court has gone further than the local courts in permitting inquiries into facts occurring prior to the issuing of a grant.1 The court below gave no opinion upon any specific evidence, but on the general question, and rejected the whole testimony, which was offered to prove that the warrants were forged. But in order to prove this, the production of the warrants was indispensable, and no inferior proof ought to have been received. The abstract is defective, because it is only of a part of a record, when it ought to be of the whole, and so certified. It is a part only of a copy of a copy. The attempt to infer the spuriousness of the warrants from the identity of the numbers, was justly repelled, because the same numbers are often given to many warrants, and it can seldom be shown on what entry the grant issued. The report of the select committee of the legislature was also inadmissible as evidence; both because there is no proof that it was ever acted on by the house and because the state of Tennessee had, at the time, no authority over the lands, North Carolina having retained the right of completing titles originating before the cession. 3. But, even supposing the grant under 301*] *which the defendants claim to have been fraudulently obtained by the original grantees, as they are bona fide purchasers without notice, they are entitled to the protection of the court.2 The courts of Tennessee have established the doctrine, that even in the case of a void grant, a junior grantee shall not avail himself of its nullity as against an innocent purchaser without notice.3 Mr. Justice Johnson delivered the opinion of the court: Both these titles are founded on what are called removed warrants, and priority of entry is altogether immaterial to the issue. But the existence of an entry, it is contended on behalf of the plaintiff, is indispensable to the issuing of a warrant of survey, and to the validity of grants, which ought by law to have their origin in such entries. With a view, there fore, to impeach the prior grant to Sevier, under which these defendants claim, the plaintiff proposes to prove that there never were in fact any entries made to justify the issuing of the warrants under which their title had its inception. It has been also suggested, that his intention further was to prove the warrants themselves forgeries. But this does not appear from the bill of exceptions, as will be more particularly shown when we come to analyze it, with a view of determining what evidence appears to have been rejected in the Circuit Court. 302*] *The evidence offered in the court below, with a view to invalidating Sevier's grant, was rejected, and on the writ of error to this court, one general question arises, whether any, and if any, what evidence of facts, prior to the issuing of a grant, shall be received to inval idate it. When the case was before this court, in the year 1815, the same question was brought to its notice, and received its most earnest and anxious attention. Long experience had satisfied the mind of every member of the court of 1. -9 Cranch, 98. 2. 3. -Fletcher v. Peck, 6 Cranch, 133. Miller v. Holt, 1 Tenn. Rep. 111. the glaring impolicy of ever admitting an inquiry beyond the dates of the grants under which lands are claimed. But the peculiar situation of Kentucky and Tennessee, with relation to the parent states of Virginia and North Carolina, and the statutory provisions and course of decisions that have grown out of that relation, has imposed upon this court the necessity of pursuing a course which nothing but necessity could have reconciled to its ideas of law or policy. The sole object for which jurisdiction of cases, between citizens of different states, is vested in the courts of the United States, is to secure to all the administration of justice, upon the same principles on which it is administered between citizens of the same state. Hence, this court has never hesitated to conform to the settled doctrines of the states on landed property, where they are fixed, and can be satisfactorily ascertained; nor would it ever be led to deviate from them, in any case that bore the semblance of impartial justice. It has been supposed, that in the former decision alluded to in this case, this court has gone beyond the decisions of the courts [*303 of Tennessee, in opening the door to inquiries into circumstances occurring prior to the issuing of a grant. An attentive perusal of that decision will detect the error; or prove, if it has done so, it has done it on principles that cannot be controverted. It is obvious from the report of the decision that it was at that time presented under an aspect somewhat different from that in which it now appears. The forgery of the warrants constituted a part of the case which the plaintiff was precluded from making out in evidence. And to collect the purport of the decision, at that time rendered, the best resort will be to the words in which it is delivered. Two sentences will give the substance of that decision. They are expressed in the following words: "But there are cases in which a grant is absolutely void; as where the state has no title to the thing granted, or where the officer had no authority to issue the grant. In such cases, the validity of the grant is necessarily examinable