IBTERSTATE LANDe<>.
v.
MAXWELL'LAND GRANT CO.
276
INTERSTATE LAND
CO. v.
MAXWELL LAND GRANT'
CO.
MAXWEJ,L LAND GRANT
PRETECA
et al.
(Oircuit Oourt. D. Ootorado. December 20, 1889.) F'tmLIC LANnS-GRANTS TO' COLONIZERS-CONSTRUCTtON--CONDITIONS.
Act Tex. March 24,. 1825, provided for the setting apart of tracts of land for colqr nization, and stated hOW,much l!J.nd should be given to the colonizers, and how much to each settler. A Mexican laJ:\d grant i!lsued under this law assigned to certain col. onizersa large tract of' land, but declared that the state retained the right of prop. erty over all the surplus land in. the tract which should'remain after laying off the land' belonging to the coloniZllr$ and their settlers. The colonizers agreed to .establish a certain number of settlers on the tract within a given but they failed to do so. ,'Beld, that no title passed to the colonizers, the grant not being a present conveyance subject to defeasance, but a contract to convey on performance of a con· dition .'precedent, which was never fulfilled.
On demurrer to bill and demurrer to cross-bill. Jo"",n L. Jerorrut, for complainant. o. E. Gast and J. M. John, for defendants. BRRW]JR, J. The single question in these two cases arises upon what is known as the "Beales Grant,"-a grant made in the year 1832 by the governor of the state of Coahuila and Texas. The petition and grlmts are as follows: , c/petition and w-ants to Jose Manllel RoyuPla and John Charles Beales, for the year one thousand eight hundred and thirty-two and thirty-three. To His Excellency, the Governor of the State of Coahuila & The citizen Jose Manuel,Royuela,a native of Saltillo, and there, married, and, John Charles Beales, a native of England, settled in Mexico, and there mal'ried to a Mexican subject, having children, with all due respect represent to your excellency: That being very desirous of augmenting the population, wealth, and ,pGWefof tIle Mexican nation, and at the same time of affording tOil certainnurnber of virtuous and industrious families the means of acqUiring an -honorablel!ubsistence, by cultivating a tract of land in the ancient proVince of Texas, and being, moreover, acquainted in full with the law of colonization paRSed by the honorable legislature of this state on the twenty-fourth of lIltrell; one thousand eight bunured and twt'nty-five, by which · empresarios' (lr,colonizing contractors are to undeltaketo colonize und(>r the conditions and stipulations by, said law prescribed"and being anxious to form an establishmenttbat may be useful to a new colony, and at the same tillle ·benefietal ,to the state, on account of the advantages toaccl'uethereout: We·pmy or colonizing contral'tors, your excellency to accept us as snch and to permit us to introdllce into this state, within the time that. may lie stip,ulated, two hundred Catholic falllilies, of moral and industrious habits, and for the object )"our .excellency .will be pleased to grant I1S the tract of land .included Within the following limits, viz.: Beginning at a land-mark set upon a spot whereat' the degree of north latitude is crosllt'd, by the meridhm of the hundred' and second degree of longitude, west from London, said Bpotbeingat'the south-west corner of the grant, petitioned by,Col.,Reubton,Ross: from west along the parallel of the degree of latitude,'as, fal: as tile eastern boundary of ::New Mexico; from
.'
n:DERAL.REPORTER,
vol. 41.
