of section 5 of the Act of 1875, that if, in any suit | eral States, amongst other things, of all suits of [459] removed from a state court to a Circuit Court a civil nature at common law or in equity, inof the United States, it shall appear to the sat- volving over five hundred dollars, in which isfaction of said circuit court, at any time after there shall be a controversy between citizens such suit has been brought or removed thereto, of different States; and that any such suit that such suit does not really and substan- brought in any state court may be removed by tially involve a dispute or controversy properly either party into the circuit court for the proper "within the jurisdiction" of said circuit court, district. This jurisdiction should be liberally the said circuit court shall proceed no fur- construed so as to give full effect, as far as may ther therein, but shall dismiss the suit or be, to the constitutional right, as presumably remand it to the court from which it was within the intent of Congress. The terms "suits removed, as justice may require. What is at common law and in equity," or "suits at law meant by the expression "within the juris- and in equity," which is the same thing, are diction?" It means within the judicial cogni- in themselves of the most general character and zance within the capacity to determine the of the broadest signification; and this court merits of the dispute or controversy, and to ought not, by its decisions, to restrict their apgrant the relief asked for. The provision does plication. It is not meant by the expression not give countenance to the idea that the suit or "suits at common law" to confine the jurisproceeding is to be retained in the circuit court diction of the circuit courts to the old technical till brought to a formal adjudication on the actions of trespass, trover, trespass on the case, merits, when, at that ultimate stage, the court debt, detinue, assumpsit, etc., but it extends to must say that the case is not within its juris- and includes any form of proceeding of a civil diction, after the party successfully challeng-nature in which a legal right cognizable by ing the jurisdiction has been harassed by ex- the courts of common law is sought to be ju pense and injured by delay. But it means what it says, that the dismissal or remanding "shall" be made whenever, "at any time" after the suit is brought or removed to the circuit court, it shall appear to the satisfaction of that court that there is, really and substantially, no dispute or controversy of which it has jurisdiction, in the sense above pointed out; the right to have a review by this court of the order dismissing or remanding the suit being given to the aggrieved party at once, instead of his being compelled to await the making of such an order at the end of a full and formal bearing or trial, on issues and proofs, on the merits alleged on either side. Orders affirmed. James H. McKenney, Clerk, Sup. Court, U. 8. dicially enforced by whatever name, under the It is a constitutional right of the citizens of the several States having controversies with the citizens of other States, to have a national forum in which such controversies may be litigated. Now, a mandamus, which was originally a [460] It was one of the declared purposes of the Con- prerogative writ only, has come to be in many stitution, that the judicial power of the United cases, and in most States, a private suit, brought States should extend to certain cases enumer- for the purpose of enforcing a private right. ated, one of which was, "to controversies be- This is true in the two cases now before us. tween citizens of different States;" and it was The appellant has a money demand against the declared that this power should be vested in City and County of San Francisco, and is seekone supreme court, and in such inferior courts ing to collect it in the usual way in which such as the Congress might from time to time ordain demands are collectible by the law of procedure and establish; thus making it the duty of Con- of California. The mandamus which he seeks gress to establish such tribunals. If Congress is the mere process for commencing his action, fails in this constitutional duty, the citizens and is a proper process suited to his case. The have no redress but the ballot-box. But Con- City and County of San Francisco can set up gress has not failed. It has established the any defenses to the action in this form which requisite tribunals, and has invested them with it could do in the ordinary action of debt or the powers necessary to give the citizens their upon contract. It is essentially a civil suit at constitutional rights. Or, if it has failed in law, no matter by what name it is called,-cerany respect, either with regard to persons or tainly as much so as were the proceedings in causes, we think it has not failed in respect to Gaines v. Fuentes, Hess v. Reynolds, already the class of cases to which the present belong. cited, and in Boom Co. v. Patterson, 98 U. S. Congress, by the Act of March 3, 1875, passed 404 [25: 207], where there was an issue to asto determine the jurisdiction of the