ruled out the testimony. From the judg- | ment entered upon the verdict for the defendants the case was taken by writ of error to the circuit court of appeals. Whereupon the latter court stated the facts substantially as above, and reciting that there were two other cases pending involving the same questions, and that the court was divided in opinion, certified to this court the following questions: "First. Did the district court for the district of Montana err in admitting in evidence the proof of the survey made by Ashley and the proof tending to show that the timber cut by the Montana Lumber & Manufacturing Company, had been cut on what will be, when surveyed by the United States, section 5 of township 26 north, of range 34 west, Montana meridian? "Second. Did the court err in excluding the evidence offered on behalf of the plaintiff in error, tending to show that the Ashley survey was erroneous? "Third. Did the court err in instructing the jury to return a verdict for the defendants in error on the ground that the United States had failed to prove its ownership of the land from which the timber was cut?" Mr. Marsden C. Burch and Solicitor General Hoyt for the United States. No counsel opposed. paid by the company, and no conveyance should be made of the lands until such cost be paid. On account of that provision it was held in Northern P. R. Co. v. Traill County (Northern P. R. Co. v. Rockne), 115 U. S. 600, 29 L. ed. 477, 6 Sup. Ct. Rep. 201, that the land of a railroad company was not subject to taxation. It was said, "to secure the payment of those expenses, it (the government) decided to retain the legal title in its own hands until they were paid." See also New Orleans P. R. Co. v. United States, 124 U. S. 124, 31 L. ed. 383, 8 Sup. Ct. Rep. 417. The equitable title becomes a legal title only upon the identification of the granted sections. Deseret Salt Co. v. Tarpey, 142 U. S. 241, 35 L. ed. 999, 12 Sup. Ct. Rep. 158. As expressed in Leavenworth, L. & G. R. Co. v. United States, 92 U. S. 733-741, 23 L. ed. 634-637, "they" (the words "there be and is hereby granted") "vest a present title, though a survey of the lands and a location of the road are necessary to give precision to it, and attach it to any particular tract." The right of survey is in the United States. It was error, therefore, in the trial court to admit the survey made by Ashley. It was also error to instruct the jury to return a verdict for the defendants. Until the identification of the even and odd-numbered sections the United States retained a special property, at least, in the timber growing Mr. Justice McKenna delivered the opin- in the township; and this was sufficient to ion of the court: enable it to recover the value of the timber cut and removed by the defendants. A contrary conclusion would impair the government's right of survey, and force it into controversies over surveys made by the railroad or its grantees. It would enable the railroad company or its grantees to despoil the lands of their timber, and leave them denuded, and, maybe, worthless, to the government. Indeed, it would reverse the stat In the view we take of the case the answer to the second question becomes unnecessary. The answer to the first and third depends upon the effect of the grant to the Northern Pacific Railroad Company by the act of July 2, 1864 [13 Stat. at L. 367, chap. 217]. The 3d section of that act contains the usual granting words: "That there be, and hereby is, granted to the 'Northern Pacific Railroad Company,' its successors and as-utory grant of powers, and transfer the losigns," every alternate section of public land, not mineral, designated by odd numbers, on each side of the line of the railroad when definitely fixed. It has been decided many times that such grants are in præsenti, and take effect upon the sections of the land when the road is definitely located, by relation as to the date of the grant. But the survey of the land is reserved to the government (§ 6); in other words, the identification of the sectionswhether odd or even-is reserved to the government; and by the act of July 15, 1870 [16 Stat. at L. 291, chap. 292], making appropriations for the sundry civil expenses of the government for the year ending June 30, 1871, it was provided, in regard to the grant to the Northern Pacific Railroad Company that the cost of surveying must be cation of the sections from the government to the railroad company. The extent and the effect of the power of the government to make its own surveys is expressed and illustrated in the following cases. Maguire v. Tyler, 8 Wall. 650, 19 L. ed. 320; Cragin v. Powell, 128 U. S. 691, 32 L. ed. 566, 9 Sup. Ct. Rep. 203; United States v. McLaughlin, 127 U. S. 428, 32 L. ed. 213, 8 Sup. Ct. Rep. 1177; Blake v. Doherty, 5 Wheat. 