few facts about the truth of which there is but little conflict. These will be considered as we progress. On the 9th August, 1845, James Shields, Commissioner of the Land Office, set aside the entry of Lindsey, ordered his certificate to be canceled, and directed the Register and Receiver to hear proof of the right of David Hawes, and to adjudicate his claim. They, accordingly, heard his proof and gave him the certificate, on which he afterwards obtained his patent as before recited. It is claimed by the counsel of Hawes that this action of the land officers, including that of the commissioner, was a conclusive and final adjudication of the matters now set up in plaintiffs' bill, and that the courts of law cannot go behind these proceedings to correct any injustice which may have been done to plaintiffs. The proposition as thus broadly stated, and as necessarily so stated by defendant's counsel to avail him in this case, cannot be conceded. It appears from the evidence before us, that the ground on which the commissioner set aside the entry of Lindsey, was, that there had been a mistake in the survey made by Bennett in 1833, and that by another survey, made by order of the commissioner in 1844, it was ascertained that the house in which Lindsey resided when he made his claim in 1839, was not on the land for which he received his certificate of entry from the Receiver and Register. The order for this new survey emanated from the Commissioner of the Land Office June 1st, 1844, and the survey was actually made in the autumn of that year, five years after Lindsey's entry, and five years also after his death, and 557] there is no proof whatever that any of his heirs had notice of this survey, or of any intention on the part of the commissioners to set aside Lindsey's entry; but the whole proceeding was ex parte. It is true that subsequently, when the claim of David Hawes to the right to enter this land came before the Register and Receiver, James A. Lindsey seems to have had some kind of notice; but this was given him in regard to an attempt on his part to enter this land for himself, on a claim of improvement made by himself, having, as is clearly shown, no relation whatever to the right established by his father, Thomas Lindsey. Nor did the other heirs of Thomas Lindsey have any notice of the proceedings by which David Hawes established his claim before the Register and Receiver. These heirs were not in any sense parties to any of the proceedings by which the title to the land which their ancestor had bought of the government was vested in David Hawes, and their claim annulled. Under these circumstances, we have no hesitation in holding that the action of the officers of the Land Office was not conclusive upon their rights, and that a court of equity may inquire into the proceedings by which the title was vested in Hawes, and afford relief if a proper cause for it is shown to exist. That this is the settled doctrine of this court, a reference to a few of its decisions will show. In the case of Cunningham v. Ashley, 14 How., 377, Cunningham appeared before the Receiver and Register, and claimed the right under the preemption laws, to enter the land which was the subject of controversy. These officers decided that he had no right to do so, and rejected his claim. He again and repeatedly presented his claim, and tendered the price of the land. His claim received the consideration of the Commissioner of the Land Office, of the Attorney-General, and of the Secretary of the Treasury, and was finally rejected. The defendants were permitted to enter the land, and receive from the government patents for it. Justice McLean, in delivering the opinion of the court, says that this final decision of the officers of the department was the result of twenty years of controversy; and speaking in reference to the plaintiff's rights, he says: "They were paramount to those acquired un- [*558 der the new location. Those rights were founded on the settlement and improvement in 1821, and on the acts done subsequently in the prosecution of his claim. Having done everything which was in his power to do, the law requires nothing more." Again: "So far as the new entries interfered with the right of complainants, they were void." "The officers of the government are the agents of the law. They cannot act beyond its provisions, nor make compromises not sanctioned by it. The court decreed that the defendants should convey to Cunningham who had the paramount equity. In this case, which had been long contested, and had received the consideration of the Receiver, Register, Commissioner, Attorney-General, Secretary of the Treasury, all of whom had concurred in rejecting plaintiff's claim, he had never received any certificate nor actually paid any money, yet the court held that it would look into the equities of the case and set aside the acts of all these officers, because they had erred, to use the language of the court, both as to the law and the