at law." And "If, as the plaintiff offered to prove, the entries were never made, and the warrants were forgeries, then no right accrued under the act of 1777; no purchase of the land was made from the state; and independent of the act of cession to the United States, the grant is void by the express words of the law." These two sentences comprise the substance of that decision. For, as to the doubts expressed in the last paragraph of the opinion, relative to the inception of a right in the ceded territory prior to the cession, it is but a doubt, and is removed by a reference *to [*304 the 6th section of the act of 1784. As to the question what evidence shall be sufficient to prove the existence of the entry, the court is silent. As to what validity shall be given to the grants emanating from North Carolina, the decision places it upon the statutes of North Carolina. And although an opinion is expressed that North Carolina could make no new grants after the cession, who could have entertained a doubt upon that question? The right reserved to her was to perfect incipient grants; | but what restraint is imposed upon her discretion? or what doubt suggested of her good faith in executing that power? It will be perceived, that as to irregularities committed by the oflicers of government prior to the grant, the court does not express a doubt but that the government, and not the individual, must bear the consequences resulting from them. On the contrary, it declares that the existence of the grant is, in itself, a sufficient ground, from which every man may infer that every prerequisite has been performed. All, then, that it decides is, that an entry was indispensable as the inception of a title to Sevier; that if an original grant had issued to him after the cession, or a title had been perfected where there was no incipient title before the cession, as in the case of a grant on a forged warrant, and no entry, that it would be void. But, in admitting that the grant shall support the presumption that every prerequisite existed, it necessarily admits that a warrant shall be evidence of the existence of an entry. Nor is it by any means conclusive to the contrary that 305*] the entry does not appear upon the abstract of entries in Washington county, recorded in the secretary's office. On the contrary, if the warrants issued are signed by the entry-taker, it is conclusive that the locations were received by him, and if he omitted to enter them, his neglect ought not to prejudice the rights of him in whose favor the warrants were issued. North Carolina have been performing an act toward perfecting a right, where, by the supposed case no right could possibly have existed, no entry ever was made, and the warrant forged? A new grant, it must be admitted, she could not have made; but would not this have been a new grant? We will respect the decisions of the state tribunals, but there are limits which no court can transcend. But the courts of Tennessee have not so decided. In the case of Dodson v. Cocke & Stewart, it will be found that the marginal note of the decision is too general in its expression, and that the court decides nothing but what has been expressly admitted by this court, since the legal validity of the entry is made the very basis of that decision. So of the case of Sevier & Anderson v. Hill, the only point on which the judges seem to have coincided was, that no oth er consideration should be proved than what the grant expressed on the face of it (see the opinion of Judge Humphreys). If any other point is decided, it is immaterial to the present question. *This court disavows having ever de- [*307 cided more than that an entry, or other legal incipiency of title, was necessary to the validity of a grant issued by North Carolina, for lands in Tennessee, after the separation. They have never expressed an inclination to let in inquiries into the frauds, irregularities, acts of negligence, or of ignorance of the officers of government, prior to the issuing of the grant; but, on the contrary, have expressed the opinion that the government must bear the consequences. But while they admit that a genuine warrant shall be in itself the evidence of an entry, they cannot yield to the absurdity of attaching that effect to a forged warrant. That an entry is necessary to give validity to these grants, we think not only perfectly deducible from the statutory provisions in force in Tennessee, but also from the legal adjudications of their courts. Nay, they have not assumed the principle, that the issuing of the With regard to the decisions of the state of grant shall be deemed a recognition of the legal North Carolina, it is a well-known fact, that on sufficiency of an entry; but have decided a the subject of the effect of entries, the courts of grant void which emanated from an entry not the two states are at direct variance. And, sinsanctioned by the statutes of North Carolina, gular as it may seem, opposite constructions of though the grant was issued when it might the same laws constitute rules of decision to have lawfully issued. Jackson v. Honeycut, 1 their respective courts. And if it is the law Tenn. Rep. 30. And in the case of Dodson v. upon their own citizens, we are willing to apply Cocke & Stewart, so much relied on in the