"That the unlawful and usurious interest knowingly reserved and charged by said defendant bank against the plaintiff herein, together with the interest which in law and in fact was and is forfeited, but was unlawfully and wrongfully put in a pretended judgment against plaintiff herein in a certain case entitled J. W. White v. D. H. Talbot et al., in the district court of Plymouth county, Iowa, and the forfeited interest which has since accrued, amounts in all to about $9,000; the exact amount plaintiff cannot state for the reason the accounts, books, papers, and records of said business between plaintiff and defendant bank is in the custody and possession of said defendant, and to which plaintiff has no access; and which amount of $9,000 is due and owing to the plaintiff from the defendant."

The second count alleged the transactions between the plaintiff and the bank, substantially as in the first count, though in some what different order and form, and not so much in detail, and that the charges and reservations of usurious interest and its additions and continuations through the various forms of his indebtedness were without his knowledge or consent.

and usurious interest, and that all of the interest in said note and the indebtedness of the plaintiff to defendant and said Garret son had been forfeited, and suppressed the fact that said note had lost its interest-bearing power and was not due, and that no right of action then existed, and suppressed the fact that the court had no jurisdiction to try or hear said cause or render judgment therein.

"Par. 7. The plaintiff further states that on or about the 9th day of April, 1891, the said J. W. White, A. S. Garretson, W. L. Joy, and the firm of Joy, Hudson, Call, & Joy, and the defendant bank, did wrongfully and unlawfully combine, conspire, and confederate together to and did cause an action to be commenced and proceedings to be instituted against the plaintiff herein, and the iand described in said Exhibit ‘B,' in the district court of Plymouth county, Iowa, in the name of said J. W. White, instead of the name of the defendant herein, The Sioux National Bank, the real party in interest. That said action was so commenced in the name of said J. W. White for the purpose of avoiding and evading the force and effect of the sections of the Revised Statutes of the United States hereinbefore set forth and referred to in this amendment."

Iowa."

That said White with certain officers of

the bank "did conspire with a view to the bringing about a foreclosure, and by this means adjudicate the liabilities which they would bear under the provisions of § 5329, Revised Statutes, because of the knowingly reserving and charging of unlawful and ille gal interest as heretofore set out in this amended petition. And that said interested parties as officers or agents of the said bank, unlawfully and with the intent to impose up. on the court, by fraudulent representations to the honorable judge of the district court in Plymouth county, Iowa, set out in their petition for said foreclosure the right and justice of foreclosure upon the sole ground of nonpayment of interest, which interest they, individually and collectively, had full knowledge of having been reserved and charged, and of which the defendant in said proceedings was without knowledge at that time, and the said interest was forfeited under the provisions of §§ 5197 and 5198 of the Revised Statutes.

"Par. 6. That the said J. W. White, in pursuance of the conspiracy formed with the said A. S. Garretson and W. L. Joy as afore said, and for the purpose of misleading and deceiving said district court and causing it to assume jurisdiction in said case, wrongfully and unlawfully suppressed the fact that said $28,000 note contained unlawful

was purchased by C. L. Joy, a director of the bank, for White. Sheriff's deeds were subsequently executed to the purchasers and recorded in Plymouth county.

That the court in the foreclosure suit re

lied on the statements of counsel and the allegation of the petition, and did not know that usurious interest was charged, and, "deceived and misled by the fraud practised upon it," rendered judgment "for the sum of $13,125.40, more than would be actually due at maturity of said note and mortgage, to wit, March 1, 1895."

That the district court of Plymouth county did not have jurisdiction of plaintiff or the lands mortgaged because by reason of the circumstances set out, and that the note was not due, and the judgment, decree, and the execution were void.

That the said White and the defendant bank, on or about the 31st of May, 1894, took possession of the lands and property de scribed in the mortgage, and has forcibly held possession ever since.

The defendant demurred to the petition, and stated as grounds of demurrer to the first count, among others, that it did not appear that any usurious interest had been paid by plaintiff, and that it did not state a cause of action within the provisions of §§ 5197 and 5198 of the Revised Statutes of the United States. As grounds of demurrer to the second count it was stated: "1st. That said action is barred by the limitations prescribed in § 5198, Revised Statutes of the

United States, under which said action purports to be brought."