facts, to the prejudice of complainant. In Barnard's Heirs v. Ashley's Heirs, 18 How., 43; this court again decided that it would inquire into the facts of a disputed entry, notwithstanding the decision of Register and Receiver. and But the clearest statement of the rule established by this court on this subject, is to be found in the case of Garland v. Wynn, 20 How., 8. Wynn's entry, which was the elder, had been set aside, and the money refunded and a patent certificate awarded to Hemphill, who assigned to Garland, to whom the patent issues. Wynn brought this suit in equity to compel from Garland the conveyance of the legal title, on the ground that these proceedings were illegal, and that he had the equitable right. Garland insisted that the Circuit Court had no authority or jurisdiction to set aside or correct the decision of the Register and Receiver, and that their adjudication was conclusive. Mr. Justice Catron, in delivering the opinion of the court, says: "The general rule is, that where several parties set up conflicting claims to property, with which a special tribunal may deal, as between one party and government, regardless of the rights of others, the latter may [*559 come into the ordinary courts of justice and litigate the conflicting claims. Such was the case of Comegus v. Vasse, 1 Pet., 212; and the case before us belongs to the same class of ex parte proceedings. Nor do the regulations of the Commissioner of the General Land Office, whereby a party may be heard to prove his bet- | all had sold the land to Lindsey by this, its own We are not now disposed to question the soundness of these decisions, and they clearly dispose of the objection raised by defendants on this branch of the case. We now proceed to inquire into the grounds upon which the entry of Thomas Lindsey was set aside, and the application of David Hawes to enter the same land was allowed. It appears that some five years after Lindsey's entry was made, upon the suggestion of Silas Reed, that there was an error in Bennett's survey of this quarter, the commissioner ordered a new survey to be made of that section. This survey was made for the government by George B. Sargent in the fall of 1844. It differed from the original survey in two particulars, namely: that that southwest fractional quarter was found to contain 13 acres, instead of 5%, and the south line of the quarter section was located so far north as to leave the house in which Lindsey resided, when he made his entry, entirely south of the quarter. 23 residence, as bearing on his right to enter that fraction as a preemption, the government was bound by the original survey of Bennett. We do not here deny the right of the government which has sold land by the acre at a fixed price, to make a new survey before it parts with the title, and if there is more land than *was paid for, to require the deficiency [*561 to be paid before it issues a patent. On that subject we decide nothing, because it is not necessary in this case. Lindsey's neirs were never notified of the additional number of acres found to be in the fraction, nor were they required, or permitted to pay for this increase. The language of the Act of 1838, already quoted, certainly required of Lindsey that he should have possession, by personal residence thereon, of the land which he entered, and if he had not such residence, or rather such possession, the commissioner was justified in vacating the entry. But this fact must be determined on the basis of Bennett's survey. On this point a few facts found among the mass of testimony in the record, about which there is scarcely a dispute, will enable us to form a just conclusion. The Act of June 22, 1838, ch. 119 (5 Stat. The east and west lines which divide a secat L., 251), under which Lindsey claimed his tion into north and south quarter sections, are right of preemption and made his entry, pro- not usually run out and marked by the governvides. "that every actual settler of the public ment surveyors; but instead of this, as they run 560*] lands, being the head of a family, over the north and south lines, they set up on these twenty-one years of age, who was in possession, lands, what they call the quarter section posts and a housekeeper, by personal residence there--that is, they mark the points where this line on at the time of the passage of this Act, and should begin and end. When Lindsey was for four months next preceding, shall be enti- about to make his preemption claim, in order to tled to all the benefits and privileges of an Act ascertain whether he resided on this fraction, entitled an Act to Grant Preemption Rights to he procured the County Surveyor of Rock IsSettlers on Public Lands." It is shown by the land County to come and run this quarter secletter of James Shields, Commissioner of the tion line. Several of the witnesses who were General Land Office, dated August 9th, 1845. present when this survey was made have testito the Register and Receiver at