thence, running north on the boundary line between the provinces of Coahulla & T.exas and 1few Mexico, as far as twenty leagnes of the.river Arkansas; from thence east, to the meridian of the hundred and second degree of boundary of the grant petitioned for by the longitude, which is the said Col. Reuben Ross; and 'from thence proceeding south as far as the place of beginning. Your petitioners, as empresa1'ios, pray for this grant on the said conditions that it Was formerly given tothe late Stephen Julian Wilson, whose term of six years is about to expire, on the I,wenty-sixth day of May in this year, without the conditions of the grant having been fulfilled. Beside,s the conditions which are required by the colonization law of the state, the empresar!o8 arid their ll'ettlers agree to observe the constitution of the Mexican niltion, .and the priVatecoustitution of this state, as well as the general aud local laws that have been or shall be hl'lreafter prom ulgaied., TileY further bindthernselves tocoml'ly with the conditions on which this .petition is granted,:aM to take up :llrrtis in defense of therightsofthenatiol1 against tile sa.vl!oge oral)y·other enemies that may attack the country, .or in any manner attempt to alter its formofgovernment,or to disturb;the p"blic tranquility; and, finally, to prevent the inhabitants of the United States of North America from trading with the said Indians, and providing them with arms and ammnnition in exqhange fo.r,horf3es:811d mUle!'.. Wherefore we pray your excellency to gl'a:nt this re'spectflllpetitiQn,' we shall consider as a favor conferred on us. Dated at'Saltillo the thirteenth of March, one thousand eight btiridredand thhty.two.· . ,'. ;... .' .' i [Signed] "JOSE MANUEL ROYUELA. , ' , II J 0IlN . ; -' '.:,' ',',: "Terms on which the supreme government of the state accept the proposal of the citizens Jose Manuel Royuela and John Cbarles Reales, for coloniZin'g 'certain land witll two Hundred' foreigIifiuni1les such as are not excepted by the law of the sixth of April, one thousand eight hundred and thirty.; . . '''Article 1. Thegoverriment accepts the proposal made in the foregoing petition; as far as it is conformable with the laws of co]onizationpassed by the honorable congress of the state on the, twenty-fourth of March. one thousand eight hun(lred and twenty-five, and,consequently assigns to the petitioners the .tract of land included within the following limits, that they mayestablish thereon the proposed colony: It shall begin at a land-mark which 'shall beset up on the spot where the parallel of the thirty.-seeond degree of .north latitude .crosses the meridian of the hundredand second degree of lon'gitude west frOID London, siaid spot being at the south"west corner of the grant petitioned for 'by Col. Reuben Ross; from thence it shall proceed alof:lg the parallel of the thirty-second degree of latitude. as far as the eastern limit of New Mexico; from thence itsball ascend north, on the boundary line between the provinces of Coahuila&'Texas and New Mexico, as far 'as twenty leagues of the river Arkansas; from"thence it shall run east to the meridian oftha hundred and second degree of longitude, which is the western bouJ1daryof the grant petitioned for, by the said Col. Reuben !-toss; and. shall proceed south as fair as' the place of beginning. "Art. 2. Though the boundaries of the tract set forth in the preceding Jqlian Wilson, in a grant passed by this clause are those :goverllment 00 the of May, 'one thousand eight hundred' and twenty-six, yetthls circnmstance has not been considered an impediment to the .entering into the ,presentcmltract, inasmuch itS the time allotted to, tlw said Wilson for the completion of said enterprise will (exp:.ire) in the mOilth of May of this present year, without his haVing to this dlly, performed the :same, or any part whatsoev.er·. Dut if, however, ill the,shol't.time,.that.'halltCll :elapse. . ., , , ,'
"CONDITIONS OF' THE GRANT· "
','
,
INTERSTATE UN)) CO. !1. MAXWELL· LAN)) GRANT CO.
