4. In order to give this court jurisdiction to review a judgment of a state court against a title or right set up or claimed under a statute of, or an authority exercised under, the United States, that title or right must be one of the plaintiff in error, and not of a third person only. [No. 1384.] Argued March 17, 1890. Decided April 7, 1890. I ERROR to the Supreme Court of the affirming a judgment of the District Court for Lancaster County in that State in an action for the construction of a will and to cancel certain deeds and to quiet plaintiffs' title. Dismissed. This case was removed into the circuit court of the United States, which entered a decree for the defendants. On appeal to this court, that decree was reversed and the case ordered to be remanded to the state court. 118 U. S. 596 [30: 269]. Statement by Mr. Justice Gray: This was a petition to quiet title, filed January 27, 1882, in the District Court for Lancaster County in the State of Nebraska, by Little and more than seventy others against Giles, Burr and Wheeler, and the children of Jacob Dawson. The petition alleged that Jacob Dawson on June 15, 1869, being seised of certain described real estate in that county, made his last will as follows: "After all my lawful debts are paid and discharged, the residue of my real and personal property I bequeath and dispose of as follows, to wit: To my beloved wife, Edith J. Dawson, I give and bequeath all my real estate and personal of which I may die Beised, the same to remain and to be hers, with full power, right and authority to dispose of same as to her shall seem meet and proper, so long as she remains my widow, upon the express condition that if she shall marry again then it is my will that all of the estate here bequeathed, or whatever may NOTE.-A8 to interpretation of wills; intention of testator to govern, see note to Pray v. Belt, 7: 309. The petition further alleged that Jacob Dawson died a week afterwards, and his will was duly admitted to probate, and letters testamentary were issued to Mrs. Dawson; that in order to pay his debts and maintain herself and children, and to make advances to the oldest son, she was obliged to sell a large portion of the real estate, and accordingly, under the power conferred on her by the will, executed warranty deeds thereof, under which the plaintiffs severally became seised of certain lots described; that on November 15, 1879, she married again; that the defendants conspired together to cloud the plaintiffs' title and to extort money from them, and, in pursuance of the conspiracy, procured deeds of the whole land to be executed by Dawson's children to Burr and Wheeler, and by them to Giles, a citizen of Iowa, for nominal considerations, and to enable suits to be brought in the courts of the United States; and pretended that Mrs. Dawson took by the will an estate for life only, terminable by her marriage; and commenced others, against the plaintiffs. and to The petition prayed for an injunction, a canceling of the deeds to Burr and Wheeler and to Giles, a decree quieting the plaintiffs' title and establishing it against all the defendants, and for further relief. Burr and Wheeler and some of Dawson's children disclaimed all interest in the property; the other children and Giles filed an answer, denying the allegations of the petition, and alleging that the title had vested in Giles; and Giles filed a petition for the removal of the case into the circuit court of the United States, upon the ground that he was a citizen of Iowa and the plaintiffs citizens of Nebraska and other States, and that the controversies beween him and each of the plaintiffs were severable. [646] The case was thereupon removed into the circuit court of the United States; and that court denied a motion to remand it to the state court, and afterwards, upon a hearing on pleadings and proofs, entered a decree for the defendants. On appeal to this court that decree was reversed, and the case ordered to be remanded to the state court, upon the ground that the controversies between Giles [647] and the plaintiffs were not severable, and that the deed to Giles was collusively made for the purpose of giving jurisdiction to the courts of the United States. 