359, 5 L. ed. 109; Central P. R. Co. v. Nevada, 162 U. S. 525, 40 L. ed. 1061, 16 Sup. Ct. Rep. 885; United States v. Hanson, 16 Pet. 196, 10 L. ed. 935; Les Bois v. Bramell, 4 How. 449, 11 L. ed. 1051; Mackay v. Dillon, 4 How. 448, 11 L. ed. 1050; Glenn v. United States, 13 How. 256, 14 L. ed. 135; Smith v. United States, 10 Pet. 326, 9 L. ed. 442. There is nothing in Northern P. R. Co. v. Hussey, 9 C. C. A. 463, 15 U. S. App. 391, | on his property situated within the district, 61 Fed. 231, which militates with these which is inherited by the complainants. views. In that case relief was granted by Reversed. injunction against a trespasser upon unsurveyed land at the suit of the railroad company, its contingent interest being held sufficient for that purpose. The paramount control and property in the United States was not in question. We, therefore, answer the first and the third question certified by the Circuit Court of Appeals in the affirmative. See same case below, 123 Fed. 338. Mr. N. W. Norton for appellees. Mr. Justice Harlan delivered the opinion of the court: This was a suit in equity, instituted in the circuit court of the United States for Mr. Justice Brewer concurs in the re- the Eastern District of Arkansas by the apsult. 1. A Federal circuit court has jurisdiction of a suit in equity brought by citizens of the state in which it sits, against citizens of other states, to set aside, as fraudulently obtained, judgments of a probate court against an intestate's estate, which are a lien on his real property situated within the district and inherited by complainants, since, under the act of March 3, 1875 (18 Stat. at L. 472, chap. 137, U. S. Comp. Stat. 1901, p. 513), § 8, a circuit court is empowered by final decree to remove any encumbrance or lien or cloud upon the title to real or personal property within the district as against persons not inhabitants thereof, and not found therein, who did not voluntarily appear in the suit. 2. The value of the matter in dispute in a suit to set aside judgments of a probate court establishing claims against the estate of an intestate, which are a lien on his real property inherited by complainants, on the ground that they were fraudulently obtained by defendants acting in concert, is the aggregate amount of the claims whose allowance was procured in furtherance of the unlawful com bination. [No. 129.] pellants, citizens of Arkansas, against the appellees, more than thirty in number, and respectively citizens, corporate and individual, of Tennessee, New York, Missouri, Illinois, New Jersey, Connecticut, Ohio, and Georgia. There was a demurrer to the bill by some of the defendants upon the ground, among others, that the circuit court had no jurisdiction of the parties and subject-matter. The demurrer was sustained, and the bill dismissed for want of jurisdiction. The question of jurisdiction depends, of course, upon the allegations of the bill. The case made by the bill is this: Evans, a resident of St. Francis county, On the 13th day of April, 1891, Hiram Arkansas, died intestate and possessed of personal property exceeding $12,000 in value. He was also seised in fee of 760 acres of land of the value of about $16,000, and left surviving him as his only heirs at law the three appellants, and three sons, James Evans, William E. Evans, and John Evans. By an order made April 21st, 1891, in the probate court of the county, James Evans was appointed administrator of the estate of the intestate. Having duly qualified as such, he took possession of all the assets of the estate, and acted as such administrator until his death. Among the assets that came to his hands as administrator was a drug store, which, with its stock of goods, fixtures, book accounts, and other things therein contained, was sold and delivered by him to John Evans on the 1st day of May 1891. The latter conducted the business in his own name, and Submitted January 16, 1905. Decided Feb- while doing so incurred debts and obliga ruary 20, 1905. tions to the defendants in this suit, aggregating $3,000, as well as debts and obliga APPEAL from the Circuit Court of the tions to other persons; but no single one of United States for the Eastern District of Arkansas, to review a judgment sustaining a demurrer to, and dismissing for want of jurisdiction, a bill in a suit to set aside, as fraudulently obtained, judgments of probate court establishing claims against the estate of an intestate, which are a lien 25 S. C.