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(110 U. S. 225)

UNITED STATES v. GRANT, Surviving Partner, etc.

(January 21, 1884.)

REOPENING OF CASE-MERGER OF JUDGMENT-APPEAL.

Where, in pursuance of a special act of congress, the court of claims reopened a

case in which judgment had been rendered for the claimant, and, as a part of the original judgment, awarded him a further sum which had been omitted by mista held, that the order adjudging the additional sum, being merged in the original judgment, an appeal from which was barred by the lapse of time, was not appealable.

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Appeal from the Court of Claims. On motion to dismiss.
Sol. Gen. Phillips and Thomas Simons, for appellant.
P. Phillips, W. Hallen Phillips, and R. P. Lowe, for appelleés.

WAITE, C. J. Grant & Co. sued the United States in the court of claims on the second of December, 1868, and on the sixth of December, 1869, recovered a judgment for $34,225.14. On the fifth of January, 1883, the following act was passed by congress : “Be it enacted

that the court of claims be and it is hereby directed to reopen and readjudicate the case of Albert Grant and Darius Jack

upon the evidence heretofore submitted to the said court in said cause,

and if said court, in such readjudication, shall find from such evidence that the court gave judgment for a different sum than the evidence sustains, or the court intended, it shall correct such error, and adjudge to the said Albert Grant such additional sum, in said cause, as the evidence shall justify, not to exceed fourteen thousand and sixteen dollars and twenty-nine cents; and the amount by readjudication in favor of the said Albert Grant shall be a part of the original judgment in the cause recorded in the fifth court of claims report, page eighty.

Under this act Grant, on the thirteenth of January, 1883, applied *to the court to re-examine the case and to render a judgment nunc pro tunc for the additional sum of $14,016.29. Upon this application the court, on due consideration, found that the original judgment was given for a different sum than was intended, and that, "in order to correct such error and adjudge to said Albert Grant such additional sum in this cause as the evidence justifies, he should receive a further sum of $14,016.29;" and on the eleventh of June, 1883, a judgment for that amount was rendered. From this judgment the United States took an appeal, which Grant now moves to dismiss on the ground that no appeal lies from an order or judgment entertained in such a proceeding. In our opinion this motion should be granted. The act of congress, in its legal effect, is nothing more than a direction to the court of claims to entertain an application to correct an error in the entry of one of its former judgments. The readjudication ordered is to be upon the old evidence, and, if an error is found, the correction is to be made, not by rendering a new judgment, but hy amending the old one. The language is, “and the amount by readjudication in favor of the said Albert Grant shall be a part of the original judgment.” As, when the act was passed, an appeal from the original judgment was barred by lapse of time, we are satisfied it was the intention of congress to make the action of the court of claims upon this readjudication final. Certainly, the old judgment is not opened to an appeal by the readjudication, and there is nothing to indicate that the new part of the judgment can be separated from the old for the purposes of review here. By the correction the new judgment was merged in the old.

The motion to dismiss is granted.

(110 U. S. 151)

HART V. SANSOM and others.

(January 21, 1884.)

ACTION TO RECOVER LAND AND REMOVE CLOUD ON TITLE-DECREE OF STATE COURT AGAINST A CITIZEN OF ANOTHER STATE-SERVICE BY PUBLI. CATION-JUDGMENT NO BAR TO ACTION IN UNITED

STATES CIRCUIT COURT.

A decree of a state court for the removal of a cloud upon the title of land within

the state, rendered against a citizen of another state, who has been cited by publication only, as directed by the local statutes, is no bar to an action by him in the circuit court of the United States to recover the land against the plain

tiff in the former suit. In a suit to recover land, and to remove a cloud upon the title thereof, brought in

a court of the state in which the land is, against W., H., and others, the petition alleged that W. ejected the plaintiff and unlawfully withheld possession from him; that H. set up some pretended claim or title to the land; that the other defendants held recorded deeds thereof, which were fraudulent and void ; and that the pretended claims and deeds cast a cloud upon the plaintiff's title. Due service was made on the other defendants; and a citation to H., who was a citizen of another state, was published as directed by the local statutes. All the defendants were defaulted; and upon a writ of inquiry the jury found that H. claimed the land, but had no title, of record or otherwise, and returned a verdict for the plaintiff. Judgment was rendered that the plaintiff recover the land of the defendants, and that the deeds mentioned in the petition be canceled and annulled, and the cloud thereby removed, and for costs, and that execution issue for the costs. Held, that this judgment was no bar to an action by H. in the circuit court of the United States. to recover the land against the plaintiff in the former suit.

