Withers v. Buckley. received from the current of the Homochitto. With no propriety of language, then, can it be pretended that the contemplated communication between the Homochitto and the Buffalo bayou would be the violation of a law which declares that the waters of the Mississippi, and the navigable rivers and waters leading into the same, shall be common highways, and forever free as well to the inhabitants of the State as to other citizens of the United States. Old river was once the bed or a portion of the Mississippi, but never a separate navigable river flowing into the Mississippi. Any improvement, therefore, in the facilities of reaching the Mississippi by another river, cannot be an obstruction in what never was, in any correct sense of the phrase, a navigable river leading or flowing into the Mississippi. But, for argument, let it be conceded that this derelict channel of the Mississippi, called Old river, is in truth a navigable river leading or flowing into the Mississippi; it would by no means follow that a diversion into the Buffalo bayou of waters, in whole or in part, which pass from Homochitto into Old river, would be a violation of the act of congress of March 1st, 1817, in its letter or its spirit; or of any condition which congress had power to impose on the admission of the new State. It cannot be imputed to congress that they ever designed to forbid, or to withhold from the State of Mississippi, the power of improving the interior of that State, by means either of roads or canals, or by regulating the rivers within its territorial limits, although a plan of improvement to be adopted might embrace or affect the course or the flow of rivers situated within the interior of the State. Could such an intention be ascribed to congress, the right to enforce it may be confidently denied. Clearly, congress could exact of the new State the surrender of no attribute inherent in her character as a sovereign independent State, or indispensable to her equality with her sister States, necessarily implied and guarantied by the very nature of the federal compact. Obviously, and it may be said primarily, among the incidents of that equality, is the right to make improvements in the rivers, water courses, and highways, situated within the State. Thus situated, as appears on the face of the bill, are the derelict bed of the Mississippi, called Old river, the Homochitto river, the Buffalo bayou, and the line of the canal by which * it is proposed that the two last shall be united for the [94] more easy and certain access to the Mississippi. The act of the legislature of Mississippi, therefore, is strictly within the legitimate and even essential powers of the State, is in violation of neither the constitution nor laws of the United States, Secombe v. Steele. and presents no conjuncture or aspect by which this court would be warranted to supervise or control the decree of the high court of errors and appeals of Mississippi. We are therefore of the opinion that the decree of that court be affirmed. DAVID A. SECOMBE et al., Plaintiffs in Error, v. FRANKLIN STEELE. 20 H. 94. WHAT IS PART OF THE RECORD-LIS PENDENS. 1. A decree of another court, referred to in and attached to the answer, is part of the case, though not signed by the judge who rendered it. 2. A decree for specific performance carries the title as against judgment creditors of the defendant, who became so pendente lite. 3. If they had any right to the money paid into court by the plaintiff in that suit, it should have been asserted in that court at that time. 4. By the statute of Minnesota, the court of chancery could transfer the title of defendant by a decree without requiring him to make a conveyance. THIS is a writ of error to the supreme court of the territory of Minnesota. The case is sufficiently stated in the opinion. Mr. Carlisle and Mr. Badger, for plaintiffs in error. Mr. Cushing and Mr. Gillett, for defendant. [* 100 ] *Mr. Justice CAMPBELL delivered the opinion of the court. This cause comes before this court upon a writ of error to the supreme court of the territory of Minnesota. The defendant in this court (Steele) instituted a suit in the district court of Ramsey county, Minnesota territory, against fifty-four defendants, to determine the validity of their "claim," "estate," or "interest," in certain real property at St. Anthony's Falls, in that county, of which he was possessed, and in which he claimed to have an estate in fee simple, under certain conveyances, which are appended to his complaint. This complaint shows that, in 1849, the plaintiff and Arnold W. Taylor were tenants in common of a parcel of land which includes the property in dispute, and so occupied it until 1852. A portion was laid off into town lots, some of which were sold; expensive mills and other improvements were projected and partially completed on it; and controversies arose, and suits were pending between them, when the parties, in January, 1852, came to an agreement of sale. By this agreement, Taylor contracted to sell to the plaintiff his interest in the real property Secombe v. Steele. unsold, and the money and securities taken for the lots sold, for the sum of twenty-five thousand dollars, and upon the condition that the plaintiff should acquit him from the payment of a certain demand, and assume his liabilities on * certain [* 101 ] contracts for labor and building materials. Of this sum, one thousand dollars were to be paid presently, and the remainder was to be paid in sixty days from the date, at the Merchants' or Suffolk bank, at Boston, and a certificate of deposit furnished to Taylor at St. Anthony's Falls; and in case of a default, the deposit of one thousand dollars was to be a forfeit. But if the payment was made in the manner stipulated, conveyances were to be executed by Taylor; and meanwhile he was to remain in the possession of the mill. The conveyances referred to in these articles were not executed until May, 1853, and purport to have been made in obedience to a decree of the district court of Ramsey county, in a suit commenced by Steele against Taylor. The complaint of Steele against the fifty-four defendants is, that they claimed an "estate," "interest," or "right," in that property, have from time to time declared that they were owners thereof, and have executed conveyances for a portion, and offer to sell or dispose of other parts, contrary to the right of the plaintiff. The object of the suit is, to relieve the title of the plaintiff from the mischief of these adverse claims; to quiet his possession by means of a decretal order requiring the defendants to release them, or, in case of