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104 U. S. 279, 283: "A mining claim perfected under the law is property in the highest sense of that term, which may be bought, sold, and conveyed, and will pass by descent." It is not, therefore, subject to the disposal of the government. The section can apply only to lodes or veins not taken up and located so as to become the property of others. If any are not thus owned, and are known to exist, the applicant for the patent must include them in his application, or he will be deemed to have declared that he had no right to them. Sullivan v. Mining Co., 109 U. S. 550, 554, 3 Sup. Ct. Rep. 399. When can it be said that a vein or lode is "known to exist" within the meaning of the section? In Reynolds v. Mining Co., when first here, the court said that it might not be easy to define the words "known to exist," and as it was not necessary to determine whether the knowledge must be traced to the applicant for the patent, or whether it was sufficient that it was generally known, and what kind of evidence was necessary to prove this knowledge, it was better that the questions should be decided as they arise. When the case was here a second time, the court said that the language of the section appeared to be sufficiently intelligible in a general sense, and yet it became difficult of interpretation when applied to the determination of rights asserted to such veins or lodes, from the possession or absence of knowledge at the time application is made for a patent, and that, if a general knowledge of their existence were held sufficient, the inquiry would follow as to what would constitute such knowledge, so as to create an exception to the grant, notwithstandihg the ignorance of the patentee. These suggestions indicated the difficulties of some of the questions which might arise in the application of the statute; but in the present case we think that difficulty does not exist. Where a location of a vein or lode has been made under the law, and its boundaries have been specifically marked on the surface, so as to be readily traced, and notice of the location is recorded in the usual books of record within the district, we think it may safely be said that the vein or lode is known to exist, although personal knowledge of the fact may not be possessed by the applicant for a patent of a placer claim. The information which the law requires the locator to give to the public must be deemed sufficient to acquaint the applicant with the existence of the vein or lode. A copy of the patent is not in the record, so we cannot speak positively as to its contents; but it will be presumed to contain reservations of all veins or lodes known to exist, pursuant to the statute. At any rate, as already stated, it could not convey property which had already passed to others. A patent of the government cannot, any more than a deed of an individual, transfer what the grantor does not possess. Judgment affirmed.
JOHNSON v. CHRISTIAN et al.
COURTS-FEDERAL JURISDICTION-AVERMENT OF CITIZENSHIP.
A bill brought in a federal court to restrain the enforcement of a judgment rendered by such court in ejectment between the same parties, on account of an equitable defense that could not be pleaded in ejectment, need not allege the citizenship of the parties in order to give the court jurisdiction, since no other court than the one which rendered the judgment could stay process in it on the grounds set forth in the bill.
Appeal from the Circuit Court of the United States for the Eastern District of Arkansas.
On petition by appellees for rehearing. For former opinion see ante, 989. U. M. Rose, for appellees.
BLATCHFORD, J. In this case, on the 16th of April last, this court made a decree reversing with costs the decree of the circuit court, and remanding the case to that court for further proceedings. Ante, 989. This was done upon
the view that the record contained no evidence of the jurisdiction of the circuit court arising out of the citizenship of the parties; but the fact was overlooked that the bill states that the defendant had obtained a judgment in ejectment in the same court, (the circuit court of the United States for the Eastern district of Arkansas,) and was seeking to oust the plaintiffs from the possession of the land involved, by a writ of possession founded on the judgment. The bill further sets forth that the plaintiffs in this suit, who are the appellants, had not been admitted to interpose in the ejectment suit an equitable defense to the same, which they state with particularity in the bill in this suit, and which they seek to avail themselves of herein. One of the prayers of the bill is for a perpetual injunction restraining the defendant from enforcing or attempting to enforce against the land the judgment in ejectment. The answer admits the recovery of the judgment in the same court. This is sufficient to give the circuit court jurisdiction of the case, without any averment of the citizenship of the parties; and not only is the present suit in equity merely an incident of and ancillary to the ejectment suit, but no other court than the one which rendered the judgment in the ejectment suit could interfere with it, or stay process in it, on the grounds set forth in the bill. Minnesota Co. v. St. Paul Co., 2 Wall., 609, 633; Krippendorf v. Hyde, 110 U. S. 276, 4 Sup. Ct. Rep. 27; Railroad Co. v. Railway Co., 111 U. S. 505, 4 Sup. Ct. Rep. 583. The decree made by this court on the 16th of April last is therefore vacated, and the case will stand for hearing on the merits at the next term of this court, in its order on the docket.
