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Opinion of the court.

contract, but it is not important that they should be reproduced at this time.*

After the Indian title was extinguished by the treaty ceding the neutral lands to the United States, and before the supplemental treaty was concluded, many settlers, it is claimed, including the appellant, went on these lands for the purpose of settlement. They took, and have continued, possession for the purpose of complying with aud procuring titles under the pre-emption laws passed by Congress, but the local land offices were not open to them, and of course they were denied the opportunity to make proof and payment. Instead of that, patents of the lands, not belonging to actual settlers, were issued to the appellee, and it is admitted by the appellant that the patent of October 31st, 1868, covers the land in controversy, and that he, the appellant, is not entitled to relief if that patent gives to the appellee a valid title.

Precisely the same objections were made to the treaty ceding back the neutral lands to the United States, and to the supplemental treaty, as were taken to the prior treaty under which the United States covenanted to convey the neutral lands to the Cherokee nation, and they must be overruled for the reasons given for overruling the objections. to the prior treaty.

Acts of Congress were subsequently passed recognizing the treaty ceding back the lands to the United States, and the supplemental treaty as valid, and making appropriations to carry the same into effect.†

Some other objections of a purely technical character are made by the appellant to the title of the appellee, but these are satisfactorily answered in the printed argument filed in the case by the latter party, and are accordingly overruled.‡

Viewed in any light, the court is of the opinion that the

*16 Stat. at Large, 728.

† 15 Id. 222; 12 Id. 793; 10 Id. 283; 16 Id. 359; 5 Id. 73.

Attorney-General v. Deerfield Bridge Co., 105 Massachusetts, 9.

Syllabus.

title to the land in controversy is in the appellee, and that there is no error in the record.

DECREE AFFIRMED IN EACH CASE.

NOTE.

WARNER V. Joy.

No. 327.

THE decree in this case (like the preceding one, an appeal from the District of Kansas) was also affirmed; Mr. Justice CLIFFORD (who delivered the judgment of the court) observing, that it was clear that such a decree must be given, on an application of the principles adopted and the reasons given in the case just decided; as the pleadings were substantially the same as in it, and there was a stipulation of the parties that the court might take and determine the demurrer filed upon the agreements made in that case and without further argument.

So, too, judgment was here affirmed on a writ of error (No. 328) to the same district, in a suit of ejectment by Joy against Warner for these same lands, where judgment had been given in favor of Joy; Mr. Justice CLIFFORD, who delivered the judgment of the court, saying that the questions presented for decision were "in all respects the same as those presented and decided in Holden v. Joy;" and that "the court, without hesitation, decides that the title of the plaintiff is complete, and that he is entitled to judgment for the recovery of the possession of the premises in controversy."

TYLER V. MAGWIRE.

The Supreme Court of the State of Missouri, on appeal, dismissed a petition which sought to have the title to lands held by the defendant, under a patent from the United States, divested, and vested in the complainant. From this decree of dismissal a writ of error brought up the case under the twenty-fifth section of the Judiciary Act, the complainant claiming the land under a former patent from the United States.

Statement of the case.

This court determined that the legal title to the premises was in the complainant under the second patent, reversed the decree, and remanded the cause "for further proceedings in conformity to the opinion of the court" (8 Wallace, 672). The opinion given, declared also that on the merits (which were gone into, and in which utterance was given as to every point which it was necessary to decide in order to dispose of the case on them), the case was with the plaintiff or complainant. On the presentation of the mandate to the Supreme Court of the State, they directed it to be filed, and entered up an order reversing their former decree, and the cause again coming up to be disposed of, the court decided that the legal title to the premises was vested by the second patent in the complainant, as declared by this court, and that on such a title under the laws and practice of the State there was a plain and adequate remedy at law, and that equity had no jurisdiction of the case made by the petition, and, therefore, decreed dismissing the petition. To this decree the complainant sued out a second writ of error, under the twenty-fifth section. Held

That the legal sufficiency of the ground maintained by the Supreme Court of the State for its decree, to wit, that by the laws and practice of the State the complainant's remedy on a legal title was at law, and not in equity, is a question within the jurisdiction of this court, and revisable under the twenty-fifth section on a second writ of error. That whether the legal title was in the complainant, and whether he had an adequate remedy at law, are questions that could only have been properly made in the court of original jurisdiction, or perhaps before this court on the first writ of error; but it is too late to raise such questions after the whole case had been decided, and the cause remanded for final judgment." That under the Judiciary Act, as well as under that of the 5th February, 1867, amendatory of it, on a second writ of error to a State court, this court "may proceed to a final judgment and award execution."

