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made into this alleged offense, this court ought to remit the party to that

court.

Has that court jurisdiction? The homicide took place in "No Man's Land," in 1888, as alleged. What is known as the "Indian country," or the "Indian Territory," was first defined and bounded by the act of June 30, 1834, (4 St. at Large, 729.) That definition is as follows:

"That all that part of the United States west of the Mississippi, and not within the states of Missouri and Louisiana, or the territory of Arkansas, and also that part of the United States east of the Mississippi river, and not within any state to which the Indian title has not been extinguished, for the purposes of this act, be taken and deemed to be the Indian country."

Now the expressions "Indian country" and "Indian Territory" are used interchangeably in the statutes. We speak of the Indian Territory; but, politically, that is a mistake. There is no organization. It is more properly a territory referring simply to geographical extension, and not to any political organization. At the time this act of 1834 was passed, "No Man's Land" was not a part of the United States. It did not then come within "Indian country," as defined; and, unquestionably, many treaties and acts of congress have been made and passed since in which the western boundary of this Indian country, or Indian Territory, is, by implication at least, located on the 100th meridian, which is the eastern boundary of "No Man's Land." And yet this original territorial boundary may, without any undue stretch of language, be regarded as a shifting boundary. It is not a boundary prescribed for the purpose of political organization, or for a deed or other conveyance. It is a boundary for the mere purpose of defining the territory over which certain laws of the United States will have operation. Being such a boundary, it would not be improper to consider that boundary shifting, whenever other territory was properly subjected to the operation of the same laws. It would be changed by the organization of any part of this territory into a political territory of the United States. It might be changed whenever the territorial boundaries of the United States were extended westward, by purchase or conquest, into country unoccupied, save by the Indians. It may be regarded as a boundary certain, but shifting; something on the principle controlling the boundary of a lot on a river or on a lake. That boundary is certain, though it may be shifting. By accretions, the water-line may be extended far into the river or the lake; but still it is the water-front. So here, considering the purpose for which the Indian country was bounded, one may fairly infer that that boundary shifted as the territorial extensions of the United States increased, or as territory was carved out of it for political organization. That such is the real force of that description is evident from the case of Ex parte Crow Dog, in 109 U. S. 556, (3 Sup. Ct. Rep. 396.) The syllabus, and the opinion bears this out, reads as follows:

"The definition of the term Indian country' contained in chapter 161, § 1, of the Act of 1834, (4 St. 729,) though not incorporated in the Revised Statutes, and though repealed simultaneously with other enactments, may be referred to in order to determine what is meant by the term when used in the

statutes; and it applies to all the country to which the Indian title has not been extinguished within the limits of the United States, whether within a reservation or not, and whether acquired before or since the passage of that act."

This territory was acquired since the passage of that act.

As I said, however, there are many treaties and statutes since that in which the implication is manifest that the 100th meridian was the western boundary, or was regarded as the western boundary, of the Indian Territory. That, of course, throws doubt upon the scope of that decision. On the other hand, we find some in which it is equally clear that this "No Man's Land" is recognized as a part of the Indian Territory, as in article 2 of the treaty with the Comanches and Kiowas, October 18, 1865, found in 14 Statutes at Large, 718. But, coming closer than that, in the act of 1883, in which there was an attempted partition of the jurisdiction over the Indian Territory between the district of Kansas, the northern district of Texas, and the eastern district of Arkansas, in describing that portion of the territory which was assigned to the district of Kansas, it is declared that "all that part of the Indian Territory lying north of the Canadian river and east of Texas and the one hundredth meridian" be annexed to and constitute a part of the United States judicial district of Kansas. "That part of the Indian Territory east of Texas and the one hundredth meridian" implying that there was some portion of the territory west of the one or the other of these two. And section 3 says:

"All that portion of the Indian Territory not annexed to the district of Kansas by this act, and not set apart and occupied by the Cherokee, Creek, Choctaw, Chickasaw, and Seminole Indian tribes, shall, from and after the passage of this act, be annexed to and constitute a part of the United States judicial district known as the Northern District of Texas.'" 22 St. 400.

Of course, this is mere implication, but it certainly is strong implication, that there was some territory lying west of the 100th meridian; and it could be only that which is known as "No Man's Land." That was in 1883.

