case and the Callaway County case were well decided, and that they dispose of the present case. It is neither necessary nor wise to repeat a review of the authorities there discussed. We are satisfied with the cases as they stand. These are held to be features constituting alterations merely of the charter, and not affecting the rights or powers of the companies to receive subscriptions or of counties to issue their bonds. Much weight is given in argument to the allegation that the route of the Alexandria and Bloomfield road, as first established and partly built, did not touch any portion of the County of Schuyler. It is contended that, when the route was selected and the terminal point fixed at Upton, the power of the company was exhausted, and the line was fixed, as certainly as if it had been described in the charter. With-ance of its general object as originally chartered: out considering that general proposition, we are of opinion that it does not govern the present case. The County of Schuyler was authorized to make a subscription by virtue of its original charter, and no submission of the question to a popular vote was necessary. That it might establish a location, and change it by authority of the Legislature: that it might be authorized to build a branch or extension in further that this might be and was accomplished by a new organization, to which, as the transferee of the original privileges, the right to receive and of the County to make subscriptions pertained: that these powers were legitimately exercised is plain, upon the authorities cited. The judgment of the court below was in accordance with these views, and without going through the several questions in detail, we answer them in the affirmative, and direct that the judgment of the Circuit Court be affirmed. The Legislature, in terms, retained the authority to alter or amend each one of these railroad charters. It did amend the charter of the Alexandria and Bloomfield road and its successors so as to authorize a location extending entirely through Schuyler County. It deemed this addition important to the interest of the public, and its exercise changed what may be termed the ordinary rule, that a location once fixed and a road partly constructed could not be changed. That this was within the reserved power of the Legislature, if assented to by the company, and that it was a legitimate exercise of the power of amendment, whereby the original charter, 109 U. S., 104. with its powers and privileges, was continued and extended, the cases of Callaway and Scotland County sufficiently establish. Dissenting, Mr. Justice Miller, Mr. Justice Field and Mr. Justice Harlan. Cited 100 U. S., 592; 101 U. S., 203; 105 U. S., 458; WALDO MARSH for use of JAMES REES, v. It is said, also, that this subscription was rendered void by the Act of 1861, prohibiting such subscription. The case of State v. Ga route is cited from the Cent. L. Jour. to sustain THE CITIZENS' INSURANCE COMPANY this proposition. We do not think it necessary to discuss the question. It was fully considered in Smith v. Clark Co., 54 Mo., 58, and the validity of the bonds, so far as this statute affected them, was sustained. In the subsequent case of State v. Garoute, one Judge expressed a contrary opinion. The other Judges expressed no approbation of the doctrine, and a deliberate opinion of the court cannot thus be disturbed. OF PITTSBURGH. Action on policy-federal question—final decision. 1. An action in a State Court upon a policy of insurance to recover for the loss by fire of a steamboat, where the defense was that the fire was caused by plaintiff's carelessness in the use of turpentine, no federal question, and this court has no jurisdicon board as freight, to increase the steam, presents tion to review it. 2. The Act of Congress prohibits the transportation of turpentine as freight, on steamboats carryIn this case, however, no complaint is made of the carriage of the turpentine, but only of its use. tions as to the effect of evidence and burden of 3. The determination, by the court below, of quesproof, is final and cannot be reviewed here. [No. 70.] The questions in Scotland Co. v. Thomas [suing passengers, except in cases of special license. pra], arose upon the same charter of the Alexandria and Bloomfield Railroad Company, the same consolidation forming the Missouri, Iowa and Nebraska Railway Company, with the same original location through Luray and Upton, the same extension and change thereof through the Counties of Scotland and Schuyler, and the issue of the same form of bonds at about the same time to the same company to build the same extension of the road as in the case before us. The court, in delivering its opinion in that case, says: "The amending Act, therefore, which authorized a consolidation with the Iowa Southern Railway Company, and thereby constituted the Missouri, Iowa and Nebraska Railway Company, was in perfect accord with the general purpose of the original charter of the Alexandria and Bloomfield Railroad Company; and if the other rights and privileges of the latter company passed over to the consolidated