rule laid down in Rouse v. Letcher and Greg-| money decree, nor to any other remedy ory v. Van Ee applied. prayed for in the amended bill. The liabil The suits in which this receiver was ap-ity of defendants arose under general law, [578]pointed were in the nature of creditors' bills and was neither created nor arose under the alleging an indebtedness due from the At- Constitution or laws of the United States. lantic Company; the insolvency of that com- In Bausman v. Dixon, 173 U. S. 113 [ante, pany; that certain corporations had in their 633], we have ruled that a judgment against possession assets of the Atlantic Company; a receiver appointed by a circuit court of the and praying for the appointment of a receiv- United States, rendered in due course in a er; the marshaling of assets; the winding up state court, does not per se involve the deof the Atlantic Company, and the application nial of the validity of an authority exercised of its assets to the payment of its debts. The under the United States, or of a right or imonly ground of Federal jurisdiction set up is munity specially set up and claimed under a the bills was diversity of citizenship, and if statute of the United States. That was an the decrees therein had been passed on by the action to recover damages for injuries suscircuit court of appeals, the decision of that tained by reason of the receiver's negligence court would have been final under the stat-in operating a railroad company of the state ute. And as this suit was in effect merely in collection of alleged assets of the Atlantic Company, it must be regarded as auxiliary, and the same finality attaches to the decree of the circuit court of appeals therein. of Washington, though the receiver was the officer of the circuit court, and we said: "It is true that the receiver was an officer of the circuit court, but the validity of his au thority as such was not drawn in question, And this is true although another ground and there was no suggestion in the pleadings, of jurisdiction might be developed in the or during the trial, or, so far as appears, in course of the proceedings, as it must appear the state supreme court, that any right the at the outset that the suit is one of that receiver possessed as receiver was contested, character of which the circuit court could although on the merits the employment of properly take cognizance at the time its ju- plaintiff was denied, and defendant contendrisdiction is invoked. Colorado Central Con-ed that plaintiff had assumed the risk which sol. Min. Company v. Turck, 150 U. S. 138 [37: 1030]; Ex parte Jones, 164 U. S. 693 [41: 602]; Third Street & S. Railway Company v. Lewis, 173 U. S. 457 [ante, 766]. Some further observations may be usefully added, although what has been said necessarily disposes of the motion. resulted in the injury, and had also been The receiver based his right of recovery on the alleged seizure by one of the defendant companies of certain rights of way, and grading done thereon by the Atlantic Com-ble to the facts, and not in any way on the pany under two specified contracts, which terms of the order." That was indeed a seizure and appropriation were alleged to writ of error to a state court, but the reasonhave been fraudulently and forcibly made; ing is applicable here. Pope was appointed and it was averred that appellee, the Louis- receiver by an interlocutory order of the cirville, New Albany, & Chicago Railroad Com-cuit court in the exercise of its general pany, acquired title thereto and possession equity powers. He did not occupy the posithereof through its consolidation with an- tion of a receiver of a corporation created unother of the defendant companies, which had der Federal law as in Texas & Pacific R. acquired its title and possession through the Company v. Cox, 145 U. S. 593 [36: 829] or foreclosure of a mortgage given by the com- of a marshal of the United States as in pany which had made the seizure. The bill Feibelman v. Packard, 109 U. S. 421 [27: nowhere asserted a right under the Constitu- 984]; or of a receiver of a national bank, as tion or laws of the United States, but pro-in Kennedy v. Gibson, 8 Wall. 498 [19: 476]. ceeded on common-law rights of action. We cannot accept the suggestion that the mere [579]order of a Federal court, sitting in chancery appointing a receiver on a creditor's bill, not only enables the receiver to invoke Federal jurisdiction, but to do this independently of the ground of jurisdiction of the suit in which the order was entered, and thereby affect the finality of decrees in the circuit court of appeals in proceedings taken by him. The validity of the order of appointment of the receiver in this instance depended on the jurisdiction of the court that entered it, and that jurisdiction, as we have seen, depended exclusively upon the diverse citizenship of the parties to the suits in which the appointment was made. The order, as such, created no hability 52 Nor did his cause of a tion originate or depend on the order of appointment, or assignments made to him by the Atlantic Company pursuant to that order. Nor was any right claimed by him by virtue of his order of appointment or of his deeds of assignment de nied or alleged to have been denied. The decrees of the circuit court and of the circuit court of appeals dealt solely with the alleged rights of the