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ed to the validity of the sale of the property | they had no right to be heard as to the manby the sheriff on credit instead of for cash. In our opinion that question was rightly decided by the court when it held such sale absolutely void, and it is unnecessary for us to refer to or decide any other.

The son of the deputy sheriff who conducted the sale bid off property worth $60,000 for $270, and gave his note for that amount, payable when possession was given him, or he, by some means, had otherwise obtained it. He has not yet obtained it, and the note has never been paid.

The court of appeals held the sale void, as in violation of the statute under which the sheriff assumed to sell. The proceedings of the sheriff were under the act of the Choctaw legislature, approved October 30, 1888, referred to in the foregoing statement. By that act it was provided that the sheriffs of the counties in which the improvements were located should advertise the improvements for sale for thirty days, and should "sell the same at the appointed time to the highest Choctaw citizen bidder for cash."

The sale was a clear violation of the provisions of the statute, under which alone there was authority to sell at all.

ner of sale, whether in violation of the statute or not. But, assuming the validity and applicability of the Indian statute, the title to the property did not become forfeited by the mere act of building. There must be at least some valid action looking towards the enforcement of the forfeiture. To assert that those who are in possession are intruders upon the land and have forfeited their property, and therefore are not entitled to be heard upon the question whether those who claim the property have complied with the law, is to say that one in possession and claiming to be the owner may be deprived of his property without due process of law. On the contrary, he is entitled to insist upon obedience to law by those who assume to take his property by reason of an alleged forfeiture. To insist upon a forfeiture the person who claims it must show some legal right to insist upon it. In case of a sovereign state or nation, its conclusion to insist upon a forfeiture for breach of a condition subsequent may be by legislation (Atlantic & P. R. Co. v. Mingus, 165 U. S. 413, 431, 41 L. ed. 770, 777, 17 Sup. Ct. Rep. 348), 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 appelcame 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 company or the receivers, therefore, had great interest in this property, as owners, until, at least, their title was devested upon a valid sale. They never consented to any sale on credit.

The appellant asserts that the railroad or the receivers had forfeited the property by building outside the right of way, and hence

ness had already testified that before the sale he was directed by the chief of the Choctaw Nation "to proceed according to law to dispose of the buildings which had been built by the Choctaw Coal & Railway Company off of its right of way." It would hardly be supposed that he would at once ratify a violation of law in the conduct of the sale. 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 reason, we find no proof of any power of the chief to ratify a violation of this act.

act under the law providing for sales by sheriffs, of buildings erected on land outside the right of way of the railroad company. It appropriates money to defend the Nation in suits relative to the full and complete execution of the laws, and nothing else; not a suspicion of any ratification of an illegal sale under those laws.

The record shows a gross violation of the

Nor is the alleged ratification by the general council of the Choctaw Nation of any greater effect. This ratification consists in the passage by the general council of the act approved October 30, 1895, and already referred to. It appropriates the sum of $2,000, 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 defending the interest of the Nation in all suits pending or that may thereafter come before the United States courts, "in any manner relative to the full and complete execution of the laws of the Choctaw Nation by the sheriffs of each and every county in the confiscation of property of noncitizens who are now occupying lands or buildings, or who may hereafter occupy, not in conformity with the laws of the Choctaw Nation."

Certainly there is nothing in that act

entire absence of any evidence showing a ratification of such act either by the principal chief, assuming he could ratify, or by the council of the Nation. The case is not one in which any court would strive to find a way to uphold such a proceeding.

Without going into the other questions which arise, it is sufficient to say that, upon the ground above discussed, the decree of the Circuit Court of Appeals is right.

Decree affirmed.

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Courts jurisdiction of circuit court amount in dispute.

