would revert to the corporation but not to the plaintiffs. Their title to sue must rest upon their ownership of the stock, and if the defense of ultra vires be sustained, we know of no theory upon which the plaintiffs can recover. It certainly cannot be true that the plaintiffs can take to themselves the $100,000 stipulated by this contract and leave creditors of the corporation unpaid to the been uniformly held that there could be no recovery upon the lease itself, though there might be in an action for use and occupation of the property. Pittsburgh, C. & St. L. R. Co. v. Keokuk & H. Bridge Co. 131 U. S 371, 384, 33 L. ed. 157, 161, 9 Sup. Ct. Rep. 770; Central Transp. Co. v. Pullman's Palace Car Co. 139 U. S. 24, 48, 35 L. ed. 55, 64, 11 Sup. Ct. Rep. 478; S. C. 171 U. S. 138, 43 L. ed. 108, 18 Sup. Ct. Rep. 808; McCor-extent of $150,000. mick v. Market Nat. Bank, 165 U. S. 538, The judgment of the Circuit Court of Ap550, 41 L ed. 817, 822, 17 Sup. Ct. Rep. peals and of the Circuit Court must there433; Thomas v. West Jersey R. Co. 101 U.fore be reversed, and the case remanded to S. 71, 25 L. ed. 950; California Nat. Bank v. the Circuit Court for the Eastern District Kennedy, 167 U. S. 362, 42 L. ed. 198, 17 Sup. of Missouri with directions to grant a new Ct. Rep. 831; Buckeye Marble & Freestone Co. v. Harvey, 92 Tenn. 116, 18 L. R. A. 252; Union P. R. Co. v. Chicago, R. I. & P. R. Co. 163 U. S. 564, 41 L. ed. 265, 16 Sup. Ct. Rep. 1173. The doctrine that no recovery can be had upon the contract is based upon the theory that it is for the interest of the public that corporations should not transcend the limits trial. Mr. Justice Brewer and Mr. Justice MoKenna dissented. UNITED STATES, Appt., v. WAY et al. of their charters; that the property of stock- MARIA DE LA PAZ VALDEZ DE CON holders should not be put to the risk of engagements which they did not undertake; that if the contract be prohibited by statute everyone dealing with the corporation is (See S. C. Reporter's ed. 60-71.) Confirmation of private land claim—grant of lands by act of Congress. 1. bound to take notice of the restrictions in its As the action in this case is upon the contract, and as the contract was prohibited by the charter of the Refrigerating Company, there can be no recovery upon it. The difficulty with the position of the plaintiffs in this case is this: If the purchase of the stock was the main object of the contract the consideration was an illegal one, and the promise of the Refrigerating Com[60]pany to furnish its own *stock in payment was ultra vires. If, upon the other hand, the object of the contract was to obtain the assets and goodwill of the Consolidated Company upon payment of its debts, then the promise of the Refrigerating Company to pay the plaintiffs therefor was without consideration, since the assets were the property of the Consolidated Company and not of its stockholders, and anything realized by the sale of such assets belonged to the company or its assignee, and should be devoted first to the payment of its debts. If there were anything of value beyond the control of the stock which passed to the Refrigerating Company under the contract, the assignee could not be dispossessed of it until all the debts were paid or compromised, when it 3. Lands previously confirmed by act of Congress to Indian pueblos should be excepted from a decree of confirmation of a Spanish grant, even if the previous grant by Congress to the pueblos may be void, as the effect of the confirmation is only to release all claim of title by the United States, and it is not incumbent upon the court of private land claims to determine the priority of right as between the claimant and another grantee. An appeal may be taken by the United States from a decision by the court of private land claims in favor of a petitioner, although the government may have no interest in the result of the litigation. An Indian claim or title that has been confirmed by Congress is a "just and unextinguished" one, within the meaning of the private land claim act, § 13, subd. 2, providing that no claim shall be allowed that shall interfere with or overthrow any such title. [No. 13.] Argued and Submitted January 12, 1899. A Decided October 30, 1899. PPEAL by the United States from a de cree of confirmation by the Court of Private Land Claims of a claim to lands almost entirely within the limits of lands previously confirmed to pueblos by act of Congress and patented to them. Reversed. Statement by Mr. Justice Brown: *This was a petition filed by Maria de la 1) Paz Valdez de Conway and twenty-one others in the court of private land claims for the confirmation of a tract of land known as the Cuyamungue grant, or private land claim, situated in the county of Santa Fé, territory of New Mexico, and alleged to contain in excess of 5,000 acres. It appears from an examination of the ex pediente, offered in evidence as the basis of the claim, that on January 22, 1731, Bernardino de Sena, Tomas de Sena, and Luis Lopez presented a petition to Governor Juan Domingo Bustamente to grant them the surplus land in the abandoned pueblo of Cuyamungue as royal, public, and uninhabited, and described it as being situated on both sides of the river Tesuque (formerly Cuyamungue), and extending from a bluff of the pueblo of Cuyamungue to the hills of the Nambé road. The oral testimony tended to show that the pueblo of Pojoaque had