In the marginal note it is stated: "For this is to punish an unlawful act; but relations shall never devest any right legally vested in another between the death of the intestate and the commission of administration."

An administrator has likewise been held, by relation, to have such constructive right of possession in the goods of the intestate before grant of letters as to be entitled to maintain an action of trespass. Tharpe v. Stallwood, 5 Mann. & G. 760, and cases there cited. And, in Foster v. Bates, 12 Mees. & W. 226, Parke, B., said (p. 233):

The title of an assignee in bankruptcy was also early held to relate back, for the purpose of maintaining trover, to the time of the commission of the act of bankruptcy. See the subject reviewed in Balme v. Hutton, 9 Bing. 471, particularly pages 524, 525, where Tindal, Ĉ. J., observed that in Brassey v. Dawson, 2 Strange, 978, Lord Hardwicke, then chief justice of the King's bench, stated this relation to be a fiction of law, but that, subsequently, when chancellor, in Billon v. Hyde, 2 Ves. Sr. 330, he seemed to be of opinion that the terms of the bankrupt act, by necessary construction, imported that such relation was intended.

however, that before the determination of the ejectment suit the logs had been skidded upon adjoining land, would the ownership or right of possession depend upon which party first reached the skids? As is said in the Busch Case, as between the wrongdoer and the true owner of the land, the title to what is severed from the freehold is not changed by the severance, whatever may be the case as to strangers. If the true owner may keep his own property when he gets it, why may not he get it if another has it?"

Many decisions of this and other courts illustrate the application of the doctrine to various conditions of fact. Thus, where one has claimed land under a donation act, or has entered upon land under homestead or pre-emption statutes, the legal title subsequently acquired by patent has been held to relate back to a prior period, to quote the language of this court in Gibson v. Chouteau, 13 Wall. 100 [20: 536], "so far as it is necessary to protect the rights of the claimant to the land, and the rights of parties deriving their interests from him."

"It is clear that the title of an administrator, though it does not exist until the grant of administration, relates back to the time of the death of the intestate; and that he may recover against a wrongdoer who has seized or converted the goods of the intestate after his death, in an action of trespass or trover. All the authorities on this subject were considered by the court of common pleas, in the case of Tharpe v. Stallwood, 12 L. J. C. P. N. S. 241 (a), where an action of trespass was held to be maintainable. The Among the cases recognizing and applying reason for this relation given by Rolle, C. the doctrine that the legal title when ac-[229] J., in Long v. Hebb, Style, 341, is, that other-quired may be held, for certain purposes, to wise there would be no remedy for the wrong relate back to the inception of an inchoate done." right in the land, which, however, was in no sense an estate in the land, may be cited the following: Ross v. Barland, 1 Pet. 665 [7: 302]; Landes v. Brant, 10 How. 348 [13: 449]; Lessee of French v. Spencer, 21 How. 228, 240 [16: 97, 100]; Grisar v. McDowell, 6 Wall. 363 [18: 863]; Beard v. Federy, 3 Wall. 478 [18: 88]; Lynch v. Bernal, 9 Wall. 315 [19: 714]; Stark v. Starrs, 6 Wall. 402 [18: 925]; Gibson v. Chouteau, 13 Wall. 92, 100 [20: 534, 537]; Shepley v. Cowan, 91 U. S. 330 [23: 424]; Heath v. Ross, 12 Johns. 140; and Musser v. McRae, 44 Minn. 343. As was said in Gibson v. Chouteau, supra, 13 Wall. 101 [20: 537], the doctrine of relation is "usually" applied in this class of cases, but Another illustration of the application of is so applied "for the purposes of justice." [228]the doctrine is *where a grantee or mortga- I submit it is clear that the inchoate rights gee ratifies an unauthorized delivery of a in land held in the cases above cited to be conveyance or mortgage to a third person, in sufficient to warrant the application of the which case it is held that the title may relate doctrine of relation were of no greater legal back to the unauthorized delivery, except as or equitable merit or efficacy than the interto vested rights of third persons. See a re- est or expectant right in land with its inciview of numerous authorities in Rogers v. dents reserved to the United States by virtue Heads Iron Foundry Company, 51 Neb. 39 of the granting act of 1856 here consid [37 L. R. A. 429]. See also Wilson v. Hoff-ered, and this it strikes me is patent when it man, 93 Mich. 72, where it was held that a is borne in mind that it is conceded that the successful plaintiff in ejectment might main- interest of the United States in the land was tain an action of trover for logs cut by the such that, if the timber had been cut by the defendant from standing timber and re-state, the United States had the better right moved from the land during the pendency of the suit, and while in possession of the land under a bona fide claim of title adverse to the plaintiff. In that case the court said (p. 75):

"In the present case the true owner brings trover against the party who cut the logs, under a bona fide claim of title adverse to the owner, after the title to the land has been determined in favor of the plaintiff.