CULBERTSON v. H. WITBECK Co.
The signature of one of the grantors in a deed was expressly attested by only one witness, but the justice who took his acknowledgment signed, together with such witness, a memorandum in the deed in reference to an interlined word, and also certified in taking the acknowledgment that the person making it was "the individual described in and who executed the within instrument." Held a sufficient attestation by two witnesses.
2. SAME-ACKNOWLEDGMENT-CLERK'S CERTIFICATE.
Under How. St. Mich. § 5660, providing that where an acknowledgment of a deed is taken in another state the clerk certifying to the official character of the officer shall also state that the deed was "executed and acknowledged according to the laws of such state," such certificate by the clerk sets at rest any question as to the validity of the form of the acknowledgment in such deed.
A record of the ancillary probate of a will, reciting the production of the copy, publication of the notice of hearing, that the probate was duly authenticated, and that, on full hearing and examination of the proofs and allegations, it appeared to be regular, is not open to the objection that it contains no proof that the probate court obtained jurisdiction, nor any record of authentication or probate by any foreign court.
4. TRUSTS-EXPRESS TRUSTS-LEGAL TITLE.
An instrument expressly declaring that the parties executing it hold certain lands in trust for themselves and two others, is an express trust, within the meaning of How. St. Mich. § 5578, which provides that persons for whose benefit an express trust is created shall take no estate or interest in the land, but may enforce the performance of the trust; and such instrument does not operate as a conveyance of the land.
5. TAXATION-TAX TITLES-PAROL EVIDENCE TO IMPEACH.
For the purpose of proving certain tax deeds void, parol evidence that certain sums illegally paid out by a county were paid at a time when they must have come from a tax levy for which such deeds were made, is admissible.
6. SAME-TAXATION FOR ILLEGAL PURPOSES.
A record of county board proceedings showed a resolution that a sum for an illegal purpose be paid out in orders on the county treasurer, immediately followed by another that a tax be raised for the contingent fund to defray general expenses. Oral testimony showed that such sum was actually paid, and other records established the fact that taxes were levied for similar purposes afterwards. Held suf
ficient proof that the sum voted was paid out of the levy resolved upon, and that the levy and tax titles founded on it were consequently invalid under the Michigan law.
In Error to the Circuit Court of the United States for the Western District of Michigan.
A. T. Britton, R. B. Browne, D. H. Ball, and Walter H. Smith, for plaintiff in error. B. J. Brown and Edward Cahill, for defendant in error.
MILLER, J. This is an action of ejectment, originally brought in the circuit court for the county of Marquette, in the state of Michigan, by the H. Witbeck Company, plaintiff, against William C. Culbertson, defendant. The object of the suit was to recover certain lands situated in the county of Mar quette, to which the plaintiff claimed title in fee. The case was removed to the circuit court of the United States, where a trial was had, which resulted in a verdict in favor of the plaintiff. This, as a matter of right, was set aside, upon motion, under the law of Michigan, and a new trial granted, which also resulted in a verdict and judgment in favor of the plaintiff. It is this which the present writ of error brings up for review. During the progress of the trial the plaintiff established title by various conveyances, beginning with patents from the United States, in William A. Pratt. As a link in the chain of title from Pratt, the plaintiff offered in evidence the record of a deed from Pratt and wife to Still Manning and William Wright, which was executed and acknowledged in the state of Michigan. This was objected to by the defendant upon the ground that it was attested by only one witness as to the signature of William A. Pratt. The instrument was, however, admitted in evidence not withstanding the objection, to which the defendant excepted, This ruling is made the ground of the first assignment of error.
