principal and sureties, including that of the defendant, Lamaster, and the sale by the marshal of the defendant's property under and by virtue of the execution, was authorized by law." And again, "that when the bond was taken by the clerk, as shown in evidence, and when the proceedings were taken thereon leading to the sale by the marshal of the property in question, the statute of this state, passed on the twenty-third of February, 1875, and entitled 'An act to provide for stay of executions and orders of sale,' was in force in the court, and was a law therein, the same as in the district courts of the state." And the court further instructed the jury to find a general verdict for the plaintiff. To the refusal of the court to give the instruction requested, and to the instructions given, the defendant at the time excepted. The jury found a verdict for the plaintiff; and to review the judgment entered thereon the defendant has brought the case here on a writ of error.

On the thirtieth of December, 1876, and not before, the circuit court of the United States for the District of Nebraska made the following order: "Ordered, that the laws of the state of Nebraska, now in force, regulating the issuing of executions and of the proceedings to be had thereon and thereunder, be, and the same are hereby, adopted as the rule of procedure to enforce the collection of judgments in the United States circuit and district courts for said state."

W. C. Goudy, Geo. W. Doane, John F. Dillon, for plaintiff in error. J. M. Woolworth, for defendant in error.

Mr. Justice FIELD, after stating the case, delivered the opinion of the court, as follows:

The contention of the plaintiff below, the defendant in error here, that the act of Nebraska of February 23, 1875, governed proceedings for the stay of money judgments in the federal courts of the Nebraska district equally as for the stay of such judgments in the courts of that state, and in like manner determined the liability of sureties upon bonds given for such stay, is founded upon the language of section 914 of the Revised Statutes, which is as follows: "The practice, pleadings, and forms and modes of proceeding in civil causes, other than equity and admiralty causes in the circuit and district courts, shall conform, as near as may be, to the practice, pleadings, and forms and modes of proceeding existing at the time in like causes in the courts of record of the state within which such circuit or district courts are held, any rule of court to the contrary notwithstanding."

This section is a re-enactment of section 5 of the act of June 1, 1872, "to further the administration of justice," (17 U. S. St. c. 255,) and was intended to assimilate the pleadings and the procedure in common-law cases in the federal courts to the pleadings and procedure used in such cases in the courts of record of the state within which the federal courts are held. Much inconvenience had been previously felt by the profession from the dissimilarity in pleadings, forms, and modes of procedure of the federal courts from those in the courts of the state, consequent upon the general adherence of the former to the common-law forms of actions, pleadings, and modes of procedure; while the distinctions in such forms of action and the system of pleading and the modes of procedure peculiar to them had been in many states abrogated by statute. The new codes of procedure did not require an accurate knowledge of the intricacies of common-law pleading; and to obviate the embarrassment following the use of different systems in the two courts the section mentioned of the act of 1872 was adopted. As said by this court in the case of Nudd v. Burrows, 91 U. S. 426, 441, its purpose "was to bring about uniformity in the law of procedure in the federal and state courts of the same locality. It had its origin in the code enactments of many of the states. While in the federal tribunals the common-law pleadings, forms, and practice were adhered to, in the state courts of the same district the simpler forms of

the local code prevailed. This involved the necessity, on the part of the bar, of studying two distinct systems of remedial law, and of practicing according to the wholly dissimilar requirements of both. The inconvenience of such a state of things is obvious. The evil was a serious one It was the aim of the provision in question to remove it. This was done by bringing about the conformity in the courts of the United States which it prescribes.

The general language of the section, in the absence of qualifying provisions, would comprehend all proceedings in a cause, from its commencement to its conclusion, embracing the enforcement of the judgment therein. The court which has jurisdiction of a cause has jurisdiction over the various proceedings which may be taken therein, from its initiation to the satisfaction of the judgment rendered. Any practice, pleading, form, or mode of proceeding which may be applicable in any stage of a cause in a state court would therefore, under the section in question, in the absence of other clauses, be also applicable in a like stage of a similar cause in a federal court. The section would embrace proceedings after judgment equally with those preceding its rendition.

