formerly part of the roadbed of the Southern Maryland Railroad Company and now are part of its own. The plaintiff sought to prove its title by putting in deeds of each of these parcels made to the last-named company in 1884 and evidence of possession on the part of the same, together with subsequent deeds finally conveying the land to the plaintiff. Of course this would be sufficient if made out. It is argued that the description in the first deeds is too vague to identify the land, and the argument is fortified by the testimony of a surveyor that "the deed is not definite enough to place it on the ground." But the deed was accompanied by plats to which they referred and the same surveyor testified that "the plats are as near identical [with the witness's survey of the locus] as it is possible to make them," and more to the same effect. It is evident that the former words refer to the descriptive language of the deeds alone, and that when the descriptions are taken as they should be in connection with the plats there is no difficulty with the deeds.

Next it is said that there was no evidence of possession on the part of the Southern Maryland Railroad. But the same surveyor testified that he knew the old Southern Maryland Railroad tracks out there, and had known them for thirteen years, and another surveyor testified that he was employed by that company in laying out its roadbed in 1886, that he remembered the line of this right of way, that the right of way of the Southern Maryland was sixty-six feet wide, and that the Chesapeake Beach Railway uses the right of way of the old Southern Maryland Railroad clear to the District of Columbia line. Without going into further detail or answering every minute criticism, we are of opinion that the judge was right in leaving the question to the jury, and that the jury were warranted in finding as they did. It is said that it must appear that the possession, if any, of the Maryland company was not abandoned. Sabariego v. Maverick, 124 U. S. 261. But in a case like the present, at least, where the tracks of the railroad were on the land and when the plaintiff exhibits a

series of deeds purporting to convey the property, the last one to itself, it is to be presumed that possession followed the title until the dispossession by the defendant took place. Lazarus v. Phelps, 156 U. S. 202, 204, 205. See Bradshaw v. Ashley, 180 U. S. 59, 62, 66. The defendant did not hold for such a length of time, free from dispute, that abandonment to it by the plaintiff could be inferred. The suit was begun on January 13, 1902, and the possession of the defendant is not carried back beyond 1898, if so far.

The subsequent steps in the plaintiff's title are as follows: A decree of the Supreme Court of the District of Columbia, foreclosing a mortgage recited to have been made by the Southern Maryland Railroad, and to cover all its property then or thereafter acquired; a sale and conveyance in pursuance of the decree to one Gregory by a trustee appointed by the court; a certificate of the incorporation of the Washington and Potomac Railroad Company, reciting the foreclosure and sale of all the property of the Southern Maryland Railroad and incorporating Gregory and others to take over the railroad; a conveyance of the property by Gregory to the new company, and a mortgage by it of the same property to the Union Trust Company of Philadelphia, both dated April 1, 1886, the date of its incorporation; a certificate of the incorporation of the plaintiff on July 24, 1901, reciting a decree of the United States Circuit Court for the District of Maryland, which foreclosed the last-named mortgage; reciting also a sale in pursuance of the decree, and incorporating the purchaser and others to take over the railroad; and finally a deed to the plaintiff, by the Union Trust Company, the trustee of the mortgage last mentioned.

The main objection urged to the title is that, as the record of the last foreclosure proceedings was not put in, it does not appear that the court attempted to foreclose property in the District of Columbia, and that as the decree is recited, it must be taken that the trustee was acting only by virtue of the power which the decree conferred. But the trustee had the

legal title and purported to convey all the property which it held. The source of its title was a conveyance to it by the owner. The decree of the court only determined a foreclosure and established the right of the trustee to convey without a breach of trust. Even if it is not to be inferred that the decree was as broad as it is recited to have been (see Muller v. Dows, 94 U. S. 444), the deed of the Union Trust Company conveyed whatever title it had. Williams v. Jackson, 107 U. S. 478. The suggestion that the instrument must be read as limiting itself by pure implication to rights conferred by the decree, and as excluding the only source of the grantor's title, does not merit extended discussion, but it may be mentioned that there is a covenant for future assurances, in general terms, not limited to any particular source. It is observed in one of the cases cited for the defendant that "the recital in the deed cannot enlarge or control the words of the grant." Titcomb v. Currier, 4 Cush. 591, 592. Still less can such a recital as this be taken to eliminate the only title which the grantor held. See further Brobst v. Brock, 10 Wall. 519; Bryan v. Brasius, 162 U. S. 415.

