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And set forth in paragraph one:
might remain after the application on the
"That at all times hereinafter mentioned
The supplemental bill then stated that the
The eighth paragraph was as follows: "That on or about the 14th day of October, 1891, the defendant, Western Mill Company, mortgagor herein, by its certain deed of sale, sold said mortgaged premises and every part thereof to the Ranier Power & Railway Company, a corporation organized under the laws of Washington, and having its principal place of business in Seattle; that thereafter, and on or about the 13th day of February, 1895, in the cause of A. P. Fuller v. The Ranier Power & Railway Company, No. pending before this honorable court, Eben Smith, Esq., the duly appointed, qualified, and acting master in chancery in said cause, made, executed, and delivered to A. M. Brockes, Angus McIntosh, and Frederick Bausman, purchasers of said premises, at a sale theretofore had, to satisfy a decree in said cause theretofore rendered by this court, a deed of sale to said mortgaged premises and each and every part thereof; that thereafter, on the 12th day of February, 1895, for a valuable consideration, said Angus McIntosh, A. M. Brookes, and Frederick Bausman duly bargained and sold *by their deed of sale, their right, title, and interest in and to said premises, and every part thereof to the Third Street & Suburban Railway Company, defendant herein, who now claims some interest in or lien upon said mortgaged premises through said deed of purchase, so made subsequent to the commencement of plaintiff's action, but that said interest in or lien upon said property is subsequent, subject, and inferior to the lien of plaintiff's mortguge."
Mr. Frederick Bausman for appellant.
Thereupon plaintiff prayed judgment against the parties to the note for the sum alleged to be due with interest and attorneys' fees; that a decree for the sale of the mortgaged premises be entered, the proceeds to be applied in payment of the amount found due on the note and mortgage; that the railway company, and all persons claiming under it, be barred and foreclosed from setting up any claim or equity therein thereafter; and that plaintiff have judgment over for any deficiency on the sale. The defendant, the railway company, answered; a demurrer was sustained to its answer; and a decree was entered against the parties to the note for the amount due thereon and for the sale of the premises mortgaged, with juagment against them for any deficiency; and also for the distribution of any surplus that]
*Mr. Chief Justice Fuller delivered the[459) opinion of the court:
Although the record does not contain the original bill, it is apparent that the jurisdiction of the circuit court was invoked on the ground of diverse citizenship, and that the interest of appellants in the mortgaged[4600 premises was acquired after the commencement of the action.
This supplemental bill made appellant a party defendant as claiming an interest, but the jurisdiction still rested on diversity of citizenship. The decree of the circuit court of appeals was, therefore, made final by the statute, and the appeal cannot be sustained.
But it said that because plaintiff saw fit to set forth the manner in which appellant obtained its interest, and it appeared that appellant claimed under a conveyance from the purchasers at a sale made pursuant to a decree of the circuit court, the jurisdiction was not entirely dependent on the citizenship of the parties. The averments, however, in respect to the acquisition of its interest by appellant, were no part of plaintiff's case, and if there had been no allegation of diverse citizenship the bill unquestionably could not have been retained. The mere reference to the sale and foreclosure could not have been laid hold of to maintain jurisdiction on the theory that plaintiff's cause of action was based on some right derived from the Constitution or laws of the United States.
It is thoroughly settled that under the act of August 13, 1888, the circuit court of the United States has no jurisdiction, either original or by removal from a state court, of a suit as one arising under the Constitution, laws, or treaties of the United States, unless that appears by the plaintiff's statement to be a necessary part of his claim. Tennessee v. Union & Planters' Bank, 152 U. S. 454 [38: 511]; Metcalf v. Watertown, 128 U. S. 586, 589 [32: 543, 544]; Colorado Central Consol. Min. Company v. Turck, 150 U. S. 138 [37: 1030]. If it does not appear at the outset that the suit is one of which the circuit court at the time its jurisdiction is invoked could properly take cognizance, the suit must be dismissed; and lack of jurisdiction cannot be supplied by anything set up by way of defense. And so when jurisdiction originally depends on diverse citizenship the decree of the circuit court of appeals is final, though another ground of jurisdiction may be developed in the course of the proceedings. Ex parte Jones, 164 U. S. 691 [41: 601].
was also insisted that the bonds were
(See S. C. Reporter's ed. 461–464.)