been in existence since 1710, and the pueblo of Nambé from a time immemorial. Upon motion made by the government and upon the consent of all the parties to the proceeding, it was ordered on October 11, 1895, that these pueblos be made parties, and that the petition of the claimants be deemed amended accordingly. It did not appear that any copy of the petition was served upon these pueblos, or that they appeared or waived service; but the court on October 24, 1885, entered a decree against the United States confirming the entire grant as complete *and perfect as of the date [63] of the treaty of Guadalupe Hidalgo, in 1848, and further decrced that the confirmation should in no wise affect the rights of the pueblos of Pojoaque and Nambé, if any they have, as between them and the confirmees under their patents issued by the United States government. The governor made the grant on the same day, directed the chief alcalde of the new village of Santa Cruz to notify the Indians of the pueblo of Tesuque, the heirs of certain adjoining property owners, and all other citizens of the vicinity to show cause, if any they had, why the tract should not be granted to the petitioners, and, if there were no objection, to put them in possession. Such notice having been given, the alcalde on January 22, 1731, put the petitioners in juridical possession of the lands, describing Subsequently to this decree, and on Nothe boundaries, and, after executing such vember 9, the Indians of the two pueblos act, returned the proceedings to the govern-above named entered their appearance, or, by whom they were approved and placed stated that the lands confirmed to the petiin the royal archives of the city of Santa Fé, a testimonio thereof being delivered to the grantees, the original of which is now a part of the archives of the United States in the custody of the surveyor general of the territory. The grantees, their heirs and as[62] signs, have been in possession of the land grant up to the present time, a period of one hundred and sixty-four years. The petition further alleged that the claim had been examined and approved by the surveyor general of the territory, returned by him favorably to Congress with a recommendation that the same be confirmed to the legal representatives of the original petitioners; but that it had never been acted upon by Congress, or the authorities of the United States. tioners were almost entirely within the limits of the lands confirmed by the act of Congress to these pueblos, and patented to them, and that, while they were made parties defendant to the petition, they were never served with process, and had no opportunity of making a defense, and therefore moved the court to vacate the decree of confirmation and allow them to be heard in opposition to the claim. This motion was subsequently, and on December 2, 1896, denied, whereupon the United States appealed to this court. Mr. Matthew G. Reynolds argued the cause and, with Solicitor General John K. Richards, filed a brief for appellant. Mr. John H. Knaebel submitted the cause for appellees. The government made no answer to the petition, but the court proceeded to hear the cause upon petition and proofs under the last clause of section 6 of the court of pri- This case involves the proper disposition vate land claims act, notwithstanding the by the court of private land claims, under failure of the government to file an answer. the act of Congress constituting the court, Petitioners produced certain witnesses to the of overlapping grants. The facts are exeffect that portions of the land granted had tremely simple: Petitioners derived their been occupied and cultivated by persons title by purchase or inheritance from the claiming under the original grantees; while original grantees, who held under a royal the government showed that Indians of the grant made in 1731 by the then governor or pueblos of Nambé and Pojoaque had many New Mexico, and through which they had years before instituted proceedings before the been in possession of portions of the land surveyor general of New Mexico under the ever since. Their grant had been examined, act of July 22, 1854, for 4 leagues of land surveyed, and approved by the surveyor geneach; that the surveyor general had recom-eral of the United States in 1871, but had mended that the lands thus demanded be never been confirmed by Congress. It was granted to them, and Congress had confirmed not true, as stated in the petition, however, the grant to each of said pueblos for 4 that "no person or persons, natural or arti- [64] leagues as recommended (11 Stat. at L. ficial, are in possession of the said land, or 374); that the grants to said pueblos were any part thereof, or claim the same or any surveyed and patents for them issued; that such surveys covered the larger portions of the land of the old pueblo of Cuyamungue, which petitioners alleged were granted to the original grantees in this case. *Mr. Justice Brown delivered the opinion [63] of the court: part thereof adversely to your petitioners, or otherwise than by their lease or permission," since it appears there were two Indian pueblos within the limits of the grant, from a time whence the memory of man and the traditions of the several tribes ran not to the before it relative to the title to the land the contrary. It was shown that one of them, subject of such case; the extent, location, Pojoaque, had a bell