277'
nny' number ·of the families of that elnpresarios should present themselves, then, and in that case, the present grant shall, with due respect to the part or parts performed by the first grantee thereof, be null and void to all intents and purposes. "Art. 3. In consideration of the grant hereinbefore specified, the empreso". rios, or contracting pal·ties,agree to introduce and settle, on their own account, two hundred foreign families, conforming themselves as well to the general hlW of the repllblicasto the laws of the state in behalf provided. "Art. 4. All lands whatsoever held under legal titles, that may be included within the limits designated inarticle first, shHll be respected by tb,e colonists who shall hold under this conti'act, and it shall be obligatory on the part of the empresarios to see to the observance of this clause. "Art. The state retains to itself the right of property over all the surplus lands Which shall remain of this grant; atter laying off those which be101' ,. to the empresa1'ios and their settlers, according to the laws in that behalf provided! .. .. Inconformity ,With article 8 ()f the Ilj,w of colonization hereinbt fore referred to; the empresarios are bou'trd to it1troduce the stipulated ber oftwo hundred families within the term of six years, which shall be computed from:tbe date. hereof, undet the penalty of being debarred from all the pri vilegesand ad:VRntagesaffol'ded by the said law. . "Al't.,1.lt.sball be obligatory.on ,empresarios not or suffer· to reIIlain in the colony men guilty .o,f atrociqus or of bad condu.ct j as: also t,oendeaver that no person whatsoever shall carry on traffic iIi arllls and ammunition with the barbarous tribes 'of Indians, in excltange for horses and mules; . I.' "Art·.8.Whenever there shall be a sufficient number of men, the national militla shall, be duly organized and regu1ated,according totb'e laws of the state in that respect provided. '. .. ' . ,. "Art. 9.. The colony sli,all be regulated, by the person whom thisJgoverntnent snail appoint to allot the respective or possessions, and he shall dUly observe the laws on colonization III force throughout the the generallaw of the eighteenth of August, oll'lHhousandeight hundred and twentyfour, and likewise. ,the instruotions to which have been appointed by the honorable congress, taking care to afford protection within the limits of the colony to such persons only as shall be approved of by the empresarios. . ' .. . . "Art. 10. All officialcqmmunications, otherpu1;>lic documents emanating from the coluny must be written in 'the Spanish language. "Art. 11. In refetellceto all matters not prOVided for or expressed in these ,articles, the'8mp1'esarios, or the DI'W settlel'S,holding under them, sballabide and be gQvernedby the fedeml constitution and the laws·of this state. ," And .his excelleuYS;ltbe gqvernor of the also the citizens Jos.e Mariuel Royuela andJ'Qbn Charles Beales, haVing l,\,I{reeq in the articles of. this contract to grant,'alid bound, respectively,tothe observarice arid performancethereof. afterwal'ds signed the same before' me, the undersigned sec- . retal'y of t,his govermrieht.'· And having been directed to gi ve the empre8'arios this certified copy of all the documents relating to the grant, that they' may serve them as security and.M formal title (or as a title in form) thereto, the originals will, according to law, remain filed and recorded in tb,esecretary's office,undermy '.. .' .'.. . " .' '. '. "Dated City of LilOna 'Vicario, the fourteenth day of March, one thousand .eight hundred and thirty·twQ. JOSE MARIA DE LET0.NA. . . " "Joind:JHARLES BEALES. '.' .J,
"JosE,MANUELRoYUELA·
·.
278
Pm>JilRAL kEPORTER,
vol. '41.