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Error to the Circuit Court of the United States for the Northern District of Texas.

Henry J. Leovy and W. Hallett Phillips, for plaintiff in error.
A. S. Lathrop, for defendants in error.

GRAY, J. This is a writ of error sued out by Edmond J. Hart, a citizen of Louisiana, to reverse a judgment rendered against him in the circuit court of the United States for the Northern district of Texas, in an action brought by him against Marion Sansom and the heirs at law of Thomas M. League, citizens of Texas, to recover a

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tract of land in Johnson county, in that state, of which they had dispossessed him. At the trial, Hart proved his title under a patent from the republic of Texas to League, and a deed with general covenants of warranty from League, dated August 19, 1846, and botb recorded on December 9, 1879, and it appeared that the defendant Sansom held possession of the land under a lease from the other defendants and as their tenant. The defendants offered in evidence the record of a judgment rendered by the district court of Johnson county, on August 24, 1875, upon a petition filed June 11, 1873, by the heirs at law of League, (who died intestate November 5, 1865,) against Virgil Wilkerson, Orlando Dorsey, and several other persons, and Hart, alleging that Wilkerson ejected the plaintiffs from this land, and unlawfully withheld possession thereof from them; that on October 29, 1870, the defendant Dorsey, by deed duly recorded, conveyed to some of the other defendants than Wilkerson and Hart three-fourths of the land, reserving in that deed the remaining fourth to himself, and that other deeds (particularly set forth) of parts of the land were afterwards made to the rest of such other defendants and recorded; that the defendant Hart “sets up some pretended claim and title to said land;" and that "the defendant Wilkerson is a naked trespasser upon the land of the plaintiffs, and that the several other defendants' several deeds, which appear upon the record of deeds of Johnson county as aforesaid, are fraudulent and void, and that the said pretended claims and deeds, and each and all of them, cast a cloud upon the title of the plaintiffs;” and praying “that they have judgment, that the cloud upon the title of the plaintiffs, created by the several deeds aforesaid, be removed, and that the said deeds, and each and all of them, be declared null and void, and be canceled and discharged of record, and that the title of the plaintiffs in and to said premises and every part thereof, may be confirmed and established as against said defendants and each and every of them, and all persons claiming through or under them,” and for a writ of possession, damages, and costs. That record also showed the issue and due service of citations to all the defendants except Dorsey and Hart; the issue of a citation directing the sheriff to serve Hart, being a citizen of Louisiana, by publication, and the sheriff's return showing the execution of the citation by such publication in a newspaper of the county four successive weeks before the return day, and a like service by publication on Dorsey, a citizen of New York. That record further showed a default of all the defendants; and that upon a writ of inquiry the jury assessed damages against Dorsey and Hart; found as facts the issue of the patent to League and the title of the plaintiffs as his heirs; that Hart“claimed said land;" and that a deed was made by Dorsey and recorded, as alleged in the petition, but that Hart and Dorsey respectively had no title of record or otherwise ; and returned a verdict "for the plaintiffs; and that they recover the land described in the petition. That record finally showed a judg. ment "that the plaintiff's recover of the defendants the premises described,” and “that the several deeds in the plaintiff's petition mentioned be and the same are hereby annulled and canceled, and for naught held, and the cloud thereby removed," and for costs, and that execution issue for the costs. The circuit court, against the plaintiff's objection, admitted the judgment in evidence, instructed the jury that it divested the plaintiff of his title to the land, and directed a verdict for the defendants.