Atlantic Company as against certain Indiana corporations. It is impossible to hold that these orders of appointment were equivalent to laws of the United States within the meaning of the Constitution. We agree with counsel for appellee that Provident Savings L. Society v. Ford, 114 U. S. 635 [29: 261), is in point in this aspect of the case. There it was ruled that "the fact that a judgment was recovered in a 817 GUARANTEE COMPANY OF NORTH v. MECHANICS' SAVINGS BANK & TRUST COMPANY, for the Use of J. J. Pryor, Assignee. (See S. C. Reporter's ed. 582-586.) Decree, when not final. court of the United States does not, in a suit upon that judgment, raise a question under the laws of the United States within the meaning of the act of March 3, 1875." That was a writ of error to the supreme court of the state of New York to review a judgment of that court denying a motion for the removal of the cause to the United States circuit court. Mr. Justice Bradley delivered the opinion, and, after pointing out that the alleged grounds of removal were insufficient, remarked: "It is suggested, however, that a suit on a judgment recovered in a United States court is necessarily a suit arising under the laws of the United States, as much so as if the plaintiff or defendant were a cor[581]poration of the United States; and hence that such a suit is removable under the act of March 3, 1875. It is observable that the removal of the cause was not claimed on any such broad ground as this; but, so far as the Argued March 16, 1899. Decided April 3, character of the case was concerned, only on the ground that the defendant had a defense under Rev. Stat. § 739, specifying what the defense was; and we have already shown A decree which determines that none of the defenses of a guaranty company are good in law, and that it is liable on its bonds for such sum as may thereafter be found due after ?rediting the amounts that may be realized from certain assets, is not final for the purposes of an appeal. [No. 224.] 1899. ON WRIT OF CERTIORARI to the United States Circuit Court of Appeals for the Sixth Circuit to review a decree of that court affirming a decree of the Circuit Court of the United States for the Middle District of Tennessee in an action brought by the Mechanics' Savings Bank & Trust Company for the use of J. J. Pryor, Assignee, against the Guarantee Company of North America upon bonds executed by that company conditioned for the faithful performance of the duties of cashier and also of teller and collector of the said Savings Bank by one Schardt. The de cree of the Circuit Court granted the relief prayed for by the plaintiff, and fixed the liability of the defendant at $32,310, and decreed that all collections on assets or collaterals turned over by Schardt to the bank should be applied on said amounts. Decree of the Circuit Court of Appeals is reversed for want of jurisdiction, and the cause is remanded, with directions to dismiss the appeal prosecuted to that court, and for such further proceedings in the Circuit Court as may be consistent with law. that that ground of removal, as stated in the Without pursuing the subject fur- In Cooke v. Avery, 147 U. S. 380 [37: 212], jurisdiction was sustained on the ground that the plaintiff's title was derived through the enforcement of a lien, the validity of which depended on the laws of the United [582]States and the rules of the circuit court, and their construction and application were directly involved. Appeal dismissed. Mr. Justice Brown took no part in the consideration and disposition of this motion. See same case below, 68 Fed. Rep. 459, and 54 U. S. App. 108. The facts are stated in the opinion. *Mr. Justice Harlan delivered the opinion[582] of the court: The plaintiff in this suit-originally brought in the chancery court at Nashville, Tennessee, and subsequently removed into the circuit court of the United States for the middle district of Tennessee is the Mechanics' Savings Bank & Trust Company, a Tennessee corporation suing to the use of James J. Pryor, assignee, under a general assignment of all the assets, rights, and credits of that company in trust for the benefit of creditors. The principal defendant is the Guarantee Company of North America, a corporation created under the laws of the Dominion of Canada. From January 16, 1888, to January 1, [583]1893, Schardt was teller and collector and from the latter date until his death was cashier of the plaintiff company. The object of the present suit is to have an accounting and a decree as to the amount due the plaintiff on two bonds executed by the Guarantee Company of North America to the Mechanics' Savings Bank & Trust Company; one, insuring the latter corporation against such pecuniary loss as it might sustain on account of the fraudulent acts of Schardt as teller and collector; the other, insuring the same corporation against pecuniary loss by reason of fraudulent acts by him in his office as cashier. The bill alleges that while acting as teller and collector of the plaintiff company Schardt fraudulently embezzled of its moneys the sum of $78,956.11, of which $50,856.77 was embezzled during the year ending January 1, 1893; and that during the period covered by the bond insuring his fidelity as cashier he fraudulently appropriated of the plaintiff's moneys the sum of $22,817.30. The bill also