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ed to the validity of the sale of the property they had no right to be heard as to the man. by the sheriff on credit instead of for cash. ner of sale, whether in violation of the stat. In our opinion that question was rightly de- ute or not. But, assuming the validity and cided by the court when it held such sale applicability of the Indian statute, the title absolutely void, and it is unnecessary for to the property did not become forfeited by us to refer to or decide any other.

the mere act of building. There must be at The son of the deputy sheriff who conduct least some valid action looking towards the ed the sale bid off property worth $60,000 enforcement of the forfeiture. To assert for $270, and gave his note for that amount, that those who are in possession are intrud. payable when possession was given him, or ers upon the land and have forfeited their he, by some means, had otherwise obtained property, and therefore are not entitled to it. He has not yet obtained it, and the be heard upon the question whether those note has never been paid.

who claim the property have complied with The court of appeals held the sale void, the law, is to say that one in possession and as in violation of the statute under which claiming to be the owner may be deprived of the sheriff assumed to sell. The proceedings his property without due process of law. of the sheriff were under the act of the On the contrary, he is entitled to insist upon Choctaw legislature, approved October 30, obedience to law by those who assume to 1888, referred to in the foregoing statement. take his property by reason of an alleged By that act it was provided that the sheriffs forfeiture. To insist upon a forfeiture the of the counties in which the improvements person who claims it must show some legal were located should advertise the improve- right to insist upon it. In case of a soverments for sale for thirty days, and should eign state or nation, its conclusion to insist "sell the same at the appointed time to the upon a forfeiture for breach of a condition highest Choctaw citizen bidder for cash.” subsequent may be by legislation (Atlantic

The sale was a clear violation of the pro- & P. R. Co. v. Mingus, 165 U. S. 413, 431, visions of the statute, under which alone 41 L. ed. 770, 777, 17 Sup. Ct. Rep. 348), there was authority to sell at all.

and that legislation must be followed in asThe appellant answers this objection by serting and enforcing the forfeiture by those stating that the parties consented to the acting for the state. So the owners of this sale for credit instead of cash. We find no property, even if it be liable to forfeiture, evidence of such consent, so far as the coal may nevertheless insist upon obedience to company was concerned, or its receivers. the statute by those assuming to act under The buildings were, as alleged by appellant, it. Their consent to its violation is most eserected by the company or its receivers, al sential. They did not become outlaws by though outside the right of way, and, there building outside of the right of way. fore, as is claimed by appellant, they be- It is also urged on the part of the appel. came forfeited to the Choctaw Nation. It lant that the act of the sheriff was ratified is unnecessary to decide this question at both by the principal chief and also by the present. But if the property were to be tak- council of the Nation. The only proof of the en away from the company or its receivers, ratification by the principal chief (even if on the ground of the alleged forfeiture, he had power to ratify, which cannot be asthey certainly had the right to demand that sumed) is given in the deposition of the apit should be taken from them pursuant to pellant's intestate, referred to in the forelaw, and not in open violation thereof. going statement of facts. Therein the sherWhen a party whose only title to property iff said that the chief ratified his action as depends upon its sale to him under a statute to the sale and payments on the property, demands possession of such property from and instructed him to proceed at once to emone who is in possession under a bona fide ploy attorneys to assist him in getting posclaim of right, the party making such de- session of the property for the purchaser. mand must show some right to it, and this The statement that the chief ratified his obligation he does not meet by showing that action was a mere conclusion of law. It he purchased it under a sale which was in gave no facts upon which such alleged ratiplain violation of the very statute under fication was based, and was clearly inadmiswhich the sale took place. Hockett v. Als-sible as proof of ratification. The same witton, 49 C. C. A. 180, 110 Fed. 910. The coal ness had already testified that before the company or the receivers, therefore, had sale he was directed by the chief of the Chocgreat interest in this property, as owners, taw Nation “to proceed according to law to until, at least, their title was devested upon dispose of the buildings which had been built a valid sale. They never consented to any by the Choctaw Coal & Railway Company sale on credit.