The demurrer was sustained, and the plaintiff not pleading further, the action was dismissed. The supreme court of the state affirmed the judgment. Thereupon this writ of error was allowed.

The supreme court of the state, passing on the case, said:

"The defendant demurred to the two counts of the petition alleging the cause of action herein stated. Several grounds were stated in the demurrer,-among others, that the statute of limitations had run against plaintiff's claim. The demurrer was sus tained generally, and, the plaintiff electing to stand on his pleadings, the cause as to the claim made in counts one and two of the petition was dismissed.

"The $28,000 note was never paid by the plaintiff. A land mortgage was given to secure it, and that was foreclosed in Plymouth county, Iowa, and a decree rendered against the plaintiff thereon May 6, 1891. The land covered by this mortgage was sold sometime thereafter,—just when does not certainly appear, but it was more than two years prior to the commencement of this action.

"Section 5198 of the Revised Statutes of the United States provides for the recovery back of twice the amount of unlawful interest paid if the action therefor be commenced within two years from the time the usurious transaction occurred.

"This action was begun October 7, 1896, and at that time the plaintiff's cause of action was barred, and the demurrer for that reason was properly sustained. There was no error in striking a part of the prayer from the third count of the petition.

"The judgment is affirmed." [111 Iowa, 583, 82 N. W. 963.]

The assignments of error assert in various ways plaintiff's claim of rights under §§ 5197 and 5198 of the Revised Statutes of the United States.

Messrs. A. A. Hoehling, Jr., James K.

error)

took possession of the lands and property described" in the mortgage which Talbot gave to the bank March 4, 1890. The present suit was commenced October 7, 1896, hence not within two years from the 31st of May, 1894, and not within six years from the date of the judgment upon which the property was sold.

But it is contended that the bank fraudulently concealed from the plaintiff that it had charged him with usurious interest, and that therefore the period of limitation of the statute did not begin "until the discovery of the wrong," a disputable proposition. Besides, it is not available to the plaintiff. The petition does not disclose when the wrong was discovered. On the face of the petition the action was barred, and against its allegations and the circumstances detailed in it we cannot indulge the supposition that plaintiff's consciousness of the wrong was not aroused until sometime within two years before the commencement of this action.

Judgment affirmed.

Mr. Justice Gray took no part in the decision.

(185 U. S. 254)

STATE OF WASHINGTON, Complainant,

V.

NORTHERN SECURITIES COMPANY et al.

Original jurisdiction of Supreme Courtleave to file original bill-matter of

course.

Leave to file an original bill in the Supreme Court of the United States is ordinarily a matter of course, and may be granted without intimating any opinion upon a question raised as to want of jurisdiction.

[No., Original.]

Messrs. Asa F. Call, Francis F. Old

'ham, and Henry J. Taylor for defendant in

error.

1. A motion is made to dismiss on the ground that the record presents no Federal question. The motion is overruled. Plaintiff claimed a right under §§ 5197 and 5198 of the Revised Statutes, and the decisions of the courts of the state were adverse to such right. Rev. Stat. § 709.

1902.

Aton for leave to file an original bill against the Northern Securities Company, the Great Northern Railway Company, and the Northern Pacific Railway Company. Leave granted.

PPLICATION by the State of Washing

Messrs. W. B. Stratton and Wallace B. Douglas for complainant.

Messrs. John W. Griggs, C. W. Bunn, George B. Young, and M. D. Grover for defendants.

The usual practice in equity cases has been to hear such applications ex parte (Georgia v. Grant, 6 Wall. 241, 18 L. ed. 848), although under special circumstances a different course has been pursued. Mississippi v. Johnson, 4 Wall. 475, 18 L. ed. 437. Ordinarily, as stated by the chief justice in the latter case, the motion for leave to file is granted as matter of course. 4 Wall. 478, 18 L. ed. 438.