alleged that a few days before his death Schardt assigned to the plaintiff company, as additional indemnity for the losses he had brought upon it, certain policies on his life amounting to $80,000; that upon those policies $20,000 had been collected, and the residue was in dispute; and that Schardt did not give any direction as to which of the bonds insuring his fidelity the insurance moneys when collected should be applied. The Guarantee Company in its answer insisted that by reason of the violation of the terms and conditions upon which the bonds in question were issued it was not liable to the plaintiff in any sum. By the decree in the circuit court it was adjudged that the amount embezzled by Schardt during the years 1890 and 1891 had been paid out of the assets and collections transferred by him to the bank just before his death; that his embezzlements from and after September 1, 1890, and up to January 1, 1893, amounted, principal and interest, to $52,736.17, while his embezzlements during his term as cashier amounted, principal and interest, to $23,128.69; and that the total [584]amount, principal *and interest, of all his embezzlements while occupying the two positions of teller and cashier, was $107,223.36. The decree continued: "It appearing that Schardt had assigned to the bank to indemnify it against loss, two lots of land assigned to J. B. Richardson and life insurance policies amounting to $80,000, some of which policies have been paid to the assignee without suit, and others are now in litigation in this court, or pending on appeal or writ of error to the appellate court of this circuit, held at Cincinnati, the court adjudges upon inspection of said guaranty bonds, their terms and various conditions, and the proof submitted, that the bank has complied with the same and all its undertakings thereunder, substantially; and that said Schardt embezzled and fraudulently appropriated the moneys of the bank while he filled said two positions, to the amounts named; and that interest should be calculated upon said sums from the end of his respective terms. "The court, after considering the various and numerous defenses set up by defendant company, why a recovery should not be had upon either of said bonds, or both, in favor of complainant, is pleased to disallow each and all of said defenses, and to order, adjudge, and decree that complainant have its decree or judgment against the defendant, the Guarantee Company, upon each of said bonds with interest from the time the same should have been paid according to the terms of said bonds, and for the costs. "That complainant have judgment on the teller's and collector's bond for the sum of ten thousand dollars principal and the further sum of seven hundred and seventy dollars, being interest at six per cent from 9th of April, 1894, to July 1, 1895; and that complainant have judgment on the cashier's bond against defendant Guarantee Company for the sum of twenty thousand dollars principal and the further sum of $1,540.00 interest thereon from April 9, 1894, to July 1, 1895, making in the aggregate of principal and interest on both bonds the sum of thirty-two thousand three hundred and ten dollars ($32,310.00) with interest thereon until paid, and the costs of this suit. *"And the court orders and decrees that the [585] liability of the defendant, the Guarantee Company, is secondary to that of John Schardt's estate; and that the bank or its assignee shall account for all collections realized on assets or collaterals turned over to the bank by said Schardt to reimburse it against his shortage, which it has collected, or with due diligence may collect hereafter; and for his fitness, and for convenience, H. M. Doak is appointed master commissioner to report the same to the next term of this court; and the court orders that the same be applied to the shortage of said Schardt in the order in which the same occurred, and in the meantime no execution will issue against defendants for the same, but only for the costs; and the court orders that this cause may be continued upon the docket of this court, for the purpose only of making any orders necessary to apply all collections from the assets of Schardt, held as collateral, in exoneration, to that extent, of the defendant company and of substituting the defendant to the rights of the bank, in case the recovery herein is collected or paid and any of said assets remain above the amount necessary to satisfy the shortage. But the case is re tained for no other purpose, and the decree against defendant company is final as fixing its liability on the bonds to make good the shortage, whatever that may be. This decree is entered in lieu of one entered at a former day of the term and the decree formerly entered is thereby vacated." 68 Fed. Rep. 459. Upon appeal prosecuted by the Guarantee Company to the circuit court of appeals the decree was affirmed. 