company, we do not see why the privilege in question should not do so, nor why the power given to the County to subscribe to the stock should not continue in force." We are of the opinion that the Scotland County Submitted Nov. 20, 1878. Decided Dec. 9, 1878. N ERROR to the Supreme Court of Pennsylvania. The case is stated by the court. Messrs. Edward Lander, Charles A. Ray, Edward A. Freeman, J. W. Moore and E. Ä. Newman, for plaintiff in error. Mr. A. McCallum, for defendant in error. Mr. Chief Justice Waite delivered the opinion of the court: This case presents no question of federal jurisdiction. Marsh, the plaintiff in error, claimed below no title, right, privilege or immunity under the Constitution, laws or treaties of the United States, and no such title, right, privilege or immunity has been denied him. He sued upon a policy of insurance, to recover for the loss of his steamboat by fire, and the defense was that the fire was caused by his gross carelessness in the use of turpentine, on board as freight, to increase steam while racing with another boat. An Act of Congress, 10 Stat. at L., 63, sec. 7, prohibits the transportation of turpentine, as freight, on steamboats carrying passengers, "Except in cases of special license for that purpose." No complaint was made of the carriage of the turpentine, but of its use while being carried. The court, in effect, told the jury that, under the existing laws, there could be no recovery if the loss was occasioned by the misconduct of the insured in taking a barrel of turpentine from the hold of the boat, placing it in front of the furnace, knocking out the head and pouring two thirds of a bucket full of turpentine on the coal and wood near by, so that when the furnace door was opened and the fire stirred up, during a race with another boat, the burning coals fell upon the fuel thus saturated and set fire to the boat. No complaint is made here, by the assignment of errors, of the charge as given. The errors assigned relate only to the refusal of the requests to charge made by Marsh, and these presented only questions as to the effect of evidence and burden of proof; that is to say, whether, if a steamboat was burned while carrying turpentine as freight, the owner, in an action on a policy of insurance, must show affirmatively his license to carry the turpentine, or whether the law would presume a license until the contrary was shown. The determination of such questions by the court below, even if necessary to the decision of the case, is final and cannot be re-examined here. The suit is, consequently, dismissed for want of jurisdiction. GEORGE B. PETERS, Appt., v. DRURY W. BOWMAN AND WILLIAM Y. ELLIOTT, Admrs. of JONATHAN BOSTICK, Deceased. (See S. C., 8 Otto, 56-61.) Covenants in deed-of warranty-foreclosure action on covenant. 1. The covenant of good right to convey is synonymous with the covenant of seisin; these covenants, if broken at all, are broken when they are made. They are personal and do not run with the land. 2. The covenant of warranty runs with the land, and passes by assignment. When broken, it becomes a chose in action, but a subsequent grantee may sue the warrantor in the name of the holder. There can be but one satisfaction. A sheriff's or a quitclaim deed will carry the covenant, before its breach, to the grantee. 3. Upon a bill of foreclosure, or a bill to enforce a lien for the purchase money, where there has been no fraud and no eviction actual or constructive, the vendee or a party in possession under him, cannot controvert the title of the vendor; and no one claiming an adverse title can be permitted to bring it forward and have it settled in that suit. 4. In such cases, the vendee and those claiming under him must rely upon the covenants of title in the deed of the vendor; and if there are no such covenants, in the absence of fraud, can have no re dress. [No. 74.] Submitted Nov. 27, 1878. Decided Dec. 9, 1878. NOTE.-Lien for purchase money. See note to Bayley v. Greenleaf, 20 U. S. (7 Wheat.), 46. APPEAL from the District Court of the Unit ed States for the Northern District of Mis sissippi. The case, which arose in the court below, fully appears in the opinion. Messrs. James R. Chalmers, Mike L. Woods, Casey Young and Henry Craft, for appellant. Mr. Henry T. Ellett, for appellees. Mr. Justice Swayne delivered the opinion of the court: This is a bill to enforce a lien upon real estate situate in Tunica County, in the State of Mississippi. Bowman owned the premises in fee simple, and sold the undivided half to Bostick, and gave him a written contract, valid in equity, but not sufficient to pass the legal title. Bostick died in 1868, possessed of property in Mississippi and Tennessee, and leaving a last will and testament. By one of the clauses he appointed Gwinn his executor in Mississippi, and the appellee, Elliott, his executor in Tennessee. By another clause he authorized the Mississippi executor to lease or cultivate the premises in question with Bowman, and finally, under the circumstances named, "To join the said Bowman in making sale and title to the purchasers.' By