Dixon, that fied in the case, and C. H. Stoddard, a practical Lindsey's entry was set aside by him because. surveyor of intelligence and candor, as shown by the resurvey, Lindsey's house was not on the by his testimony, also made a survey from Benfractional quarter in controversy. We are not nett's field notes since this suit was instituted. prepared to admit, that if the second survey be Some of the persons present when the survey the correct and proper subdivision of that sec was made by Baxter, the Surveyor of Rock Istion into quarters and fractions of quarters. land County, looked through the compass and and that by this survey (though otherwise by observed where the line struck Lindsey's house, the former), the house of Lindsey was found and a notch was made on his stone chimney not to be in the fraction preempted by him, the where the line was seen to touch it, which was commissioner could, for this reason alone, set there when the depositions were taken in this aside, in this summary manner, the sale of the suit, and was identified by witnesses who saw it land made by the government to Lindsey. It is made. The fair result of all the testimony on to be remembered that the original survey of this point is, that the house in which Lindsey Bennett, was the survey of the government; resided was directly on this line, which would that it was made in 1833; that the maps, plats. intersect the house so as to *throw, per- [*562 certificates, and field notes were all filed in the haps, the larger part on the other quarter, and proper office; the survey approved, and that for part, something less than half, into this quareleven years the government had acted upon ter. and recognized it as valid and correct, and above It is proved that he had another building on It is v. JACOB C. HOWARD. this fraction wholly, which is sometimes spoken | *JOHN RANDALL, JR., and Letitia M. [*585 of as his stable, and sometimes as a blacksmith Randall, his Wife, appts., shop, in which he worked at that trade. also shown that the ground cultivated by him was exclusively on this fraction, and the proof of its cultivation and inclosure is quite clear. On these facts, was he, within the meaning of the statute, in possession of this fraction by personal residence thereon? The counsel for appellees has made a vigorous argument in support of the negative of this question. Assuming that Lindsey could not have a residence on both the northeast and southeast quarter sections at one time, and claiming that the case is to be governed by the analogies of a question of domicil in a case of conflicting jurisdictions he has made an apparently strong case out of the fact, that the larger portion of the house is on the south side of the line. (See S. C. 2 Black, 585-590.) Parol agreement as to lands, void by statutedemurrer-decision of court having jurisdiction, binding-when state judgment, not reviewed. party, in controversies between themselves, to enIt is against the policy of the law to enable either force an agreement in fraud of the law, or which was made to injure another. lands, and is in parol, it is void by the statute of frauds. If it so appears on the face of the bill, the defense of the statute of frauds may be taken advantage of on demurrer. Where the agreement concerns an interest in Where a court has jurisdiction, it has a right to decide every question in the cause, and its judgment, till reversed, is regarded as binding on every other court. Where a bill brings in review various matters passed on in the progress of a suit, by a state court of general jurisdiction having complete control of the parties and of the subject-matter of controthe state court, and this court will dismiss the bill. versy, it is an interference with the authority of If there was error in the proceedings of the court a review can be had in the appellate tribunals of the state. This, however, is not a case of domicil under different governments or conflicting jurisdictions. It is a question arising under the Government of the United States, and concerns a construction of one of its most benevolent statutes, made for the benefit of its own citizens, inviting and encouraging them to settle upon its public lands. The government which made the law, owned both quarter sections, and was indifferent as to which should be sold to Lindsey, provided it was legally done. Lindsey's house was on both quarter sections. He lived or resided in all that house. So far as Submitted Dec. 11, 1862. Decided Jan. 5, 1863. mere personal residence is concerned, we think he may be correctly said to have resided on both quarter sections. The law only required that APPEAL from the Circuit Court of the Unit he should personally reside on the quarter which he claimed to enter, and if he resided on both, then clearly he resided on this one. But the language of the Act makes posses sion the principal matter, and personal residence the qualifying matter. Leaving out the word "housekeeper," which is not