their failure to do so, that the judgment of the court stand and be recorded in its stead. This proceeding is authorized by the revised statutes of Minnesota, ch. 74, sec. 1. may The twelve persons who are plaintiffs in this court, and were defendants in the district court, appeared there, and severally claimed title to parcels of land included in the conveyances of Taylor to the plaintiff. Their claims respectively rest upon the facts, that between November, 1852, and April, 1853, judgments were rendered against Taylor in the district court, upon which executions issued, and levies and sales were made of those parcels before May, 1853, in the regular course of judicial proceeding.. At these sales the defendants were either purchasers or derive title from such persons. The defendants aver that their title is paramount to that of the plaintiff; for that the plaintiff is not entitled to any benefit from the articles of agreement executed by Taylor, in January, 1852, and then recorded, because he failed to comply with the obligation to pay twenty-four thousand dollars as agreed to by him. And to avoid the recitals in the deeds, to the effect that they were executed under a decretal order of the court, they say that Secombe v. Steele. in May, 1852, the plaintiff filed a bill in the district court, to compel Taylor to a specific performance of the contract of [*102] * January preceding. That upon the bill the judge made an order for the payment of the twenty-four thousand dollars into court by Steele; and, upon the fulfillment of this fiat, that an injunction should issue to restrain Taylor from selling, conveying, or encumbering the property, or in anywise intermeddling with it. That an injunction and subpoena issued, and that Taylor appeared, answered, and unsuccessfully moved to dissolve the injunction, in July, 1852. That no other act was done by the plaintiff until April, 1853, when the rights of the defendants had attached by those purchases from the sheriff. That in March, 1853, the defendants applied to the district court to be made defendants in the cause, which application was finally unsuccessful, and that the plaintiff and Taylor then fraudulently closed their controversy by a decree rendered by consent, under which the conveyances were made, and that their object was to defeat the claims of these defendants. That, by this arrangement, the terms of the contract of January, 1852, were not adhered to, and that the twenty-four thousand dollars were not paid as stated in the deed. It was a question in the district court, as well as in this court, whether the decree and the agreement leading to it, that form a part of the record here, properly belong to the case. The defendants in the district court maintained that it was pleaded by them. They are found in an exhibit to the answers-an exhibit which purports to be a transcript from a record in the supreme court of Minnesota, as furnished on an appeal from the district court of Minnesota by the defendants, upon the decree disallowing their claim to be made defendants. Portions of this transcript are referred to in the answers, as forming material papers in the chancery suit, and the whole suit is referred to in the answers to support its allegations; and it is specifically set up and pleaded. We think, therefore, that the record of that suit, as it appears in the exhibit, must be taken as authentic, in deciding upon the sufficiency of the answer as a bar to the plaintiff's complaint. The decree purports to have been made by the court; it is formal, and disposes of the cause, and is only defective in not having the signature of the judge. But it comes from the legal custody, has been accepted by the parties, and acted on by them; and was certified to the supreme court of the territory, as a paper in the cause. We do not regard the signature of the judge as indispensable to its authenticity. The statute that directs the signature must be considered as directory; Secombe v. Steele. and other evidence to establish its verity as a record of the court may be considered. In the district court, the plaintiff moved to strike out *portions of the answer, for insufficiency and on other [*103] grounds, and demurred to the residue. His motion and demurrer were sustained, and a final decree rendered for the plaintiff. This decree was affirmed on appeal to the supreme court, and the defendants in that court prosecute their writ of error to this court. The statutes of Minnesota prescribe: "That the court must in every stage of an action disregard any error or defect in the pleadings and proceedings which does not affect the substantial rights of the adverse party, and no judgment can be reversed or affected by reason of such error or defect." The question to an appellate court in the present case is, do the answers of the defendants, as pleaded by them, disclose a valid claim to the property in dispute, so as to bar the petition of the plaintiff for relief? No objection is taken to the validity of the contract of January, 1852, between the parties, Steele and Taylor. The record of that contract is notice to subsequent purchasers; and Steele, by the statutes of the territory, was entitled to have "precedence of" them, and "alien upon the land, according to the import and meaning of the contract." (Rev. Stat. ch. 47, sec. 3.) It is not denied that the plaintiff paid one thousand dollars at the execution of the contract, nor that the twenty-four thousand dollars were paid within sixty days into a bank at Boston-a bank of solvency and credit-nor that a certificate of deposit within a reasonable time afterward was offered to Taylor, at St. Anthony's Falls; nor that, upon his refusal to take the latter, the money and interest were immediately tendered to him; and, upon a farther refusal, that relief was sought from a court of chancery, whose order for the payment of the money into court was promptly complied with. The precise grounds of complaint are, that neither the Merchants' nor Suffolk bank was made the depository' of the money; and a certificate from one of them has never been tendered to Taylor, and that he has the right to rely upon the letter of his contract. No specification has been made of any injury or inconvenience sufered by him, as a consequence of the deposit having been made in the Bank of Commerce, rather than the banks mentioned in the agreement. And the plaintiff avers, that the only reason for the change was, the refusal of those banks to give a certificate of the kind mentioned. At law, if there is an express agreement for the payment of the purchase money, and the delivery of the conveyance of the land by |