If in the present case the logs had been upon the land when the ejectment suit was determined, that determination would have established the title in the plaintiff. Suppose,

to the avails, and might, by an action for breach of covenant, recover the same from the state. But if the state, which held the legal title subject to an express trust, can be held to account by way of damages in an action of covenant for timber cut under its authority, why "for the purposes of justice" should not the doctrine of relation be applied in favor of the United States, at this time when, otherwise, a naked trespasser, who had no title of any kind, and whom the state, while it was trustee, chose not to sue and cannot now sue, will escape liability and the United States be defrauded

of the value of its property? To deny relief | ber from the land. Liford's Case, 11 Coke, under such a state of facts is, I submit, to 46b, 48a; Ward v. Andrews, 2 Chitty, 636; S. hold that if A conveys land in fee to B in C. 4 Kent, Com. 120; United States v. Cook, trust, to be held for C until the happening 19 Wall. 591, 594 [22: 210, 211]; Burnett v. of a certain event, and, after the contin- Thompson, 51 N. C. (6 Jones, L.) 210, 213; gency has happened, and the land has been Mathers v. Ministers of__Trinity Church, 3 conveyed to C and the trust thus terminated, Serg. & R. 515 [ 8 Am. Dec. 663], and cases the former cestui que trust discovers that cited; Moores v. Wait, 3 Wend. 104, 108; the land had been stripped of all its timber Gordon v. Harper, 7 T. R. 13; 1 Chitty, 230] by a trespasser and rendered practically I'lead. 16th ed. 217, star paging 168; 1 valueless, he is without remedy, and must en- Wash. Real Prop. 5th ed. 498, note T, star dure the pecuniary injury without com- paging 314; and the same principle applies plaint. to whatever is part of the inheritance and is wrongfully severed and removed from the land. Farrant v. Thompson, 5 Barn. & Ald. 826, 828.

If, as it seems to me is clearly the fact, the state of Michigan held title to the timber merely as an incident to the land, and could only exercise such powers with respect to the timber as it was entitled to exercise as respects the land itself, it results that the state did not stand in the attitude of a grantee of land upon condition subsequent, to whom an absolute conveyance had been made, for its sole use and benefit. Authorities, therefore, to the point that in the case of such a conveyance, the only right of the grantor is to receive back, upon re-entry, the granted land in the condition in which it might then exist, have no pertinency in a case like the present, where the grant was to the state, not as absolute owner, but as a mere trustee So, also, I submit that decisions which hold that upon the commission of a trespass upon land where the legal title and possession is in the real owner, or upon an infringement of a patent the legal title to which is in the real owner, a right of action to recover damages for the trespass or infringement immediately vests in such owner and becomes personal to him, so as not to pass upon a subsequent conveyance of the land or assignment of the patent, have no relevancy in cases like that at bar, where at the time of the trespass or infringement complained of the legal title and the possession were held by one who was a trustee for another, and had no real, beneficial interest in the land.

Nor can I see the appositeness of the citation of authorities holding that, during the existence of a trust, the trustee, and not the cestui que trust, is the proper person to sue. This is readily conceded, and such was the decision of this court in Schulenberg v. Harriman and in Lake Superior Ship Canal, R. & I. Co. v. Cunningham. The question here is not, Who may sue during the existence of the trust? but, What are the rights of the cestui que trust when the power of the trustee has ended and the property has reverted under the terms of the trust?