off of its right of way.” It would hardly be The appellant asserts that the railroad or supposed that he would at once ratify a viothe receivers had forfeited the property by lation of law in the conduct of the sale. building outside the right of way, and hence' But the proof of ratification by the principal

chief is totally insufficient, and is, as already, which in any way ratifies, or purports to ratsaid, a mere conclusion of law by the wit- ify, an illegal sale by a sheriff assuming to ness. And, as a separate and distinct rea- act under the law providing for sales by son, we find no proof of any power of the sheriffs, of buildings erected on land outside chief to ratify a violation of this act. the right of way of the railroad company.

Nor is the alleged ratification by the gen- It appropriates money to defend the Nation eral council of the Choctaw Nation of any in suits relative to the full and complete greater effect. This ratification consists in execution of the laws, and nothing else; not the passage by the general council of the act a suspicion of any ratification of an illegal approved October 30, 1895, and already re- sale under those laws. ferred to. It appropriates the sum of $2,000, The record shows a gross violation of the to be used by the principal chief in the em- act under which the sale was made, and an ployment of counsel for the purpose of de entire absence of any evidence showing a fending the interest of the Nation in all ratification of such act either by the prinsuits pending or that may thereafter come cipal chief, assuming he could ratify, or by before the United States courts, "in any the council of the Nation. The case is not manner relative to the full and complete one in which any court would strive to find execution of the laws of the Choctaw Nation a way to uphold such a proceeding. by the sheriffs of each and every county in Without going into the other questions the confiscation of property of noncitizens which arise, it is sufficient to say that, upon who are now occupying lands or buildings, or the ground above discussed, the decree of the who may hereafter occupy, not in conform- Circuit Court of Appeals is right. ity with the laws of the Choctaw Nation." Decree affirmed.

Certainly there is nothing in that act

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J. T. SMITHERS, Plff. in Err., survey 27 and survey 91; that prior to plain-
V.

tiff's acquisition of title the two surveys T. SMITH, S. A. Greer, R. C. Reagan, et al. were circumscribed by a fence 2 miles long

and 1 mile wide, making a single tract of Courts jurisdiction of circuit court

land of those dimensions; that the value of amount in dispute.

the land was $5,000, and that the defendants 1. govhave ern in determining the jurisdiction of a fedhave destroyed fences and other improveeral circuit court except where, upon the facements and thereby damaged the plaintiff in of his own pleadings, it is not legally possi- the sum of $2,000; and prayed possession of ble for him to recover the jurisdictional the land, and damages. amount, or where such allegations are fraud- The answer of Reagan alleged that he ulently made for the purpose of creating was the owner of part of the land described the jurisdiction.*

in the petition by a title separate and inCourts — jurisdiction of circuit court

dependent from the other defendants; that amount in dispute.

his land is inclosed by a fence and in his 2. A suit for the recovery of land of the alleged value of $5,000, and for $2,000 dam- | possession; that he disclaims title to the ages for its detention, cannot be dismissed remainder of the land claimed; that the by a Federal circuit court, acting under the allegation in the petition that he entered authority of the act of March 3, 1875 (18 upon any other than his own land was unStat. at L. 470, chap. 137), § 5,1 as not really true, "and made with the intent to confer and substantially involving a dispute or upon this court jurisdiction over him;" controversy properly within its jurisdiction, that the value of the land which he entered, because, after hearing evidence, the court is in possession of, and claims is less than is satisfied that the defendants did not act $300, and asked that the suit abate as to jointly, as plaintiff alleged and defendants

him. denied, and that the land taken and held by each defendant was of less value than $2,

Treating the foregoing answer as a plea 000, since in so deciding the court did not in abatement, Reagan, without waiving it, determine a jurisdictional fact, but an es- further answered, disclaiming as to part of sential element of the merits, upon which the land claimed in the petition and pleadthe parties were entitled to the finding of a ing the general issue as to the remainder. jury.