118 U. S. 596 [30: 269]. On February 28, 1887, pursuant to the mandate of this court, the circuit court ordered the case to be remanded to the state court. The defendants then, by leave of that court, filed an amended and supplemental answer, alleging, among other things, the following: First. A decision of this court on appeal in an action brought in the circuit court of [648] the United States by Giles against Little, | its judgment largely upon the statutes of the Second. Judgments recovered in the circuit court of the United States on July 3, 1887, against some of these plaintiffs in actions of ejectment brought January 5, 1887, against them by one Miles, to whom Giles in December, 1886, had executed a warranty deed of some of the lots. State, held that she took an estate in fee de- The question of the true construction of the will in this respect depends wholly upon general rules of law and upon the local statutes, and in no degree upon the Constitution, laws or treaties of the United States; and the A general replication was filed, and a trial disregard by the state court of the opinion [649] was had before the court without a jury, at of this court upon the question in a former which, among other things, the defendants suit does not give this court jurisdiction to put in evidence records of the judgments re-review the judgment of the state court in covered by Miles against some of these plain- this case. Leather Manufacturers Bank v. tiffs in the circuit court of the United States; Cooper, 120 U. S. 778 [30: 816]; San Fran and also a record of the proceedings in the cisco v. Scott, 111 U. S. 768 [28: 593]; San action brought in that court by Giles against Francisco v. Itsell, 133 U. S. 65 [33: 570]. Little, by which that action appeared to have been an action of ejectment brought August 23, 1880, for the lot now claimed by Little, in which the circuit court sustained a demurrer to the petition and rendered judgment for the defendant, according to the opinion of the circuit judge, reported in 2 McCrary, 371; its judgment was reversed by this court on writ of error on December 12, 1881, and the case remanded for further proceedings; and after further proceedings, the petition, on December 9, 1885, was dismissed, on motion of Giles, without prejudice to a subsequent action. The report of that case in this court in 104 U. S. 291 [26: 745], was also offered in evidence by the defendants at the trial of the present case, and excluded. If the state court had refused to give due effect to a final judgment of any court of the United States in a case between the same parties, a federal question would have been presented, which might have been brought to this court for review. Dupasseur v. Rochereau, 88 U. S. 21 Wall. 130 [22: 588]; Crescent City Live Stock Co. v. Butchers Union Slaughter-House Co. 120 U. S. 141 [30: 614]. But this record presents no such state of things. The case of Giles v. Little, 104 U. S. 291 [26: The defendants sued out this writ of error, and assigned for error that the state courts did not give full faith and credit to the judg. ments recovered by Miles against some of the plaintiffs in the circuit court, and disregarded the decision of this court in 104 U. B. 291 [26: 745]. Mr. J. M. Woolworth for plaintiffs in error. Messrs. T. M. Marquett, N. 8. Harwood and John H. Ames for defendants in error. Mr. Justice Gray delivered the opinion of the court: The real question in controversy between the parties is of the extent of the estate and power which Mrs. Dawson took under the will of her husband. In Giles v. Little, 104 U. S. 291 [26: 745], this court held that she took only an estate for life, determinable by her marrying again, and no power to convey a greater estate than she had herself. In the Case at bar, the Supreme Court of Nebraska, declining to follow that decision, and basing without prejudice to a new action; so that The ground most relied on in favor of a As the present defendants did not claim under Miles, and were not parties to his suits, it is difficult to see how judgments in those suits could have any effect as evidence for or against them, by way of estoppel or otherwise. But it is certain that they neither had nor [650] claimed any interest in the title acquired by Miles under those judgments. It is well settled that, in order to give this court jurisdiction to review a judgment of a state court [688] against a title or right set up or claimed | THE BOARD OF COUNTY COMMIS- v. THE CHICAGO, ROCK ISLAND AND PA- (See 8. C. Reporter's ed. 688-710.) 4. 