circuit courts, certain the value of property taken by virtue has declared that they shall have original cog-of eminent domain. In Davies v. Corbin, 112 nizance, concurrent with the courts of the sev-| U. S. 36 [28: 627], we sustained a writ of error [461] court." from this court to the circuit court on a judg-strued as denying the power to issue that writ ment in a proceeding for mandamus to carry in any other case. This conclusion might be into effect a judgment for a debt. The Chief admissible if it is restrained to the instance of Justice there said: "While the writ of man- the particular writ of mandamus which alone [462] damus, in cases like this, partakes of the nat- was in contemplation; that is, the prerogative ure of an execution to enforce the collection writ of mandamus as known to the practice of of a judgment, it can only be got by insti- the King's Bench in England. The object of tuting an independent suit for that purpose. this section of the statute was to give the courts There must be: first, a showing by the relator of the United States the power to issue such a in support of his right to the writ; and second, writ when necessary in the exercise of a jurisprocess to bring in the adverse party, whose diction in which the use of such a writ was conaction is to be coerced, to show cause, if he formable to law. But the section had no ref. can, against it. If he appears and presents erence to mandamus as a form of civil action, a defense, the showings of the parties make up as it has become in modern times, having a the pleadings in the cause; and any issue of definite purpose and scope, and as distinct in law or fact that may be raised must be judi- its use, for the purpose of enforcing private cially determined by the court before the writ rights of a particular description, as are the can go out. Such a determination is, under forms of actions known to the common law, the circumstances, a judgment in a civil action such as assumpsit, debt or trespass. Viewed as a brought to secure a right, that is to say, process civil action, authorized by the laws of the State to enforce a judgment. Such a judgment is, in which the suit is brought, the jurisdiction of in our opinion, a final judgment in a civil ac- the circuit courts is established by section 1 of the tion, within the meaning of that term as used in Act of 1875, which embraces "all suits of a civil the statutes regulating writs of error to this nature at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, * * * in which there shall be a controversy between citizens of different States." If there be such a suit, in which, by the law of the State, the form of proceeding is required to be in mandamus, section 914, R. S applies, which requires that "The practice, pleadings and forms and modes of proceeding in civil cases, other than equity and admiralty cases, in the circuit and district courts, shall conform, as near as [464] may be, to the practice, pleadings, and forms and modes of proceeding existing at the time in like causes in the courts of record of the State within which such circuit or district courts are held, any rule of court to the contrary notwithstanding." Effect may be given in the present case to this provision of the statute, without running counter to section 716. The fallacy of the argument against the jurisdiction of the circuit court, in such cases, is in construing section 716 as an exception out of the general grant of jurisdiction to that court over all suits in which the controversy is between citizens of different States; whereas, it is a general grant of power to issue all writs necessary to the exercise of their jurisdiction-a power which would probably have been implied with. out an express grant. In the jurisprudence of California, it has frequently been held that a mandamus is a civil action. It is only necessary to refer to the cases to show that this is a point beyond all dispute. Perry v. Ames, 26 Ĉal. 372; Cariaga v. Dryden, 30 Cal. 246; Courtwright v. Bear River Mining Co. 30 Cal. 583; Knowles v. Yeates, 31 Cal. 90; People v. Kern County, 45 Cal. 679; People v. Thompson, 66 Cal. 398. But it is urged that the power given to the Circuit Courts of the United States to issue writs of mandamus is limited by Act of Congress to certain special cases; namely, only where they may be necessary for the exercise of their ordinary jurisdiction (R. S. § 716), and that, according to the decisions of this court, in suits for the collection of money, the writ can only be used as ancillary to an execution after a judgment has been obtained in an ordinary suit. It is sufficient to say that all of these decisions, except two, relate to the law as it was before the passage of the Act of 1875. That Act, as we have seen, is expressed in general terms, without any qualification as to the writs or process which shall be employed, and repeals any restraining effect of section 716 of the Revised Statutes if in conflict with it. The two cases to which we have referred as decided since the Act are County of Green v. Daniel, 102 U. S. 187 [26: 99], and Davenport v. County of Dodge, 105 U. S. 237 [26: 1018]. But