Other purely technical attempts to upset the verdict, so far as they need remark, may be disposed of in a few words. For some unexplained reason the plaintiff, in four of its counts, after describing the land and identifying it by the abovementioned conveyance to the Southern Maryland Railroad, identified it further as conveyed by the Commissioners of the District on a certain date, we presume on a tax sale. It was objected that the latter allegation disclosed a title outstanding in third persons. No evidence was gone into upon the subject. Of course the meaning of the count was not to allege or admit such an outstanding title in some one else when the main allegation was that the plaintiff "was lawfully seized" at the date of the defendant's entry. We shall not spend argument upon that.

The Southern Maryland road was authorized to extend into the District of Columbia by act of Congress. Whether the

later roads had authority or not would not affect the title to the land.

The land seems to have been conveyed to the defendant in error after the plaintiff in error had taken possession, but that is immaterial. In the District of Columbia a conveyance by a disseisee is valid. Matthews v. Herner, 2 App. D. C. 349, 357; Roberts v. Cooper, 20 How. 467, 483; Peck v. Heurich, 167 U. S. 624, 629, 630. A question is raised as to improvements, but it was not raised below and is not open here.

Judgment affirmed.

SWEENEY v. CARTER OIL COMPANY.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF WEST VIRGINIA.

No. 32. Submitted October 30, 1905.-Decided November 27, 1905.

Where suit is brought in the district of defendant's residence by plaintiffs who are citizens of other States than that of defendant, the Circuit Court has jurisdiction although plaintiffs are not themselves citizens of the same State.

THIS was an action of assumpsit brought in the Circuit Court of the United States for the Northern District of West Virginia by, as described in the summons, "Francis B. Sweeney, a resident in and citizen of the State of New York, and Halbert J. Porterfield, a resident in and citizen of the State of Pennsylvania, partners doing business under the firm name and style of Sweeney & Porterfield," against "Carter Oil Company, a corporation created, organized and existing under and by virtue of the laws of West Virginia, and as such a citizen thereof," to recover damages in the sum of $20,000.

The declaration, filed May 4, 1903, followed the summons

199 U. S.

Statement of the Case.

as to the citizenship of the parties, and contained ten special counts, most of them laying the damages at $20,000, and the common counts. An account stated was annexed giving items, running from 1900 to 1901, aggregating $20,912.42.

The record discloses that on February 3, 1904, the court entered an order overruling a motion "to dismiss this action for the want of jurisdiction apparent upon the face of the proceedings in this, that the plaintiffs are residents of different States seeking to sue a defendant of another State." On February 15, 1904, the court set aside that order, sustained the motion to dismiss, and entered judgment for defendant. May 10, 1904, the judge holding the Circuit Court filed a certificate "that the judgment of dismissal made in this cause on February 15, 1904, at the present term of this court, is based solely on the ground that the record does not show that the controversy is one, in my opinion, between citizens of different States, but that it appears from the record that one of the plaintiffs, to wit, Francis B. Sweeney, is a resident in and citizen of the State of New York, and that Halbert J. Porterfield is a resident in and citizen of the State of Pennsylvania, while the defendant is a corporation created and existing under and by virtue of the laws of the State of West Virginia, and domiciled in the Northern District of West Virginia, and no other ground of jurisdiction appears from the record; and the case is dismissed only for the reason above stated, that is, that the controversy is not between citizens of different States, as is required by the Federal statutes to confer jurisdiction on this court, but one of the plaintiffs being a citizen of one State, to wit, the State of New York, and the other plaintiff being a citizen of the State of Pennsylvania, cannot, in my judgment, be joined as plaintiffs and sue in this court, a defendant residing in the Northern District of West Virginia, and consequently the proper citizenship of different States does not exist, and that the Circuit Court of the United States for the Northern District of West Viriginia has no jurisdiction." This writ of error was granted the same day.