To summarize, therefore: The state of Michigan was not the beneficial owner of the land from which the timber in question was severed, but held the legal title merely as a trustee, though, by virtue of being vested with the legal estate, the state was entitled to enforce, for the benefit of the real owner, such remedies as the latter might have resorted to had he held the legal title. But if the owner, the United States, is not permitted to maintain the present action, it loses property which it had a clear right to receive, and the wrongdoer goes unpunished. These circumstances present all the elements which justify resort to the fiction of law by which a person who, in equity and good conscience, was the real owner at the time of an unlawful conversion, is to be regarded, as against the wrongdoer, to have had the legal title and possession, by relation, in him at the time of such conversion, and therefore as having had such a title and possession as, when his disability to assert his rights no longer exists, will entitle him to maintain an action of trover.

not recover whilst the trust existed because

Indeed, it seems to me that in reason it is impossible to deny the right of the true owner to recover the timber, without involv ing the mind in irreconcilable propositions and in addition making use of a complete nonsequitur, that is to say, first, that there was no trust, and yet that rights existed *which could only arise by reason of a trust; [232] and second, that the trustee alone could sue during the existence of the trust, therefore, on the termination of the trust, the same doctrine applies. Reduced to its last analysis, the doctrine now announced is, I submit, really this: That the United States could the trustee must assert the right, and that it likewise could not recover after the termination of the trust, and, hence, could not recover at all. The result in effect concedes the existence of a right of property, but holds The decisions are uniform, that even where that it cannot be protected because the law land is in the possession of a lessee, upon an affords no remedy. The maxim, Ubi jus, ibi [231]unauthorized severance of growing timber, remedium, lies at the very foundation of all the title and right of possession to the sev-systems of law, and, because, as has been ered timber is at once vested in the owner of the land, or, as it is sometimes expressed, the owner of the inheritance; and the latter may resort to the appropriate remedies against one who unlawfully removes the severed tim172 U. S.

stated at the outset, I cannot believe that the
common law departs from it, I refrain from
giving my assent to the conclusions of the
court, and express my reasons for dissenting


WILLIAM GRANT, Receiver of the Estate | to the grantees their shares in the property

of Oliver J. Morgan, Plff. in Err.,



(See 8. C. Reporter's ed. 232-239.)

Date of pre-existing right—set-off of rent-
suit in state court by receiver appointed
by Federal court-allowance of set-off.

1. An adjudication that a party is entitled
under a conveyance to one half the estate is a
determination of a pre-existing right which


dates from the time of the conveyance.

One half the rent paid to a receiver by one who took a lease from him rather than be disto be the owner of one half the estate, may be set off against the rent thereafter accruing

possessed, but who is subsequently adjudged

for the half that is subject to the receiver.
8. A receiver in a Federal court who volun-
tarily goes into a state court cannot ques-
tion the right of that court to determine
the controversy between himself and the
other party.


A counterclaim or set-off comes within the spirit of the act of Congress of August 13, 1888, allowing a receiver of a Federal court to be sued in a state court without leave of

the court appointing him.

[No. 89.]

as the heirs of his wife, and secondly, to make
a donation from himself. He died in 1860.
In 1872 certain creditors of Morgan, credit-[34]
ors of him individually, and not of the com-
munity, brought suit in the circuit court of
the United States to set aside the convey-
ance and subject his interest in the property
to the payment of their debts. Their conten-
tion was sustained by the circuit court, and
its decree was substantially affirmed by this
court. 111 U. S. 640 [28: 547]. Thereaf
ter, and in May, 1884, the circuit court ap-
pointed a receiver to take charge of all the
property conveyed by Morgan. Melbourne
plantation was at the time in the possession
of the present defendant in error, claiming
under the conveyance made by Morgan in
1858. After the appointment of the receiver
the defendant in error, rather than be dis-
possessed, leased from him the plantation.
The litigation continued, and, new parties
being named, came to this court again in
1891. 139 Ú. S. 388 [35: 199]. It was
then decided that one undivided half of the
Melbourne plantation belonged to the defend-
ant in error, and that only the remaining
half was subject to the debts of Morgan.
The language of the decree was: "The said
heirs are entitled to have and retain a cer-
tain portion of said Oliver J. Morgan's es-
tate free from the claims of his creditors, as

Submitted November 29, 1898. Decided De- follows, to wit: two fifths of the four plan

cember 19, 1898.