In Georgia v. Stanton, 6 Wall, 50, 18 L. ed. 721, a bill in equity was filed by the state of Georgia to enjoin the Secretary of War and other officers representing the executive authority from carrying into execution certain acts of Congress, on the ground that such execution would overthrow the existing state government of the state and establish another and different one in its place; and a motion was made to dismiss for want of jurisdiction over the parties and over the subjectmatter, on which full argument was had. It was held that the bill called for the judg ment of the court on political grounds and on rights of a political character, and that therefore the court had no jurisdiction over the subject-matter.

In Louisiana v. Texas, 176 U. S. 1, 44 L. ed. 347, 20 Sup. Ct. Rep. 251, the case stated shows that "argument was had on objections to granting leave, but it appearing to the court the better course in this instance, leave was granted, and the bill filed, whereupon defendants demurred, and the cause was submitted on the oral argument already had and printed briefs."

In Minnesota v. Northern Securities Co. (decided at this term) 184 U. S. 199, ante, p. 308, 22 Sup. Ct. Rep. 308, application to file a similar bill to that before us, and seeking similar relief, was made, and after examining the bill we directed notice to be given, and heard argument on both sides. The result was that leave to file was denied because of the want of certain indispensable parties, who could not be brought in without defeating our constitutional jurisdiction. That insuperable difficulty does not meet us on the threshold here, but, among other objections to granting leave, it is urged that the court would have no jurisdiction over the subjectmatter because, as contended, the bill does not present the case of a controversy of a civil nature which is justiciable under the Constitution and laws of the United States, in that the suit is purely a suit for the enforcement of "the local law and policy of a sovereign and independent state, whose right to make laws and to enforce them exists only within itself and by means of its own agencies, and is limited to its own territory."

whatever on the questions suggested, to grant leave to file in accordance with the usual practice. Our rules require service sixty days before the return day of process, but as the final adjournment of the term will have taken place within that time, process will be made returnable on the first day of next term.

Leave is granted and process will issue accordingly.

(185 U. S. 189)

UNITED STATES, Appt.,

v.

M. R. PENDELL and J. Escobar.

Private land claims-evidence of grantconclusiveness of findings of fact-presumption of grant and of record from possession.

1.

2.

3.

Sufficient support in the evidence for a finding of the court of private land claims that a Spanish grant of land was made to the original grantees, from whom the petitloners derived their title, is afforded by a correct copy of the original and uncontroverted record in ex parte proceedings taken before a civil judge of the canton, under the act of the Republic of Mexico of May 23, 1837, to perpetuate evidence of the title, in which, upon evidence of a grant and continuous possession under it, and of the destruction by the military forces of the United States of the original documents of title, with the official registry where they were recorded, judgment was entered recognizing the possession of the heir of the original grantee, and reaf firming the title of his ancestor, and such heir was placed in formal and legal possession of the land.

The decision of the court of private land claims as to the sufficiency of the evidence of possession under a Spanish land grant will not be reviewed by the United States Supreme Court merely because the evidence is such that different inferences might be drawn therefrom.

The existence of a proper and valid Spanish grant, and its proper record in the archives of Mexico, within the provisions of article 6 of the treaty of December 30, 1853, with that country, that no grant should be respected which had not been so recorded, may be presumed from satisfactory proof of exclusive and uninterrupted possession under a claim of title continuing from 1790 until the filing of the petition for confirmation of the grant in the court of private land claims, together with evidence of the existence of a grant covering the land so possessed, and of the destruction by the military forces of the United States of the original documents of title, and of the record of the grant in the place where records of grants of land in the neighborhood were customarily made. [No. 211.]

In view of this it seems to us advisable to take the same course on the pending application as was pursued in Louisiana v. Texas; that is, without intimating any opinion

21, 1902.

APPEAL from the Court of Private Land

Claims to review a decree confirming title under a Spanish land grant. Affirmed. The facts are stated in the opinion. Solicitor General Richards and Messra.

Mr. T. B. Catron for appellees.

