and that a joint and several money judgment | defendants and overruled, when answers were [443]be entered against them for the sum of $400, filed denying in general the allegations of the 000, with legal interest thereon from the bill. The court subsequently entered judg time of such loss. ment against the three directors, but, being unable to determine the proper amount, appointed a referee to take proof of the amount appearing to be due and owing to the bank from certain named individuals. Upon such report having been made, a stipulation was entered into between the plaintiff stockhold er and the defendants Thompson and Wilson, whereby the plaintiff renounced and withdrew his action against such defendants, and the court, upon such stipulation, entered a judgment dismissing the action against them. The court thereupon made a finding of all the facts in the case, among which was The defendants answered the bill, denying the allegations as to negligence on their part. Upon the cause being submitted to the court, a judgment was "entered in favor of the plaintiff and against Richard P. Thomas, Robert R. Thompson, and Robert A. Wilson," and the case was referred to a master, who found the actual loss of the bank to be $166,919. Before a final judgment was rendered by the court, however, the suit was dismissed by the plaintiff as to Robert R. Thompson and Robert A. Wilson, from whom had been collected the sum of $27,500, thus leaving a net loss to the bank of $139,419, and judg-one to the effect that there had been collected ment for this amount was rendered against Richard P. Thomas. Thereupon, Thomas appealed to the supreme court of the state of California, by which court the judgment was reversed, and the case remanded to the trial court, with directions to enter a judgment in favor of the defendant Thomas. (113 Cal. 414.) The plaintiff thereupon sued out a writ of error to this court, assigning as the principal ground to give this court jurisdiction that the judgment of the supreme court of the state was rendered without due or any process of law, and deprived the plaintiff of its property without due process of law, contrary to the Constitution, etc., and Revised Statutes, 5136, relating to national banks. Messrs. Robert Rae, E. G. Knapp, and John Chetwood, Jr., for plaintiff in error. Mr. A. H. Ricketts for defendant in er ror. Mr. Justice Brown delivered the opinion of the court: Unless the plaintiff in error was denied some right under the Constitution or stat44]utes of the United States, "specially *set up and claimed" by it, this writ of error must be dismissed. of the two defendants Thompson and Wilson the sum of $27,500, leaving a net loss to the bank of $139,419, for which judgment was entered against the defendant Thomas. Thomas thereupon appealed to the supreme court of the state from the judgment so entered. *That court was of opinion that the com-[44 plaint, though entitled "a bill in equity for the accounting and settlement of a trust." contained nothing more than a charge er delicto against the directors for a breach and nonperformance of their duties. It did not consider it necessary to dispose of the objec tions to the complaint; but assumed, without deciding, that the complaint was suffi cient to state a cause of action in its averments of misconduct. It then proceeded to decide (1) that the complaint was one sounding in tort, and that the defendants were charged as joint tortfeasors; that their negligence was pleaded as their joint neglect to perform duties, not individually imposed members of the executive committee; that in upon them, but collectively undertaken as the findings of fact no mention was made of any dereliction of duty on the part of Thomp son and Wilson, and that there was an abso lute failure by the court to find upon the most material issues of the case-the joint negligence of the three defendants, which The bill of complaint, filed in the superior alone, it was alleged, had occasioned loss to court of San Francisco by a stockholder of the bank. "Such," said the court, "is the the California National Bank, sought to cause of action pleaded in the complaint. charge three directors of the bank with neg-The findings, if it be conceded that they give ligence in the performance of their trust, evidence of a meritorious cause of action and particularly in failing to comply with against the defendant Thomas, do so because certain by-laws of the bank, by which large of a showing that he was negligent, not with amounts of money were lost to the bank, the other defendants and as member of the which the bill prayed that the defendants executive committee, but that he was individ might be decreed to make good and restore. ually and separately negligent in the perThe bank was chartered under the national formance of his duties as president. But banking act and the by-laws were adopted this is not the cause of action pleaded against in pursuance of Revised Statutes, section him, and it is well settled that, where the 5136, which authorizes associations in-case made out by the findings is a different corporated under the act to define the duties case from that presented by the pleadings, of the president and other officers and to reg- the judgment will be reversed; for the relief ulate the manner in which its general busi- decreed must be the relief sought, and a vaness shall be conducted. Certain transac- riance, even if it be such as could have been tions of the directors are also alleged to be cured by amendment, is fatal to the validity infractions of Revised Statutes, section 5200, of the judgment." The court further held for which the directors are made liable in (2) that, as the defendants in error were section 5239, although no violations of this sued jointly for a tort, a withdrawal of the section are specifically alleged in the bill. action in favor of Thompson and Wilson ope rated also to release the defendant Thomas. Demurrers were interposed by the several This was in fact the main reason given for its conclusion. The court thereupon ordered the judgment to be reversed, and the cause remanded with directions to enter judgment in favor of the defendant Thomas. 