in question, the qualification of a person who can preempt under the Act, is one "who was in possession by personal residence thereon." Now, 563*] *that Lindsey was in possession, is shown by his stable or blacksmith shop, by his inclosure and cultivation of the ground, or a part of it. When, in addition to these facts, a considerable part of the house in which he and his family lived, was also on this little five-acre piece of ground, may it not be said that he had possession of it by personal residence thereon? We are of opinion that on the true construction of the statute he had. It follows, from what we have said, that the patent certificate issued to Thomas Lindsey was rightfully issued by the Receiver and Register, that the Act of the Commissioner in setting it aside was illegal, and did not destroy the right thus vested, that the land was not subject to entry by David Hawes, and that the patent obtained by him, was wrongfully and illegally issued to him, and that the plaintiffs are entitled to a conveyance of the legal title from him and his codefendants. The decree of the Circuit Court is, therefore, reversed, and the case remanded to that court, with instructions to enter a decree in conform ity with this opinion. ed States for the District of Maryland. The case is stated by the court. Mr. Charles F. Mayer, for appellants: in derogation of the decree and action of Cecil The demurrer assumes that the complaint is Circuit Court, and interferes with the control that belongs to it of the cause in which the dewithin that control. It thus imputes a conflict cree was passed, and seeks a relief that lies of jurisdiction as invoked by the bill, a dispossession of the Cecil court of the case which its jurisdiction embraced. All this is ideal. No decree or act of the state court is gainsaid or impeached, and no attempt is made to annul any such action or mar its effect. No fraud is charged as vitiating the decree or any proceeding in the train of it. The only fraud that is the ground of our appeal to equity and is the burden of our grievance is that a decree and a sale under it are attempted to be used against our rights inequitably. Russell v. Southard, 12 How., 139; Sprigg v. Bank Mt. Pleasant, 14 Pet., 201. A new jurisdiction may act on a bill which seeks to control the unjust effect or fraudulent use of a decree or judgment. Pickett v. Loggon, 14 Ves., Jr., 234; Kennedy 256; 3 Sumn., 600; 5 Mason, 95; 3 Cranch, 307; v. Daly, 1 Sch. & L., 355; 5 Gill., 277; Mitf., Price v. Dewhurst, 8 Simons, 279; 1 Greenl. Ev., secs. 541, 548; Hall v. Hall, 1 Gill., 391. NOTE. Conclusiveness of judgment between Federal and state courts-see notes, 21 C. C. A. 478; 49 C. C. A. 468. Conflict of jurisdiction with state courts—see note, 22 C. C. Á. 356. Messrs. Alexander Evans and Levi N. ure to the benefit of the complainant Letitia. Gale, for appellee: The bill was rightly dismissed. 1. Because the bill does not set forth such a case as entitles them to relief. The allegations in a bill must be specific and particular and free from ambiguity. Mitford, Eq. Pl., 41. The arrangements and understandings set forth are too vague and uncertain to be specific ally enforced, and there is no allegation of any performance by complainants of the stipulations to be performed on their part, and the arrangements are without consideration, or else founded upon frauds attempted to be perpetrated by complainants themselves. Owings v. Wheeler, 1 Md. Ch., 123; Colson v. Thompson, 2 Wheat., 336; Freeman v. Sedwick, 6 Gill., 39. 2. Because the bill in this case seeks to inquire into, consider and pass upon various transactions, had in the progress of the cause in the Circuit Court for Cecil County, which the United States courts had no authority to entertain. Story, Eq. Pl., sec. 712; Taylor v. Carryl, 20 How., 554; Peck v. Jenness, 7 How., 612; Hagan v. Lucas, 10 Pet., 401; Ex parte Dorr, 3 How., 103; Wiswall v. Sampson, 14 How., 52; Peale v. Phipps, 14 How., 368; Clark v. Mathewson, 12 Pet., 170; Dunn v. Clarke, 8 Pet., 1; Act of Congress 1703, ch. 22, sec. 5; Simms v. Guthrie, 9 Cranch, 25; Rogers v. Rogers, 1 Paige, 183; Elliott v. Piersol, 1 Pet., | 340; Voorhees v. Bank U. S., 10 Pet., 473; 2 Am. L. C., 567, 3d ed., 733, 734; 2 Phil. Ev., 47, 48 Cowen & Hill ed., Vol. III. Mr. Justice Davis delivered the opinion of the court: This is a bill in equity filed in the Circuit Court of the United States for the District of Maryland by the appellants against the appellee, who interposed a demurrer, which was sustained by the court below, and an appeal was taken to this court. The bill states, substantially, that the complainant, John Randall, Jr., was on the 6th of April, 1854, largely indebted to the defendant, to secure which indebtedness both of the complainants executed a mortgage on lands in Cecil County, Maryland, which lands were held in trust for the complainant, Letitia's, benefit for life. That soon after the mortgage matured the defendant