Coming down to 1889, an act was passed to establish a United States court in the Indian Territory, which is found in 25 U. S. St. at Large, 783, in which the Indian Territory is bounded: "That a United States court is hereby established whose jurisdiction shall extend over the Indian Territory, bounded as follows:" (Then it bounds it so as to include "No Man's Land.") This is either a recognition by congress of that as the previous boundary of this Indian Territory, or is an assertion that henceforward such should be the boundary. The court created by this act was given jurisdiction of misdemeanors. The seventeenth section of that act attached to the eastern judicial district of Texas all that portion of the Indian Territory not otherwise assigned, and included "No Man's Land," if it were a part of the territory. Now, where a term is used and defined in the opening part of a statute, the use of that term thereafter in the statute is with the same meaning, and the same definition. The "Indian Territory" is bounded in the first section so as to in

clude "No Man's Land." That term used thereafter, without any definition of boundary, means the same territory. Hence I have no question but that by said section 17 the jurisdiction over this "No Man's Land" was assigned to the eastern district of Texas. That, of course, was since the offense was charged to have been committed.

My conclusions, then, are these: That to-day, and since March, 1889, the court of the eastern district of Texas has jurisdiction over "No Man's Land." Probably, also, the court of the northern district of Texas had like jurisdiction prior thereto, and since 1883; and, there being a federal court, with jurisdiction territorially, with ministerial officers, a clerk, and a marshal, there is no trouble in finding all the machinery for purposes of trial. Under those circumstances, it seems to me that it is the duty of this court to deny this petition.

DE FOREST et al. v. THOMPSON, Commissioner, et al.

(Circuit Court, D. West Virginia. November 14, 1889.)

1. JURISDICTION OF FEDERAL COURTS-SUITS TO VACATE TAX-SALES.

The federal courts have jurisdiction of a suit between citizens of different states, to set aside sales of lands forfeited to the state, and deeds therefor, for illegality and irregularity, though such sales and deeds were made pursuant to an order of a state court of the county where the lands sold are situated.

2. SAME--SUITS BY FOREIGN EXECUTORS.

Where the will of the deceased owner of such lands, in whose name they were sold, vests the title thereto in his executors and trustees, who are citizens of another state, the latter may bring the suit in a federal court sitting in the state where the lands lie, though they have not qualified in that state, as they sue in their individual, and not in their representative, capacity.

8. EQUITY-JURISDICTION-MULTIPLICITY OF SUITS.

Where there are many defendants, each of whom claims a part of the land under a sale made under the same order of court relating to the whole, equity has jurisdiction in order to avoid a multiplicity of suits, though the sales were absolutely void, and plaintiffs have an adequate remedy at law.

4. TAXATION-SALE FOR NON-PAYMENT-PARTIES.

Where land is purchased by the state for non-payment of taxes, and is not redeemed by the owner within the statutory period, such owner is not a necessary party to proceedings by the commissioner of school lands to sell such land for the benefit of the school fund, under Code W. Va. c. 105, §§ 5, 6, as his title is gone. 5. SAME-IRREGULARITIES.

Failure of the sheriff to return a list of lands sold for taxes in West Virginia within 10 days, as prescribed by Code W. Va. c. 31, § 31, and failure of the recorder to note the time of filing such list, as required by the same statute, render the sales invalid.

6. SAME-EQUITY PLEADING-SUPPLEMENTAL BILLS.

Where an original bill assails such sales as void on other grounds, a supplemental bill, setting up the sheriff's failure to return the list within the statutory time as an additional reason for holding the sales void, does not make a new and inconsistent case.

In Equity.

Bills by R. W. De Forest and L. W. Knox, citizens of New York, trustees and executors of the estate of Burr Wakeman, deceased, against William Thompson, commissioner of school lands for Boone county, W.

Va., to set aside sales of lands made for the benefit of the school fund, and the deeds made thereunder.

Thomas L. Brown and James H. Ferguson, for plaintiffs.

James M. French, Joel E. Stollings, Watts & Kennedy, and Kenna & Chilton, for defendants.

Before HARLAN, Justice, and Jackson, J.