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2. A suit for the recovery of land of the alleged value of $5,000, and for $2,000 damages for its detention, cannot be dismissed by a Federal circuit court, acting under the authority of the act of March 3, 1875 (18 Stat. at L. 470, chap. 137), § 5,1 as not really and substantially involving a dispute or controversy properly within its jurisdiction, because, after hearing evidence, the court is satisfied that the defendants did not act jointly, as plaintiff alleged and defendants denied, and that the land taken and held by each defendant was of less value than $2,000, since in so deciding the court did not determine a jurisdictional fact, but an essential element of the merits, upon which the parties were entitled to the finding of a jury.

[No. 138.]

survey 27 and survey 91; that prior to plaintiff's acquisition of title the two surveys were circumscribed by a fence 2 miles long and 1 mile wide, making a single tract of land of those dimensions; that the value of the land was $5,000, and that the defendants have destroyed fences and other improvements and thereby damaged the plaintiff in the sum of $2,000; and prayed possession of the land, and damages.

The answer of Reagan alleged that he was the owner of part of the land described in the petition by a title separate and independent from the other defendants; that his land is inclosed by a fence and in his possession; that he disclaims title to the remainder of the land claimed; that the allegation in the petition that he entered upon any other than his own land was untrue, "and made with the intent to confer upon this court jurisdiction over him;" that the value of the land which he entered, is in possession of, and claims is less than $800, and asked that the suit abate as to

him.

Treating the foregoing answer as a plea in abatement, Reagan, without waiving it, further answered, disclaiming as to part of the land claimed in the petition and pleading the general issue as to the remainder.

The answer of Greer was substantially the same, except that the value of the land upon which he entered and was possessed of was

Submitted December 21, 1906. Decided Feb- alleged to be less than $600. Greer further

I

ruary 25, 1907.

N ERROR to the Circuit Court of the United States for the Northern District of Texas to review a judgment dismissing an action for the recovery of land and for damages for its detention on the ground that the jurisdictional amount was not involved. Reversed and remanded for further proceedings.

Statement by Mr. Justice Moody:

The plaintiff in error, a citizen of New York, brought in the circuit court for the northern district of Texas a petition to try the title to 1,280 acres of land, against ten defendants, citizens either of Texas, Kentucky, or Illinois. Six of the defendants were warrantors of the plaintiff's title, and questions arising as to them are not material here. The petition alleged that upon January 15, 1902, "the defendants Reagan, Smith, Greer, and Deven unlawfully entered upon said premises and dispossessed plaintiff thereof, and have since that date unlawfully withheld from the plaintiff the possession thereof, to his damage $2,000.00;" that the plaintiff's title was derived by mesne conveyances from two patents of adjoining lots of land, known respectively as

answered, alleging the pendency in the courts of the state of an action "to try title to recover of S. A. Greer, a defendant in the case at bar, one T. Smith and others, the title and possession of the land described in the petition in the case at bar," and praying that the cause await the determination of the cause in the state court. The answer of Smith contained the same allegation with regard to the pendency of the action in the state court as that of Greer, disclaimed as to part of the land described in the petition, and pleaded the general issue as to the remainder. Deven filed no answer.

More than a year after the last of the foregoing pleadings were filed the plaintiff filed what was entitled "First amended original petition." In it Lee, also a resident of Texas, was named as an additional defendant. The amendment seems to be substantially like the original petition, except that it alleged that "the defendants Reagan, Smith, Greer, Lee, and Deven together unlawfully entered upon said premises and dispossessed plaintiff thereof," and that "all of said defendants have jointly taken possession of plaintiff's said land;" that the plaintiff has acquired title to land by the statute of limitations, and that the action is one to

*Ed. Note.-For cases in point, see vol. 13, Cent. Dig: Courts, § 897. 1 U. S. Comp. St. 1901, p. 511.

fix and determine the boundaries, which are uncertain, and that "the entire land is the subject-matter of this controversy as between the plaintiff and each and all of said defendants."