Federal question-construction of the Con- bonds were in fact issued in 1890, and there-
As grounds for their contention that the
The supreme court of the state held that Submitted February 20, 1899. Decided the bonds were void because the acts unMarch 20, 1899. der which they were issued were not valid laws, not having been passed in the manner directed by the Constitution. The court further held that the bonds were not authorized by the above sections of the Code, and that as they purported, by recitals on their face, to have been issued under the act of 1879, the bondholders were estopped from setting up any other authority for their issue, such as the ordinance of the constitutional convention above mentioned.
J. M. TURNER et al., Plffs. in Err.,
BOARD OF COMMISSIONERS OF
1. A Federal question which will support a
before their issue, where its decision is based
N ERROR to the Supreme Court of the State of North Carolina to review a judgment of that court in an action brought by the Board of Commissioners of Wilkes county et al. against Clarence Call, treasurer of said county adjudging that certain bonds is sued by the county of Wilkes in payment of its subscription to the stock of the Northwestern North Carolina Railroad Company were void by reason of the invalidity of the laws under which they were issued. On motion to dismiss or affirm. Dismissed.
The facts are stated in the opinion. Mr. A. C. Avery for defendant in error in favor of the motion.
Mr. Richard N. Hackett for plaintiff in error in opposition to the motion.
 *Mr. Justice Peckham delivered the opinion of the court:
The bondholders have brought the case here, claiming that by the decision below their contract has been impaired, because, as they allege, the supreme court of the state had decided before these bonds were issued that the acts under which they were issued were valid laws and authorized their issue, and that in holding the contrary after the issue of these bonds the state court had impaired the obligation of the contract, and its decision raised a Federal question proper for review by this court.
But in this case we have no power to ex
This action was commenced in the superior court of Wilkes county in the state of North Carolina, by the board of commission-amine the correctness of the decision of the ers of Wilkes County and C. C. Wright, supreme court of North Carolina, because, against Clarence Call. Mr. Wright was a this being a writ of error to a state court, we taxpayer of the county, while the defendant cannot take jurisdiction under the allegation Call was its treasurer. The action was that a contract has been impaired by a debrought to test the validity of certain bonds cision of that court, when it appears that issued by the county of Wilkes in payment the state court has done nothing more than of its subscription to the stock of the North- construe its own Constitution and statutes western North Carolina Railroad Company. existing at the time when the bonds were isThe defendants Turner and Wellborn were sued, there being no subsequent legislation the owners of some of the bonds, and after touching the subject. We are therefore the bringing of this action they were, on bound by the decision of the state court in their own motion, brought in as parties de- regard to the meaning of the Constitution fendant, and they invited all other bond- and laws of its own state, and its decision holders to come in and join them in resisting upon such a state of facts raises no Federal question. Other principles obtain when the writ of error is to a Federal court.
 *It was claimed by the holders of the
The difference in the jurisdiction of this
and from the opinion in that case the follow- | 3. ing extract is taken (page 111 [40: 94]):
"The distinction, as to the authority of this court, between writs of error to a court of the United States and writs of error to the highest court of a state, is well illustrated by two of the earliest cases relating to municipal bonds, in both of which the opinion was delivered by Mr. Justice Swayne, and in each of which the question presented was whether the Constitution of the state of Iowa permitted the legislature to authorize municipal corporations to issue bonds in aid of the construction of a railroad. The supreme court of the state, by decisions made before the bonds in ques
tion were issued, had held that it did; but,
by decisions made after they had been issued, held that it did not. A judgment of the district court of the United States for the district of Iowa, following the later decisions of the state court, was reviewed on the merits and reversed by this court, for misconstruction of the Constitution of Iowa. Gelpcke v. Dubuque, 1 Wall. 175, 206 [17:520, 526]. But a writ of error to review one of those decisions of the supreme court of Iowa was dismissed for want of jurisdiction, because, admitting the Constitution of the state to be a law of the state within the meaning of the provision of the Constitution of the United States forbidding a state to pass any law impairing the obligation of contracts, the only question was of its construction by the state court. Mississippi & M. Railroad Co. v. McClure, 10 Wall. 511, 515 [19: 997, 998].