JACKSON, J. It is alleged in the original and first amended bill in this cause that the plaintiff was the owner of 60,000 acres of land lying mostly in Boone county, in this state, a part of which is in controversy in this suit; that for the years 1869 and 1870 it was returned delinquent by the sheriff of Boone county for the non-payment of taxes thereon, in the name of the plaintiff; that on the 12th day of October, 1871, it was sold by the sheriff of Boone county for the non-payment of taxes thereon, and was purchased by the state, not being redeemed by the owner within the time prescribed by law; that the land was certified by the then auditor of state "as land within said Boone county, forfeited to the state of West Virginia in the name of Burr Wakeman, for the non-payment of the taxes thereon for the years 1869 and 1870;" that afterwards the defendant, Thompson, commissioner of school lands for Boone county, filed his petition in the circuit court for that county to have the said land sold for the benefit of the school fund, and, a decree being obtained for that purpose, the commissioner sold a portion of the land and made a conveyance to the purchasers thereof. The bills allege numerous irregularities and illegalities in the proceedings as reasons why the sales and deeds should be declared illegal and void. After the filing of the original and first amended bills the plaintiffs allege that they discovered other errors, irregularities, and illegalities in the proceedings of the sheriff and recorder of Boone county in relation to the sale of the land and the report thereof to the recorder by the sheriff, and the recordation thereof by the recorder, which would render the proceedings absolutely null and void, and that in fact no forfeiture of said tract of land ever occurred. For this reason the second amended and supplemental bill was filed, setting up these facts. The defendants filed their answer in reply to the allegations of the bill, amended and supplemental bill, setting up various defenses, among others, the sale of the land for the non-payment of taxes under the decree of the circuit court of Boone county, relying upon the defense that the courts of the United States were without jurisdiction to pass upon the validity of the title to the lands claimed herein, for the reason that, the deeds having been made in pursuance of an order of the circuit court sitting for the county of Boone, where the lands lie, such sales could only be set aside and avoided by the decree of the court which directed them to be made. In this last position I do not concur. The plaintiffs are citizens of New York, and the defendants being citizens of West Virginia, the controversy between the parties is one between citizens of different states, and therefore, by the constitution and laws of the United States, is one of which the proper court of the United States may take cognizance in some form.

The question to be determined here is whether the orders of the Boone circuit court, under which the lands in dispute were sold, are conclusive and binding upon the plaintiffs, when assailed in an independent collateral proceeding, and may be decided as well here as in the state court. The presence of such a question in the case does not affect the jurisdiction of this court, for it is competent for the federal court in a controversy between citizens of different states to pass upon the question whether the state court had jurisdiction or power to order the lands in question sold by the school commissioner. Payne v. Hook, 7 Wall. 425; Johnson v. Waters, 111 U. S. 640, 4 Sup. Ct. Rep. 619; Arrowsmith v. Gleason, 129 U. S. 86, 9 Sup. Ct. Rep. 237.

In the last case referred to the court said:

"These principles control the present case, which, although involving rights arising under judicial proceedings in another jurisdiction, is an original, independent suit for equitable relief between the parties; such relief being grounded upon a new state of facts, disclosing not only imposition upon a court of justice, in procuring from it authority to sell an infant's lands when there was no necessity therefor, but actual fraud in the exercise from time to time of the authority so obtained. As this case is within the equity jurisdiction of the circuit court, as defined by the constitution and laws of the United States, that court may, by its decree, lay hold of the parties, and compel them to do what, according to the principles of equity, they ought to do, thereby securing and establishing the rights of which the plaintiff is alleged to have been deprived by fraud and collusion."

Applying the principles announced in the foregoing decisions, it will hereafter be seen, in the discussion of this case, that it falls within the principles as announced by the court in the foregoing cases.

The next contention is that the plaintiffs, never having qualified as executors of Burr Wakeman in this state, could not bring this suit. This position cannot be maintained. In Lewis v. McFarland, 9 Cranch, 151, it was said that the principle that "letters testamentary give to the executor no authority to sue for the personal estate of the testator out of the jurisdiction of the power by which those letters are granted" does not extend to a suit for lands devised to an executor. This is not an action for the recovery of personal property. The purpose and object of this action is to set aside the sale of certain lands described in the bills and amended bills, and to vacate the deeds made in pursuance thereof. The plaintiffs in this action sue under the will of Burr Wakeman, which vested the title to his lands in his executors and trustees. They are therefore devisees and trustees suing for the protection of rights to the realty derived from and under that will, and not in their character as personal representatives, derived from the letters testamentary. By the will, the legal title to the land in controversy was vested in the plaintiffs in this action, and, as I have before said, being citizens of a different state from the defendants in this action, they were entitled to be heard in this court.

The next position insisted upon by the defendants to defeat the plaintiffs' action is that, if the plaintiffs' position is true, that the proceed

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