another clause, after the payment of all legacies, debts and expenses of administration, he gave to three persons, whom he named, and their successors, as trustees, the entire residue of his estate, "To be invested by them in a suitable site and buildings for a female academy in Tennessee, and to be otherwise devoted to that institution. Gwinn died in the lifetime of the testator. On the 11th of January, 1869, the Probate Court of Tunica County granted "letters testamentary of the said last will and testament" to Elliott. On the 25th of January, 1869, Elliott, describing himself as "Executor of the last will and testament of J. Bostick, acting under the powers conferred by said will," and Bowman, united in a conveyance with full covenants to the four brothers, Jaquess, for the consideration of $4,000, paid in cash, and the further sum of $24,000, for which four notes were given by the vendees, each for the sum of $6,000, and pay able respectively on the first day of January in the years 1870, 1871, 1872 and 1873, with interest at the rate of six per cent. per annum. In reference to these notes the deed contains the following provision: "And to secure the Payment of each and all of which said notes and interest an express lien is hereby retained by the parties of the first part upon the real estate and premises " in question. The note maturing on the first of January, 1870, was paid by the Jaquess Brothers. On the 26th of January, 1870, they sold and conveyed the premises to the appellant, Peters, for the consideration expressed in the deed of the sum of $11,920 cash in hand, "And the assumption by the said Peters of the payment of three promissory notes for $6,000, made by the first parties (Jaquess Brothers), and payable to Elliott and Bowman, for the same land herein conveyed." This deed contains a covenant of the right to convey, of seisin, and of general warranty. claim has been set up by anyone. The possession and enjoyment of the property by General Chalmers and his wife have been the same as if their title were indisputable. It is insisted that the first deed of Elliott was fatally defective, because the letters from the Probate Court, under which he acted in making it, were issued to him as executor, and that both deeds were void, because under the will and the circumstances there was no authority to sell; and, lastly. because the residuum of the estate of the testator, including proceeds of the premises in question, was disposed of in a way forbidden by a law of the State of Mississippi. We prefer to rest our judgment upon a ground Peters put his co-defendants, General Chalmers and wife, in possession of the premises, under an arrangement whereby, when they should pay the balance of the purchase money, he would convey to Mrs. Chalmers. Their possession has since continued, and has been undisturbed. On the 8th of November, 1869, the same Pro-independent of all these points, and which renbate Court granted letters of administration ders it unnecessary to examine them. "Upon the estate of J. Bostick, deceased, with the will of said Bostick annexed," to Elliott, upon his giving a sufficient bond and taking the oath prescribed by law, both of which were then done. The original bill was filed on the 28th of February, 1873, to enforce the lien reserved in the deed of Elliott and Bowman to Jaquess Broth ers, to secure the notes given for the purchase money, the three last of which are wholly unpaid. On the 31st of July, 1874, Elliott, to obviate objections made to the prior deed, executed a second deed to the Jaquess Brothers for the same premises. In this deed he describes himself as "Administrator with the will annexed of said Bostick," etc. The deposition of Elliott shows that Bostick never had any title to the premises but what he derived from his contract with Bowman; that Bowman, after Bostick's death, insisted upon selling, and hence the sale to the Jaquess Broth ers. The court below decreed in favor of the complainants. Peters brought the case here for review. There is no controversy about the leading facts of this case. The questions presented are all questions of law. Bowman had the legal title to the entire premises, and that title he conveyed to Jaquess Brothers, and they conveyed it to Peters. The deed of Elliott and Bowman contained all the usual covenants of title. The cove nant of warranty ran with the land, and passed by assignment to Peters. The deed of the Jaquess Brothers produced that result. In the event of a failure of title, Peters can sue upon this covenant in either deed. King v. Kerr, 5 Ohio, 154. When broken, it becomes a chose in action, but a subsequent grantee may sue the warrantor in the name of the holder. There can be but one satisfaction. Id. A sheriff's or a quitclaim deed will carry the covenant before its breach to the grantee. White v. Whitney,3 Met., 81; Hunt v. Amidon, 4 Hill, 345. It is the settled law of this court that upon a bill of foreclosure, or, as in this case, a bill to enforce a lien for the purchase money, and where there has been no fraud and no eviction, actual or constructive, the vendee, or a