The first process act of congress, passed September 29, 1789, (1 St. 93,) provided "that, until further provision shall be made * * * the forms of writs and executions, except their style, and modes of process, *** in the circuit and district courts, in suits at common law, shall be the same in each state, respectively, as are now used or allowed in the supreme courts of the same." The second process act, passed May 8, 1792, (1 St. 275,) provided "that the forms of writs, executions, and other process, except their style, and the forms and modes of proceeding in suits, in those of common law, shall be the same as are now used in the said courts, respectively, in pursuance of the act entitled 'An act to regulate processes in the courts of the United States,""-the first process act mentioned above.

In Wayman v. Southard, 10 Wheat. 1, these statutes were considered and construed by this court. And in giving a meaning to the language, "forms and modes of proceeding in suits," the court, speaking by Chief Justice MARSHALL, said that it "embraces the whole progress of the suit, and every transaction in it, from its commencement to its termination, which has been already shown not to take place until the judgment shall be satisfied. It may, then, and ought to be, understood as prescribing the conduct of the officer in the execution of process, that being a part of the proceedings in the suit." 10 Wheat. 32.

There would, therefore, be good reason for the contention of the plaintiff below, that the general words of section 914 of the Revised Statutes, "forms and modes of proceeding," apply to proceedings for the enforcement of judgments, as well as to proceedings before the judgments were rendered, but for the provisions of section 916, which is section 6 of the same act of June 1, 1872, from which section 914 was taken. Section 916 is as follows: "The party recovering a judgment in any common-law cause, in any circuit or district court, shall be entitled to similar remedies upon the same, by execution or otherwise, to reach the property of the judgment debtor, as are now provided in like causes by the laws of the state in which such court is held, or by any such laws hereafter enacted which may be adopted by general rules of such circuit or district court; and such courts may, from time to time, by general rules, adopt such state laws as may hereafter be in force in such state in relation to remedies upon judgments, as aforesaid, by execution or otherwise." This section shows that, in pursuing the remedies for the enforcement of a judgment in a common-law cause recovered in a federal court, the "forms and modes of proceeding" provided for the enforcement of a like judgment in a state court are not to be followed, unless they were prescribed by a law of the state, at the time the provisions of the section took effect, or, if subsequently prescribed by such law, until they have been adopted by a general

rule of the court. In providing for remedies upon judgments, the section not only excludes the application of the provisions of section 914 to such remedies, but also indicates the extent to which remedies upon judgments furnished by state laws may be used in the federal courts. Congress, which alone can determine the remedies which may be pursued for the enforcement of judgments in the federal courts, as well as the procedure to be adopted in the progress of a suit, has declared its will with respect to both. The procedure in civil causes, other than those in equity and admiralty, from their commencement to final judgment, must conforn, as near as may be, to the procedure existing at the time in like causes in the courts of record of the state in which the federal courts are held. It must, therefore, follow subsequent changes in the procedure in like causes in the state courts. But to enforce judgments in common-law causes, only such remedies can be pursued "as are now provided in like causes by the laws of the state, "-that is, when the act of congress on the subject, the above section, was passed or re-enacted, or, if provided by subsequent laws of the state, such as have been adopted by the federal courts. It matters not that the remedies designated in section 916 are stated to be to reach by execution or otherwise the property of the judgment debtor; and that proceedings under the stay-law of Nebraska are only to secure, where a stay is obtained, the personal liability of the sureties for the amount of the judgment,-in the absence of a designation of any other remedies, the section is a declaration that, until adopted by a rule of the court, no other remedies prescribed by state law shall be permitted in the federal courts. The extent to which the authority of the federal courts may go in the enforcement of judgments, by resort to remedies provided by state laws in similar cases, is thus defined and limited.

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Section 916, as mentioned, is taken from the act of congress of June 1, 1872, and is re-enacted in the Revised Statutes, which took effect as of December 1, 1873. The act of Nebraska of February 23, 1875, had not been adopted by any rule of the federal court when the judgment of Seymour v. Young was rendered in the circuit court of the United States, November 12, 1875, or when that judgment was extended by the clerk of that court, December 2, 1875, so as to embrace the sureties on the bond given to stay execution. That act was not adopted as a rule of procedure of that court until December 30, 1876.