, r-:T
,1!The1oregofng Is copied from the originato'ocumentsfiledand recordedfn tbesecretary'sotllce underiDycharge, whence it was ordered tnken:byhis excellency:the governor. "City of Leona Vicario, the fourteenth of March, one thousand eight hundred and thirt,)'-two. ' [Signed] "SANTIAGO DEL V ALLE, Secretary." The sameyell.r of the grant, and on October 11th, Royuela conveyed by deed to Beales. He remained the owner until his death, in 1879. He disposM of his propertyb.r will made in 1873, and by sundry conveyances from his devisees the title has passed to the complainant in the one suit, (lnd the cross-complainant in the other, the Interstate Land Company. The question is presented by demurrers, so that the genuineness and validity of the documents are not open to question. The contention on the, one side. is that was a grant passiIlg title to defeasance; that the grapt<?r insisted upon any defeasance, and, indeed, COllld not, because before the:time within. which the conditions subsequent w.ere to be performed the state of Texas had: revolted from the Mexican government, and established an independent nation of its own, and thll.t\lythis action performance of the conditions was rendered impossible. On the other'hand, the contention is that the grantwas in the nature of a float; that QY outboundaries of a large tract were designated, withinwhicnthe grantees, upon performing certain actions, would. obtain perfect title to prescribed amounts of land, and that never havingperformedany:of the conditions, or thus paid any of the consideration, no title was ever vested in the grantees to any portion of the land. The' area of this tract,a:s stated by counsel, is over 60,000,000 acres. The. fact that arrestsaitlmtion at the outset is that the claim of title to tpis tract, itself, has remained so long 8,Sllerted. For over 50 years,.ithas rested, quietly at peace with all the world, and ail the world at peace with it. The grantee and single oWner lived {or47 years: alter receiving the grant. Litigation, at great expense,through many y6!\rs,' passing t() the United States, has been camed on respecting)argebodies ofolalid within this on other and tjtles, and now for the first time the courts are asked to pass upon this grant. It would Sli'em as though. the grantee did Dot understand the grant to be other than a float, as claimed.. While, of course, this does not determine the legal effect of the instrument, it is certainly significant as interpreting the understanding of the parties, and it isfamiliar that oftentimes the conduct of parties. to a contract has, great weight iu dtltermining the real meaning of doubtful words or phrns6sofit. Again, it appears' from article 2 that the tract· in question was one as. s;gfiedto Stephen Julian Wilsdn in'agrantofMa.y 27,1826, and an'exof of shows that it'was the .as this. by tp.is, a',terin 'of ,waf'! giVEl I1 the perlorman<ie of the contract, which term had not' expired; and yet, as stated in article 2,,_this fact was not supposed to restrict the power of the government to make this concession.. ::Yet.if, as'olaiined, these grants q
INTERSTATEi.1iAND CO.". MAXWELJ,
GRANT CO.
·were deeds with conditions subsequent, title passing subject to defea.. sance, we should scarcely expect a second grant before actual forfeiture of the first. And in the latter part of article 2 it is provided that if, in the short time to elapse before the expiration' of the six years. any num· . bel' of the families of thatempresario should .present themselves, then this ,grant, with respect to the. part or parts performed, shall be null and void. In other words, this contemplates that the introduction of a number of families by the first grantee, Wilson, would give him and them title to portions of the grant, a title not acquired until such performance, -a· view of the meaning of the contract consistent with that claimed by the. demurrant, and opposed to that insisted upon by the complainant. But these are preliminary matters. We must lo.ok to the instrument itself,.and to the law under which the concession wRsmade, to determine its real meaning; a.nd, noticing the first article ofthegraut,-the article which maybe considered aa most nearly like the granting clause in an ordinary deed,-we find that the language is, that the government "as- . signs" to the petitioners the tract of land included within the following .limits, that they may establish thereon the proposed colony. Now, the word "assign" may mean "convey," although it is not the ordinary word used in l1eElpect to land transfers, or it may mean a setting apart.of the land asa tract upon which the petitioners cali perform their proposed That the latter is the. true meaning is indica.tedby the purpose for which the land. is expressly assigned, to-wit, as a plaoefor !the proposed colony. rfhe language is. not, granted. on condition. that they establish a colony, but assigned as a place where they may establish a ,colony; and, in what may be considered the recital preliminar:y to the · grllnt, we find the articleSJare declared to be the terms on whioQ t,hesupreIlie go'Vernment accepts the proposal fot colQnizing certain !200Joreign families. So the colonization was the object of the - aqd ,it must be assumed that no more rights were intended to be 001}veyed than those which resulted from colonization. ,Again,by article 4, it is provided that all lands within thos!,!limits · held by legal titles should, be respected by the colonists who held, under this contract. True, land previously conveyed would, as a matteroflaw, be excepted from the grant; but the article also speaks of this as a conwould acquire title tract, and implies that colonists under the · to some portion of the tract. Of course, if this was a grant passi[)g title to the grantees, this articlewas unnecessary, and it is significant as calla it overagliinst . artIcle 5; ulst111 more slgmficant, provldmg that the state retaIns the nght 9(prOp4;lp-y over all the;8urplus lands,vhich shall. remain 'of this grant, aiter,laying ,off what belongs to themnpresarios and their settlers. In other words, the state retainstiUe to part of the tract,---a thing imposinstrument was a grant passing title to all. It further implies that only part of the land would belong to the empresario8 and their · llndtnat it was to be set apart to them inaccordance with the laws 9{ th.e is exactly the idea contended for by the d.e[)lurrant, · -:-thattheinstrument, taken as a whole, was'8\mply a dellignatiQpofa
280
nDEltAL ItEI'ORTER, vol. 41.