IN ERROR to the Supreme Court of Louis-
iana to review a judgment of that court
affirming a judgment of the District Court
of the Seventh Judicial District for East
Carroll Parish, Louisiana, in favor of the
defendant, John A. Buckner, allowing his set-
off for rent to the claims of William Grant,
receiver of the estate of Oliver J. Morgan,
plaintiff in an action brought by him to
recover one half the stipulated rent of the
Melbourne plantation in that state. Af-

See same case below 49 La. Ann. 668.
The facts are stated in the opinion.
Mr. J. D. Rouse for plaintiff in error.
Mr. Thomas Marshall Miller for de-
fendant in error.

[233] *Mr. Justice Brewer delivered the opinion of the court:

This case comes on error to the supreme court of the state of Louisiana. It is perhaps the last step in a litigation which has been going on for a quarter of a century, and which has twice appeared in this court. Johnson v. Waters, 111 U. S. 640 [28: 547]; Mellen v. Buckner, 139 U. S. 388 [35: 199]. In those cases the full story of the litigation is told. For the present inquiry it is sufficient to note these facts: Prior to the late civil war Oliver J. Morgan was the owner of five plantations in the state of Louisiana. His wife died intestate in 1844, leaving two children as her sole heirs. The property standing in his name was community property. In 1858 he conveyed the plantations to his children and grandchildren. The purpose of this conveyance was, first, to secure

tations, Albion, Wilton, Westland, and Mor
gana, are directed and decreed to be reserved

for the benefit of the heirs of Julia Morgan,
deceased; and one half of Melbourne planta-
tion is directed and decreed to be reserved
for the benefit of the heirs of Oliver H. Kel-
lam, Jr., deceased; and that the remaining
interest in the said plantations is decreed
and adjudged to be subject to the payment
and satisfaction of the debts due to the ad-
ministrator of said William Gay," etc.; and
further, after providing for other matters,
"but if the heirs shall not desire a sever
ance of their portions, then the whole prop-
erty to be sold and they to receive their re-
spective portions of the proceeds, but no al-
lowance for buildings. Any moneys in the
hands of the receiver, after paying his ex-
penses and compensation, are to be divided
between the creditors and heirs in the pro-
portions above stated, applying the amount
due to the heirs, so far as may be requisite,
to the costs payable by them." Two years
thereafter the interest of Morgan in the 235]
plantation was sold in accordance with the
terms of the decree. The defendant had paid
to the receiver the rent of the entire planta-
tion from 1884 up to the decree in 1891, but
paid nothing thereafter. This action was
commenced by the receiver in the district
court of the seventh judicial district for East
Carroll parish, Louisiana, to recover one half
the stipulated rent of the Melbourne plants-
tion for the years 1891 and 1892, as well as
one half of the taxes thereon for those years.
The defendant answered, not questioning his
liability for the matters set forth in the peti-
tion, but alleging that between 1884 and
1891 he had paid the receiver rent for the
entire plantation, one half of which had been

finally adjudged to be his property, and not | Gay, Administrator, v. Morgan, Executor, subject to the claims of creditors of Morgan, et al., but the careful reading and consideraand prayed to set off the one half of the rent tion which we have given the opinions and wrongfully collected between 1884 and 1891 decrees of the supreme court, and particuagainst the one half due for the years 1891 larly the supplemental decree in all the cases and 1892, and for a judgment over against consolidated, give us the firm impression the receiver for any surplus. The trial court that the court intended to hold and declare sustained his defense so far as to decree a full that the portions recovered by said heirs set-off to the claims of the receiver. The were theirs of right, and that they were to supreme court of the state affirmed the trial have them, not only free of the claims of court in this respect, but amended the judg- creditors of the estate of Oliver J. Morgan, ment so "as to reserve the defendant's but free from all costs and claims except as right to demand of and recover from the in the several decrees adjudged, and as thereplaintiff the residue of the amount of the after might be necessary in effecting partirents he has collected in excess of the sum ac- tion." And in the decree it was among tually due by the defendant, after a suffi- other things adjudged that "so much of said[237] ciency thereof has been used to extinguish by decree of June 2, 1893, as the same is of reccompensation the demands of said receiver in ord herein, as charges or attempts to charge this suit." 49 La. Ann. 668. Whereupon the said John A. Buckner and Etheline Buckthe receiver sued out this writ of error. ner as the owners of one half of Melbourne plantation, or that attempts to charge their said one half of said Melbourne plantation with lien privilege to contribute or to recuse the contribution of the sum of seven thousand three hundred and forty-seven .30 dollars to the payment of costs, disbursements, and solicitors' fees allowed by the court in and for the prosecution of the bill and action in case No. 6612 of the cases herein consolidated, be, and the same are, canceled, abrogated, annulled, and taken from said decree, and that the said John A. Buckner and Etheline Buckner, be, and are now decreed to take and hold said one half of the said Melbourne plantation allotted to them free from said charge and liability for said costs, disbursements, and solicitors' fees charged against them in said decree of June 2, 1893, as contribution to the expenses of the prosecution of said cause No. 6612 and of the causes herein consolidated." Obviously, the effect of this last decree was to materially modify the terms of prior orders and decrees, and to change the relations of the defendant as the owner of one half of the Melbourne plantation to the receivership.