-24. his debts exceeded $2,000. John Evans became insolvent, and on May 27th, 1892, transferred and delivered to James Evans, administrator of Hiram Evans, the drug store and all that remained of the stock of goods, fixtures, and book accounts. Thereupon, the bill alleged, the defendants | demands of defendants, passed beyond the herein "conspired, colluded, and confeder- control of that court at the expiration of the ated" together and with John Evans and with James Evans, administrator, to secure the payment of their claims and demands against John Evans out of the assets of the estate of Hiram Evans, deceased, and, "so conspiring and confederating," they presented to the probate court their several claims and demands and James Evans, administrator, fraudulently and illegally approved them for allowance against the estate of Hiram Evans. The bill also alleged that the defendants and the administrator of Hiram Evans, still conspiring and confederating together, procured the judgment of the probate court establishing their claims against the estate of Hiram Evans by concealing from the court the fact that they were debts and obligations of John Evans, and cloaking them under the name of expenses of administration of the said estate; "all of which transactions were part of the same scheme, and were participated in by each and all of the said defendants, and by said John Evans and said James Evans, administrator." It was further alleged: "That the said judgments of said court, establishing and allowing the respective claims and demands of the defendants herein against the said estate, were wholly the result of the conspiracy and confederation hereinbefore mentioned, and the fraud practised in pursuance thereof as aforesaid, and are, therefore, in equity and good conscience, void and ineffectual for any purpose whatsoever, and ought not to be enforced; but that, nevertheless, the same are at law liens upon the real estate hereinbefore described, and charges against the respective interests" of the plaintiffs; that, in pursuance of the said conspiracy and confederation, the defendants, and John Evans and James Evans, concealed from plaintiffs the matters and things hereinbefore complained of, and failed to disclose to them the sale of the drug store to John Evans, and the fact that the said claims and demands of defendants were the personal debts and obligations of John Evans; that it had been determined by the supreme court of the state in certain proceedings relating to the matters here in controversy that neither the probate court, nor the state circuit court on appeal, had jurisdiction to hear or determine equitable issues, and that plaintiffs' remedy lay "in an original proceeding in a court of competent chancery jurisdiction, and that the said action and ruling of the said supreme court was without prejudice to your orators' beginning and maintaining this bill of complaint." The bill still further alleged that, under the law of Arkansas, the judgments of the probate court, allowing and classifying the term at which the same were rendered, and that thereafter it was not within its power to alter, amend, or set aside the same; that the time within which plaintiffs might have taken an appeal, or have compelled the administrator to take an appeal, from the judgment, had expired long prior to the time when they acquired knowledge of the matters and things hereinbefore complained of; that, by reason thereof, plaintiffs are wholly without remedy in the premises unless the relief prayed be granted them; that all the acts and doings of the defendants toward procuring the said judgments of the probate court were wrongful, fraudulent, and inequitable, and tended to the manifest wrong, injury, and oppression of plaintiffs; and that, in equity and good conscience, the defendants ought not to have or enjoy the benefit or advantage of the said judgments. The relief prayed was that the judgments of the probate court be set aside, and held not to be valid or lawful liens upon or against the real estate herein described, nor upon the right, title, or interest therein of the plaintiffs; that the defendants be enjoined from enforcing such judgments, or from taking any benefit, profit, or advantage by them; and that, all the defendants being without the jurisdiction of the circuit court, an order be made directing them to be notified of this suit by publication, according to the provisions of the act of Congress of March 3d, 1875. 18 Stat. at L. 470, chap. 137, U. S. Comp. Stat. 1901, p. 508. By the act just referred to it was, among other things, provided: "Sec. 8. That when, in any suit commenced in any circuit court of the United States to enforce any legal or equitable lien upon, or claim to, or to remove any encumbrance or lien or cloud upon, the title to real or personal property within the district where such suit is brought, one or more of the defendants therein shall not be an inhabitant of, or found within, the said district, or shall not voluntarily appear thereto, it shall be lawful for the court to make an order directing such absent defendant or defendants to appear, plead, answer, or demur, by a day certain to be designated, which order shall be served on such absent defendant or defendants, if practicable, wherever found, and also upon the person or persons in possession or charge of said property, if any there be; or, where such personal service upon such absent defendant or defendants is not practicable, such order shall be published in such manner as the court may direct, not less than once a week for six consecutive weeks; and in case such absent defendant shall not appear, plead, answer, or demur