An example of the jurisdiction exercised by this court when reviewing a decision of a Federal court with regard to the same contract clause is found in the same volume. Folsom v. Ninety Six, 159 U. S. 611, 625 [40: 278, 283].
This case is governed by the principles laid down in Central Land Company v. Laidley, supra, and the writ of error must, therefore, be dismissed.
UNITED STATES, Appt.,
NEW YORK INDIANS.
(See S. C. Reporter's ed. 464-473.) Findings of court of claims-when case will not be remanded-power of said courtwhen an appeal will not be entertained.
The findings of the court of claims in an action at law determine all matters of fact, like the verdict of a jury; and where there is any evidence of a fact which said court finds, and no exception is taken, its finding is
The court of claims is not at liberty to redetermine who were parties to the treaty of Buffalo Creek, and entitled to the benefits of its provisions, after that has been determined by this court on a former appeal.
2. This court will not remand a case to the
and proved by the evidence, if the object of
173 U. S.
U. S.. BooK 43.
An appeal will not be entertained by this court from a decree entered in an inferior court, in exact accordance with the mandate of this court upon a previous appeal.
Motion for additional findings submitted January 30, 1899. Motion to dismiss or affirm submitted February 20, 1899. Decided March 20, 1899.
APPEAL from a of the
Court of Claims in favor of the claimants, the New York Indians, for the recovery from the United States of the amount received by it for the Kansas lands set apart for said Indians and subsequently sold by the United States. On motion to dismiss or affirm and also on motion by the United States for additional findings. Dismissed.
See same case on former appeal 170 U. 8. 1, 42 L. ed. 927.
Statement by Mr. Justice Brown:
This case arose from a motion by the Indians to dismiss the appeal of the United States for want of jurisdiction, or, in the alternative, to affirm the judgment of the court of claims, upon the ground that the question involved is so frivolous as not to need further argument; and also from a counter motion by the United States for an order upon the court of claims to make a further finding of facts.
*By an act of Congress, passed January [465) 28, 1893 (27 Stat. at L. 426), the court of claims was authorized to hear and determinc, and to enter up judgment upon the claims of the Indians "who were parties to the treaty of Buffalo Creek, New York," of January 15, 1838, to enforce an alleged liability of the United States for the value of certain lands in Kansas, set apart for these Indians and subsequently sold by the United States, as well as for certain amounts of money agreed to be paid upon their removal.
In its findings of fact the court of claims decided that the Indians described in the jurisdictional act, above referred to as "the New York Indians, being those Indians who were parties to the treaty of Buffalo Creek, New York, on the 15th of January, 1838, were the following: Senecas, Onondagas, Onondagas residing on the Seneca reservation, Onondagas at Onondaga, Cayugas, Cayugas residing on the Seneca reservation, Cayuga Indians residing in the state of New York, Tuscaroras, Tuscaroras residing in the state of New York, Oneidas residing in New York, at Green Bay (Wisconsin), and in the Seneca reservation, Oneidas, St. Regis, St. Regis in New York, the American party of the St. Regis resided in the state of New York, Stockbridges, Munsees, Brothertowns."