ar- the same rules of property to all others. But gument, the legal validity of a grant is ex- even the courts of that state, in their rigid adpressly referred to the validity of the entry at herence to the dates and effect of grants, and the time it was made. Id. 232. It would, in- the principle that they are not void but voidadeed, be wonderful if it were otherwise, since ble, are sometimes driven to the most awkward it is the acknowledged law of Tennessee, that shifts in adjudicating on cases affected by the a prior entry will give precedence to a junior act of 1777. Thus, in The Trustees of the Unigrant; a principle which obviously supposes versity v. Sawyer, Taylor's Rep. 114, they have the entry to be of the essence of the transfer of said, that although "they cannot declare a property; the grant, that which gives it palpa-grant void, they will adjudge that the grantee ble existence; or, at least, that it holds the freehold in abeyance, ready to vest upon the contingency of the expected grant. takes nothing under it." And in a case decided in 1802 (N. Carolina Rep. 441), they have found *themselves compelled, under their acts [*308 of 1777, 1778, and 1783, to declare a grant absolutely void, on the ground of the invalidity of the entry with reference to facts that required the intervention of a jury. So that it would seem even in North Carolina a valid entry was indispensable to a valid grant. That priority of entry would not give priority to a junior grant is certainly decided in the case of Williams v. Wells, reported in the North Caro It has also been asserted, that the courts of the state of Tennessee have frequently, and uni306] formly, decided directly the reverse of the opinion of the Supreme Court. This assertion has reference to that part of the opinion which declares, that a grant issuing "without entry, and on forged warrants," is a void grant. Such an idea could only have resulted from inat tention to the obvious distinction between the acts of the state's agents or officers and the im-lina Law Repository, 383. But even that point, positions practiced upon them; between the case of a right really incipient, and that where no right ever did exist. How could the state of it would seem, had not been well established as a principle of law, since the jury in that case (which is a recent one) manifested their dissat isfaction with the charge of the court, by finding against it. There was one point made in the argument of this case, which, from its general importance, merits our serious attention, and which may have entered into the views of the Circuit Court in making their decision. It was, whether, admitting this grant to be void, innocent purchasers without notice, holding under it, should be affected by its nullity. This would seem to depend on the question, whether we shall, as to innocent purchasers, view it as a void or voidable grant. On general principles, it is incontestable, that a grantee can convey no more than he possesses. Hence, those who came in under the holder of a void grant can acquire nothing. But it is clear that the courts of the state of Tennessee have held otherwise. In Miller v. Holt, 1 Tenn. Rep. 111, it is expressly adjudged, that 309*] whether a grant be *void or voidable, a junior grantee shall not avail himself of its nullity as against an innocent purchaser without notice. Yet the North Carolina act of 1777 certainly declares grants obtained by fraud to be absolutely void. And the same result must follow where the state has relinquished its power to grant, or no law exists to support the validity of a grant. But it seems that the courts of Tennessee have adopted this distinction, that grants in such cases shall be deemed void only as against the state, and not then until adjudged so by some process of law. That as between individuals, the title shall be held to vest sub modo, and innocent purchasers, without notice, shall not be ousted by the intervention of a subsequent grantee. If this be the settled law of Tennessee, we are satisfied that it should rest on the authority of adjudication. There is certainly a palpable distinction between the cases of an original grantee and a subsequent purchaser without notice. There can be no reason why the grantee should be favored by the leaning of courts; but the latter, finding the grantee in possession of the patent of the state, which on its face presents nothing to put him on his guard, has strong claims upon the favor of courts, and the justice of the country. Upon analyzing the bill of exceptions it will be found that the plaintiff does not propose to prove in express terms that the warrants in this case were forgeries. But, with a view to proving that there were no entries to authorize the issuing of the warrants, he tenders various 310*] certified documents from the several offices of North Carolina and Tennessee, from which he would raise an inference that it was impossible that such entries could have existed; and then tenders parol evidence to prove that the locations on which the warrants purport to have issued had never been passed to entry, and together with the warrants and surveys founded upon them had been rejected by a particular entry-taker (the successor of him who is supposed to have issued these warrants), on the ground