the point [463] decided in these cases was that, although the state law gave the remedy of mandamus to compel the levy of taxes for the payment of bonds, an ordinary action might nevertheless be brought on the bonds for the purpose of obtaing a judgment. They do not decide, whatever dicta may appear to have been made, that nandamus might not have been brought origially. The inference drawn from section 716, R. S., is, that as it grants power to this court and the circuit courts "to issue all writs not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions and agreeable to the usages and principles of law," (which is rightly supposed to include the writ of mandamus) it must be con In our judgment, the cases ought not to have James H. McKenney, Clerk, Sup. Court, U. 8. stranger. affect such title by a subsequent patent to a | Harris, 101; Perry, Trusts, 521; Duer v. Boyd, 4. The orders, judgments and decrees of the Orphans' Court of Philadelphia County, in a case where it had jurisdiction of the subject-matter, cannot be impeached collaterally. 5. A recital in a patent of a prior conveyance to the patentee is not evidence against third parties to affect rights previously vested in them. 6. In an action of ejectment evidence tending to show that certain payments of taxes might have been on other tracts is held to have been properly rejected. [No. 142.] Argued Jan. 19, 20, 1887. Decided March 7, 1887. IN and is a sufficient vania. Affirmed. The history and facts of the case appear in the opinion of the court. Messrs. R. P. Allen, A. H. Dill and John G. Reading, Jr., for plaintiffs in error: "In actions of ejectment in the United States courts the strict legal title prevails. If there are equities which show the right to be in another, these can only be considered on the equity side of the federal courts." support ejectment in United States Courts. A warrant and survey returned into the land- Griffiths v. Tunckhouser, Pet. (C. C.) 418. Foster v. Mora, 98 U. S. 425 (25: 191). See also Gilmer v. Poindexter, 51 U. S. 10 How. 257 (13: 411); Sheirburn v. Cordova, 65 U. S. 24 How 423 (16: 741); Singleton v. Touchard,. 66 U. S. 1 Black, 342 (17: 50); Hickey (Steel) v. Stewart, 44 U. S. 8 How. 751 (11: 814). A patent is a complete appropriation of the land it describes; and at law no defects in the preliminary steps can be tried. Boardman v. Lessors of Reed, 31 U. S. 6 Pet. 328 (8. 415). The orphans' court never confirmed the sale to Brobst. The petition of LeFavre's administrator to the orphans' court, upon which the order to sell was granted, upon its face showing that the debts of the decedent were all barred by the statute, such order was void for want of jurisdiction in the court to grant it, and the sale to Brobst was in like manner void. The validity of such sale may be contested in any case involving title to the land sold. Stoolfos 7. Jenkins, 8 Serg. & R. 173; Dresher v. Allentown Water Co. 52 Pa. 229; Torrence v. Torrence, 53 Pa. 510; Thompson v. Stitt, 56 Pa. 160; Yorks' App.* 1 Cent. Rep. 354; Shorman v. Farmers Bank, 5 Watts & S. 373. Messrs. James Ryon, John W. Ryon and Samuel Linn, for defendants in error: 2 Bl. Com. 333; Sprague v. Woods, 4 Watts & S. 192; Kay v. Scates, 1 Wright, 31; Barnett's App. 10 Wright, 393; Moore v. Shultz, 1 *See also note by the Editor. Copley v. Riddle, 2 Wash. (C. C.) 354; James In a controversy respecting the title to lands 570); Slaughter v. Glenn, 98 U. S. 242 (25: 122). Clark v. Graham, 19 U. S. 6 Wheat. 577 (5: Mr. Justice Matthews delivered the opin- [465] ion of the court: the defendants in error in the Circuit Court of of land situated in Northumberland and Co- Both parties claim title under the Common- William Elliott applies for four hundred acres of land on a branch of Roaring Creek, adjoining Dr. Thomas Ruston's lands, in Catawissa Township, Northumberland County. [466] [467] "Joseph Tyson applies for four hundred acres of land lying one mile north of a road leading from Reading to Sunbury adjoining Dr Thomas Ruston's other land, in Catawissa Township, in North'd County. "William Shannon applies for four hundred acres of land lying one mile north of a road leading from Reading to Sunbury, adjoining other lands of Dr. Thomas Ruston in Cata wissa Township, North'd County. ejectment to recover it within twenty-one years The plaintiffs also put in evidence a copy of the warrant to Lewis Walker, dated the 26th of November, 1793, for 400 acres adjoining Dr. Thomas Ruston's other lands; and a copy of a survey for Lewis Walker, dated the 22d of October, 1794, in pursuance of the warrant, containing 371 acres. The survey was fol lowed by a certified copy of the return made by William Gray, deputy surveyor, into the landoffice, showing that on February 23, 1795, he [468] returned to the land-office the Lewis Walke survey for 371 acres. Warrants and surveys "Nathaniel Brown applies for four hundred of five other tracts were introduced in evidence acres of land on a branch of Roaring Creek, in connection with the warrant and survey of adjoining Dr. Thomas Ruston's lands, in Cata-the Lewis Walker tract, being the same tracts of wissa Township, North'd