5 Where a court has jurisdiction of the case and of the parties and of the subject matter, for any mere error in its decision the proper remedy is by appeal, or by bill of review in the same court. The facts that some of the trustees in a deed of trust or mortgage given by a railroad company were directors or stockholders in a railroad company which procured the foreclosure of the mortgage, and that one person was the president of both companies, and that a majority of the directors of both companies were the same persons, and that a majority of the stock of the mortgagor company was in the hands of the president of the other company, and that the attorney who appeared for the mortgagor company had previously been employed by the other company, and the attorneys who brought the foreclosure suit were afterwards attorneys of the latter company, and one of the attorneys of that company, in the foreclosure suit, was a director in the mortgagor company, are not sufficient, in the absence of actual fraud, to render the foreclosure void. 6. Where the proper place to have made a defense was in the foreclosure suit and ample opportunity was had there for such defense, the court in suit afterwards brought to declare the foreclosure sale void is not bound to give effect to such defense, 7. Courts of equity do not sit to restore opportu nities or renew possibilities which have been permitted to pass by the neglect, the ignorance or even the want of means of those to whom they were once presented. Forfeiture of consolidation of railroad com- 1. Under the Missouri Act of 1870 authorizing the [No. 251.] a decree of the Court of the United States for the Western District of Missouri dismissing a suit to set aside a consolidation between railroad companies and proceedings for foreclosure of a trust deed or mortgage and also the sale as fraudulent and void. Affirmed. The facts are stated in the opinion. failure to file such acceptance, but a private per-J. M. Flower, for appellant: son cannot. 8. A certified copy from the secretary of state's consolidation in suits between the consolidated company and individuals or other corporations. and Southwestern Railway Company chartered bring and maintain this suit for the relief The complainant stockholder is entitled to prayed. Cook, Stock and Stockholders, § 645; Atwool v. Merryweather, L. R. 5 Eq. 464, note; Dodge v. Woolsey, 59 U. S. 18 How. 331 (15: 401); Hawes v. Oakland, 104 U. S. 450 (26: 827); Tazewell County v. Farmers L. & T. Co. 12 Fed. Rep. 752; Heath v. Erie R. Co. 8 Blatchf. 406; Lafayette Co. v. Neely, 21 Fed. Rep. 738; Greenicood v. Union Freight R. Co. 105 U. S. 13, 16 (26: 961, 963). A suit to redeem a mortgage, by a person having a right to redeem but who was not made a party to a proceeding to foreclose the same, may be brought at any time within ten years from the time that possession is taken of the mortgaged premises by the purchaser As to the sale of goods on credit to insolvent vendee; when sale is void,—see note to Donaldson v. Farwell, 23: 993. Bill of review; nature of; when may be brought; who may maintain; time within which to be brought; what it should contain. See note to Bank of U. S. v. Ritchie, 8: 890; also note to Shelton v. Van Kleeck, 27: 269. Where a corporation relies upon a grant of at the foreclosure sale, or those claiming | Am. Rep. 40; Pickett v. School Dist. No. 1, Angell & A. Corp. § 111; Farmers Loan & When a statute limits a thing to be done in Olney v. Pearce, 1 R. I. 292, and cases cited; A new suit will be sustained where the United States v. Throckmorton, 98 U. 8. 61 By reason of the trust relations between A material omission of such acts as are de- Morawetz, Priv. Corp. § 31; Mokelumne If the Statute of Limitations would not Cholmondeley v. Clinton, 2 Jac. & W. 152; Messrs. Thos. F. Witherow and M. A. The alleged informality in the creation of Federal courts have no jurisdiction to in- Davoue v. Fanning, 2 Johns. Ch. 252; Keech The relations of the parties, without more, did not avoid the effect of the decree as a con ty, 54 Mo. 58-81; Central A. & M. A830. v. Alabama Gold L. Ins. Co. 70 Ala. 120. No court, state or federal, will, in a col-clusive adjudication. It matters not what lateral proceeding, inquire into the validity the relations of the parties were, if the comof the proceedings by which a de facto corpo- plainant has not been injured it is not entitled ration was created. to relief. Methodist E. U. Church v. Pickett, 19 N. Y. 482; Williamson v. Kokomo Bldg. & L. F. Asso. 89 Ind. 289; Hackensack Water Co. v. De Kay, 36 N. J. Eq. 548; St. Louis v. Shields, 62 Mo. 247; Briggs v. Cape Cod Ship Canal Co. 137 Mass. 72; Smith v. Sheeley, 79 U. S. 12 Wall. 358, 361 (20: 430); Thompson v. Candor, 60 111. 247; Rice v. Rock Island & A. R. Co. 21 111. 95; Com. v. Union Fire Ins. Co. 5 Mass. 230; Boston Glass Mfg. Co. v. Langdon, 24 Pick. 49; Folger v. Columbian Ins. Co. 99 Mass. 267, 274; Rice v. Commonwealth Nat. Bank, 126 Mass. 300; Baker v. Backus, 32 Ill. 111; Land v. Coffman, 50 Mo. 243; Martindale v. Kansas City, St. J. & C. B. R. Co. 60 Mo. 510; Tarbell v. Page, 24 Ill. 47. A court of chancery has no jurisdiction to determine the regularity of the creation of a corporation which exists de facto. Of that question the courts of law have exclusive jurisdiction. Rex v. Carmarthen, 2 Burr. 869; National Docks R. Co. v. Central R. Co. 32 N. J. Eq. 755; State v. Merchants Ins. & Trust Co. 8 Humph. 