originally cast for its and boundaries thereof, and other inatters church, which bore the date of 1710. These connected therewith fit and proper to be pueblos had instituted proceedings before heard and determined, and by a final decree the surveyor general under the act of July to settle and determine the question of the 22, 1854, for 4 leagues of land, which he validity of the title and the boundaries of recommended to be granted, and in com- the grant or claim presented for adjudicapliance therewith Congress confirmed a tion, and all other questions propgrant to each of said pueblos, which grants erly arising between the claimants, or other were subsequently surveyed and patents is- parties in the case, and the United States." sued. 11 Stat. at L. 374. These surveys covered By section 8 persons claiming lands under all the land of the abandoned pueblo of a Spanish or Mexican title "that was comCuyamungue, granted to the petitioners, ex-plete and perfect at the date when the cept about 100 acres. It was insisted in the United States acquired sovereignty therein court below that the land covered by these shall have the right (but shall not be patents should be excepted out of the decree bound) to apply to said court in the manner of confirmation in this case; but it was held in this act provided for in other cases for that the pueblos had no just right or claim confirmation of such title;" but the confirmaat the date of the treaty to any part of the tion of such title "shall be for so much land land covered by the petitioners' grant; that only as such perfect title shall be found to the United States acquired no right or in- cover, always excepting any part of such terest in the land of a citizen in the ceded land that shall have been disposed of by the territory held by a complete and perfect title United States, and always subject to and at the date of the treaty; that Congress not to affect any conflicting private interdid not undertake to decide who was the ests, rights, or claims held or claimed ad- [66] rightful owner of the land confirmed to the versely to any such claim or ticle, or adpueblos, but, on the contrary, expressly versely to the holder of any such claim or stated that the patents were not to inter- title. And no confirmation of claims or fere with any prior right to the land which titles in this section mentioned shall have might be held by other parties. Said the any effect other or further than as a release court: "If the petitioners in this case have of all claim of title by the United States; a complete and perfect title to the land in and no private right of any person, as bequestion under the grant of 1731, it neces- tween himself and other claimants or persarily follows that the pueblos of Nambé sons in respect of any such lands, shall be in and Pojoaque have no right or title to any any manner affected thereby." It was unof the land within the boundaries of such der this section that the petition in this complete and perfect grant. But the decree case was presented and a "complete and perof this court does not in any way affect the fect title" claimed. right and title (if any) that the pueblos acquired by their patents from the United States, as between them and petitioners." The court declined to except out of the decree of confirmation the lands covered by the pueblos' patents, but did adjudge that the confirmation should in no wise affect the [65] rights of the pueblos as between them and the petitioners under their patents. The case depends largely upon the construction given to the sections and parts of sections of the act constituting the court of private land claims. 26 Stat. at L. 854. By section 13, defining the character of claims that shall be allowed as those that, "if not then complete and perfect at the date of the acquisition of the territory by the United States, the claimant would have had a lawful right to make perfect had the territory not been acquired by the United States," it is provided in the 2d subdivision that "no claim shall be allowed that shall interfere with or overthrow any just or unextinguished Indian title or right to any land or place;" and, by subdivision 4, that "no claim shall be allowed for any land the right to which has hitherto been lawfully acted upon or decided by Congress or under its authority." By section 6 the petitioner is required to set forth, among other things, "the name or names of any person or persons in possession of or claiming the same [the lands] cr Subdivision 5 provided: "No proceeding, any part thereof, otherwise than by the lease decree, or act under this act shall conclude or permission of the petitioner; or affect the private rights of persons as beand a copy of such petition, with a citation tween each other, all of which rights shall to any adverse possessor or claimant, shall be preserved and saved to the same effect as be served on such possessor or if this act had not been passed; but the proclaimant in the ordinary legal manner of ceedings, decrees, and acts herein provided serving such process in the proper state or for shall be conclusive of all rights as beterritory, and in like manner on the attor-tween the United States and all persons ney of the United States," whose duty it is "to enter an appearance, and plead, answer, or demur, and in no case shall a decree be entered otherwise than upon full legal proof and hearing." By section 7 the court has "full power to hear and determine all questions in cases claiming any interest or right in such land.” Subdivision 6 provides: "No confirmation of or decree concerning any claim under this act shall in any manner operate or have effect against the United States otherwise than as a release by the United States of its right and title to the land confirmed, nor 5 Wheat. 