large tract,with given outboundaries, within which the petitioners could, by colonization, obtain title to certain amounts of land as prescribed by law.' All these provisions of the instrument make strongly against the contention of complainant, and, while there are some clauses in the instrument which make in favor of ,this contention,-as, for instance, tho frequent nse of the word "grant,,,,the specification in article 3 that in consideration of the grant the empresarios agree to introduce and settle 200 foreign families, and the provision that a certified copy oiall of the documents relating to the grant shall be given to theernpresarios to serve them as security and as formal title,-yet if, taking the instrument as a whole, there be eonflicting proviSions, and the real meaning by reason thereof be doubtful, the familiar rule applicable' to all concessions from a government ill that the c()Ucession or grant is to be construed strictly against the grAntee, and in favor·of the government:, grantor. U. S. v. Cattle Cor, 33:Fed; Rep. 323. ,So,'ifinquiry was limited to, the instrument itself, it would have to be adjudged that itwasnot a grant passing ,title, but a designation and setting apart of a tract within which the pe,titione1's might, by performing certain acts, acquire title to some land. , But weare n.ot limited to the instrument itself. It is.made in pursu· · ance of the In:w,of the state, and that law must be examined in detertniningthemeaning of the instrument. This would be the general rule, · and, iIi' additio'n; ;this g1'ant,in: terms, refers to ,the law as fixing the · rights of the- petitioners.' The ,first Itrticle declares that the government accepts the proposal as far as conformable with thell't\vs' of colonization 'passed by the honorable congress of the statecm the 24th of March, 1825. · Thus the ,particular statute which we are to examine is expressly referred to, and byinlplication made a part of the contract. Articles 3,5,6,8, and 9 alsocontaih references to the statute, and article 11 directly de, elares that in rE'lference to all matters not provided tor or expressed in those articles the empresario8 or the'new settlers shllll abiue·and be governed by the constitution and laws, The act 6f Minch 24, 1825, referred to, consists ot' 48 articles. It may oe found in Rockwell's Spanish and , MexicanLa:wj p. 641. It purports to be a colonizatioh law, and the · first few articles refer simply to the admission and rights of foreigners. Article 8 is as follows: "The projects for new settlements, in which one or more persons offer to bring, at their'expense. one hundred or more families, shall be presented to ,the government, and, if found,confpl,'mable with this)aw, they wilIbe ad: Ipitted; and the government to th,e the J Jand where tlle1' to and the term ,of six years, within which they must present, the number of families they contracted for, under 't'fia penaltyoflosing the rights and privileges offered ill their favor, iii pro'portion to the number of familil:1S which they fail to introduce, and the con'tract totally annulled if they, do not bring, at least, one hundred families." 'Article 11 defines the unit onueasurement. Articles 12, 13, and 14 " " , "Art. 12. Taking the above unity as a basis, and observing the distinction which must be mM6 between grazing land, or that which is proper for raising stock, and farming land; without the facility of irrigation, this law grants to 1
INTERSTATE LAND CO. tI. MAXWELL LAN)) GRANT
co.