Mr. Justice Peckham delivered the opinion of the court:

The government appeals in this case from a decree of the court of private land claims in favor of the appellees, confirming their title to a certain tract of land in the county of Dona Ana, territory of New Mexico, alleged in the petition to contain 4 square leagues. The petition of the appellees alleged the making of a grant to their predecessors prior to the year 1790, of a tract of land known as Santa Teresa; that the grant was a good and valid one, and the grantee entered upon and took possession of the same, and that he and his heirs and assigns continued in peaceable possession up to and after the ratification of the treaty of December 30, 1853, between the governments of Mexico and the United States, by the terms of which treaty territory, including the Santa Teresa grant, was transferred to the sovereignty of the United States. The petition then alleged that in the year 1846, while the original documents of title were in existence in the town of Paso del Norte, in the state of Chihuahua, where the heir resided, the place was occupied by the military forces of the United States, and the original documents of title and the official registry where they were recorded were destroyed by the American forces; that proceedings had been taken on January 7, 1853, for the purpose of perpetuating evidence of the title, and in accordance with which the judicial authorities re-established the boundaries and monuments of the grant, and placed the heir in formal and legal possession of the same on January 16, 1853. A certified record of these proceedings was alleged to be on file in the office of the United States surveyor general for the territory of New Mexico, a duplicate copy of the same in the Spanish language, with a translation also in duplicate, being filed with the petition. The boundaries of the grant were stated, and the petitioners averred that they were the owners in fee of the land contained in the grant by inheritance and purchase from the original grantee, Francisco Garcia, and that the title of the original grantee, his heirs and assigns, in and to the grant, was complete and perfect at the date when the United States acquired sovereignty over the territory of New Mexico, and also at the time of the ratification of the treaty between the United States and the Mexican Republic, known as the Gadsden purchase, on December 30, 1853; and it was averred that the land had been in the peaceable and undisturbed possession of the original grantee, his heirs, etc., from the date of the making of the grant to the present time; and that there

was

no person in possession of the land claiming the same adversely to the petitioners or otherwise than by lease or permission from them.

The answer of the United States denied all the material* averments of the petition, and denied that the petitioners were entitled to the relief or any part thereof prayed for, 22 S. C.-40.

missed. Subsequently, certain persons, claiming adversely to the petitioners, entered their appearance by their solicitor as defendants.

The principal issue in the case in regard to the boundaries of the alleged grant related to the southern line, the petitioners claiming that it was located at the international boundary line, while the government claimed it was above the Southern Pacific Railroad bridge, a considerable distance north of that line. The interests of the individual defendants, who were codefendants with the government, were upon the tract of land ly ing between the international boundary and the line of the Southern Pacific Railroad bridge. The decree of the court fixed the south boundary at the point contended for by the government, thus leaving the lands in which the individual defendants were interested untouched, and, as this location of the line has been acquiesced in by the petitioners, the case no longer has any bearing upon the interests of those defendants.

The decree of the court was in favor of the petitioners, establishing their grant, with the southern line thereof as stated, and found that the petitioners were the grantees or assignees of the title of the original grantee, Garcia. Two of the judges dissented from the opinion and judgment of the court upon grounds stated in their opinions. The court made the following findings of fact:

"That prior to the year 1790, in accordance with the petition of Francisco Garcia, a citizen of the province of New Mexico and Kingdom of Spain, then and there duly made and presented to the duly authorized repre sentatives of the King of Spain in and for New Biscay, which is now the state of Chihuahua cf the Mexican Republic, the said authorities and representatives of the Crown and the King of Spain, by virtue of the power and authority in them vested as such, and in accordance with the laws, usages, and customs of the said Kingdom of Spain, made to the said Francisco Garcia a grant of a certain piece and parcel of land situate in the county of Dona Ana, in the territory of New Mexico, as at present constituted, the same then being a dependency and province of the said Kingdom of Spain, said piece and parcel of land so granted as aforesaid being bounded, described, located, and designated as follows:

"The tract of land known as the 'Santa Teresa:' Bounded on the north by that bend known as the 'Cobrena;' on the south by the bend of the Piedras Paradise, the same being somewhat to the north of the present location of the Southern Pacific Railroad bridge, where the same crosses the Rio Grande del Norte; on the east the old bed of the said Rio Grande del Norte, as the same ran and existed in the year 1853; and on the west the brow of the ridge running parallel with the said river.