54 U. S. App. 108. The case is here upon writ of certiorari. The circuit court of appeals was without jurisdiction to review the decree of the circuit court because that decree was not a final one. 26 Stat. at L. 826, 828, chap. 517, § 6. The circuit court disallowed all of the defenses made by the Guarantee Company and adjudged that upon the showing made that company was primarily liable to the extent of the penalty of each bond, with interest. But the liability of the defendant company test which was pending in the General Land 3, 1899. INtate of Minnesota o review a judgment ERROR to the Supreme Court of the of that court affirming a judgment of the District Court of the Eleventh Judicial District of the state of Minnesota in favor of the plaintiff, Joseph Roy, quieting the title to a certain quarter section of land, and forever barring the defendants and all those claiming by or through them of any right, title, lien, or interest in or to the said land or any part thereof. Affirmed. See same case below, 69 Minn. 574, 72 N. W. 794. Statement by Mr. Justice McKenna: was held to be secondary to that of Schardt's Submitted March 10, 1899. Decided April estate which was in course of administration, [586]and the amount for which it could be held finally liable on execution was left to be ascertained by a master commissioner who was directed to take into account "all collections realized on assets or collaterals turned over to the bank by Schardt to reimburse it against his shortage," or which the bank "with due diligence may collect hereafter;" and the case was retained for the purpose of fixing the amount of this ultimate liability to make good Schardt's shortage, "whatever that may be." In effect, the circuit court only determined that none of the defenses were good in law, and that the Guarantee Company was liable on its bonds for such sum as might thereafter be found to be due after crediting the amounts that might be realized from the assets turned over to the plaintiff bank by Schardt. Notwithstanding the company's defenses were adjudged to be bad in law, it remained for the circuit court by proper orders to accomplish the object of the suit, namely, to ascertain the amount for which the plaintiff was entitled to judgment and execution. When that amount is judicially ascertained and fixed by a final decree, the adjudication of the cause will be completed for all the purposes of an appeal; and if the decree be affirmed the circuit court will then have nothing to do but to carry it into execution. North Carolina Railroad Co. . Swasey, 23 Wall. 405, 409 [23: 136, 137]; Green v. Fisk, 103 U. S. 518, 519 [26: 486]; Dainese v. Kendall, 119 U. S. 53, 54, [30: 305, 306]; Lodge v. Twell, 135 U. S. 232, 235 [34: 153, 155]. This is an action to quiet title to the northwest quarter of section number three, in township number sixty-one, north of range number fifteen west of the fourth P. M., state of Minnesota. It was brought in the district court of the eleventh judicial district of the state against the plaintiff in error and one John Megins. One Muses D. Kenyon was afterwards made a party. The pleadings consisted of the complaint, separate answers of the defendants, and replies of the plaintiff (defendant in error), which respectively set up the titles, interests, and claims of the parties. As there is no point made on them, they are omitted. The case was tried by the court without a jury and full findings of fact made, and judgment rendered in favor of the plaintiff (defendant in error), adjudging and decreeThe decree of the Circuit Court of Appeals ing him to be the equitable owner of the lands affirming the judgment of the Circuit Court in controversy, and that the defendants "and is reversed for want of jurisdiction in the all persons claiming by or through or under former court, and the cause is remanded with them be and they are hereby forever barred directions to dismiss the appeal prosecuted and precluded from having or claiming any to that court, and for such further proceed-right, title, lien. or interest in or to the said ings in the Circuit Court as may be consistent with law. Reversed. [587] DULUTH & IRON RANGE RAILROAD COMPANY, Plff. in Err., v. JOSEPH ROY. (See S. C. Reporter's ed. 587–591.) Relief to be granted to a party injured by One who, being qualified, settled upon public the same, and, when the plat of the survey of lands or any part thereof adverse to the plaintiff and parties claiming under him." From this judgment an appeal was taken to the supreme court, by which it was affirmed. ([69 Minn. 547] 72 N. W. 794.) To the judgment of affirmance this writ of error is directed. *The findings of the court established the[588] following: The lands were patented to the state of Minnesota by the United States as swamp and overflowed lands, and the plaintiff in error is the grantee of the state. The defendant in error claims under the homestead laws. At the time of the passage of the act of 1860, under which the patent was issued, the lands were not swamp, wet, or overflowed, or unfit for cultivation, but were and now are "high, dry, and fit for cultiva tion," except four or five acres in the northwest corner. In May, 1883, the defendant in error, then being qualified to do so, settled upon the lands with the bona fide intention of acquiring the same under the laws of the United States, established his residence thereon, and has ever since continued to be in the actual, exclusive, and notorious possession, maintaining his home there, and cultivating and improving the same. When defendant in error commenced his residence on the lands the plat of the survey of the township in which they were located had not been filed, but was filed subsequently, and after it was filed, to wit, on the 2d of July, 1883, he went to the land