Two questions are presented: First, Was the defendant entitled to set off against the rent unquestionably due for the undivided half of the plantation for 1891 and 1892, one half of the amount paid by him for rent between 1884 and 1891, on the ground that it had been finally adjudged that he was the owner of one undivided half of the plantation, and therefore that the receiver had improperly collected the rent therefor and, second, if he was entitled to such set-off, was he precluded from obtaining the benefit of it in the state courts by the fact that the receiver was an officer of the Federal court, or by any proceedings had in that court? [236] *The contention of the receiver is that the defendant's right to one half of the plantation dates from the decree in 1891, while the defendant insists that it dates from the conveyance in 1858, and that the decree only determined a pre-existing right. We concur in the latter view. As a rule courts do not create, but simply determine rights. The adjudication that the defendant was entitled to an undivided one half of the plantation was neither a donation nor an equitable transfer of property in lieu of other claims. It was a determination of a pre-existing right, and that right dates and could only date from the conveyance in 1858.

The provision in the decree of this court in reference to the division between the creditors and the heirs of the moneys in the hands of the receiver after paying his expenses and compensation is one evidently applicable in case of the sale of the entire property, and cannot be construed as charging against the defendants, the heirs of Mrs. Morgan, any share of the costs incurred by the creditors of Mr. Morgan, in their efforts to subject his property to the payment of their debts.

Rents follow title, and the owner of the

The conclusions of the circuit court of the United States, as expressed in an opinion and passed into a decree,-a decree not appealed from, and therefore final between the parties, are to the same effect. Such opinion and decree appear in the record. In the opinion, which was announced after the decision of this court in 139 U. S. 388 [35: 199], it was said: "From this last opinion and decree of the supreme court in the mat-realty is the owner of the rent. So that from ter, we are forced to conclude that the portions of lands set off and adjudged to the heirs of Julia Morgan and heirs of O. H. Kellam, Jr., were so set off and adjudged to them as the owners thereof in their own right as the heirs of Julia Morgan and O. H. Kellam, Jr., who were the heirs of Narcisse Deeson, the wife of Oliver J. Morgan, and not to them in any way as the heirs of Oliver J. Morgan or as creditors or claimants of his The heirs of Julia Morgan and Oliver H. Kellam, Jr., participated in the fund recovered in the original case of


1884 to 1891, and while the question of title
was in dispute, the defendant was paying to
the receiver rent for an undivided half of the
plantation, property which was absolutely
his own, and which the receiver ought not to
have had possession of. The rent thus col-
lected belonged to defendant, and could not
be taken by creditors of Morgan or appro-[238]
priated to pay the cost of their lawsuits. So
it is that the receiver, having in his posses-
sion money belonging to the defendant, to
wit, the rent of one half the property from
1884 to 1891, now asks a judgment which


shall compel defendant to pay him a further | 1.
sum. This cannot be. This is not a case
in which a defendant indebted to an
tate which is insolvent and can therefore
pay its creditors only a pro rata amount
seeks to set off a claim against the estate in
absolute payment of a debt due from him to
the estate, thus obtaining a full payment
which no other creditors can obtain. For
here one undivided half of the plantation was
never the property of the estate vested in the
receiver. It was wrongfully taken posses-
sion of by him. The rent therefor all the
while belonged to the defendant, and the re-
ceiver holds it, not as money belonging to the
estate, but to the defendant. To allow him
to keep that money, and still recover an ad-
ditional sum from the defendant, would be
manifestly unjust.