of their being spurious and invalid. Also, that they had been reported as spurious by a committee of the Tennessee legislature. As the exception does not come up on a misdirection of the court, but generally on the re jection of the evidence offered, the only remaining questions arise on its legal competency. And, first, we are of opinion that the document marked K. in the transcript of the record was competent evidence to prove the fact of the existence of the entries therein specified, and so far it ought to have been admitted, because it is expressly made evidence by the act of the 21st of September, 1801. But, as far as a negative use was intended to be made of that abstract, we are of opinion, the certificate of the officer was properly rejected. There is no such effect given either to that document or the clerk's certificate, by any legislative act, and such an effect could only be given to the production of the whole abstract, from which the court might, by inspection, have ascertained the fact of the non-existence of the contested entries; or from an examination *of the [*311 keeper of that document as an ordinary witness, or inspection of it made under a commission. The documents offered, marked H. & L., were numerous certificates from the secretary's office of North Carolina, of warrants and grants, introduced to prove that on the entries of the dates specified as the dates of the entries to Sevier, other warrants issued, and other grants were obtained in the name of various individuals, but none to Sevier. This evidence, also, we are of opinion, was competent circumstantial evidence, and ought not to have been wholly rejected. With regard to the report of the committee of the house, we can hardly think it could have been seriously offered; and the parol evidence respecting the rejection by the subsequent entrytaker, was also properly rejected, inasmuch as the rejection of the return of these warrants and surveys was a perfectly immaterial circumstance upon this issue. It might as well have been the result of that entry-taker's folly, or his wrong, as of any other cause. The emanation of the grant is sufficient evidence that the claim of Sevier must have met with a more favorable reception from a higher quarter. Upon the whole, the only ground on which we could sustain the decision in the court below is, that a subsequent purchaser without notice is not to be affected by any legal defects in a grant which might have issued conformably to existing laws. For, in that case, all the evidence rejected may have been immaterial to the issue. But, non constat, that the evidence rejected was not connected with proof to rebut that [*312 defense. It is, therefore, not necessary here to decide definitively on that point of the law. If it is the received doctrine of the Tennessee courts, we have expressed our inclination not to shake it. But the cause must necessarily be sent back upon the rejection of the documents marked H. K. & L. Judgment reversed. Judgment. This cause came on to be heard on the transcript of the record of the Circuit Court for the District of West Tennessee, and was argued by counsel. On consideration whereof, it is the opinion of this court that there is error in the proceedings of the said Circuit Court in rejecting the documents marked in the transcript of the record with the letters H. K. & L., as incompetent evidence. It is therefore adjudged and ordered, that the judgment of the Circuit Court, for the District of West Tennessee, in this case, be, and the same is hereby reversed and annulled. And it is further ordered, that the said cause be remanded to the said Circuit Court, with directions to award a venire facias de novo. 313*] court. [*Chancery.] MARSHALL v. P. R. BEVERLEY. In equity, a final decree cannot be pronounced until all parties in interest are brought before the Where a bill was filed for a perpetual injunction, on judgments obtained on certain bills of exchange drawn by the plaintiff, and negotiated to the defendant, and which had subsequently passed from the latter into the hands of third persons, by whom the judgments were obtained; held, that the injunction could not be decreed until their answers had come in, although the bill stated, and the defendant admitted, that he had paid the judgments, and was then the only person interested in them, because such statement and admission might be made by collusion. Carter Beverly, being indebted to the appellant, Horace Marshall, assigned to him several bills of exchange, amounting, in the aggregate, to £900 sterling, which had been drawn by the respondent, Peter R. Beverley, on Bird Beverley, of London, in favor of the said Carter Beverley. These bills were severally transferred, for valuable consideration, by the appellant, to Luke Tiernan & Co., Stewart Montgomery & Co., Jesse Eichelberger & Co., and Cornelius and John Comegys; and having been forwarded by them to London for payment, were protested for non-acceptance and non-payment, and so returned. Suits were instituted by these parties against Peter R. Beverley, on which he confessed judgments. Having been taken in execu314*] tion and *imprisoned, he gave bond for the prison bounds, which be broke. A second series of suits were brought on the prison bounds bonds, after judgments on