293, 5 L. ed. 92; Sabariego v. Maverick, 124 U. S. 261, 281, 31 L. ed. 430, 438, 8 Sup. Ct. Rep. 461; Wright v. Roseberry, 121 U. S. 488, 520, 30 L. ed. 1039, 1049, 7 Sup. Ct. Rep. 985; Doolan v. Carr, 125 U. S. 618, 625, 31 L. ed. 844, 847, 8 Sup. Ct. Rep. 1228; Noble v. Union River Logging R. Co. 147 U. S. 165, 174, 37 L. ed. 123, 127, 13 Sup. Ct. Rep. 271. shall it operate to make the United States | own is a simple nullity. Polk's Lessee v. in any manner liable in respect of any such Wendell, 9 Cranch, 99, 3 L. ed. 669; S. C. grants, claims, or lands, or their disposition, otherwise than as in this act provided." 1. The decisive question in the case is [67] whether the lands *confirmed by the act of Congress of December 22, 1858, pursuant to the recommendation of the surveyor general (11 Stat. at L. 374) to the Indian pueblos of Pojoaque and Nambé should have been excepted from the decree of confirmation. This act also contains a proviso similar to that contained in the court of private land claims act, that "this confirmation shall only be construed as a relinquishment of all title and claim of the United States to any of said lands, and shall not affect any adverse valid rights should such exist." This act operated, then, to release to the Indians all the title of the United States to the land covered by it, and passed the title of the United States as effectually as if it contained in terms a grant de novo. Ryan v. Carter, 93 U. S. 78, 82, 23 L. ed. 807, 809. Nor is the action of Congress confirming such private land claim subject to judicial review. As was said by this court in Tameling v. United States Freehold & E. Co. 93 U. S. 644, 662, 23 L. ed. 998, 1002: "No jurisdiction over such claims in New Mexico was conferred upon the courts; but the surveyor general, in the exercise of the authority with which he was invested, decides them in the first instance. The final action on each claim reserved to Congress is, of course, conclusive, and therefore not subject to review in this or any other forum. It is obviously not the duty of this court to sit in judgment upon either the recital of the matters of fact by the surveyor general, or his decision declaring the validity of the grant. They are embodied in his report, which was laid before Congress for its consideration and action." See also Maxwell Land Grant Case, 121 U. S. 325, 30 L. ed. 949, 7 Sup. Ct. Rep. 1015. son. It is true that the act of December 22, 1858, confirming these lands to the pueblos, may have been itself void by reason of petitioner's prior title thereto; but that is a question which is not necessarily involved in this case and upon which we express no opinion. It will occasionally happen that the government through accident or inadvertence will patent the same land a second time; but when its attention is called to the fact that the land has been previously patented it cannot patent the same land a second time without virtually stultifying itself. A patent assumes that a patentor has certain rights to convey, and that, if those rights have already been conveyed with the knowledge of the grantor, a second patent carries with it a suspicion of a want of good faith. Nor is the confirmation of this patent essential to the protection of the petitioner. The title set forth is one which was complete and perfect at the date of the treaty, and while he had the right, under section 8, he was clearly not bound to apply to the court for a confirmation of such title, but was at liberty to resort to the local courts for its establishment. It is possible that the surveyor general, in recommending the grant of 4 square leagues to each pueblo, measured from the church as a center, allowed more than was proper; yet, as he acted according to the opinion at one time prevailing, and as Congress confirmed the grant to that amount, the propriety of such grant cannot be attacked here upon that or any other ground. [69] As was said in the case of Tameling v. United States Freehold & E. Co. 93 U. S. 644, 663, 23 L. ed. 998, 1003: "Congress acted upon the claim as recommended for confirmation by the surveyor general. The confirmation being absolute and unconditional, without any limitation as to quantity, we must regard it as effectual and operative for the entire tract." The government having thus exhausted its power with reference to the land in dispute by granting all its title as sovereign proprietor to the pueblos, it is difficult to see upon what principle it is called upon to make or confirm another grant to a different perNothing can be plainer from the language of the private land claim act than that lands "that shall have been disposed of by the United States" should be excepted from the decree of confirmation (sec. 8); that no Nor is this the proper time to adjudicate claim shall be allowed which shall interfere upon the respective merits of the two titles. with or overthrow any just or unextin- We have only to consider whether the gov[68] guished Indian title (sec. 13); that no *claim ernment can properly be called upon