filed his bill in the Cecil County Circuit Court for foreclosure and sale; and, on answer filed, a decree was passed on the 15th of October, 1855, for the sale of the mortgaged lands, time being given until 9th of October, 1856, to bring the money into court. That in April 1856, in order to defeat an attempt (charged to be fraudulent) by other parties to obtain possession of part of the lands mortgaged, it was agreed that the defendant, with the assent of the complainants, should petition the court for an immediate sale, which was done, and the time for sale changed, and a friendly arrangement was made with the defendant that he was to buy the property, ostensibly for himself, but was really to hold it in security for the decreed indebtedness, upon the satisfaction of which the purchase was to in That the sale took place on the 14th October, 1856, and the defendant was the purchaser (the "friendly arrangement" continuing), and that the property sold for less than its value on aecount of the general understanding that the sale was merely a formal one and not meant to devest the estate of the complainants. That the sale was ratified without objection [*587 from the complainants, under the assurance from the defendant that the property should, notwithstanding the ratification, stand as a security for the amount decreed which was to be paid by installments. That, to perfect the form of sale and to make it conform to the ostensible title of the purchaser, the complainants rented the property of the defendant. That having obtained an apparent title, the defendant has fraudulently determined to act as if he was the real owner, and is claiming the right to sell, and that through threats he extorted an agree ment from the complainants, which was framed and meant to involve them in the recognition of his title. That the defendant, in furtherance of his object to oppress, has, by legal though irregular process, through the Sheriff of Cecil County, dispossessed the complainants. The prayer of the bill is to restrain the defendant from disposing of the lands, and for the sale of so much of said lands as may be necessary to pay off the defendant according to the understanding prior to the purchase, and that the residue of the lands be conveyed to Mrs. Randall. There is also a prayer for general relief. There are two questions presented by this record: 1. Upon the facts stated in this bill, are the complainants entitled in equity to the relief prayed for? 2. Has this court jurisdiction? The statements of this bill are vague and uncertain, frequently argumentative, and very rarely plain and direct. The whole bill lacks definitiveness. Agreements, friendly arrangements, understandings and fraudulent devices are freely spoken of, but the character of the agreements and the nature of the devices we do not learn. The bill seeks to establish a trust for the benefit of Mrs. Randall, growing out of certain proceedings in the Circuit Court of Cecil County, Maryland. Are the complainants in a situation to enforce the trust, if one is established? We think not. The following allegations contain the charges relied on in the bill to establish the trust: "And your orator and oratrix state and charge, that about *April, in the year [*588 1856, in consequence of a fraud being attempted against your complainants, through devices involving the possession of part of the land mortgaged as aforesaid, it was deemed proper for counteracting said fraud, that on a petition to be filed by said Howard in the case of said decree, your complainants should assent to a sale (under friendly arrangements between said Howard, and then rendering such sale merely formal and nominal), taking place forthwith, instead of being deferred to the period (the next October) provided by the decree. "And your complainants aver, that under their answer to such petition, which was filed, the time for the sale was by decree thus changed, | the Cecil County Circuit Court, a court of genand under the friendly arrangement and under- eral jurisdiction having complete control of the standing aforesaid, and which was to the effect parties and of the subject-matter of controthat said Howard was to become purchaser of versy. said mortgaged property at a sale under the decree, but really to only hold it for securing the payment of the mortgage and decreed indebtment as aforesaid, upon satisfying which the property, it was understood, should inure as provided by the terms of the said trust, for the benefit of your oratrix." These allegations, stripped of their indefiniteness and vagueness, mean simply this, that the parties to this bill, in order to counteract a claim set up by other parties for a portion of the mortgaged lands, combined together, through the aid of the court, to shorten the time of sale, and to cover up the real ownership of the property. A fraudulent agreement was entered into to defeat, as is charged, "a fraud attempted against the complainants." If the claim set up was