, 6 Wall. 418, 18 L. 929, affirming title of patentee when no better claim shown by other persons; Smith v. Ewing, 11 Sawy. 62, 23 Fed. 745, holding purchaser in good faith from pre-emptor takes land purged of fraud committed in obtaining certificate; Bryan v. Edinburgh, etc., Mtg. Co., 63 Fed. 195, 27 U. S. App. 346, where no question of fraud or mistake was presented; Hartman v. Warren, 76 Fed. 163, 40 U. S. App. 245, holding person who does not claim title from United States cannot maintain bill to have patent set aside; Aurrecoechea v. Sinclair, 60 Cal. 545, ruling similarly where complainant did not show that he was purchaser in good faith from State; Phillips v. George, 17 Kan. 422, where allegations did not show right from United States to support decree.

Public lands.- Where several parties set up conflicting claims to property, with which a special tribunal may deal as between one

party and the government, regardless of the rights of others, the atter may come into the ordinary courts of justice and litigate the conflicting claims, p. 8.

Cited and followed in Berthold v. McDonald, 22 How. 339, 16 L. 320, holding, where conflicting claimants hold equitable title under confirmation by commissioners, court may go behind confirmation to determine who has better right; Lindsey v. Hawes, 2 Black, 558, 17 L. 267, asserting jurisdiction to correct decision of commissioner of land office as to disputed entry; Johnson v. Towsley, 13 Wall. 85, 20 L. 487, S. C., 2 Neb. 489, to determine conflicting pre-emption claims; Turner v. Sawyer, 150 U. S. 587, 37 L. 1191, 14 S. Ct. 195, and Brundy v. Mayfield, 15 Mont. 210, 38 Pac. 1070, to determine rights of co-owners of mining claim; Mezes v. Greer, McAll. 402, F. C. 9,520, where parties claimed respectively under Mexican grant and United States patent; Robinson v. Forrest, 29 Cal. 321, and Ludeling v. Vester, 20 La. Ann. 436, under patents from the United States and a State; Poppe v. Athearn, 42 Cal. 615, holding evidence admissible in suit under condicting patents, to show which holder had prior equity; Walsh v. Lallande, 25 La. Ann. 189, asserting jurisdiction of State court to determine right of free negro to hold land under United States laws; Copley v. Dinkgrave, 25 La. Ann. 579, under facts similar to those in principal case; Marks v. Martin, 27 La. Ann. 528, asserting jurisdiction to determine whether United States had title at time of settlement of dispute by officers of land department; Shelton v. Keirn, 45 Miss. 111, and Smiley v. Sampson, 1 Neb. 68, both holding decision of land officers in dispute as to preemption rights not binding on courts. Cited in Harkness v. Underhill, 1 Black, 325, 17 L. 213, and Orchard v. Alexander, 157 U. S. 380, 39 L. 740, 15 S. Ct. 638, on point that fraudulent entry may be set aside by commissioner of general land office; dissenting opinion, Chapman v. Quinn, 56 Cal. 282, 287, majority holding rule inapplicable under facts. See also note, 63 Am. Dec. 91. Cited, ar guendo, in Warren v. Van Brunt, 12 Minn. 77.

Approved, but held inapplicable in Leese v. Clarke, 20 Cal. 425, to claims acquired under the Mexican government subsequent to the acquisition of California; Chapman v. Quinn, 56 Cal. 275, holding claimant who had not complied with rules of land office cannot contest another's right of entry; Vantongeren v. Heffernan, 5 Dak. Ter. 202, 224, 38 N. W. 63, 74, holding courts have no jurisdiction to pass upon conflicting claims until land office has exercised its jurisdiction.

Courts.- Jurisdiction conferred upon a special tribunal will not oust the jurisdiction of the general courts of justice, p. 8.

Cited and applied in Fidelity Trust Co. v. Gill Car Co., 25 Fed. 749, holding equity jurisdiction of common pleas not ousted by Probate Court proceedings in insolvency under State insolvency laws

Miscellaneous. Cited in Plummer v. Brown, 70 Cal. 546, 12 Pac. 465, on point that decision of land officers in dispute regarding preemption rights, is not subject to collateral attack; Garcia v. Callender, 125 N. Y. 311, 26 N. E. 284, as having defined term preemption."

20 How. 8-22, 15 L. 805, JONES v. McMASTERS.

66

Aliens. A person who was born in Texas, and removed therefrom prior to the independence of Texas, remains a citizen of Mexico, although at the time of removal he was a minor, p. 20.

Cited in discussion, obiter, in Lyons v. State, 67 Cal. 382, 7 Pac. 764.

Escheat. Under the law of Texas, no proceedings for escheat can be had except according to an act of legislature, p. 21.

Cited in note, 6 Am. St. Rep. 382, on point that alien cannot be deprived of property except by office found. Arguendo, in Hamilton v. Brown, 161 U. S. 264, 40 L. 696, 16 S. Ct. 588.

International law. Separation of Texas from Mexico did not operate to forfeit the title to lands in Texas acquired previously by a citizen of Mexico, p. 21.

Cited and reaffirmed in Airhart v. Massien, 98 U. S. 494, 496, 500, 25 L. 214, 215, 216, Kilpatrick v. Sisneros, 23 Tex. 125, 131, Maxey v. O'Connor, 23 Tex. 243, White v. Sabariego, 23 Tex. 247, Sabariego v. White, 30 Tex. 589, and Ortiz v. De Benavides, 61 Tex. 63. Cited and principle applied in Coffee v. Groover, 123 U. S. 10, 31 L. 56, 8 S. Ct. 6, holding settlement of boundary between Florida and Georgia did not disturb grants previously made by either State; Chisolm v. Caines, 67 Fed. 289, holding State bound to recognize grant made while land subject to British crown.

Public lands - Patent. An action at law cannot be maintained in the Federal courts to determine the question of fraud in obtaining a patent from the government through land officers of competent authority; relief must be sought by a bill in equity, p. 22.

Cited and applied in Smythe v. Henry, 41 Fed. 716, enjoining action in ejectment between parties claiming under conflicting patents. Cited by way of analogy in Burnes v. Scott, 117 U. S. 587, 29 L. 992, 6 S. Ct. 868, refusing to allow defendant, in suit at law on promissory note, to set up equitable defense; Butler v. Young, 1 Flipp. 277, F. C. 2,245, ruling similarly in action of ejectment; Montejo v. Owen, 14 Blatchf. 325, F. C. 9,722, sustaining demurrer to answer in action at law on judgment, which set up equitable defense; Alexander v. Mortgage Co., 47 Fed. 134, and Thomas v. Mortgage Co., 47 Fed. 554, 12 L. R. A. 686, and n., both holding person seeking to enforce lien created by trust deed, must proceed in equity. Cited in discussion, obiter, in Van Norden v. Morton, 99 U. S. 381, 25 L. 455, and Thomas v. Mortgage Co., 47 Fed. 553, 12 L. R. A. 686, and n.