It follows from this construction of the two sections, 914 and 916, that the act of Nebraska did not govern proceedings for the stay of execution upon that judgment, or determine the liability of the sureties on the bond or undertaking given for such stay; and that the act of the clerk extending that judgment against the sureties was without authority and void. The sale, under the execution of the property of Lamaster, one of the sureties, and the deed of the marshal to the purchaser at such sale, therefore conferred no title. The confirmation of the sale by the order of the court did not cure the invalidity of the execution upon which it was made. The extension of the judgment against Young, so as to embrace the sureties, being a void proceeding, no subsequent action upon the sale could give it validity. A confirmation of a sale may cure mere irregularities not affecting its fairness, but not an infirmity growing out of the nullity of the judgment under which it was had.

The judgment below must therefore be reversed, and the cause remanded for a new trial; and it is so ordered.

STRYKER, Ex'r, v. CRANE, Adm'r.1


etc., and others v. SAME.4 LITCHFIELD, Ex'r, v. SAME. Adm'r, v. SAME.3

(December 5. 1887.)


WELLS, Ex'r,

Act of congress March 3, 1845, provides for admitting Iowa into the Union. Section 7 provides that government lands should not be taxed by the state while the property of the United States. Laws Iowa 1861 provided that government lands entered or located" should not be taxed for the year in which the entry or location was made. Act congress, March 2, 1861, relinquished the interest of the United States in certain lands to the state of Iowa, for the benefit of certain bona fide purchasers. Held, that the question as to whether the lands so relinquished could be taxed after relinquishment for the year 1861, was one on which the judgment of the state court was final and not reviewable.


A railroad company assigned to plaintiff's decedent claims against owners of land for taxes paid by the railroad, while the title to the land was in dispute. The railroad company sold the land in 1864, and in 1869 the grantee sued to quiet title to the land, and to recover taxes paid by it since 1864, if its title failed. It was decided that it had no title, and could not recover for the taxes paid with knowledge, and voluntarily. The defendants in these suits were defendants in the suit to quiet title, and to suits to recover the taxes of 1861, 1862, and 1863 pleaded the other suit as res judicata. Held that, while the decision in that suit was a judicial precedent that they were not liable, it was no bar.

3. SAME.

A purchaser of a half section of land sued his vendor for damages for failure of title, and obtained judgment. Held, that while it was a precedent in suits between the vendor and other grantees of land under the same title, it was as an estoppel confined to the title of the parties to the suit in that particular half section.

In Error to the Supreme Court of the State of Iowa.

George Crane, administrator of E. K. Goodnow, brought five distinct suits against T. H. Stryker, executor of John Stryker; Richard B. Chapman; G. W. Welles, executor, etc.; Woolsey Welles; A. K. Welles; W B. Welles, Jr.; E. H. Litchfield, executor of E. C. Litchfield; E. H. Litchfield, administrator of Grace H. Litchfield,-the several defendants,-to recover taxes paid by plaintiff's decedent's assignor on land the title to which was in dispute. The supreme court of Iowa found for plaintiff, and the defendants brought writs of error.

C. H. Gatch and Wm. Connor, for plaintiffs in error. George Crane, for defendants in error.

WAITE, C. J. These suits all grew out of the delay which attended the settlement of the controversies in reference to the Des Moines river improvement land grant made by congress to the territory of Iowa, August 8, 1846, which will be hereafter referred to as the "River Grant." 9 St. 77. The character of those controversies may be seen by referring to the cases of Kailroad Co. v. Litchfield, 23 How. 66; Wolcott v. Des Moines Co., 5 Wall. 681; Williams v. Baker, 17 Wall. 144; Homestead Co. v. Railroad, Id. 153; and Wolsey v. Chapman, 101 U. S. 755. At first it was supposed, both by the officers of the United States and of the state, that the grant embraced lands above the Raccoon Fork of the river, and the state of Iowa made conveyances to the Des Moines Navigation & Railroad Company, under which John Stryker, Richard B. Chapman, Grace H. Litchfield, Edwin C. Litchfield, J. B. Plumb, and William B. Welles each claimed title to separate tracts in that locality as bona fide purchasers.