party in possession under him, cannot controvert the title of the vendor; and that no one claiming an adverse title can be permitted to bring it forward, and have it settled in that suit. Such a bill would be multifarious, and there would be a misjoinder of parties. Noonan v. Lee [supra]; Dial v. Reynolds, 96 U. S., 340 [XXIV., 644]. In such cases, the vendee and those claiming under him must rely upon the covenants of title in the deed of the vendor. They measure the rights and the remedy of the vendee; and if there are no such covenants, in the absence of fraud, he can have no redress. This doctrine was distinctly laid down in Patton v. 1aylor, 7 How., 159, and was re-examined and affirmed in Noonan v. Lee. See, also, Abbott v. Allen, 2 Johns. Ch., 519; Corning v. Smith, 6 N. Y., 82; Beebe v. Swartwout, 8 III. (3 Gilm.), 162. That the vendor is insolvent or absent from the State, or that an adverse suit is pending which involves the title, does not withdraw the case from the operation of this principle. Hill v. Butler, 6 Ohio St., 207; Platt v. Gilchrist, 3 Sandf., 118; Latham v. Morgan, 1 Smed. & M. Ch., 611. The rule is founded in reason and justice. A different result would subvert the contract of the parties, and substitute for it one which they did not make. In such cases the vendor, by his covenants, if there are such, agrees upon them, and not otherwise, to be responsible for defects of title. If there are no covenants, he assumes no responsibility, and the other party takes the risk. The vendee agrees to pay according to his contract, and secures payment by giving a lien upon the property. Here it is neither expressed nor implied that he may refuse to pay and remain in possession of the premises, nor that the vendor shall be liable otherwise than according to his contract. cannot be made a party. One suit cannot thus be injected into another. Without his presence, the judgment or decree as to him would be a nullity. The law never does or permits a vain thing. Where at the time of the conveyance with Where an adverse title is claimed, it cannot warranty there is adverse possession under a par- be litigated with binding effect, unless the claimamount title, such possession is regarded as evic-ant is before the court. We have shown that he tion and involves a breach of this covenant. Where the paramount title is in the warrantor, and the adverse possession is tortious, there is no eviction, actual or constructive, and no action will lie. Noonan v. Lee, 2 Black, 499 [67 U. S., XVII., 278]; Duvall v. Craig, 2 Wheat., 45. Here there is no adverse possession, and no eviction, actual or constructive; nor does it appear that suit has been threatened, or that an adverse A title which cannot be made good otherwise may be made so by the lapse of time or the Statute of Limitations. Is the vendor to wait until this shall occur? And, in the meantime, can the vendee, or those claiming under him, remain in | are falsely stated to be before the court; the possession and enjoy all the fruits of the con- judgment recovered may be set aside, or its entract, and pay neither principal nor interest to forcement restrained," etc. the vendor? Chancellor Kent well says, "It would lead to the greatest inconvenience and perhaps abuse, if a purchaser in the actual possession of land, and when no third person asserts or takes any measures to assert a hostile claim, can be per mitted, on a suggestion of a defect or failure of title, and on the principle of quia timet, to stop the payment of the purchase money, and of all proceedings at law to recover it." Abbott v. Alien [supra]. Decree affirmed. Cited-11 N. W. Rep., 275. UNITED STATES, Appt., v. SAMUEL R. THROCKMORTON ET AL. (See S. C., 8 Otto, 61-71.) Bill by U. S. to set aside confirmation of Mexican grant-frauds-relief when granted-jurisdiction to reform surveys. The question is: do no other fraudulent acts than such as are here enumerated justify a court of equity in setting aside a judgment or restraining its execution? We respectfully submit that the court below, in this respect, restricted the list of such fraudulent acts within too narrow limits, and it only illustrates the danger of attempting to define fraud. It may assume a thousand different shapes, and be perpetrated in as many different ways. Story, Eq. Jur., sec. 186. Lord Hardwicke said, in 1859: "Fraud is infinite, and were courts of equity once to lay down rules how far they would go and no further, in extending their relief against it, or to define strictly the species or evidence of it, the jurisdiction would be cramped and perpetually eluded by new schemes which the fertility of man's invention would contrive." Parke, Hist. Ch., Pothier says that the term "fraud plied to every artifice made use of by one person for the purpose of deceiving another. p. 508. is ap Labeo defines fraud to be any cunning deception or artifice used to circumvent or deceive another. The law is a practical science, and courts are instituted and designed for practical uses. *1. It is essential to a bill in chancery, on behalf of the Government, to set aside a patent or a confirmation of land title under a Mexican grant, after it has become final, that it shall appear in some There can be no practical difference, whether way, without regard to the special form, that the Attorney-General has brought it himself, or given a party be defrauded out of a judgment by the such authority for it as will make him officially re- collusion of his attorney, by having his testisponsible and show his control of the cause through mony stolen, or witnesses kept from court, or all stages of its presentation. 