which, he filed the present bill against Horace Marshall, Carter Beverley, Luke Tiernan & Co., Stewart Montgomery & Co., Jesse Eichelberger & Co., Cornelius and John Comegys, and John Brown, charging usury in the transactions between Carter Beverley and Horace Marshall, and a fraudulent sale of certain slaves of Carter Beverley, on which Horace Marshall retained a lien, as a collateral security for his debt; and charg ing, also, that although the suits were in the name of Luke Tiernan and others (to whom the bills had been transferred), they were, in fact, for the complainant's benefit, he having paid to his indorser what was due on those bills. On these grounds, a perpetual injunction was prayed for and awarded. The appellant, by his answer, admitted the last allegation, but denied the usury, and insisted that the sales of Carter Beverley's negroes had been made in strict conformity with the deed of trust under which they were sold. None of the other defendants answered the bill. This cause was argued by the Attorney-General for the appellant, and by Mr. Jones and Mr. Taylor for the respondent. Mr. Justice Livingston delivered the opinion of the court: This is an appeal from a decree in equity, of the Circuit Court for the District of Virginia, to which the following objec- [*315 tions have been made: 1st. That there is a defect of parties. Although all the persons in interest are made defendants to the bill, yet none of them had appeared to it except the appellant, on whose answer, and the proofs in the cause, the decree was made. 2d. Another objection is, that there was competent relief at law against the usurious contract stated in the bill; but as no defense of this kind was there set up, a court of chancery ought not to have interfered, especially after judgment had been obtained on the bills, and even on the prison bounds bonds, which were taken on the execution which had issued on those judgments. 3d. It is also contended that there was no Wirtz, 1 Wash. C. C. 517: Elmendorf v. Taylor, 10 NOTE. A bill filed by a non-consenting stock | Mason, 190; Hallett v. Hallett, 2 Paige, 15; Joy v. holder of a railroad corporation which had become consolidated with three others, to have the consolidation declared void, and proceedings under it enjoined may be dismissed, if the president and directors of the consolidated company are not made defendants. Tyson v. Virginia R. Co. 1 Hugh. 80. The proper time to take objection for want of parties, is upon opening the pleadings, and before the merits are discussed; but it frequently happens that after a cause has been heard, the court feels compelled to let it stand over for the purpose of amendment. 1 Barb. ch. Pr. 320; Jones v. Jones, 3 Atk. 111; Darwent v. Walton, 2 Atk. 510. The objection for want of parties ought to proceed from the defendant. Innes v. Jackson. 16 Ves. 356. Where plaintiff was not aware, at the commencement of the action, that there are other parties who should be joined, he ought to apply as soon as he has obtained that knowledge. Id. An objection at the hearing for want of a particular party, may be obviated by plaintiff's waiving the relief he is entitled to against such party. Pawlet v. Bishop of Lincoln, 2 Atk. 296. All persons interested in the object of the bill are necessary and proper parties. Cockburn v. Thompson, 16 Ves. 321, 326; Adair v. New River Co. 11 Ves. 429; Wendell v. VanRensselaer, 1 John. Ch. 349; Wiser v. Blackley, 1 John. Ch. 437: Brasher v. VanCortland, 2 John. Ch. 245, 247; West v. Randall, 2 If complete justice between the parties before the court cannot be done without other parties being made, whose rights or interests will be prejudiced by a decree, then the court will altogether stay its proceedings, even though those other parties cannot be brought before the court; for, in such cases, the court will not, by its endeavors to do justice between the parties before it, risk the doing of positive injustice to other parties, not before it, whose claims are or may be equally meritorious. Harding v. Harding, 11 Wheat. 126; Hallett v. Hallett, 2 Paige, 15; West v. Randall, 2 Mason, 190-196; Fell v. Brown, 2 Bro. Ch. 276; Joy v. Wirtz, 1 Wash. C. C. 517; Ward v. Arredondo, 1 Paine, 410; 1 Hopk. 213; Story Eq. Pl. s. 77; Bailey v. Inglee, 2 Paige, 278; Davis v. Mayor, 14 N. Y. 506; 2 Duer, 663; Hoxie v. Carey, 1 Sumn. 173; Cameron v. Roberts, 3 Wheat. 591; Shields v. Baron, 17 How. 130. The want of proper parties to a bill is a good defense in equity. Story, Eq. Jur. s. 1526; Cooper, Eq. Pl. ch. 1, p. 34: Miford, Eq. Pl. by Jeremy, 163, 164: McMahon v. Allen, 12 How. Pr. 39; 3 Abb. Pr. 89; 1 Hilt. 103; Powell v. Finch, 5 Duer. 666 Warnig v. Warnig, 3 Abb. Pr. 246; Shaver v. Brainard, 29 Barb. 25; Baldwin v. Lamar, Chase Dec. 432; Conn. v. Penn. post, 324. usury in any of the contracts between the appellant and Carter Beverley, and that the sale of the negroes under the deed of trust was fair, and in strict pursuance of the authority vested in the trustee. 