Subsequently Lee answered, alleging that he was the owner of part of the land described in plaintiff's petition by a title separate and independent from that of the other defendants, and with respect to that he pleads the general issue, and disclaims as to the remainder. The answer also alleged that the matter in controversy did not exceed the sum of $2,000, and that "the claim of plaintiff as set forth in his petition as to the value of said land, improvements, rents, and damages, exceeding $2,000,. has been fraudulently alleged with the intent and purpose to confer jurisdiction upon this honorable court, when in truth and in fact no such jurisdiction existed, because the matter in controversy is of less than $2,000 in value."

Subsequently Smith amended his answer and alleged that he was the owner and in possession of 443 acres of the land described in plaintiff's petition, which was of the value of $1,500, and disclaimed as to the remainder. He also alleged that the valuation placed by the plaintiff on the land, and the plaintiff's allegation that "he and S. A. Greer jointly took possession of said lands," was "fraudulently claimed and alleged for the intent and purpose of conferring jurisdiction upon this honorable court, when in truth and in fact no such jurisdiction existed, because the whole matter in controversy is and was of less value than $2,000." He further alleged that the controversy had been adjudicated in the state court. The pleas to the jurisdiction were, on motion of the defendants, tried by the judge, jury being waived, who found that "the pleas of each of the said defendants Reagan, Lee, Smith, and Greer is fully proved and sustained, and that this court has no jurisdiction over the subject-matter in dispute," and dismissed the action for want of jurisdiction. A writ of error was allowed "solely upon the question of jurisdiction," the judge, certifying that no other question was tried, transmitted the record containing a bill of exceptions to this court.

The bill of exceptions shows that it was agreed that the plaintiff owned the two surveys, 91 and 27, containing 1,280 acres. of a value much exceeding $2,000; that Lee owned section 32, Reagan section 31, Smith section 28, and Greer section 90, all of which were adjoining sections and surrounded three sides of the plaintiff's land. The dispute concerned the situation of the boundaries. As the defendants claimed the boundaries, they owned 1,014 acres of what the

plaintiff claimed to be his land, which, when he acquired it, was inclosed by a fence in one parcel of 1,280 acres. Of the 1,014 acres taken from the land claimed by plaintiff, Lee claimed 96, Reagan 288, Smith 443, and Greer 187. The evidence, which is reported in full in the bill of exceptions, shows the following facts: In 1892, before any of the defendants appeared claiming title, the 1,280 acres claimed by the plaintiff was inclosed as one parcel by a substantial fence, and was known as the Pendleton pasture. Subsequently the plaintiff acquired title to the inclosed land. Smith pulled down part and Reagan another part of the Pendleton pasture fence, and Smith and Greer each pastured their cattle throughout the Pendleton pasture.

Messrs. David T. Bomar and Frank E. Dycus for plaintiff in error.

Messrs. Theodore Mack, Sam J. Hunter, and Ray Hunter for defendants in error.

Mr. Justice Moody, after making the foregoing statement, delivered the opinion of the court:

The plaintiff in error brought an action in the circuit court for the recovery of certain land and damages for the detention thereof, basing jurisdiction upon a diversity of citizenship, which was undisputed. In such case it is essential to the jurisdiction of the circuit court that "the matter in dispute exceeds, exclusive of interest and costs, the sum or value of $2,000." Act of March 3, 1875, chap. 137, § 1, 18 Stat. at L. 470; amended act of August 13, 1888, chap. 866, § 1, 25 Stat. at L. 434, U. S. Comp. Stat. 1901, p. 508. The action was dismissed by the authority given by § 5 of the act of March 3, 1875, in which it is provided that. "if, in any suit commenced in a circuit court, ... it shall appear to the satisfaction of said circuit court, at any time after such suit has been brought, that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said circuit court, or that the parties to such suit have been improperly or collusively made or joined either as plaintiffs or defendants for the purpose of creating a case cognizable

.

under this act," the court shall dismiss the suit. The propriety of the dismissal is brought here for review by virtue of § 5 of the act of March 3 1891 [26 Stat. at L. 827, chap. 517, U. S. Comp. Stat. 1901, p. 549], and is the only question for decision.