office with the intention of entering the lands under the homestead laws, and made a request to do so, but the land officers informed him that there was a mistake in the survey, and that in all probability a new survey would be ordered; that numerous protests had been made against the survey which were sufficient to raise the question of its accuracy; that it was unnecessary for him to protest or file on the land, and advised him to wait until such protests were determined. He was a foreigner, did not know the English language, nor was he familiar with the laws, rules, and regulations relating to the disposition of the public lands, and relied upon the representations of the officers, and acted upon their advice. On the 5th of August, 1884, he discovered that the state was claiming the lands as swamp lands; thereupon he duly made application to enter the same under the homestead laws, and tendered the fees to the local land officer. No adverse claim other than that of the state had arisen or was made to said lands, but his offer of entry was 1589]rejected on the ground *that the same had inured to the state under the act of March 12, 1860, and that his application to enter the lands had not been made within three months after the filing of the township plat in the land office. On the 6th of August, 1884, he duly filed contest, duly appealed from the rejection of his claim, which appeal and the affidavits attached were transmitted to the Commissioner of the General Land Office, and were by him received and filed September 1, 1884. On the 23d of January, 1885, and while the appeal and contest were pending, the lands, through mistake and inadvertence, were patented to the state of Minnesota. The defendants took conveyance of the lands with notice of the right, claim, and interest of the plaintiff (defendant in error). The assignments of error attack the conclusions of the state courts as erroneous, and specify as reasons (a) that the legal title to the lands was in plaintiff in error, and that there was no finding that there was a mistake of law or fraud on the part of the General Land Office of the United States or of any officers of the United States; (b) the finding that the patent to the state of Minnesota was issued through a mistake or inadvertence does not constitute a ground for adjudging defendant in error the equitable owner of the lands; (c) the defendant in error is not the real party in interest and never had the legal or equitable title to the land, the United States being the only party which could attack the patent to the state of Minnesota or invoke the action of the courts to determine its validity. Messrs. J. M. Wilson, and Davis, Hol lister, & Hicks, for plaintiff in error: It was incumbent on the complainant below to establish that he himself was entitled to a patent for the premises. It is not suffi cient to show that the patentee ought not to have received a patent. Bohall v. Dilla, 114 U. S. 47, 29 L. ed. 61; Sparks v. Pierce, 115 U. S. 408, 29 L. ed. 428; Lee v. Johnson, 116 U. S. 48, 29 L. ed. 570. The complainant has not, under the circumstances stated in the findings, established any privity with the original source of title, and has therefore no standing as an equitable owner, and is not entitled to maintain this suit. Cooper v. Roberts, 18 How. 173, 15 L. ed. 338; Spencer v. Lapsley, 20 How. 264, 15 L. ed. 902; The Yosemite Valley Case, 15 Wall. 77, 21 L. ed. 82; Ehrhardt v. Hogaboom, 115 U. S. 67, 29 L. ed. 346; Cornelius v. Kessel, 128 U. S. 456, 32 L. ed. 482; Hartman v. Warren, 40 U. S. App. 245, 76 Fed. Rep. 157, 22 C. C. A. 30. The patent, if issued under the swamp act, was an adjudication of fact within the exclusive jurisdiction of the Land Department, and cannot be impeached or reviewed by this court. Johnson v. Towsley, 13 Wall. 72, 20 L. ed. 485; Warren v. Van Brunt, 19 Wall. 646, 22 L. ed. 219; Shepley v. Cowan, 91 U. S. 330, 23 L. ed. 424; French v. Fyan, 93 U. S. 169, 23 L. ed. 812; Moore v. Robbins, 96 U. S. 530, 24 L. ed. 848; Marquez v. Frisbie, 101 U. S. 473, 25 L. ed. 806; Vance v. Burbank, 101 U. S. 514, 25 L. ed. 929; Quinby v. Conlan, 104 U. S. 420, 26 L. ed. 800; St. Louis Smelting & Ref. Co. v. Kemp, 104 U S. 636, 26 L. ed. 875; Steel v. St. Louis Smelting & Kef. Co. 106 U. S. 447, 27 L. ed. 226; Baldwin v. Stark, 107 U. S. 463, 27 L. ed. 526; United States v. Minor, 114 U. S. 233, 29 L. ed. 110; Lee v. Johnson, 116 U. S. 48, 29 L. ed. 570; Wright v. Roseberry, 121 U. S. 488, 30 L. ed. 1039; Knight v. United States Land Asso. 142 U. S. 161, 35 L. ed. 974; United States v. California & 0. Land Co. 148 U. S. 31, 37 L. ed. 354; Barden v. Northern P. R. Co. 154 U. S. 288, 38 L. ed. 992; Catholic Bishop of Nesqually v. Gibbon, 158 U. S. 155, 39 L. ed. 931. The particular mistake must be pointed out and designated by the finding of the Land Department, in order that it may appear whether what is claimed to be a mistake in the construction of law is really such. Johnson v. Towsley, 13 Wall. 72, 20 L. ed. 485; Marquez v. Frisbie, 101 U. S. 473, 25 L. ed. 800; Quinby v. Conlan, 104 U. S. 420, 26 L. ed. 800. Messrs. J. M. Vale, and John Brennan, for defendant in error: Privity between the plaintiff and the United States sufficient to sustain this suit is found in the laws enacted by Congress gov erning the disposition of the public domain, |
