a grant coupled with conditions and charges in favor of third parties, and the Corkran heirs were forced to accept the grant with the conditions attached. They could not accept it as far as it might be favorable to them, and repudiate its effect as to other parties. There are no persons claiming adverse rights, and, the Government having expressly renounced and waived her own, plaintiff cannot, through her, urge them."

The court pointed out that counsel, notwithstanding the provisions of article 233 of the constitution of 1898 as to the prescription of three years barring an action seeking to annul a tax title, had brought a direct petitory action against defendants in actual possession of the property which they claimed. The court continued:

"On the trial of the case defendants established that they and their authors had been in possession as they had alleged;

"Defendants evidently relied in their pleadings and proof upon article 233 of the constitution, upon the strength of the defensive position which they would hold, when they should have shown an actual corporeal possession of the property claimed by themselves and their authors for nineteen or twenty years as owners, and have traced their rights back to a tax sale.

Defendants do not plead prescription against the petitory, but upon an incidentally raised action of nullity. The sale referred to was strictly a sale for taxes. The property was proceeded against as property belonging to Anthony Corkran or his heirs, and, as matters have now shaped themselves, it must be taken to have belonged to them at the time of the sale. The defendants and their authors not only had corporeal possession prior to 1898, but it extended before the institution of this suit for three years after the adoption of the constitution of 1898 so that this possession was itself protected permanently from attack by plaintiff by article 233, independently of the merits of the tax title

even

Argument for Defendants in Error.

199 U. S.

had the property at the time of the tax sale not been segregated from the public domain, and even though their title to the property had been void. This permanent protection to possession is equivalent to legal ownership. Pillow v. Roberts, 13 How. 472. . Plaintiff had certainly the

right even on its own theory to attack defendants' tax title after February, 1897; having failed to institute its proceeding within the three years from the date of the adoption of the constitution, their right of action was forever barred. In re Lockhart, 109 Louisiana, 740.

"We think the defendants have sustained their defense under both of the prescriptions invoked-that of ten years acquirendi causa, and that of three years, under article 233 of the constitution."

Mr. Kenneth Baillio, with whom Mr. Hampden Story and Mr. E. B. Dubuisson were on the brief, for plaintiff in error: As to the jurisdiction of this court.

Both parties claim title under a Federal statute, under which the validity of the titles set up is made to depend upon a correct interpretation of the laws of Louisiana, ergo that interpretation is a Federal question. This necessarily follows from the very language of § 709, Rev. Stat. The right granted to this court, under that section, to reëxamine and reverse or affirm a final judgment of the highest court of a State, where any title, right, privilege or immunity is set up under a statute of the United States, and the decision is against such title, right, privilege or immunity, is not confined to a review of the state court's interpretation of the statute under which it was claimed, but extends also to a review of the state court's decision on the validity of the title set up. Smith v. Maryland, 6 Cranch, 286; Martin v. Hunter, 1 Wheat. 359.

Mr. Donelson Caffery, Jr., and Mr. Gilbert L. Dupre, with whom Mr. Donelson Caffery, Mr. J. Sully Martel and Mr. P. J. Chappin were on the brief, for defendants in error: As to the jurisdiction.

199 U.S.

Argument for Defendants in Error.

Before it can be said that any right or title under a statute of the United States has been denied, it is necessary to overcome the judgment of the state court upon a question of local or state law. To do this, the Supreme Court of the United States has no jurisdiction under $25 of the judiciary act. Poppe v. Langford, 104 U. S. 770; Johnson v. Risk, 137 U. S. 309; Lyttle v. Arkansas, 22 How. 193; Telluride Power Co. v. R. G. Western R. R., 175 U. S. 639; S. C., 187 U. S. 569; Dibble v. Land Co., 163 U. S. 63.

The question here is not one of the correctness of the state decision brought up by the writ, but of jurisdiction in this court to review the case in the absence of a Federal question. The cases cited by plaintiff in error are not applicable.