2. The frauds for which a bill in chancery will be whether by any other device, artifice or fraudusustained, to set aside a judgment or decree between lent scheme of the opposite party or attorney, the same parties, rendered by a court of competent which ordinary prudence and foresight could jurisdiction, are frauds extrinsic or collateral to the not guard against, he is prevented from prematter tried by the first court and not a fraud which was in issue in that suit. senting his cause or defense and is, therefore, tricked out of a judgment. 3. The cases in which such relief has been granted are those in which, by fraud or deception practiced on the unsuccessful party, he has been prevented from exhibiting fully his case, by reason of which there has never been a real contest before the court of the subject-matter of the suit. 4. The Circuit Court of the United States has no original jurisdiction now to reform surveys, made by the land department, of confirmed Mexican grants in California. [No. 207.] Submitted Nov. 11, 1878. Decided Dec. 9, 1878. APPEAL from the Circuit Court of the Unit ed States for the District of Columbia. In the opinion of the court below, it is said That the alleged frauds are not such extrinsic collateral acts as would justify the interference of equity with the decrees of confirmation; " and the court mentions what it understands by such extrinsic collateral acts, to wit: keeping the adversary's witnesses from court; secreting or purloining his testimony;" or, if the citation to him be given under such circumstances as to defeat its purpose, the court says: "Any conduct of the kind mentioned would tend to prevent a fair trial on the merits, and thus to deprive the innocent party of his rights. So, if a judge sit, when disqualified from interest or consanguinity; if the litigation be collusive; if the parties be fictitious; if real parties affected *Head notes by Mr. Justice MILLER Shedden v. Patrick, 1 Macqueen, 535. That case, on principle, is an authority in these cases. Here, as there, it is charged that of facts which, if known to the other side or one side to the former litigation was possessed court, would have produced a different result, but which were fraudulently concealed. There the case was not dismissed on the objection of res judicata, and for the same reason the demurrers here ought not to have been sustained. Lord Brougham, in Bandon v. Becher, 3 Cl. & F., 510, said: "That you may, at all times in as to the subject-matter of the suit itself-where a court of competent jurisdiction-competent in another court upon which decree your adyou appear as an actor, object to a decree made versary relies, and you may, either as actor or defender, object to the validity of that decree, provided it was pronounced through fraud, contrivance or covin of any description, or not in a real suit.' Mr. Delos Lake, for appellees. Mr. Justice Miller delivered the opinion of the court: In this case a bill in chancery is brought in the Circuit Court of the United States for the District of California, to use the language of the bill itself, "By Walter Van Dyke, United States Attorney for that district on behalf of the United States of America," against Throckmorton, Howard, Goold and Haggin, The object of the bill is to have a decree of the court, setting aside and declaring to be null and void a confirmation of the claim of W. A. Richardson under a Mexican grant, to certain lands, made by the Board of Commissioners of Private Land Claims in California on the 27th day of December, 1853; and the decree of the District Court of the United States, made February 11, 1856, affirming the decree of the commissioners, and again confirming Richardson's claim. The general ground on which this relief is asked is, that both these decrees were obtained by fraud. The specific act of fraud which is mainly relied on to support the bill is, that after Richardson had filed his petition before the commissioners, with a statement of his claim and the documentary evidence of its validity, March 16, 1852, he became satisfied that he had no sufficient evidence of an actual grant or concession to sustain his claim, and with a view to supply this defect, he made a visit to Mexico, and obtained from Micheltorena, former politic al chief of California, his signature, on or about the first day of July, 1852, to a grant which was falsely and fraudulently antedated, so as to impose on the court the belief that it was made at a time when Micheltorena had power to make such grants in California; and it is alleged that in support of this simulated and false