446] In all this record there was no Federal right specially set up or claimed by the plaintiff in error until after the judgment in the supreme court, when a petition for writ of error was filed by the California National Bank, a codefendant with Thomas in the original action, in which various allegations were made of a denial of Federal rights. But assuming that a Federal question might be extorted from the allegations of the complaint, it is sufficient to say that the case was not disposed of upon the merits of such complaint, which was treated as sufficient, but upon a variance between its allegations and the proofs, and upon the settlement made with the defendants Thompson and Wilson, and_the_withdrawal of the action against them. These were purely questions under the law of the state, as to which the opinion of the supreme court was conclusive. Not only was no suggestion of a Federal question made to the trial court or to the appellate court, but there was nothing to indicate that the judgment rendered could not have been given without deciding a Federal question. Indeed, the opinion shows that the cause was decided, as it might well have been, solely upon grounds not involving such ques tion. Whether a judgment should be ordered in favor of Thomas for a dismissal of the action against him or simply for a new trial, involved merely a question of the procedure under the law of the state. The court might have been, and probably was, of the opinion that an action would lie upon the separate liability of Thomas, and have reserved for future consideration the question whether the dismissal of this action upon a joint liability would operate as estoppel against a new action upon his individual liability. There was no Federal question involved in the disposition of this case, and the writ of error is therefore dismissed. 147] CALIFORNIA NATIONAL BANK et al., Plffs. in Err., V. THOMAS K. STATELER et al. (See S. C. Reporter's ed. 447-449.) What is not a final order. An order directing the trial court to enter an order for turning over certain moneys and securities received from certain persons, aft er making reasonable allowances for "costs, disbursements, and attorneys' fees" as contemplated by law, is not a final order for the purpose of a writ of error. [No. 37.] State of California to review a decision of N ERROR to the Supreme Court of the that court reversing an order made by the Superior Court of the City and County of San Francisco denying a motion to require the plaintiff Chetwood to appear and show cause why moneys collected of defendants Thompson and Wilson and certain stock and other securities should not be turned over to Thomas K. Stateler as agent of the stockholders of the California National Bank and directing the trial court to enter the order prayed for, after allowing plaintiff for his costs, etc. On motion to dismiss. Dismissed. See same case below, 113 Cal. 649. Statement by Mr. Justice Brown: Pending the insolvency and winding-up The motion was opposed upon the ground I that of the whole number of 2,000 shares, 1,020 shares only were voted to elect Stateler as agent of the bank, and that they were either owned or controlled by Richard P. Thomas, the former president, against whom there was a judgment outstanding in *favor [448) of the stockholders in the amount of $139,419, besides an unpaid assessment of $20,000 levied upon him as a stockholder by the Comptroller of the Currency. Upon affidavits read at the hearing of the motion the court denied the order prayed for, whereupon Stateler appealed to the supreme court of the state. That court held that the regularity of the appointment of the agent could not be questioned in a proceeding of this the Comptroller of the Currency, and that kind, inasmuch as it had been approved by the agent's demand to have the money paid over to him should have been granted. The court thereupon reversed the order "with directions to the trial court to enter the order prayed for, after making reasonable allowdisbursements. and attorney's fees in said Bubmitted May 4, 1898. Decided October ance to the plaintiff Chetwood for his costs, 17, 1898. National Bank of Commerce and Smith and a tract of 500,000 acres of land, or any part Fougeray reported them a part of 500,000- thereof, or any other tract forfeited for any acre survey, Robert Morris patent, known as cause in the name of either Robert E. Randall, the 'Robert E. Randall land,' and that a suit Robert E. Randall, trustee, A. D. Mauwas pending in the circuit or district court pertures, Jno. R. Reed, John R. Reed, trustee, of the United States for the district of West John V. LeMoyne, David W. Armstrong, or Virginia, and that proceedings to sell the Henry C. King; that there were no lands same under said formal proceedings had been from any of these counties entered on the enjoined. Said commissioner is advised that record of forfeited lands of his office for either an