The answer of Greer was substantially the

same, except that the value of the land upon [No. 138.]

which he entered and was possessed of was Submitted December 21, 1906. Decided Feb. alleged to be less than $600. Greer further ruary 25, 1907.

answered, alleging the pendency in the

courts of the state of an action “to try N ERROR to the Circuit Court of the title to recover of S. A. Greer, a defendant

United States for the Northern District in the case at bar, one T. Smith and others, of Texas to review a judgment dismissing the title and possession of the land dean action for the recovery of land and for scribed in the petition in the case at bar," damages for its detention on the ground that and praying that the cause await the dethe jurisdictional amount was not involved. termination of the cause in the state court. Reversed and remanded for further proceed. The answer of Smith contained the same alings.

legation with regard to the pendency of the

action in the state court as that of Greer, Statement by Mr. Justice Moody:

disclaimed as to part of the land described The plaintiff in error, a citizen of New in the petition, and pleaded the general isYork, brought in the circuit court for the sue as to the remainder. Deven filed no northern district of Texas a petition to try answer. the title to 1,280 acres of land, against ten More than a year after the last of the defendants, citizens either of Texas, Ken- foregoing pleadings were filed the plaintiff tucky, or Illinois. Six of the defendants filed what was entitled "First amended orwere warrantors of the plaintiff's title, and iginal petition.” In it Lee, also a resident questions arising as to them are not ma- of Texas, was named as an additional deterial here. The petition alleged that upon fendant. The amendment seems to be subJanuary 15, 1902, “the defendants Reagan, stantially like the original petition, except Smith, Greer, and Deven unlawfully entered that it alleged that “the defendants Reagan, upon said premises and dispossessed plain-Smith, Greer, Lee, and Deven 'together untiff thereof, and have since that date unlaw- lawfully entered upon said premises and disfully withheld from the plaintiff the pos-possessed plaintiff thereof," and that "all session thereof, to his damage $2,000.00;" of said defendants have jointly taken possesthat the plaintiff's title was derived by sion of plaintiff's said land;" that the plainmesne conveyances from two patents of ad-tiff has acquired title to land by the statute joining lots of land, known respectively as of limitations, and that the action is one to

*Ed. Note.-For cases in point, see vol. 13, Cent. Dig: Courts, § 897. U. S. Comp. St. 1901, p. 511.

fix and determine the boundaries, which are plaintiff claimed to be his land, which, when uncertain, and that "the entire land is the he acquired it, was inclosed by a fence in subject matter of this controversy as be- one parcel of 1,280 acres. Of the 1,014 acres tween the plaintiff and each and all of said taken from the land claimed by plaintiff, defendants."

Lee claimed 96, Reagan 288, Smith 443, and Subsequently Lee answered, alleging that Greer 187. The evidence, which is reported he was the owner of part of the land de- in full in the bill of exceptions, shows the scribed in plaintiff's petition by a title sepa- following facts: In 1892, before any of the rate and independent from that of the other defendants appeared claiming title, the defendants, and with respect to that he 1,280 acres claimed by the plaintiff was pleads the general issue, and disclaims as inclosed as one parcel by a substantial fence, to the remainder. The answer also alleged and was known as the Pendleton pasture. that the matter in controversy did not ex. Subsequently the plaintiff acquired title to ceed the sum of $2,000, and that “the claim the inclosed land. Smith pulled down part of plaintiff. as set forth in his petition as and Reagan another part of the Pendleton to the value of said land, improvements, pasture fence, and Smith and Greer each rents, and damages, exceeding $2,000,. has pastured their cattle throughout the Pendlebeen fraudulently alleged with the intent ton pasture. and purpose to confer jurisdiction upon this honorable court, when in truth and in fact Messrs. David T. Bomar and Frank E. Dyno such jurisdiction existed, because the cus for plaintiff in error. matter in controversy is of less than $2,000 Messrs. Theodore Mack, Sam J. Hunter, in value."