County. "Lewis Walker applies for four hundred acres of land lying one mile north of a road leading from Reading to Sunbury, adjoining Dr. Thomas Ruston's other lands in Catawissa Township, North'd County. land which are mentioned in the application and Ebenezer Branham applies for four hun- "26 November, 1793. Certified copy of old purchase voucher No. 12969. Joseph Tyson, 400 a's lying one mile north of a road leading from Reading to Sunbury, adjoining Dr. Thomas Ruston's other land, in Northumberland County. "William Elliott-400 a's situate on a branch of Roaring Creek, adjoining Dr. Thomas Ruston's other land, in Catawissa Township-said county. "Lewis Walker-400 a's lying one mile north of a road leading from Reading to Sunbury, adjoining Dr. Thomas Ruston's other land, in said county. 'William Shannon-400 a's lying one mile north of a road leading from Reading to Sunbury, adjoining Dr. Thomas Ruston's other lands, in said county. Ebenezer Branham-400 a's on a branch of Roaring Creek, joining Dr. Thomas Ruston, in said county. "Nathaniel Brown-400 a's on a branch of Roaring Creek, joining land of Dr. Thomas Ruston, in said county. 'Amount, £60-interest from date thereof. } 12969 Dr. Ruston. 6 W'r'ts of 400 a's Am't, 2400 a's, 50s p. c't p'd specie ch., Fees 608 p'd, rem'r Charge of 168 D's. £60 "Rec'd d'd." of the same to LeFavre by a marshal's deed. There was evidence tending to show that the The defendants below objected to the admission in evidence of the records from the Orphans' Court of Philadelphia, showing the proceed ings resulting in the sale of the lands of Nicholas LeFavre to Joseph Brobst, on the ground that the debts of the decedent, as se forth in the petition of the administrator, to pay which the order of sale issued, were barred by the Statute of Limitations and their lieu extinguished, by reason of which it was claimed [469] that the orphans' court had no jurisdiction to There was also evidence introduced by the The defendants below offered in evidence on their part an application of Daniel Reese, Lewis Walker, and others, filed in the land-office November 26, 1793, indorsed "Ent'd by Wm. Lane for Daniel Rees;" also the warrant from the Commonwealth to Lewis Walker for 400 acres, dated November 26, 1793; also the survey to Lewis Walker made October 22 1794, in pursuance of the warrant of November 26, 1793, describing the tract in dispute; and then offered a certified copy of a patent from the Commonwealth of Pennsylvania to Peter Grahl, dated April 12, 1797, for the same tract, which patent contained a recital to the effect that Lewis Walker, by deed dated November 27, 1793, had conveyed the said tract with the appurtenances to Peter Grahl. Counsel for the plaintiffs below objected to the introduction in evidence of this patent, on the ground that Dr. Ruston held a prior title to the land from the Commonwealth. This objection was sustained, the court refusing to allow the patent to be read to the jury, to which the defendants excepted. The defendants below then renewed the offer of the patent to Peter Grahl for the land in dispute, in connection with an offer to prove a connected chain of title from Peter Grahl to themselves, to be followed by proof that they took actual possession of the the land in dispute in 1875, paid taxes by redeeming the land from tax sales, made improvements, expended large sums of money in opening coal mines, [470] and have ever since held actual possession of the land; and also that Nicholas LeFavre, who purchased the alleged title of Dr. Ruston at marshal's sale on October 11, 1803, received notice in October, 1814, of the title of Peter Grahl under the patent to him, and that the plaintiffs below, when they purchased at sheriff's sale in 1872, received notice of the same facts. This offer was rejected, and an exception duly date of June 14, 1794, from the old purchase "The plaintiffs have shown that by sundry To these charges the defendants excepted. These several rulings of the court are now assigned for error. In the case of Sims v. Irvine, 8 U. S. 3 Dall. 425 [1:665], which was an ejectment for land lying in Pennsylvania, decided by this court in 1799, it was said that, in that State, "Payment, or, as in this case, consideration passed, and a survey, though unaccompanied by a patent, gave a legal right of entry which is sufficient in ejectment. Why they have been adjudged to give such right, whether from a defect of chancery powers or for other reasons of policy or justice, is not now material. The right once having become an established legal right, and having incorporated itself as such with property and tenures, it remains a legal right notwithstanding any new distribution of judicial powers, and must be regarded by the common-law courts of the United States in Pennsylvania as a rule of decision." The case of Evans v. Patterson, 71 U. S. 4 The plaintiffs put in evidence a certified copy of an ancient paper, dated November 26, 1793, on file in the land-office, designated as old purchase voucher No. 12969, and in connection therewith a certified copy of an entry, under Pennsylvania. The proprietors of the Prov- [471] [472] |