235, 252; Atty-Gen. v. Utica Ins. Co. 15 Johns. 358; Neall v. Hill, 16 Cal. 150; | Gaylord v. Fort Wayne, M. & C. R. Co. 6 Biss. 286; Re N. Y. Elevated R. Co. 70 N. Y. 326; Kinealy v. St. Louis, K. & N. R. Co. 69 Mo. 658; Atchison, T. & S. F. R. Co. v. Wilson, 35 Kan. 175; Terhune v. Midland R. Co. 38 N. J. Eq. 423; Farmers & Millers Bank v. Detroit & M. R. Co. 17 Wis. 373, 378; Rex v. Pasmore, 3 T. R. 199. If the court has no jurisdiction to inquire into the regularity of the proceedings by which the consolidation was made the complainant's bill must be regarded as a bill of review. This suit was not brought in the forum in which the original decree was involved. Some parties to the decree are not parties to the bill; it makes no allegations of specific frauds, and contains no explanations of the delay which preceded its filing. Whiting v. Bank of U. S. 38 U. S. 13 Pet. 12 (10: 35); Bank of U. S. v. White, 33 U. S. 8 Pet. 267 (8: 940); Vanmeter v. Vanmeter, 3 Gratt. 148; Davoue v. Fanning, 4 Johns. Ch. 202; Story, Eq. Pl. § 426, and note. A court will not set aside a decree, between the original parties thereto, on the ground of fraud, unless the fraud is extrinsic to the matter tried on the first hearing, as well as to all matters which might have been tried on such hearing. United States v. Throckmorton, 98 U. S. 68 (25: 96); Green v. Green, 2 Gray, 361; Southard v. Russell, 57 U. S. 16 How. 570 (14: 1062). A bill of review cannot be filed after the lapse of the term within which an appeal can be taken. Kennedy v. Bank of Georgia, 49 U. S. 8 How. 609 (12: 1218); Thomas v. Harvie, 23 U. S. 10 Wheat. 150 (6: 288); Whiting v. Bank of U. 8. 38 U. S. 18 Pet. 18 (10:36). Sahlgard v. Kennedy, 1 McCrary, 291; Barrow v. Hunton, 99 U. §. 82 (25: 408); Greeno v. Greene, 2 Gray, 361. No trust or fiduciary relation existed between the Rock Island and the Southwestern Companies which disabled the first-named Company from demanding the foreclosure of the first mortgage of the last-named company, or becoming the purchaser of the mortgaged property at the foreclosure sale. Alexander v. Williams, 14 Mo. App. 13; Booth v. Robinson, 55 Md. 421; United Railway Stock Co. v. Atlantic & G. W. R. Co. 34 Ohio St. 450; Adams Mining Co. v. Senter, 26 Mich. 77; Twin Lick Oil Co. v. Marbury, 91 U. S. 587 (23: 329); Kitchen v. St. Louis, K. C. & N. R. Co. 69 Mo. 224; St. Louis v. Alexander, 23 Mo. 483; Omaha Hotel Co. v. Wade, 97 U. S. 20 (24: 918). The County of Leavenworth is barred by the Statute of Limitations and by its own laches. Lord v. Morris, 18 Cal. 482; Pilcher v. Flinn, 30 Ind. 202; Hunter v. Hunter, 50 Mo. 445; Norton v. Mealer, 4 Sawy. 603; Wells v. Halpin, 59 Mo. 92; Arnold v. Scott, 2 Mo. 14; Smith v. Newby, 13 Mo. 159; Foley v. Jones, 52 Mo. 64; Wood v. Carpenter, 101 U. S. 135, 143 (25: 807, 809); Morgan v. Hamlet, 113 U. S. 449 (28: 1043); Samples v. City Bank, 1 Woods, 528; Leffingwell v. Warren, 67 U. S. 2 Black, 603 (17: 262); Kennedy v. Green, 3 Myl. & K. 719; Culver v. Third Nat. Bank, 64 Ill. 528; Dows v. Naper, 91 Ill. 46; Martin v. Smith, 1 Dill. 98; Reisse v. Clarenback, 61 Mo. 310; Smith v. Clay, Amb. 645; Badger v. Badger, 69 U. S. 2 Wall. 87 (17: 836); Marsh v. Whitmore, 88 U. S. 21 Wall. 178 (22: 482); Harwood v. Cincinnati & C. A. R. Co. 84 U. S. 17 Wall, 79 (21: 558). When the property is subject to contingencies, or is speculative in its nature, more prompt action is required. Hayward v. Eliot Nat. Bank, 96 U. S. 611, 617 (24: 855, 858); 2 Story, Eq. Jur. § 1520; May v. Memphis B. R. Co. 48 Ga. 114; Kerr, Fraud and Mistake (Bump's ed.) 302; Bliss v. Pritchard, 67 Mo. 181, 187; Landrum v. Union Bank, 63 Mo. 56; Harwood v. Cincinnati & C. A. R. Co. 84 U. S, 17 Wall. 80 (21:558); Gregory v. Patchett, 33 Beav. 595; Chapman v. Mad River L. E. R. Co. 6 Ohio St. 119; Zabriskie v. Cleveland, C. & C. R. Co. 64 U. S. 23 How. 397 (16: 497); Watt's App. 78 Pa. 370; Eaken v. St. Louis, K. C. & N. R. Co. 3 Cent. L. J. 655; Kent v. Quicksilver Min. Co. 78 N. Y. 159; Peabody v. Flint, 6 Allen, 52; Pacific Twp. v. Seifert, 79 Mo. 210; Graham v. Birkenhead, L. & C. J. R. Co. 2 Macn. & G. 146; Great Western R Co. v. Oxford, W. & W. R. Co. 3 DeG. M. & G. 344. No excuse is shown for the long delay in bringing this suit. The reason therefor should be specifically pleaded. Marsh v. Whitmore, 88 U. S. 21 Wall. 184 (22: 485); Badger v. Badger, 69 U. S. 2 Wall. 95 (17: 838): McQuiddy v. Ware, 87 U. 8. 20 |