document he also procured and filed with the Board of Commissioners perjured depositions along with the fraudulent grant. to a confirmation of the grant, and least of all when the party was already in by possession of many years' standing. It is also important to observe that the original petition was filed before the Board March 16, 1852, and its decree was rendered December 27, 1853; that an appeal was taken to the district court, where the case remained until February 11, 1856, when it was affirmed; that an appeal was again taken to the Supreme Court of the United States, which was dismissed by order of the AttorneyGeneral on the 2d day of April, 1857. The case was pending in litigation, therefore, more than five years before the decree became final, and more than four years after the alleged fraudulent grant by Micheltorena was filed in the case. It is also to be observed that the necessity of such a paper to the support of Richardson's claim had been made obvious to the Board of Commissioners, to the claimant himself, and to the attorneys representing the Government, by the report of the Surveyor General, that while everything else seemed right in his office, the important final decree of concession was not there. The attention, therefore, of all the parties and of the court must have been drawn to a close scrutiny of any proceeding to supply this important document. There was also ample time to make all necessary inquiries and produce the necessary proof, if it existed, of the fraud. The allegation of the bill is that this simulated concession was filed with the Board of Commissioners in January, 1853, and the decree rendered on December 27, thereafter. The appeal was pending after this in the district court over two years; and after the final decree in that court it remained under the consideration of the Attorney-Gen There is much verbiage and repetition, and argumentative matter in the bill; and no allegation whatever that any of the attorneys, agents or other officers of the Government were false in their duty to the Government, or assisted or connived at the fraud, unless a single alle-eral another year, when he authorized the dis gation on that subject sufficiently states such charge, which will be hereafter considered. For the present, it will be assumed that no such charge is made. missal of the appeal. The case, then, unless these officers neglected their duties, underwent the scrutiny of two judicial tribunals and of the Attorney-General of the United States, as well as of his subordinate in the State of California, and it was before them for a period of five years of litigation. While the bill is elaborate in its statement of matters which are supposed to impeach the decree, and is correspondingly silent as to anything tending to its support, there are important facts which cannot escape attention, that could not be omitted. Among these is, that, in attempting to negative the idea that juridical possession of the land was ever delivered to Richardson by the Mexican authorities, it is incidentally admitted that at the time the transaction occurred on which his claim is founded, he was in actual possession and residing on part, if not all the land in controversy. So, also, it is tacitly admitted that the archives of the Mexican Government, turned over to the office of the United States Surveyor General, and origiinal documents produced by Richardson, showed an espediente which was sufficient to establish the claim, except for the want of the final concession. It is, therefore, to be taken as true that Richardson, being on the land prior to 1838, made his petition to the Governor for a grant of this land, that the proper reference for information was made, and the proper report was had that there was no objection to the grant. According to Mexican law, but two things remained to perfect the title, namely: a grant or concession by the Governor, and the deliv-diction it invokes can rest. ery of juridical possession. The latter has never been held by this court as indispensable The bill in this case is filed May 13, 1876, more than twenty years after the rendition of the decree which it seeks to annul. During that time Richardson, the claimant, and the man who is personally charged with the guilt of the fraud, has died; his heirs, who with himself were claimants in the suit, are not made parties and the land has passed from his ownership to that of the present defendants by purchase and conveyance. It is true that the defendants are charged, in general terms, with being purchasers with notice. It is true that the United States is not bound by the Statute of Limitations, as an individual would be. And we have not recited any of the foregoing matters found in the bill as sufficient of itself to prevent relief, in a case otherwise properly cognizable in equity. But we think these are good reasons why a bill which seeks under these circumstances to annul a decree thus surrounded by every presumption which should give it support, shall present on its face a clear and unquestionable ground on which the juris Let us inquire if this has been done. |