The plaintiff, deriving his title under a deed with covenants of general warranty from League, is entitled to maintain this action against League's heirs, who are estopped by those covenants, unless the former judgment in the action brought by them in the state court has adjudicated the title as between them and the present plaintiff. It is therefore necessary to consider the nature and effect of that judgment. The petition combined, in accordance with the practice prevailing in that state, an action in the nature of ejectment to recover possession of the land, and a suit in equity to remove a cloud upon the plaintiffs' title; and the service by publication was in the form authorized by the local statutes against non-residents. 1 Pasch. Dig. Laws Tex. (4th Ed.) art. 25. The petition alleges that Wilkerson was in possession; and that the other defendants, except Hart, held recorded deeds, which were fraudulent and void, and cast a cloud upon the plaintiffs' title. But as to Hart, it did not allege that he was in possession, or was in privity with the other defendants, or that he held any deed, but only that he set up some pretended claim and title. And the verdict finds that he claimed the land, but had no title of record or otherwise therein. The judgment is that the plaintiffs recover the land of the defendants, and that the deeds mentioned in the petition be and are annulled and canceled, and the cloud thereby removed, and for costs; and execution is awarded for costs only, and not for any writ or process in the nature of a writ of possession or habere facias.

It is difficult to see how any part of that judgment (except for costs) is applicable to Hart; for that part which is for recovery of possession certainly cannot apply to Hart, who was not in possession; and that part which removes the cloud upon the plaintiff's title appears to be limited to the cloud created by the deeds mentioned in the petition; and the petition does not allege, the verdict negatives, that Hart held any deed. But if there is any judgment (except for costs) against Hart, it is, upon the most liberal construction, only a decree removing the cloud created by his pretended claim of title, and is no bar to the present action. Generally, if not universally, equity jurisdiction is exercised in personam, and not in rem, and depends upon the control of the court over the parties, by reason of their presence or residence, and not upon the place where the land lies in regard to which relief is sought. Upon a bill for the removal of a cloud upon title, as upon a bill for the specific performance of an agreement to

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convey, the decree, unless otherwise expressly provided by statute, is clearly not a judgment in rem, establishing a title in land, but operates in personam only, by restraining the defendant from asserting his claim, and directing him to deliver up his deed to be canceled, or to execute a relief to the plaintiff. Langd. Eq. Pl. (2d Ed.) SS 43, 184; Massie v. Watts, 6 Cranch, 148; Orton v. Smith, 18 How. 263; Vandever v. Freeman, 20 Tex. 334. It would doubtless be within the power of the state in which the land lies to provide by statute that if the defendant is not found within the jurisdiction, or refuses to make or to cancel a deed, this should be done in his behalf by a trustee appointed by the court for that purpose. Felch v. Hooper, 119 Mass. 52; Ager v. Murray, 105 U. S. 126, 132. But in such a case, as in the ordinary exercise of its jurisdiction, a court of equity acts in personam, by compelling a deed to be executed or canceled by or in behalf of the party. It has no inherent power, by the mere force of its decree, to annul a deed or to establish a title.

In the judgment in question, no trustee to act in behalf of the defendant was appointed by the court, nor have we been referred to any statute authorizing such an appointment to be made. The utmost effect which can be attributed to the judgment, as against Hart, is that of an ordinary decree for the removal by him, as well as by the other defendants, of a cloud upon the plaintiff's title. Such a decree, being in personam merely, can only be supported against a person who is not a citizen or resident of the state in which it is rendered, by actual service upon him within its jurisdiction; and constructive service by publication in a newspaper is not sufficient. The courts of the state might perhaps feel bound to give effect to the service made as directed by its statutes. But no court deriving its authority from another government will recognize a merely constructive service as bringing the person within the jurisdiction of the court. The judg; ment would be allowed no force in the courts of any other state; and it is of no greater force, as against a citizen of another state, in an court of the United States, though held within the state in which the judgment was rendered. Hollingsworth v. Barbour, 4 Pet. 466, 475; Boswell's Lessee v. Otis, 9 How. 336; Bischoff v. Wethered, 9 Wall. 812; Knowles v. Gas-light Co. 19 Wall. 58; Pennoyer v. Neff, 95 U. S. 714. See, also, Schibsby v. Westenholz, L. R. 6 Q. B. 155; The City of Mecca, 6 Prob. Div. 106.

The circuit court having ruled and instructed the jury otherwise, its judgment must be reversed, and the cause remanded with directions to set aside the verdict, and to order a new trial.

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