Upon the whole case, however, the court of claims found as a conclusion of law from the facts that the Indians had abandoned their claim, and accordingly dismissed their
petition. On appeal to this court, under the | the court that the court of claims be ordered act of Congress above mentioned, the judg- to further find and certify to this court: ment of the court of claims was reversed "First. What constituted the Onondagas (170 U. S. 1 [42: 927]), this court being of at Onondaga, Onedias at Green Bay, Stockopinion: bridges, Munsees, and Brothertowns, parties to the treaty of Buffalo Creek, as proclaimed April 4, 1840;
1. That the title acquired by the Indians under the treaty was a grant in præsenti of a legal title to a defined tract, described by metes and bounds, containing 1,824,000 acres in the now state of Kansas;
2. That there was no uncertainty as to the land granted or as to the identity of the grantees;
3. That the tribes for whom the Kansas lands were intended as a future home were the Senecas, Onondagas, Cayugas, Tuscaroras, Oneidas, St. Regis, Stockbridges, Munsees, and Brothertowns, *residing in the state of New York, as found in the first finding of fact by the court of claims;
4. That the grant to the Indians was of the entire tract as specified in article two of the treaty, and not an allotment to them of 320 acres for each emigrant;
5. That the government had received the full consideration stipulated by the treaty, so far as such consideration was a valuable one for the Kansas lands, and had neglected to render any account of the same;
6. That the Indians had neither forfeited nor abandoned their interest in the Kansas lands, and that they were entitled to a judg
Thereupon the case was remanded to the court of claims with instructions "to enter a new judgment for the net amount actually received by the government for the Kansas lands, without interest, less any increase in value attributable to the fact that certain of these lands were donated for public purposes, as well as the net amount which the court below may find could have been obtained for the lands otherwise disposed of, if they had all been sold as public lands, less the amount of land upon the basis of which settlement was made with the Tonawandas, and less 10,240 acres allotted to the thirty-two New York Indians as set forth in finding 12, together with such deductions as may seem to the court below to be just, and for such other proceedings as may be necessary and in conformity with this opinion.”
"Second. Whether or not the Oneidas at Green Bay, Stockbridges, Munsees, and Brothertowns resided in the state of New York when the treaty of Buffalo Creek was proclaimed, or when they became parties thereto."
Messrs. L. A. Pradt, Assistant Attorney General, and Charles C. Binney for appellant, on motion to dismiss or affirm.
Mr. John K. Richards, Solicitor General, for appellant, on motion for an order to the court of claims to make additional findings of fact.
Messrs. Guion Miller and Jonas H. McGowan for appellees on both the above motions.
*Mr. Justice Brown delivered the opinion of the court:
As a disposition of either one of these motions will practically dispose of the other, both may properly be considered together.
The preamble to the treaty of Buffalo Creek of January 28, 1838 (7 Stat. at L 550), recites that "the following articles of a treaty are entered into between the United States of America and the several tribes of the New York Indians, the names of whose chiefs, headmen, and warriors are hereto subscribed, and those who may hereafter assent to this treaty in writing, within such time as the President shall appoint." The second article of the treaty also recites that "it is understood and agreed that the above described country" (the land ceded) "is intended as a future home for the following tribes, to wit: The Senecas, Onondagas, Cayugas, Tuscaroras, Oneidas, St. Regis, Stockbridges, Munsees, and Brothertowns residing in the state of New York, and the same is to be divided equally among them according to their respective numbers, as mentioned in the schedule hereunto annexed.” The treaty purports to be signed by the headIn obedience to this mandate the court of men of the Senecas, Tuscaroras, Oneidas reclaims on November 14, 1898, made certain siding in the state of New York as well as further findings of fact, set forth in the mar- at Green Bay, St. Regis, Onondagas residing gin,† and as a conclusion of law decreed* that on the Seneca reservation, the principal Onthe claimants recover from the United States ondaga warriors, Cayugas and the princithe sum of $1,967,056; whereupon the Unit-pal Cayuga warriors; but the schedule, imed States took this appeal, and now move
Assuming that the claimants were entitled to 1,824,000 acres of land under the treaty of January 15, 1838, the court finds that of these lands the defendant sold 84,453.29 acres, for which they received the sum of $1.25 per acre. They otherwise disposed of the balance of said lands in granting the same for public purposes, and for the lands disposed of for public purposes they could have obtained the sum of $1.25
The land at $1.25 per acre amounts to the sum of $2,280,000. The court finding that
mediately following the signatures, conthe defendants could have sold the land at $1.25 does not take into consideration any increase value given to such lands because of any donation of land for public purposes; and the court finds that the price at which the defendants sold the land was not increased because of any donation of other lands for public purposes. The court finds that the cost and expense of surveying and platting said lands was the sum of $45,600. The court finds that the number of acres allowed the Tonawanda band of the claimants in the settlement of their claim was 208,000 acres, which, at the price of $1.25 per acre,
But we are now asked to direct the court of claims to find:
tains also the names of the Stockbridges, | tion than they can behind an act of ConMunsees, and Brothertowns. The conimis- gress." sioner on behalf of the United States certifies that this schedule was made before the execution of the treaty, Following this there are certain certificates by the commissioner to the effect that the treaty was assented to by the Senecas, Tuscaroras, St. Regis,Oneidas, Cayugas, and Onondagas. On January 22, 1839, the President sent the treaty to the Senate with the following message:
To the Senate of the United States:
I transmit a treaty negotiated with the New York Indians which was submitted to your body in June last and amended.