error was made in said matter, and that of those years in the name of either or any of no suit was pending in said United States those parties; that he had carefully excourt with reference to said 500,000-acre amined the record books of delinquent lands survey. The said commissioner of school returned and kept in his office, as required by lands would further report that it has come law, for the counties of Logan, Mingo, to his knowledge from Henry C. King, the Wyoming, and McDowell, West Virginia, present owner and claimant thereof, that a from and including the year 1883 to date, tract of 500,000 acres of land, lying partly in and there did not appear on such record books this county and partly in the counties of Lo- a tract of 500,000 acres of land or any part gan and McDowell, and the greater portion thereof or any other tract delinquent for any in the states of Virginia and Kentucky, was cause *in the name of either Robert E. Ran [4091 at the April term, 1883, of the circuit court dall, Robert E. Randall, trustee, A. D. Mauof this county redeemed from a former for-pertures, John R. Reed, John R. Reed, trustee, feiture by Robert E. Randall, trustee, and all John V. LeMoyne, David W. Armstrong, or the taxes thereon paid prior to and including Henry C. King; and that there were no lands. the year 1883; that since said redemption from any of those counties entered on the the said land has been omitted from the land record of delinquent lands of his office for books of this county for five consecutive either or any of those years in the name of years, to wit, for the years 1884, 1885, 1886, either or any of those parties. 1887, and 1588, and thereby the same has been forfeited to the state in the name of Robert E. Randall, trustee. The said commissioner of school lands further reports that each of said tracts hereinbefore mentioned are liable to be sold for the benefit of the school fund of this state on account of the forfeiture herein stated; all of which is respectfully submitted." The plaintiff further offered evidence tending to prove that all taxes of the state of West Virginia charged or chargeable upon said tract of land up to and including the year 1883 had been fully paid and discharged by Robert E. Randall, trustee, under whom plaintiff claimed title, and proved further that plaintiff was a purchaser of said tract for a valuable consideration and without knowledge or notice of any alleged forfeiture thereof or outstanding title thereto in West Virginia, or of any of the facts set out in the auditor's certificate, shown and referred to in plaintiff's bill of exceptions, except such notice as the land books and records duly 3. A certited copy of an order of the cir[408]cuit court of *Logan county, West Virginia, made April 1, 1889, showing the appointment of U. B. Buskirk as commissioner of school lands of that county, and his annual report, as such commissioner, of all tracts and parcels of land in Logan county theretofore re-kept, disclosed. ported for sale for the benefit of the school fund to the clerk of the circuit court of that county under §§ 1 and 2 of chapter 105 of the Code of West Virginia, and all lands in that county not theretofore reported, which in his opinion were liable to sale for the benefit of that fund. 4. A certified copy of an order of the circuit court of Logan county, West Virginia, ordering suit to be brought in the name of the state for the sale of the lands mentioned in the report of commissioner Buskirk. The defendants having rested their case, the plaintiff to prove that no forfeiture of the land or outstanding title thereto existed or was claimed by the state of West Virginia, and that there was no record of any forfeiture where the same would be found if it existed, introduced and read in evidence a certificate of the auditor of the state, dated October 30, 1895, certifying that he had carefully examined the record books of forfeited lands returned and kept in his office, as required by law, for the counties of Logan, Mingo, Wyoming, and McDowell, West Virginia, from and including the year 1883 to date, and there did not appear on such books At the instance of the defendants the court instructed the jury "that the title to the land claimed by the plaintiff, granted to one Robert Morris by the commonwealth of Virginia, by patent dated June 23, 1795, was (prior to the date of the deed made by John V. LeMoyne to Henry C. King, under which the plaintiff now claims), under the provisions of the Constitution of the state of West Virginia, forfeited to and vested in said state, and was so forfeited at the time this suit was instituted, and that therefore the plaintiff took and has no title to said land, and the jury are further instructed to render a verdict in favor of the defendants.” To this instruction the plaintiff objected upon the ground that the provisions of the Constitution of West Virginia for the forfeiture of lands were repugnant to the 14th Amendment of the Constitution of the United States, and to article 3, §§ 4, 5, 9, 10, 20, and article 5, § 1, of the state Constitution; and upon the further ground that if there were a forfeiture of said land to and an outstanding title in the state, such title could not be set up against the plaintiff in this action, he being a purchaser for value without knowledge 410] or notice of such forfeiture or of such out- | commonwealth, and have the same standing title. The plaintiff's objection having been overruled, and a verdict having been rendered by direction of the court for the defendants, judgment