Affirming 14 N. W. Rep. 345, and 17 N. W. Rep. 506.

2 Affirming 21 N. W. Rep. 103.

4 Affirming 25 N. W. Rep. 864.

3 Affirming 25 N. W. Rep. 882.

On the fifteenth of May, 1856, congress made another grant of lands to the state to aid in the construction of railroads. 11 St. 9, c. 28. This grant conflicted with the river grant if the last-named grant extended above the Raccoon Fork. The title of the state under the railroad grant to some of the lands above the Fork was transferred to the Dubuque & Pacific Railroad Company, and that company, on the twenty-fifth of October, 1859, began a suit in ejectment against Edwin C. Litchfield to recover possession of one of the tracts. In that suit it was decided by this court, April 9, 1860, that the river grant did not extend above the Fork. Railroad Co. v. Litchfield, ubi supra. Thereupon congress, on the second of March, 1861, passed a joint resolution relinquishing the interest of the United States in the lands above the Fork to the state for the benefit of bona fide purchasers under the river grant.

The Des Moines Navigation & Railroad Company, holding title from the state to the lands above the Fork under the river grant, conveyed one of the tracts, on the eighth of August, 1859, to Samuel G. Wolcott, by deed, with full covenants of warranty. In 1865, Wolcott brought suit against the navigation and railroad company in the circuit court of the United States for the Southern district of New York to recover damages for a breach of the covenants in that deed, alleging that the title had failed. In that case it was decided by this court, May 13, 1867, that the railroad grant in 1856 did not include any of the lands above the Raccoon Fork which had been claimed under the river grant, and that the title of Wolcott under this deed from the navigation and railroad company had not failed. Wolcott v. Des Moines Co., ubi supra. While that cause was pending in this court, the attorney of the Dubuque & Pacific Railroad Company was allowed to file a brief in support of the claim of Wolcott that the title was in that company and not in the navigation company.

The title which the Dubuque & Pacific Railroad Company claimed from the state under the railroad grant passed to the Dubuque & Sioux City Railroad Company in the month of August, 1861, and that company afterwards paid the taxes assessed and levied on the lands in dispute for the years 1861, 1862, and 1863. Those for the year 1861 were paid October 31, 1866; those for 1862, December 9, 1863; and those for 1863, January 20, 1864. On the twelfth of November, 1863, the railroad company conveyed to the Iowa Homestead Company, an Iowa corporation, its title to the lands in dispute between the railroad company and the claimants under the river grant. The homestead company afterwards paid the taxes on the lands for the years 1864, 1865, 1866, 1867, 1868, 1869, 1870, and 1871.

On the twelfth of October, 1869, the homestead company began a suit in equity in the district court of Webster county, Iowa, to quiet its title to the lands, making the Des Moines Navigation & Railroad Company, Samuel G. Wolcott, William B. Welles, Roswell S. Burrows, Edwin C. Litchfield, William J. McAlpine, Richard B. Chapman, Albert H. Tracy, Francis W. Tracy, Harriet Tracy, Electus B. Litchfield, Edward Wade, John Stryker, the Des Moines Valley Railroad Company, Thomas Colter, Jacob Crouse, and John P. McDermott defendants. In the bill it was alleged that the homestead company had been in possession of the lands since 1861, and that "they have paid taxes thereon to the state of Iowa since, * * * and if their title has failed they are entitled to have their taxes refunded since 1861 by the holder of the legal title, who has not paid them."

As to the defendants Wolcott, Welles, Burrows, Edwin C. Litchfield, McAlpine, Chapman, Albert H. Tracy, Francis W. Tracy, Harriet Tracy, Electus B. Litchfield, Wade, and Stryker, it was alleged that they held title to certain parcels of the lands under the river grant. The defendants Colter, Crouse, and McDermott were alleged to be pre-emption claimants. The Des Moines Navigation & Railroad Company was the corporation to which the state transferred the river grant, and from which the other defendants, who

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