4th, and lastly. Admitting the usury, and a only on the first of them. The power of Congress to levy and collect ta duties, imposts and excises, is co-extensive with territory of the United States. The power of Congress to exercise exclusive risdiction in all cases whatsoever within the trict of Columbia, includes the power of taxing brought in the Circuit Court for the ] trict of Columbia, to try the right of Cong to impose a direct tax on that district, and which the court below gave judgment for defendant, was argued by Mr. Jones for plaintiff, and by the Attorney-General for defendant. Mr. Chief Justice Marshall delivered This case presents the consideration of the court a single quest opinion of the court: it is this: *Has Congress a right to im- [*: pose a direct tax on the District of Colum fraud in the sale, it is insisted that the respond-THIS case, which was an action of tres ent, being an entire stranger to these transactions, and no right to call the appellant to account, or to any relief as against him. The court has had under its consideration all these objections; but will now give its opinion We are all satisfied that when this decree was pronounced, the case was not prepared for a final hearing. The bills which had been drawn by P. R. Beverley, having passed by Marshall into the hands of third 316] persons, who had obtained judgments on them, and it being a principal object of the suit to enjoin further proceedings on them, the parties in whose favor they were rendered, ought not only to have been made defendants but a perpetual injunction ought not to have been decreed until their answers were filed. It was not enough in their absence that the complainant should state, and the defendant admit, that the latter had paid these judgments, and was now the only person interested in them. This might be done by collusion, and although that may not be the case here, it is not the course of a court of equity to make a decree which is to operate directly upon the parties in interest, as the perpetual injunction does here, without affording them an opportunity of being heard. For this error, the decree must be re In the la The counsel who maintains the negative contended, that Congress must be considered two distinct characters. In one character legislating for the states; in the other, as a character, it is admitted, the power of levy cal legislature for the district. direct taxes may be exercised; but, it is tended, for district purposes only, in like m ner as the legislature of a state may tax people of a state for state purposes. Without inquiring at present into the sou ness of this distinction, its possible influ on the application in this district of the t the amendments, may not be altogether worthy of consideration. It will readily s article of the constitution, and of several versed, and the cause remanded for further pro-gest itself to the gentlemen who press this a ceedings. Decree reversed. ment, that those articles which, in gen terms, restrain the power of Congress, may applied to the laws enacted by that body the district, if it be considered as govern the district in its character as the natio legislature, with less difficulty than if it be sidered a mere local legislature. But we deem it unnecessary to pursue investigation, because we think the right Congress to tax the district does not dep solely on the grant of exclusive legislation. The 8th section of the 1st article gives Congress the "power to lay and collect ta duties, imposts and excises," for the purp thereinafter mentioned. This grant is gene without limitation as to place. It conseque ly extends to all places over which [*3 Decree. This cause came on to be heard on the transcript of the record of the Circuit Court for the District of Virginia, and was ar gued by counsel. On consideration whereof, it is the opinion of this court that the said Cir cuit Court erred in perpetually enjoining the proceedings on the judgments obtained against the respondent, Peter R. Beverley, and the appellant, Horace Marshall, because the bills of exchange, which had been drawn by the said Peter R. Beverley, had passed into the hands of third persons, by whom the said judgments had been obtained, and before the answers of such creditors, who had been made defendants 317*] to said bill of complaint, had come in. doubted, the doubt is removed by the su It is therefore decreed and ordered, that the de-quent words which modify the grant. T cree of the said Circuit Court in this case be, words are, "but all duties, imposta and and the same is hereby reversed and annulled. cises, shall be uniform throughout the Un And it is further ordered, that the said cause States." It will not be contended that be remanded to the said Circuit Court for fur- modification of the power extends to pla ther proceedings to be had herein according to law. [Constitutional Law.] LOUGHBOROUGH v. BLAKE. Congress has authority to impose a direct tax on the District of Columbia, in proportion to the census directed to be taken by the constitution. the to government extends. If this could which the power itself does not tend. The power, then, to lay and collect ties, imposts, and excises, may be exerci and must be exercised throughout the Un States. Does this term designate the whole any particular portion of the American emp Certainly this question can admit of but answer. It is the name given to our great public, which is composed of states and te tories. The District of Columbia, or the te tory west of the Missouri, is not less wit the United States than Maryland or Penn |