executor under the orders of a probate court. Conceding that the administration of the estate there in question properly belonged to the probate court, and that in a general sense its decisions were conclusive, especial within the time so limited, or within some further time, to be allowed by the court, in its discretion, and upon proof of the service or publication of said order, and of the performance of the directions contained in the same, it shall be lawful for the court to en-ly upon parties, Mr. Justice Bradley, speaktertain jurisdiction, and proceed to the hearing and adjudication of such suit in the same manner as if such absent defendant had been served with process within the said district; but said adjudication shall, as regards said absent defendant or defendants without appearance, affect only the property which shall have been the subject of the suit and under the jurisdiction of the court therein within such district. ." 1 U. S. Rev. Stat. Supp. pp. 84-5; 18 Stat. at L. 470, chap. 137, U. S. Comp. Stat. 1901, p. 513. . Upon demurrer to the jurisdiction of the circuit court, that court dismissed the suit, being of opinion that the value of the matter in dispute was not sufficient to give jurisdiction. McDaniel v. Traylor, 123 Fed. 338. If, within the meaning of the judiciary act of 1887-88 [24 Stat. at L. 552, chap. 373], the value of the matter in dispute exceeded the sum of $2,000, exclusive of interest and costs (25 Stat. at L. 433, chap. 866, U. S. Comp. Stat. 1901, p. 508), then there was no reason for dismissing the bill for want of jurisdiction in the circuit court; for, diversity of citizenship was shown by the bill, and under the above act of March 3d, 1875, chap. 137 (18 Stat. at L. 470), it was competent for the circuit court, by a final decree, to remove any encumbrance or lien or cloud upon the title to real or personal property within the district, as against persons not inhabitants thereof and not found therein, or who did not voluntarily appear in the suit. The lands of which Hiram Evans died possessed were of the alleged value of $16,000, and we assume that the plaintiffs jointly owned one undivided half of them. Was the value of the joint interest of the plaintiffs in the lands in question to be deemed the value of the matter in dispute, or was the circuit court without jurisdiction if no one of the alleged fraudulent claims held by the defendants exceeded $2,000, exclusive of interest and costs? Some light will be thrown upon this question by certain cases in which this court held it to be competent for a circuit court, in a suit in equity, to deprive parties of the benefit of a judgment or order fraudulently obtained by them in a state court. In Johnson v. Waters, 111 U. S. 640, 667, 28 L. ed. 547, 556, 4 Sup. Ct. Rep. 619, 634, the question was as to the authority of a circuit court to set aside as fraudulent and void certain sales made by a testamentary ing for this court, said: "But this is not universally true. The most solemn transactions and judgments may, at the instance of the parties, be set aside or rendered inoperative for fraud. The fact of being a party does not estop a person from obtaining in a court of equity relief against fraud. It is generally parties that are the victims of fraud. The court of chancery is always open to hear complaints against it, whether committed in pais or in or by means of judicial proceedings. In such cases the court does not act as a court of review, nor does it inquire into any irregularities or errors of proceeding in another court; but it will scrutinize the conduct of the parties; and, if it finds that they have been guilty of fraud in obtaining a judgment or decree, it will deprive them of the benfit of it, and of any inequitable advantage which they have derived under it." In Arrowsmith v. Gleason, 129 U. S. 86, 98, 32 L. ed. 630, 634, 9 Sup. Ct. Rep. 237, 240, the question was whether the circuit court had jurisdiction by its decree to set aside a sale of an infant's lands fraudulently made by his guardian under authority derived from a probate court, and give such relief as would be consistent with equity. One of the grounds of demurrer to the bill in that case was that the circuit court had no authority to set aside and vacate the orders of the state court. This court said: "If by this is meant only that the circuit court cannot, by its orders act directly upon the probate court, or that the circuit court cannot compel or require the probate court to set aside or vacate its own orders, the position of the defendants could not be disputed. But it does not follow that the right of Harmoning, in his lifetime, or of his heirs since his death, to hold these lands, as against the plaintiff, cannot be questioned in a court of general equitable jurisdiction upon the ground of fraud. If the case made by the bill is clearly established by proof, it may be assumed that some state court of superior jurisdiction and equity powers, and having before