was entered that the plaintiff take nothing by his action. The controlling question in this case relates to the validity under the Constitution of the United States of certain provisions in the Constitution and statutes of West Virginia for the forfeiture of lands by reason of the failure of the owners during a given pericd to have them placed upon the proper land books for taxation. charged with all taxes and damages in The Constitution of West Virginia provides that all private rights and interests in lands in that state derived from or under the laws "3. That all right, title, and interest which of Virginia, and from or under the Constitu- may hereafter be vested in the commontion and laws of West Virginia prior to the wealth by virtue of the provisions of the sectime such Constitution went into operation, tion of this act next preceding herein, shall should "remain valid and secure, and shall be be transferred and absolutely vested in determined by the laws in force in Virginia any and every person or persons other prior to the formation of this state, and by than those for whose default the same the Constitution and laws in force in this have been forfeited, their heirs or devistate prior to the time this Constitution goes into effect." Art. 13, § 1. sees, who are now in actual possession of said lands or any part or parcel of them, for In view of this provision it is proper to so much thereof as such person or persons look at the legislation of Virginia and the have just title or claim to, legal or equitable, decisions of its highest court touching the bona fide claimed, held or derived from or unforfeiture of lands for noncompliance by the der any grant of the commonwealth bearing owners with the requirements of the law re-date previous to the 1st day of April, 1831, lating to taxation. who shall have discharged *all taxes duly as-[418] sessed and charged against him, her or them upon such lands, and all taxes that ought to have been assessed and charged thereon from the time when he, she or they acquired his, her, or their title thereto, whether legal or equitable; Provided, That nothing in this section contained shall be so construed as to impair the right or title of any person or persons who have obtained grants from the commonwealth for the same land and have regularly paid the taxes thereon, but in all such cases the parties shall be left to the strength of their original titles." Laws Va 1834-35, pp. 11-13. By the 1st section of an act of the general assembly of Virginia, passed February 27, 1835, further time was given until July 1, 1836, for the redemption of all lands and lots theretofore returned as delinquent for the nonpayment of taxes, west of the Alleghany mountains, and which had become vested on the previous 1st day of October in the president and directors of the literary fund; saving the title of any bona fide occupant claiming under a junior grant. whose rights were protected and secured under prior legislation. That act further provided: "And whereas it is known to the general Other acts were passed in Virginia relating assembly that many large tracts of lands to delinquent and forfeited lands and extendlying west of the Alleghany mountains which ing the time for redemption, all of them prowere granted by the commonwealth before the ceeding upon the ground that the state had [411 first day *of April, 1831, never were, or have the power to forfeit lands for failure to have not been for many years past, entered on the them charged with taxes as well as for failbooks of the commissioners of the revenue ure to pay the taxes so charged. where they respectively lie; by reason where- The first case in which the supreme court of no forfeiture for the nonpayment of taxes of appeals of Virginia had occasion to pass has occurred, or can accrue, under the exist-upon the validity of the above statute of ing laws, the commonwealth is defrauded of her just demands, and the settlement and improvement of the country is delayed and embarrassed; for remedy whereof, 1835, so far as it forfeited lands which the owner failed to have put on the proper land books and pay taxes upon, was Staats v. Board, 10 Gratt. 400, 402, decided in 1853. "2. Be it enacted, That each and every That court said: "It further seems to the owner or proprietor of any such tract or court that, as by the act of March 23, 1836, parcel of land shall, on or before the first day Sess. Acts, p. 7, time was allowed from the of July, 1836, enter or cause to be entered on 1st day of November, 1836, for all persons to the books of the commissioners of the revenue cause their omitted lands to be entered with for the county wherein any such tract or the commissioner of the revenue, and to pay parcel of land may lie, all such lands the taxes thereon, in the manner prescribed in now owned or claimed by him, her the second section of the act of February 27, or them, through title derived mediately 1835, the forfeiture became absolute from or immediately under grants from the and after the 1st of November, 1836. That against the deprivation of property without due process of law. the provision of the act of March 30, 1837, I was, in my opinion, a wise and expedient as giving time for redemption until the 15th of the constitutional power of the legislature January, 1838 did not release the forfeitures to enact them was clear and unquestionwhich had accrued, except in such cases able." This case was cited in Armstrong v. where the owner or proprietor availed him- Morrill, 14 Wall. 120, 134 [20: 765, 769], self of the privilege of redeeming. And it which was an action of ejectment brought further seems to the court that such forfeit- prior to the adoption of the 14th Amendment ure became absolute and complete by the of the Constitution of the United States, and failure to enter and pay the taxes thereon in in which therefore the rights of the parties the manner prescribed by the act of 27th of must have been determined without referFebruary, 1835. And no inquisition or judi-ence to the prohibition in that Amendment cial proceedings or inquest, or finding of any kind, was required to consummate such forfeiture." In Levasser v. Washburn, 11 Gratt. 