a fraud on the rights of the complainants, does that consideration change the character of the agreement which was made to defeat that fraud? Manifestly not. The whole complaint of the bill is that the defendant will not execute the agreement thus fraudulently made, and the object of the bill is to compel him to do it. A court of equity will not intervene to give relief to either part from the consequences of such an agreement. The maxim "in pari delicto potior est conditio defendentis" must prevail. It is against the policy of the law to enable 589*] either party, in controversies between themselves, to enforce an agreement in fraud of the law, or which was made to injure another. Story, Equity, Vol. I., sec. 298; Bolt v. Rogers, 3 Paige, 156; Wilson v. Watts, 9 Md., 356. There are several other grounds decisive against the relief prayed for. We will, however, notice but one other. There is no averment in the bill that the defendant ever agreed in writing to hold the lands in trust for Mrs. Randall. In fact it is manifest from the whole bill that the agreement was a mere matter of conversation between the parties, and that no memorandum in writing was ever made. Inasmuch as it concerns an interest in lands, and is in parol, it is void by the Statute of Frauds and appearing as it does on the face of the bill, the defense of the Statute of Frauds may be taken It seeks to annul a sale of lands made by virtue of a decree of the Cecil court, sitting as a court of equity in a cause depending between these same parties; to effect the distribution of the proceeds of the sale; to enjoin the defendant from making any disposition of the lands purchased by him; to disturb his *pos- [*590 session; to invalidate his title, and to have the mortgaged property resold. This is a direct and positive interference with the rightful authority of the state court. If there was error in the proceedings of the court, a review can be had in the appellate tribunals of the State. If, as is charged, the decree is sought to be perverted and made the medium of consummating a wrong, then the court, on petition or supplemental bill, can prevent it. If, as appears by the proceedings, the surplus money arising from the sale is still undisposed of, then the whole case is under the control of the court, and no supplemental is needed even to prevent the wrong. The decree, dismissing the bill, is affirmed. NEBRASKA CITY, Plff. in Err., v. JOHN C. CAMPBELL. (See S. C. 2 Black, 590-593.) Liability of municipal corporations for defect in bridge or street-evidence of damages, in action for injury. Municipal corporations, upon which the duty is imposed to construct and repair, or to keep in repair, streets or bridges, and upon which is also conferred the means of accomplishing such duty, are liable for any special damage arising out of neglect in keeping the same in proper condition. Weightman v. Corp. Washington, 66 U. S. ante, p. 52, reaffirmed. In an action for personal injury from a defective bridge, proof of the ordinary business in which the plaintiff was engaged, and that he was largely engaged in it, was admissible and pertinent upon the question of damages, though the facts were not set out in the declaration. Submitted Dec. 10, 1862. Decided Jan. 5, 1863. advantage of on demurrer. Walker v. Locke, ON ERROR to the Supreme Court of the Ter 5 Cush., 90. 2. Has this court jurisdiction? A conflict of jurisdiction is always to be avoided. Mr. Jus tice Grier, in Peck v. Jenness, 7 How., 624, says: "That it is a doctrine of law too long established to require a citation of authorities, that, where a court has jurisdiction it has a right to decide every question which occurs in the cause, and whether its decision be correct or otherwise, its judgment, till reversed, is regarded as binding on every other court. "These rules have their foundation not merely in comity, but on necessity. For if one may enjoin, the other may retort by injunction; and thus the parties be without remedy, being liable to a process for contempt in one if they dare to proceed in the other." The bill in this case brings in review various matters passed on in the progress of a suit by of Nebraska. The case is stated by the court. Messrs. Wm. H. Taylor and M. Thompson, for plaintiffs in error: No action at common law will lie against a municipal corporation, at the suit of an individual, for not repairing a bridge. 8 Barb., 645; 17 How., 161; 7 Wend., 474; 12 Mo., 415; Gosler v. Corp. of Georgetown, 6 Wheat., 593; Mower v. Inhabitants of Leicester, 9 Mass., 247; Bartlett v. Crozier, 17 Johns., 439; Hedges v. County of Madison, 1 Gilm., NOTE. The common-law liability to repair high ways-see note to City of Providence v. Clapp, 15 L. ed. U. S. 72. Liability to repair highways in U. S. Safety and convenience, a mixed qucstion of law and factsee note to Fitch v. Creighton, 16 L. ed. U. S. 596. Liability of counties for injuries from defective roads and bridges-see note, 39 L. R. A. 33. |