28t-
the contractor or contractors, for the establishment ofa new settlement, for each hundred families which he may introduce and establish in the state, ·five sitios of grazing land, and five labors at least, the one-half of which shall be without the faeility of irrigation; but they can only recei ve this premium for eight hundred families, althoup;h a greater number should be introduced, and no fraction whatever less than one hundred shaH entitle them to any premium, not even proportionally. , "Art. 13. Should any contractor or contractors, in virtue of the number of families which he may have introduced, acquire. in conformity with the last article, more than eleven square leagues of land, it shallneverthl'less be granted, but sulJject to the condition of alienating the excess within twelve years; and if it is not done, the respective political authority shall do it, by selling it at public sale, delivering the proceeds to the owners after deducting the eosts of sale. "Art. 14. To each family comprehended in a contract, whose sole occupation is cultivation of land, one labor shall be given. Should he also bea stock-raiser, grazing land shall be added to complete asitio,' and, should his lyoccupation be raising of stock, he shall only receive a superjicie of grazing land equal to twenty"four million square bars." Articles 15 and 16, like article 14, refer to amounts of land to be given. On September 4, 1827, a series of instructions to commissioners appointed by the legislature for the partition of lands a)llong the new colonists was issued, by the government. See Rockwell's Spanish' and Mexican Law, 649. Arnong them, article 4 reads thus: "Art. 4. He shall iEisue, in the name of the state, the titles for land, in conformitywith the law, and put new colonists in possessil>n of their lands. with all legal formalities, and the'previous citation of adjoining proprietors, should there be auy." And article 24, thus: "Art. 24. He shall take specild care that the portions of land granted to the colonists by articles 14,15 and 16, shall be measured by the surveyors with .accuracy. and not permit anyone to include more land t1)an is designated by law, under the penalty of being personally responsible;'" in these articles to articles 14, 15, and 16 is t6 articles in the colonization law.' Now, article 8 of the law quoted above, prescribes what the. government will ,do when the petition 01 anempresario for is presented. If found conformable with this law, the government will immediately "designate" to the contractors land on to establish themselves. This, of course, does not mean that the governmep.t will grant them the land, but simply that it will select and designate the place where a colony may be settled. So that when we find, in the first article of the grant, that the government assigns a given tract to the petitioners for the establishment of a colony, the assignment is made by virtue of this article 8 of the law, and means simply the selection of a place for the colony. Passing on to article 12, we find what the government will give to the empresariospecifically declared, towit, for each :hundred families five sitios of grazing land and five labors, at least the one-half of which shall be without the facility of irrigation. This article makes plain the meaning of article 3 of the grant, and shows that thatmell:ps simply thSIt, inconsideration of the setting of this
282
I'EDERALREl'ORTER , .vol.
4L
tract ofland, the to introduce and settle on that lp.nd 200 foreign families. and 13 together provide what shilll be given to the empresario who introduces 800 families, and receives more than 11 square leagues. of land.. This last article shows a clear in"' tent that no party should obtain title to more thanU 'square leagues r no matter what services in colonizatil'lqhe may render to the state. Articles 14, 15, and 16 provide what the individual settlers are to and sections from 12 to 16, inclusi've, explain fully the meaning of article 5 of the grant, which deqlaresthat the state title to all the surplus land within the grant after,,iaying off that which belongs to the tmtpresa:ri08 and their settlers. "Thus the law makes plain the meaning of the contract, and shows that it was not a conveyance passing title. In other words. the grant must be preSumed to have been made in pursuappe ofthelaw, and to be limited ,by the terms of the law. Indeed, it i;s:doubtful whether a 'eXCl:lss of the authority given by the law would be valid. 'fhis refers to the law tinder which ,was and shows that it was ,made in pursuance of the authority ?onferred by that law, which the government will select a tract of land upon which the etnp'i'esa'rio may establish a colony, and does. he will bepaidiriland at a fixed rate, and that the that, colonists that he introduces will li.ls6'receive definite amounts of land. This grant, made thus in pursuance of'this law, means just what the law says it may mean, and was simply a designation of a tract within which the petitioners might est81>lish a colony. 'It of itself passed title to no portion of the land to them. In Spencerv. Lapsley,20 How. 270, the supreme court used this language in respect to the law under which this grant was roade: "The contract of an emp1'esa1'io obliged :him to introduce colonists into a specitlc district. The colonist having a family was entitled to one league of land, of a particular quality, for which he paid a small 8um to the government. The empresario waS paid five ieagues and five labors for everyone ll'llldred families introduced. Of course. the excess of land within the limits C;lfthe colony,aftel' snpplying the colonists and the empresario; remained to the government. The commissioner of distribution was an officer of the 'government. WhO superintended the fulfillment of the contract by the em'presariQ. He ascertained the character of the colonists, allotted to them and the empresario their shares ofland, and for that purpose appoi nted surveyors. received returns ofl.!Urvey, and execl,lted ,the final titles."