The Federal question must be considered as not decided when a question of state law intervenes, and is decisive of the case. To give jurisdiction, the Federal question must be necessary to the judgment or decree complained of. Detroit R. R. v. Guithard, 114 U. S. 133; Choteau v. Gibson, 111 U. S. 200; State v. Board of Liquidation, 98 U. S. 140; McManus v. O'Sullivan, 91 U. S. 578; Murdock v. Memphis, 20 Wall. 590; Adams v. Burlington R. R., 112 U. S. 127; Chapman v. Goodwin, 123 U. S. 548; Brooks v. Missouri, 124 U. S. 400; Water Works v. Sugar Co., 125 U. S. 29; DeSausure v. Gaillard, 127 U. S. 234; Israel v. Arthur, 152 U. S. 262; Wailes v. Smith, 157 U. S. 276; Hale v. Akers, 132 U. S. 565; San Francisco v. Strell, 133 U. S. 567.

Mr. Frederic D. McKenney, Mr. John Spalding Flannery and Mr. James L. Autry also for defendants in error, submitted on the question of jurisdiction:

Whether the conclusion reached was correct depends entirely upon the proper construction and application of the provisions of the state constitution to the facts found. It does not in anywise depend upon the Constitution or laws or authority of the United States. A writ of error to review such

a judgment will not lie. Chapman v. Crane, 123 U. S. 540; Wells v. Goodnow, 150 U. S. 84.

Where the decision of the state Supreme Court rests on an independent ground of law, not involving any Federal question, this court has no jurisdiction. Water Works Co. v. Sugar Co., 125 U. S. 18.

The ground of the decision in the state courts was independent of any claim of right under the statute of 1897, and its adjudication involved no Federal question and the writ of error must be dismissed. Eustis v. Bolles, 150 U. S. 361; Carothers v. Mayer, 164 U. S. 325; Moran v. Horsky, 178 U. S. 205.

If the accident that either one or both of the parties to the controversy claimed title under the United States was to be considered as sufficient to bring it within the jurisdiction of this court, then every controversy involving the title to such lands, whether it involved merely the inheritance, partition, devise, or sale of it, would with equal propriety be subject to examination by this court. Moreland v. Page, 20 How. 522; Carpenter v. Williams, 9 Wall. 785; Martin v. Marks, 97 U. S. 345.

The mere averment of the existence of a Federal question is not sufficient to give this court jurisdiction; a real and not a fictitious Federal question is essential to give this court jurisdiction over the judgment of state courts, and when it appears that the alleged Federal question upon which jurisdiction is invoked is wholly without foundation the writ of error will be dismissed. Sawyer v. Piper, 189 U. S. 154, 156, 157.

The attempt to assert a Federal question for the first time in a petition for rehearing is too late unless it appears that the court entertained the petition and disposed of the question. Fullerton v. Texas, 196 U. S. 192.

MR. CHIEF JUSTICE FULLER, having made the foregoing statement, delivered the opinion of the court.

In the progress of the case in the trial court no Federal

question as such was specifically raised, but when it reached the Supreme Court it was assigned for error that if article 233 of the constitution of Louisiana of 1898 had the effect of validating the tax sale to Henry Gellert it was in violation of Article 5 of the amendments to the Constitution of the United States. Counsel for plaintiff in error admit that this was a misreference, but contend that it was corrected by the petition for rehearing filed after judgment, which alleged a violation of the Fourteenth Amendment, but this came too late, unless the petition was entertained and the point passed on. Fullerton v. Texas, 196 U. S. 192. And this petition was denied without any observations.

The petition for the writ of error from this court and the assignment of errors herein set up Federal questions, but they form no part of the record on which to determine whether a Federal question was decided by the state court. Leeper v. Texas, 139 U. S. 462; Chapin v. Fye, 179 U. S. 127. And counsel further state "that in so far as the errors assigned are said to have violated the due process of law provision of the Fourteenth Amendment to the Constitution of the United States, they are not pressed."

If it be conceded that plaintiff specially set up and claimed title to the land in controversy under the act of Congress of February 10, 1897, that would not be sufficient to give jurisdiction unless the state courts had decided against such title. But that was not the decision here. What was decided was that the prescribed period having elapsed, article 233 of the Louisiana constitution operated as the equivalent of legal title through the tax deed. The correctness of this conclusion depended on the proper construction and application of the provisions of the state constitution on the facts found, and not on the Constitution or laws of the United States.

The state constitution of 1898 was adopted and went into effect May 12, 1898. La. Const. 1898, p. 88. Article 233 provided:

"No sale of property for taxes shall be set aside for any VOL. CXCIX-13