The deed offered in evidence was signed, acknowledged, and recorded according to the laws of the state of Michigan. It is admitted that there was one witness to the signature of Mr. Pratt, and two witnesses to the signature of Mrs. Pratt, but it is denied that there was a second witness to the signature of the former. The part of the record containing the testimonium is as follows:
"It witness whereof the said party of the first part have hereunto set their hands and seals the day and year first above written.
"For Harriet W. Pratt.
"The word half' in the twelfth line was interlined before signing, [on the second page.] STEPHEN WALSH. "EBENEZER WARNER.'
Ebenezer Warner was the justice of the peace who took the acknowledgment of Pratt on the 29th day of October, 1855, which is also the date of the deed, and in his certificate of such acknowledgment he says: "I certify that I know the person who made the said acknowledgment to be the individual described in and who executed the within instrument." It will also be noted that he signs with Walsh as a witness, and that their signatures immediately follow the statement as to the word "half" having been interlined before signing. These circumstances are sufficient to show that Walsh and Warner were witnesses to the signature of Mr. Pratt; and the matter may be easily explained by supposing that Rockwell and Howe, the two witnesses for Harriet W. Pratt, inserted their names above those of Walsh and Warner as witv.8s.c.-72
nesses for William A. Pratt. Under all the circumstances, we think the court was correct in admitting the deed in evidence. Carpenter v. Dexter, 8 Wall. 513.
The second assignment of error also rests upon an alleged insufficiency in the acknowledgment of another deed, which was offered in evidence by the plaintiff, from Still Manning and wife, and William Wright and wife, to Edward C. Wilder, conveying all the lands in controversy. To the admission of this deed defendant's counsel objected, "for the reason that it does not appear on said certificate that the persons acknowledging were the same persons as those named as grantors in said deed." The acknowledgment in this case was taken in the state of New Jersey, before William A. Richter, a master in chancery and notary public, who says in his certificate that the parties, naming them, personally appeared before him, "who, I am satisfied, are the grantors in the within deed of conveyance." This language is the defect complained of by defendant. We are inclined to the opinion that this is sufficient evidence that the parties who appeared before him were the grantors in the deed. If he was satisfied of that fact, the court cannot now inquire into the evidence by which he reached that conclusion. But any difficulty on this subject is removed by the certificate of the clerk of the county of Essex, in that state, that said Richter was a master in chancery and a notary public in and for said county, and "that the annexed instrument [meaning the deed] is executed, and the proof of acknowledgment thereto taken, in accordance with the laws of said state of New Jersey. This official statement that the acknowledgment was made according to the laws of the state is, we think, sufficient to make it valid, because the law of Michigan provides (How. St. § 5660) that where such acknowledgments are taken out of the state, the clerk certifying to the official character of the officer shall also state "that the deed is executed and acknowledged according to the laws of such state."
The third assignment of error is based upon the fact that the court allowed the plaintiff to put in evidence a record from the office of the register of deeds of Marquette county of the will of Edward C. Wilder. The objection of defendant's counsel to the admission of this certified copy of the will, as stated in the bill of exceptions, is "that said record contained no proof that the probate court of the county of Marquette obtained jurisdiction to make the order admitting said will to probate in this state, and that it contains no record of any authentication or probate by any foreign court or officer." This objection being overruled, an exception was taken by counsel for the defendant to the admission of the record. The copy contained, after the seal of Wilder, the testator, the usual attestation of two witnesses, who declare that the will was signed in the presence of each of them, and that it was at the same time declared by him to be his last will and testament, and that at his request and in his presence they signed their names as witnesses thereto. The testator died in New York, and the paper offered for probate in the county of Marquette, in Michigan, purported to be a copy of the will as it had been probated in the former state. The following papers constitute the proceedings in the probate court for the county of Marquette:
"STATE OF MICHIGAN, COUNTY OF MARQUETTE-SS.:
"At a session of the probate court for the county of Marquette, holden at the probate office in the city of Marquette, on Monday, the thirty-first day of October, in the year one thousand eight hundred and eighty-one. Present: Edward S. Hardy, judge of probate.