-Further strengthening this view Of the meaning of the grant is article 4 of the instructions quoted i1IlIpf'a, which provides that the commissioners shall issue the titles for la:nd, and this simply carries out the idea, running through the law,that no title passed to any of the land urrtil the establishment of thecb1ony.' But, further, the law which we have been considering was the :law of the state of Coahuila and _ which was passed in pursuance .of a decree ofthe Mexican government 1824, which will be found in Rockwell's SpaQish and Mexican Law, p. 451. In that general decree of the hatiOll, by the twelfth Ris provided that no one person shall be allowed to retain the ownership of more than 11 leagues 'square. Obviously, one of the
BENNETT
'fl. -FENTON.
283
states, acting in pursuance of that decree, would not have provided for a larger grant. From these various considerations, it seems to me dear that the grant in controversy was not intended to be, and was not; a conveyance subject to defeasance, but that it amounted only to a designation and setting apart of the tract as a tract within which the petitioners could establish a colony in conformity to the colonization law, and upon such establishment obtain title to a fixed quantum of land within the tract. As there is no pretense that one was ever established, no title to anything It follows that the complainant holds nothing by virtue of ever this so-called grant, and the demurrers must be sustained, and it is so ordered.
BENNETT t1. FENTON
(Circuit Oourt, D. Minnesota. February 19, 1800.) QuIETING TITLE-SERVICE BY PUBLICATION-J"UDGME:NT.
Undel' Gen. St. Minn. 1878, o. 75, § 2,w)licb autborizes one in possession of land sue any person claiming an .interest "for the purpose of determining such adverse claim," a jUdgment in such an action against a non-resident defendant, upon service by publication, is valid, the action being in the nature of a proceeding
inrern.
At Law. Ejectment by James Bennett against William Fenton and the city of St. Paul. Warner &- Lawrence and S. &- O. Kipp, for plaintiff. O. E.Holman and Cole, BramhaU « Morris, for defendants. SHmAs, J. This action was brought for the purpose of determining the title and consequent right of possession to certain realty situated in Ramsey county, Minn. The plaintiff derives title from the original patentee, and the defendants from a sale for delinquent taxes, a deed based thereon, and a decree rendered in the district court of Ramsey county in a case entitled Samuel D. Lord v. John J. Henry, which purports to quiet the. title to said realty in said Lord as against the claims of said Henry, the then holder of the patent title, the present defendants holding under Lord. The parties have in writing stipulated that if the proceedings had and decree rendered in said case of Lord v. Henry are valid and binding upon said Henry, then judgment is to be rendered in this case for defendants; but if the same are void and of no effect in this -court, then judgment is to go in favor of plaintiff. The sale question for determination, therefore, is that of the validity or invalidity of the decree in tlie named case of Lord v. Henry. When that case was brought in the state court, Henry was a non-resident, and service of the summons was had by publication only, And no appearance was entered for the defendant. The validity of the d.ecree is questioned mainly on the grounds that the action was purely personal, there being no