The plaintiff was the owner in fee simple of a quadrangular lot of land 2 miles long and 1 mile wide, containing 1,280 acres, inclosed by a fence, and known as the Pen.

The absence of any opinion in the court below, and of any finding of fact except by reference to the several answers of the defendants, which are said to be "fully proved and sustained," and of any more specific recital in the judgment than that the suit was dismissed for want of jurisdiction, renders it somewhat difficult to understand the facts and reasons which led to the dismissal. But, upon an examination of the whole record, it seems clear that the court found: (1) That the defendants did not jointly take and hold the plaintiff's land;

(2) That each defendant, acting independently of the others, took and held only a part of plaintiff's land, and that each part thus taken and held by each defendant was of less value than $2,000; and

(3) That the plaintiff, in his petition, had fraudulently stated the value of his land, the extent of his damages, and the joint character of defendants' action in entering and taking possession of his land, and had done this for the purpose of conferring jurisdiction upon the court.

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 Reagan, Smith, Greer, Deven, and Lee, who, as he claimed, had disseised him of the land, and were unlawfully holding possession. In ascertaining the precise nature of the plaintiff's claim we take into account not only the original petition, but that pleading entitled "First amended original petition," although it is urged that it does not appear that the amendment was allowed by the court. It is not clear that the amendment adds anything material to the question presented here, to the original petition, but, however that may be, as it is certified to be a part of the record and was answered by one of the defendants, we assume that it was properly allowed, and was not a mere casual intruder among the papers in the case. The plaintiff alleged in substance in the original, and more specifically in the amended, petition that the defendants had jointly entered upon, taken, and held possession of, his land, which was of the value of $5,000, and inflicted damages of $2,000 upon him by the unlawful entry and possession, 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 the other defendants, he had entered upon and held possession of only a certain part of the plaintiff's land, which, together with the damages inflicted by the entry and possession, was of much less value than $2,000. The answers further alleged that the allegations of the value of the land, the extent of the damages, and the joint action of the defendants in entering, taking, and holding possession, were fraudulently made by the plaintiff with the intent and purpose of conferring jurisdiction upon the court, when in truth no such jurisdiction existed, because the matter in controversy was in reality less than the value of $2,000. Upon the motion of the defendants the judge, without a jury, passed upon the question of jurisdiction, and, after hearing evidence, found that the pleas of the defendants as to the jurisdiction were "fully proved and sustained," and that the court has no jurisdiction over the subject-matter in dispute, and dismissed the suit.

The order of the court is subject to review in this court in respect of the rulings of law and findings of fact upon the evi

how, 109 U. S. 669, 27 L. ed. 1080, 3 Sup. Ct. Rep. 421; Barry v. Edmunds, 116 U. S. 550, 29 L. ed. 729, 6 Sup. Ct. Rep. 501; Scott v. Donald, 165 U. S. 58, 41 L. ed. 632, 17 Sup. Ct. Rep. 265; Wiley v. Sinkler, 179 U. S. 58, 45 L. ed. 84, 21 Sup. Ct. Rep. 17), unless, upon inspection of the plaintiff's declaration, it appears that, as a matter of law, it is not possible for the plaintiff to recover the jurisdictional amount (Lee v. Watson, 1 Wall. 337, 17 L. ed. 557; Schacker v. Hartford F. Ins. Co. 93 U. S. 241, 23 L. ed. 862; Vance v. W. A. Vandercook Co. 170 U. S. 468, 42 L. ed. 1111, 18 Sup. Ct. Rep. 645; North American Transp. & Trading Co. v. Morrison, 178 U. S. 262, 44 L. ed. 1061, 20 Sup. Ct. Rep. 869). The rule that the plaintiff's allegations of value govern in determining the jurisdiction, except where, upon the face of his own pleadings, it is not legally possible for him to recover the jurisdictional amount, controls even where the declaration shows that a perfect defense might be interposed to a sufficient amount of the claim to reduce it below the jurisdictional amount. Schunk v. Moline M.

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