and Ray Hunter for defendants in error. Subsequently Smith amended his answer and alleged that he was the owner and in Mr. Justice Moody, after making the forepossession of 443 acres of the land described going statement, delivered the opinion of in plaintiff's petition, which was of the the court: value of $1,500, and disclaimed as to the re- The plaintiff in error brought an action mainder. He also alleged that the valuation in the circuit court for the recovery of cerplaced by the plaintiff on the land, and the tain land and damages for the detention plaintiff's allegation that "he and S. A. thereof, basing jurisdiction upon a diversity Greer jointly took possession of said lands," of citizenship, which was undisputed. In was "fraudulently claimed and alleged for such case it is essential to the jurisdiction the intent and purpose of conferring juris- of the circuit court that "the matter in disdiction upon this honorable court, when in pute exceeds, exclusive of interest and costs, truth and in fact no such jurisdiction ex- the sum or value of $2,000.” Act of March isted, because the whole matter in contro-3, 1875, chap. 137, § 1, 18 Stat. at L. 470; versy is and was of less value than $2,000.”amended act of August 13, 1888, chap. 866, He further alleged that the controversy had § 1, 25 Stat. at L. 434, U. S. Comp. Stat. been adjudicated in the state court. The 1901, p. 508. The action was dismissed by pleas to the jurisdiction were, on motion the authority given by § 5 of the act of of the defendants, tried by the judge, jury March 3, 1875, in which it is provided that . being waived, who found that "the pleas "if, in any suit commenced in a circuit of each of the said defendants Reagan, Lee, court,

court, ... it shall appear to the satSmith, and Greer is fully proved and sus-isfaction of said circuit court, at any time tained, and that this court has no juris- after such suit has been brought, diction over the subject-matter in dispute,” that such suit does not really and suband dismissed the action for want of juris- stantially involve a dispute or controversy diction. A writ of error was allowed "solely properly within the jurisdiction of said cir. upon the question of jurisdiction,” the cuit court, or that the parties to such suit judge, certifying that no other question was have been improperly or collusively made or tried, transmitted the record containing a joined either as plaintiffs or defendants for bill of exceptions to this court.

the purpose of creating a case cognizable The bill of exceptions shows that it was

under this act," the court shall disagreed that the plaintiff owned the two sur-miss the suit. The propriety of the disveys, 91 and 27, containing 1,280 acres, of missal is brought here for review by virtue a value much exceeding $2,000; that Lee of $ 5 of the act of March 3 1891 [26 Stat. owned section 32, Reagan section 31, Smith at L. 827, chap. 517, U. S. Comp. Stat. 1901, section 28, and Greer section 90, all of which p. 549], and is the only question for dewere adjoining sections and surrounded cision. three sides of the plaintiff's land. The dis- The plaintiff was the owner in fee simple pute concerned the situation of the bounda- of a quadrangular lot of land 2 miles long ries. As the defendants claimed the bounda- and i mile wide, containing 1,280 acres, ries, they owned 1,014 acres of what the inclosed by a fence, and known as the Pen:

dleton pasture. Its value largely exceeded | dence. Wetmore v. Rymer, 169 U. S. 115, $2,000. He sought to recover possession of 42 L. ed. 682, 18 Sup. Ct. Rep. 293. this land and damages from the defendants The absence of any opinion in the court Reagan, Smith, Greer, Deven, and Lee, who, below, and of any finding of fact except by as he claimed, had disseised him of the land, reference to the several answers of the deand were unlawfully holding possession. In fendants, which are said to be "fully proved ascertaining the precise nature of the plain- and sustained,” and of any more specific retiff's claim we take into account not only cital in the judgment than that the suit the original petition, but that pleading en was dismissed for want of jurisdiction, rentitled "First amended original petition," al- ders it somewhat difficult to understand the though it is urged that it does not appear facts and reasons which led to the dismisthat the amendment was allowed by the sal. But, upon an examination of the whole court. It is not clear that the amendment record, it seems clear that the court found: adds anything material to the question pre- (1) That the defendants did not jointly sented here, to the original petition, but, take and hold the plaintiff's land; however that may be, as it is certified to be (2) That each defendant, acting indea part of the record and was answered by pendently of the others, took and held only one of the defendants, we assume that it a part of plaintiff's land, and that each part was properly allowed, and was not a mere thus taken and held by each defendant was casual intruder among the papers in the of less value than $2,000; and case. The plaintiff alleged in substance in (3) That the plaintiff, in his petition, had the original, and more specifically in the fraudulently stated the value of his land, the amended, petition that the defendants had extent of his damages, and the joint charjointly entered upon, taken, and held pos-acter of defendants' action in entering and session of, his land, which was of the value taking possession of his land, and had done of $5,000, and inflicted damages of $2,000 this for the purpose of conferring jurisupon him by the unlawful entry and pos- diction upon the court. session, and sought to recover of all the If the last finding of fact was warranted defendants the whole parcel of land and all by the evidence there is no need of going the damages claimed. Thus the plaintiff set further, because such a state of facts would forth a case within the jurisdiction of the demand a dismissal of the action. Ordicourt. Giving to the defendants' answers narily the plaintiff's claim with respect to the broadest possible effect, they each, for the value of the property taken from him the purpose of disputing the jurisdiction or the amount of damages incurred by him of the court, denied that they had jointly through the defendants' wrongful act measentered upon plaintiff's land, and, each dis- ures, for jurisdictional purposes, the value of claiming as to the remainder, alleged that, the matter in controversy (Smith v. Greenunder a title separate and independent from how, 109 U. S. 669, 27 L. ed. 1080, 3 Sup. the other defendants, he had entered upon Ct. Rep. 421; Barry v. Edmunds, 116 U. and held possession of only a certain part s. 550, 29 L. ed. 729, 6 Sup. Ct. Rep. 501; of the plaintiff's land, which, together with Scott v. Donald, 165 U. S. 58, 41 L. ed. the damages inflicted by the entry and pos- 632, 17 Sup. Ct. Rep. 265; Wiley v. Sinkler, session, was of much less value than $2,000. 179 \U. S. 58, 45 L. ed. 84, 21 Sup. Ct. The answers further alleged that the al- Rep. 17), unless, upon inspection of the legations of the value of the land, the ex- plaintiff's declaration, it appears that, as tent of the damages, and the joint action a matter of law, it is not possible for the of the defendants in entering, taking, and plaintiff to

the jurisdictional holding possession, were fraudulently made amount (Lee v. Watson, 1 Wall. 337, 17 by the plaintiff with the intent and purpose L. ed. 557; Schacker v. Hartford F. Ins. of conferring jurisdiction upon the court, Co. 93 U. S. 241, 23 L. ed. 862; Vance v. when in truth no such jurisdiction existed, W. A. Vandercook Co. 170 U. S. 468, 42 because the matter in controversy was in L. ed. 1111, 18 Sup. Ct. Rep. 645; North reality less than the value of $2,000. Upon American Transp. & Trading Co. v. Morthe motion of the defendants the judge, rison, 178 U. S. 262, 44 L. ed. 1061, 20 without a jury, passed upon the question of Sup. Ct. Rep. 869). The rule that the jurisdiction, and, after hearing evidence, plaintiff's allegations of value govern in defound that the pleas of the defendants as termining the jurisdiction, except where, upto the jurisdiction were “fully proved and on the face of his own pleadings, it is not sustained,” and that the court has no juris- legally possible for him to recover the jurisdiction over the subject matter in dispute, dictional amount, controls even where the and dismissed the suit.

declaration shows that a perfect defense The order of the court is subject to re- might be interposed to a sufficient amount view in this court in respect of the rulings of the claim to reduce it below the jurisof law and findings of fact upon the evi- ' dictional amount. Schunk v. Moline M.

recover

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