It is said in the brief that the court first acquiring jurisdiction has a right to continue its jurisdiction to the end. We fail to see the application of this. The receiver voluntarily went into the state court, and, having voluntarily gone there, cannot question the right of that court to determine the controversy between himself and the defendant. A similar proposition was often affirmed in cases of bankruptcy, although by § 711, Revised Statutes, the courts of the United States are given exclusive jurisdiction "of all matters and proceedings in bankruptcy." Mays v. Fritton, 20 Wall. 414 [22: 389]; Winchester v. Heiskell, 119 U. S. 450[30: 462], and cases cited in the opinion. The same rule applies here. The question presented is, not how the estate belonging to the receiver shall be administered, but what is the estate belonging to him. The two questions are entirely distinct. Further, the right to sue a receiver appointed by a Federal court without leave of the court appointing him is granted by the act of August 13, 1888, chap. 866, § 3, 25 Stat. at L. 436. A counterclaim or set-off comes within the spirit of that act. And certainly no objection can be made to the allowance of a set-off, when, as here, it [239]is simply in harmony with the decrees of the Federal court, and in no manner questions their force or efficacy.

The jurisdiction of the state court is therefore clear, and the judgment of the Supreme Court of Louisiana is affirmed.



and Hull Coal & Coke Co., Plffs. in Err.,
CALVIN M. MCCLUNG, William P. Smith,
William B. Keener, Franklin H. McClung,
Jr., and Charles J. McClung, Jr., Partners
as C. M. McClung & Co., et al.

(See S. C. Reporter's ed. 239–269.)
State statute, when unconstitutional-equal
privileges and immunities to citizens-cor-
poration, when not a citizen—participa- |
tion in assets-due process of law-corpo-
ration, when not within jurisdiction of
state-Tennessee statute of March 19,







A state statute giving to residents of that state a priority over nonresidents in the distribution of the assets of a foreign corporation which, by filing its charter or articles of association in the state is deemed a corporation of that state, is, so far as it discriminates against citizens of other states, in violation of U. S. Const. art. 4, giving equal privileges and immunities to the citizens of the several states.

The constitutional guaranty of equal privileges and immunities to citizens forbids only such legislation affecting citizens of the respective states as will substantially or practically put a citizen of one state in a condition of allenage when he is within or when he removes to another state, or when asserting in another state the rights that commonly appertain to the people, by and for whom the government of the Union was established. A corporation is not a citizen within the meaning of the constitutional provision that "the citizens of each state shall be entitled to all privileges and immunities of citizens of the several states."

A corporation of another state cannot invoke the constitutional guaranty of equal privileges and immunities of citizens in case of a discrimination against it in favor of the residents of a state, in respect to participation in the assets of an insolvent corporation.

A corporation of another state is not deprived of property without due process of law by denying it equality with residents of the state in the distribution of the assets of an insolvent corporation.

A corporation not created by the laws of a state, nor doing business in that state under conditions that subject It to process from the courts of that state, is not within the jurisdiction of that state, within the meaning of the constitutional provision that no state shall "deny to any person within its jurisdiction the equal protection of the laws."

The Tennessee statute of March 19, 1877, so far as it subordinates the claims of private business corporations of other states, who are creditors of a corporation doing business in that state under that statute, to the claims against the latter corporation of creditors residing in Tennessee, is not a denial of the "equal protection of the laws," secured by the 14th Amendment to the Federal Constitution to persons within the jurisdiction of the state.

[No. 6.]

Submitted November 8, 1897. Decided December 12, 1898.

IN ERROR to the Supreme Court of the

state of Tennessee to review a judgment law of March 19, 1877, was constitutional, of that court adjudging that the Tennessee and that creditors of an insolvent company,

residents of the state of Tennessee, are en-
titled to priority of payment out of the as-
sets of said company over all other creditors
of said company, who do not reside in said
state, etc. Affirmed as to the Coal & Coke
Company, and reversed as to other plaintiffs,
citizens of Ohio, and cause remanded for fur-
ther proceedings.

The facts are stated in the opinion.
Messrs. Heber J. May and Tully R.
Cornick for the plaintiffs in error.

172 U. S.

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