The amendments have, in pursuance of the requirement of the Senate, been submitted to each of the tribes assembled in council, for their free and voluntary assent or dissent thereto. In respect to all the tribes, except the Senecas, the result of this application has been entirely satisfactory. It will be seen by the accompanying papers that of this tribe, the most important of those concerned, the assent of forty-two out of eighty-one chiefs has been obtained. I deem it advisable under the circumstances, to submit the treaty in its modified form to the Senate for its advice in regard of the sufficiency of the assent of the Senecas to the amendment proposed.
(Signed) M. Van Buren. Washington, 21st January, 1839.
The assent of the Senecas having been procured, the treaty was afterwards ratified.
The question was thus presented to the court of claims whether the Stockbridges, Munsees, and Brothertowns-who did not actually sign the treaty-gave their assent, and the court of claims found as a fact that they were actually parties to it. There was certainly some evidence in support of this finding which also accorded with the opinion of this court in Fellows v. Blacksmith, 19 How. 366 [15: 684], in which an objection was taken on the argument to the validity of the treaty, on the ground that the Tonawanda band of the Seneca Indians was not represented by the chief and headmen of the band in the negotiations and execution of it. "But," said the court, "the answer to this is, that the treaty, after executed and *ratified by the proper authorities of the government, becomes the supreme law of the land, and the courts can no more go behind it for the purpose of annulling its effect and operaless the proportionate cost and expense of surveying and platting, amounts to the sum of $254,800. The number of acres allotted to the 32 Indians as set forth in finding twelve was 10,340 acres, which, at the rate of $1.25 per acre, less the proportionate cost and expense of surveying and platting, amounts to $12,544.
The court further finds that, after deducting the costs and expense of surveying and platting sald lands, the amount paid by the defendants
in the settlement with the Tonawanda band and the value of the allotment to the 32 Indians, there remains of said $2,280,000 the sum of $1,967,056.
The court further finds: The New York Indians who were parties to the treaty of Buffalo
First. What constituted the Onondagas at Onondaga, Oneidas at Green Bay, Stockbridges, Munsees, and Brothertowns parties to the treaty of Buffalo Creek, as proclaimed April 4, 1840?
Second. Whether or not the Oneidas at Green Bay, Stockbridges, Munsees, and Brothertowns resided in the state of New York when the treaty of Buffalo Creek was proclaimed, or when they became parties thereto?
But if these be material facts, they were equally so when the findings were made at the first hearing, and the attention of the court should have been then called to the matter, and a more particular finding requested. The motion contemplates an order upon the court to send up the testimony upon which it had found the ultimate fact that these three tribes were parties to the treaty, and inferentially for us to pass upon the sufficiency of that testimony to establish such ultimate fact. If the finding of these probative facts were deemed material within the case of United States v. Pugh, 99 U. S. 265 [25: 322], application should have been made when the case was first sent here for a finding of such facts. In the Pugh Case the court of claims found certain circumstantial facts, and the question this court was called upon to decide was whether those facts were sufficient to support the judgment. But this court did not hold that, where the court of claims was satisfied that the evidence before it fully established a fact, it was bound to insert all the evidence upon that point, if the losing party thought the court made a mistake. This court has repeatedly held that the findings of the court of claims in an action at law determine all matters of fact, like the verdict of a jury, and that where there is any evidence of a fact which they find, and no exception is taken, their finding is final (Stone v. United States, 164 U. S. 380 [41: 477]; Desmare v. United States, 93 U. S. 605 [23: 959]; *Talbert v. United States, 155 U. S. 45 [39: 64]); and in McClure v. United States, 116 U. S. 145 [29: 572], this court distinctly held that it would not remand a case to the court of claims with directions to return whether certain distinct propositions, in requests for findings of fact presented to that court at the trial of the Creek of 1838, as amended and proclaimed, were the following: Senecas
Onondagas on Senecas' reservation....
Saint Regis in New York.