572, 413] *The same principle was announced in 580, 581 (1854), it was said: "According Wild's Lessee v. Serpell, 10 Gratt. 405, 408 to the decisions of this court in the cases just (1853). The court said: "That the provi- referred to, and also in the cases of Wild v. sions of our statutes passed from time to Serpell, 10 Gratt. 405, and Smith v. Chaptime, making it the duty of the owners of man, 10 Gratt. 445, the circuit court also lands to pay all taxes properly chargeable erred in its opinion as to the time at which thereon, and, where they have been omitted the forfeiture under the Girond grant ocfrom the books of the commissioners of the curred or became complete. It appears to revenue, to cause them to be entered thereon have proceeded on the notion that some inin the proper counties, and to be charged quest of office, or decree, or other proceeding with all arrearages of taxes and damages, and should have been had in order to declare and to pay all such arrearages as shall be found perfect the forfeiture. Nothing of the kind not to be released by law, and, in case of fail-was necessary. The act of the 27th of Febure so to do, forfeiting to the commonwealth ruary, 1835 (Sess. Acts, p. 11), declaring that all right and title whatever of the parties in lands which had been omitted from the default (under the modifications and restric-books of the commissioners of the revenue tions provided by the acts), are within the constitutional competency of the legislature, has been sufficiently affirmed in decisions which have been made during the present term of this court in cases arising under these several statutes. Staat's Lessee v. Board, 10 Gratt. 400; Smith's Lessee v. Chapman, 10 Gratt. 445; Hale v. Branscum, infra. The same cases also sufficiently establish that in order to consummate and perfect a forfeit ure in such a case, no judgment or decree or other matter of record nor any inquest of office, is necessary, but that the statutes themselves, of their own force and by their own energy, work out their own purpose, and operate effectually to devest the title out of the defaulting owner, and perfectly to vest it in the commonwealth, without the ma-221. chinery of any proceeding of record, or any- In this connection it may be well to refer thing in the nature of an inquest of office. to Martin v. Snowden, 18 Gratt. 100, 135, 136, And as the title is thus in a proper case de- 139, 140 (1868), in which the supreme court vested out of the owner and vested in the of appeals of Virginia had occasion to detercommonwealth by the operation of the stat-mine, *as between the parties before it, the[415] utes, so where the forfeiture inures to the effect of the provisions in the acts of Congress benefit of a third person, claiming under the of August 5, 1861 (12 Stat. at L. 292, chap. commonwealth by virtue of another and dis-45) and June 7, 1862 (12 Stat. at L. 422, chap. tinct right, the transfer of the title to such 98), relating to the direct taxation of lands. person is, in like manner, perfect and com- By the latter act it was provided that "the plete without any new grant from the com- title of, in and to each and every piece or monwealth, or any proceeding to manifest parcel of land upon which said tax has not the transfer by matter of record or other been paid as above provided, shall thereupon wise. Upon these subjects I have nothing become forfeited to the United States," and therefore to say upon this occasion, except that "upon the sale hereinafter provided that considering the peculiar condition for, shall vest in the United States or in the of things in that part of the state purchasers at such sale, in fee simple, free lying west of the Alleghany mountains, and discharged from all prior liens, encumand the serious check to population brances, right, title, and claim whatsoever." the improvement of the country § 4. One of the questions presented in that [414]*and the development of its resources case was, whether the first of the clauses just growing out of it, a resort to the stringent quoted worked, proprio vigore, a transfer to measures of legislation that were adopted the United States of the title to the land de and should be forfeited unless the owners should cause the same to be entered and charged with taxes, and should pay the same, except such as might be released by law, was intended by its own force and energy to render the forfeiture absolute and complete, without the necessity of any inquisition, judicial proceeding, or finding of any kind, in order to consummate it. It was perfectly within the competency of the legislature to declare such forfeiture and devest the title by the mere operation of the act itself; and the whole legislation upon the subject of delinquent and forfeited lands plainly manifests the intention to exercise its power in this form." See also Usher's Heirs v. Pride, 15 Gratt. 190, and Smith v. Tharp, 17 W. Va. |