"2. That thereupon then and there the said Francisco Garcia was duly placed in legal possession of the said grant by officials to that end duly authorized by the laws, usages, and customs of the said Kingdom of

Spain, according to the laws, usages, and customs then in force.

der the will of his deceased mother, the widow of Garcia, and that among the property of that estate was a ranch called Santa Teresa, the document of which he had lost when the American forces took possession of the town; and he prayed that in order to supply in some manner the lack of the origi nal document there be taken the testimony of certain reputable persons existing in the town, who knew that these documents were

tee.

"It is therefore adjudged, decreed, and specified that the said private land claim, the subject of this suit, is a valid claim against the United States of America for the land included within the natural boundaries above set forth, and the claim to the said land grant as designated, located, bounded, and described herein be, and the same hereby is, confirmed to the heirs, legal representatives, and assigns of the said original grantee, excepting, however, from this confirmation any right or title to any gold, silver, or quicksilver mines or minerals of the same, the same remaining the property of the United States."

The government now raises several objections to these findings, and it is stated (1) that there was no evidence that any grant by an officer authorized to make it had ever been made to the original grantees from whom the petitioners derived title; (2) that there is no evidence that the grant, even if one were made, was ever recorded as required by the treaty with Mexico, dated December 30, 1853, concluding the Gadsden purchase (10 Stat. at L. 1031, 1035), the 6th article of which provides that no grant made prior to September 25, 1853, will be respected or considered as obligatory which has not been located and duly recorded in the archives of Mexico; (3) that there was no sufficient evidence of possession upon which to base a presumption that a grant had ever been made.

1. For the purpose of proving that a grant had once been made of the land in question, the petitioners introduced in evidence a correct copy of the original documents showing the proceedings taken before the second civil judge of the canton, the original of which was on file in the office of the judge at Paso del Norte. From these proceedings it appears that on January 7, 1853, José Maria Garcia, residing in the then town of El Paso del Norte, presented to the second civil judge, etc., a petition, in which he alleged that he was the testamentary executor un

prior to the year 1790 had been possessed by his father and thereafter occupied by his family until the Indians caused them to* leave the premises. Pursuant to the peti tion the judge cited the witnesses named therein to appear before him, which they did, and some of them testified to the existence of certain documents relating to the ranch Santa Teresa; that they had seen those documents relating to that ranch, and had seen them on file in the archives, and that they were authenticated by one of the lieutenant governors that came into the district about the close of the last century, and that, by reason of the father of one of the witnesses being an employee of the town after 1821, such witness saw the original documents as to said ranch on file in the archives of his father's office, and which documents were lost when the Americans took possession of the archives of the town; that the town had been occupied by the American forces, and it was a notorious fact that those forces took a part of the public archives, and also occupied José Maria Garcia's house, taking therefrom documents relating to his proper ty and papers of importance, among them the document of such ranch. Possession of the ranch from the time of the alleged grant was also proved. Upon evidence of this na ture, testified to by several witnesses, the judge made a finding in favor of Garcia as follows:

"In view of the foregoing judicial inquiry with which the executor, José Maria Garcia, has proved legally the possession that for many years they have had of the ranch called Santa Teresa, above the dam of the town and the Muleros bend, and it appearing that they have ever had titles to said property, and these have been lost, and from what appears from the testament and judicial inquiry there is given to the executor José Maria Garcia, for himself and in the name of the coheirs, without prejudice to any third party proving a better right, the real, actual, personal, corporal possession, or that which better corresponds in law, by reason of immemorial possession, of the Santa Teresa ranch, with the enjoyment and benefits of the lands, woods, and pastures, and all other products to be found on said premises; and it is ordered that he be protected and defended therein, warning all not to interrupt or molest him in said possession and free use that he may deem fit to make thereof, without he being first heard and judg ment rendered against him in court after trial."

The judge also ordered that Garcia should at a certain day named attend with the judge and witnesses, in order that he might