"In the Matter of the Estate of Edward C. Wilder, Deceased. "This day having been appointed by the court for hearing the petition of James E. Dalliba, praying, amongst other things, for reasons therein set forth, that a certain instrument purporting to be a copy of the last will and testament of said deceased, and the probate thereof, duly authenticated and heretofore presented to this court with said petition, be allowed, filed, and recorded:
Now come into court the said petitioner and answers, and it satisfactorily appearing by due proof on file that a copy of the order of this court touching the hearing of said petition, made on the 7th day of October last past, had been duly published as therein directed, whereby all parties interested in the premises were duly notified of said hearing. And it further satisfactorily appearing to the court, after a full hearing upon said petition and on examination of the proofs and allegations of the petitioner, that said deceased was, at the time of his death, a resident of the city of New York, in the state of New York, and died leaving his last will and testament, which was duly approved and allowed in the surrogate court for, in, and of the county of New York, in the state of New York, according to the laws thereof, and that he was possessed of estate situate in said county of Marquette, on which said will operrates. And the evidence touching the premises being materially considered, it satisfactorily appears that said copy of said will ought to be allowed in this state as the last will and testament of said deceased. It is therefore ordered, adjudged, and declared by this court that said copy of said last will and testament of said deceased be allowed, filed, and recorded in this court, and that the same shall have full force and effect in this state, as such will, agreeably to the statute in such case made and provided. And it is further ordered that the execution of said last will and testament be committed, and the administration of the estate of the said deceased be granted to said Sophia Wilder, the executrix in said will named, who is ordered to give bond in the penal sum of one thousand dollars, with sufficient sureties, as required by the statute in such case made, and provided, and that, the same being duly approved and filed, the letters testamentary do issue in the premises.
"EDWARD S. HARDY, Judge of Probate. "State of Michigan, County of Marquette, ss.-Probate Court for said County. Be it remembered that the annexed and foregoing instrument, being a duly-authenticated copy of the last will and testament of Edward C. Wilder, late of the county of New York, in the state of New York, deceased, which was duly allowed, filed, and recorded in said court in pursuance of the decree thereof, of which the foregoing is a true, full, and correct copy. In testimony whereof I have hereunto set my hand and affixed the seal of said court at the city of Marquette, in said county, this 31st day of October, in the year one thousand eight hundred and eighty-one. [Seal.]
"EDWARD S. HARDY, Judge of Probate." We can see no defect of jurisdiction in the probate court of Marquette county sufficient to justify the rejection of this copy of the will, or to impeach the action of the probate judge in ordering it to be recorded. There is in the proceedings the full recital of the production of the copy of the will, and that the order for the hearing of the petition, made on the 7th day of October, "had been duly published as therein directed, whereby all parties interested in the premises were duly notified of said hearing." The court further certifies that the probate thereof was duly authenticated "and presented to this court," meaning, evidently, the probate of the will in the state of New York. The certificate further recites that "it satisfactorily appears to the court, after a full hearing upon said petition, and on examination of the proofs and allegations of the petitioner, that said deceased was, at the time of his death, a resident of the city of New York, in the state of New York, and died leaving his last will and testament, which was duly approved and allowed in the surrogate court for, in, and of the county of New York, in the state of New York, according to the laws thereof." This being a recital in the record of the judgment of the court admitting the instrument to probate, certifying that it had been fully proved by the “examination of the proofs and allegations of the petitioner,' and that it was duly admitted to record, is sufficient. Unless the necessary parties in such cases could be brought before the court by publication, there would be in many cases an impossibility of doing it at all. Grignon v. Astor,