it all the parties interested, might afford the plaintiff relief of a substantial character. But, whether that be so or not, it is difficult to perceive why the circuit court is not bound to give relief according to the recognized rules of equity, as administered in the courts of the United States, the plaintiff being a citizen of Nevada, the defendants citizens of Ohio, and the value of the matter in dispute, exclusive of interest and costs, being in excess of the amount re- case to the circuit court of the United quired for the original jurisdiction of such States. The right of removal was denied, courts." "While there are general expres- and the court dissolved the preliminary insions in some cases apparently asserting a | junction which had been granted, and aucontrary doctrine, the later decisions of this thorized Mayer, who had become the owner court show that the proper circuit court of of the judgments, to proceed in their collecthe United States may, without controlling, tion. Upon appeal to a higher state court, supervising, or annulling the proceedings of the original judgment was affirmed, and that state courts, give such relief, in a case like judgment was brought here for review by the one before us, as is consistent with the writ of error. This court sustained the principles of equity." right of removal. After stating that the judgments aggregated more than $3,000, and were all held by Mayer and against the plaintiff, we said: "Their validity depends upon the same facts. If she is entitled to relief against one of the judgments, she is entitled to relief against all of them. The cases in which they were rendered were, in effect, tried as one case, so far as she and Mayer were concerned; for the parties stipulated that the result in each one not tried should depend upon the result in the one tried. As all the cases not tried went to judgment in accordance with the result in the one tried; as the property of Mrs. Marshall [the plaintiff] was liable to be taken in execution on all the judgments; as the judgments were held in the same right; and as their validity depended upon the same facts,-she was entitled, in order to avoid a multiplicity of actions, and to protect herself against the vexation and cost that would come from numerous executions and levies, to bring one suit for a decree finally determining the matter in dispute in all the cases. And as, under the rules of equity obtaining in the courts of the United States, such a suit could be brought, the aggregate amount of all the judgments against which she sought protection, upon grounds common to all the actions, is to be deemed, under the act of Congress, the value of the matter here in dispute. After citing the case of Johnson v. Waters, above, the court referred to Reigal v. Wood, 1 Johns. Ch. 402, 406, in which Chancellor Kent said: "Relief is to be obtained, not only against writings, deeds, and the most solemn assurances, but against judgments and decrees, if obtained by fraud and imposition." It also referred to Bowen v. Evans, 2 H. L. Cas. 257, 281, in which Lord Chancellor Cottenham said: "If a case of fraud be established, equity will set aside all transactions founded upon it, by whatever machinery they may have been effected, and notwithstanding any contrivances by which it may have been attempted to protect them. It is immaterial, therefore, whether such machinery and contrivances consisted of a decree of a court of equity and a purchase under it, or of a judgment at law, or of other transactions between the actors in the fraud." The opinion of this court concluded: "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." The question of jurisdiction here presented arises out of facts not to be found in any case brought to our attention or of which we have knowledge. The suit is to remove a cloud on the title to certain lands of the value of $16,000. The plaintiffs, being three of the six heirs at law of the intestate, jointly own an undivided interest of one half of those lands, but no interest in any particular part of them. If the value of their joint, undivided interest ($8,000), or the value of the undivided in In Marshall v. Holmes, 141 U. S. 589, 595, 596, 35 L. ed. 870, 872, 12 Sup. Ct. Rep. 62, 64, it appeared that twenty-three judg-terest of each (one third of $8,000), is to be ments for different amounts were fraudulently procured to be rendered in a state court against a citizen of another state. Upon learning of the judgments, the latter brought suit in one of the courts of Louisiana for a decree avoiding them as obtained upon false testimony, and thereafter filed a petition and bond for the removal of the taken as the value of the matter in dispute, then the circuit court had jurisdiction. But we are of opinion that, within the meaning of the judiciary act of 1887-88, the jurisdiction of the circuit court, in this case depended upon the value in dispute measured by the aggregate amount of the claims of the defendants. |