to conshall be allowed for any land the right to firm that which it has already confirmed to which has been lawfully acted upon and de- another party. The court of private land cided by Congress (sec. 13); and that no pro- claims seems to have assumed that the grant ceeding under the act shall conclude or affect by Congress to the pueblos was absolutely the private rights of persons as between each void by reason of the fact that, the petitionother (sec. 13). Under these provisions, if ers having a complete and perfect title, the the court were to confirm this grant for United States had nothing to convey. lands already granted, such confirmation This may be entirely true, but it is would be void, as nothing is better settled by not perceived how the petitioners' title this court than that a patent issued by the can be aided by the government devesting United States to lands which they do not itself for a second time of a title which it had already released. The duty of the court | only as between the United States and the We do not wish to be understood as hold- 2. The appeal in this case was properly taken by the United States. While the government may have no interest in the result of the litigation, it is a proper and necessary party to the suit, and it would be a strange conclusion to hold that it could not follow the litigation through all the courts that are given jurisdiction of the case. Up-ing to the nature of the claim. on such appeal the government is at liberty to show that the petitioner is not entitled to a confirmation of his claim. Indeed, an appeal is expressly given by section 9, which enacts that "the party against whom the court shall in any case decide the United States in case of the confirmation of the claim in whole or in part, and the claimant [70] in case of a rejection of a claim in whole or in part-shall have the right of appeal to the Supreme Court of the United States." The main object of the court of private land claims is to ascertain and determine whether the land claimed as private property under the treaty is in fact private property, or, on the contrary, is public property. In the latter case, of course, a confirmation is refused; in the former case a confirmation is made if the claimant appears to have, as between himself and the United States, the right to it, but subject to the rights of others who are at liberty to assert their superior title in the local courts. We are therefore of opinion that the decree of confirmation should have excepted the pueblo lands, and such decree is accordingly reversed and the case remanded for further proceedings in accordance with this opinion. 3. That the Indian claim or title is a "just and unextinguished" one within the meaning of section 13, subdivision 2, of the act, is shown by the fact that such title was confirmed by Congress. By the word "just" in this connection is meant only a title which is good upon its face, or not manifestly frivolous.-not one which shall ultimately turn out to be valid. As already observed, White dissented. it was not the object of the act to permit private titles to be litigated in the court of Mr. Justice Shiras and Mr. Justice private land claims (although perhaps this TOWN OF REAL DE DOLORES DEL ORO, may be done incidentally), but merely to determine if and to whom the United States ought to release its rights as sovereign proprietor of the soil. As was said by this court in Adams v. Norris, 103 U. S. 591, 26 L. ed. 583: "But the United States, in dealing with the claimants of lands under Mexican grants, which had come into the political control of our government by the treaty of Mexico, never made pretense that it was the owner of the lands so granted by Mexico. When, therefore, guided by the action of the tribunals which the government had established to pass upon the validity of these alleged grants, it issued a patent to the claimant, it was in the nature of a quitclaim, an admission that the rightful ownership had never been in the United States, but at the time of the cession it had passed to the claimant, or to those under whom he claimed. This principle has been more than once clearly announced in this court. The leading cases are Beard v. Federy, 3 Wall. 478, 18 L. ed. 88; Henshaw v. Bissell, 18 Wall. 268, 21 L. ed. 840; Miller v. Dale, 92 U. S. 478, 23 L. ed. 738. "Such a patent was therefore conclusive Hipolito Montoya, et al., Appts., v. UNITED STATES et al. (See S. C. Reporter's ed. 71-76.) Petition for confirmation of private land claim-prior confirmation by Congress and patent to other claimant. 1. A claim for lands within the limits of a grant which has been confirmed by Congress, and for which a patent has been issued to another party, is properly rejected by the court of private land claims. 2. 3. An indemnity under the private land claim act, 14, cannot be adjudged when no such claim is made by the petition. A personal judgment against the United States for the indemnity provided by the pri vate land claim act, § 14, in case the lands decreed to a claimant have been sold or granted by the United States to any other person, is authorized only when such lands have been sold or granted as public lands for a consideration which equitably belongs to the owner of the land, and not where the government has merely released its interest to one apparently holding a good title under a Spanish or Mexican grant, which subsequent |