A decree was, therefore, entered up reversing the decree of the State court, and declaring the title to the lands in controversy to be vested in the complainant, and ordering a writ of possession to be issued by the clerk of this court, directed to the marshal thereof.

APPEAL from the Supreme Court of Missouri; the case being thus:

The constitution of Missouri ordains:

"That the right of trial by jury shall remain inviolate."

The code of the same State enacts:

"There shall be in this State but one form of action for the enforcement or protection of private rights, and the redress or

Statement of the case.

the prevention of private wrongs, which shall be denominated a civil action.*

"Suits may be instituted in courts of record by filing in the office of the clerk of the proper court, a petition setting forth the plaintiff's cause or causes of action, and remedy sought, &c.t "The first pleading on the part of the plaintiff is the petition, which shall contain: (1.) The title of the cause, specifying the name of the court and county in which the action is brought, and names of parties to the action, plaintiffs and defendants. (2.) A plain, concise statement of the facts constituting a cause of action, without unnecessary repetition. (3.) A demand of the relief to which a plaintiff may suppose himself entitled.‡ "The only pleading on the part of the defendant is, either a demurrer or an answer.§

"SECTION 6. The defendant may demur to the petition when it shall appear upon the face thereof, either (1) that the court has no jurisdiction of the person of the defendant, or the subject of the action; or (2) that the plaintiff has no legal capacity to sue; or, &c., &c.

"SECTION 10. When any of the matters enumerated in section six (the last quoted section) do not appear upon the face of the petition, the objection may be taken by answer. If no such objection be taken either by demurrer or answer, the defendant shall be deemed to have waived the same, excepting only the objection to the jurisdiction of the court over the subject-matter of . the action, and excepting the objection that the petition does not state facts sufficient to constitute a cause of action."||

This provision of the constitution and these provisions of the code being in force, one Magwire, on the 18th of September, 1862, filed his petition in the Court of Common Pleas of St. Louis, Missouri, against Tyler and forty-three other defendants, stating that on the 1st of June, 1794, Joseph Brazeau had a grant of 4 x 20 arpents of land along the bank of the Mississippi River, near the village of St. Louis; that on the 9th of May, 1798, he sold and conveyed 4 x 16 arpents, being, the northern part of the tract, to Louis La

* Revised Statutes of Missouri, 1216.
Ib. 1229.
? Ib. 1230.

+ Ib. 1222.

|| Ib. 1231.

Statement of the case.

baume, reserving the 4 x 4 arpents at the southern end for himself; that he, Magwire, the plaintiff, by a chain of conveyances, became the owner of said 4 x 4 arpents; that Labaume, after purchasing the said 4 x 16 arpents, February 15th, 1799, procured an extension of his limits west to the aggregate quantity of 360 arpents, and the same was surveyed to him April 10th, 1799; that this survey was made contrary to the terms of the grant to Labaume, and so that, by mistake or design, Labaume included in the survey of his enlarged grant the Brazeau tract, which he did not own; that on the 22d of September, 1810, the board of commissioners for the adjustment of land titles in Missouri confirmed to Brazeau his 4 x 4 arpents, and to Labaume his land; that afterwards, and notwithstanding the said 4 x 4 arpents justly and honestly belonged to the plaintiff, the defendants and others, in combination and confederacy, procured a survey to be made under the authority of the United States in such manner as to include the whole Brazeau tract in the claim of Labaume, and procured under like authority a patent to be issued granting the land covered by said survey to the legal representatives of said Labaume; that the said survey and patent of the Labaume confirmation were issued and procured by said defendants by fraud, covin, and misrepresentation; that on the 20th of May, 1862, the Brazeau confirmation of 4 x 4 arpents was surveyed inside the exterior limits of the survey and patent of Labaume, and on the 10th of June, 1862, a patent was issued to Brazeau, or his legal representatives, therefor; that each of the defendants claimed an interest in the said Brazeau tract, and was in possession thereof, and had received the rents and profits of the same; that every one of them had notice of the rights of the plaintiff under Brazeau, and that all the defendants had confederated and combined to keep the plaintiff out of possession of the lands claimed, and the rents and profits; that the patent and survey to Labaume's representatives were older than the patent and survey to Brazeau's representatives; that defendants continually assert the validity of the Labaume title and the invalidity of the Brazeau title, and that the said patent aud

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