688
FEDERAL REPORTER.
action, to a defect in the pleading, or the jurisdiction of the court; :l< and on the previous page the court say that the judgment in the: prior action operates as an estoppel only as to those matters in issue or points controverted upon the determination of which the finding or verdict was rendered. The supreme court of Alabama, in the case of Hanchey v. Coskrey, 81 Ala. 150, 1 South. Rep. 259, Judge CLOPTON, speaking for the court, says: "The doctrine of estoppel by judicial proceedings is qualified by the established limitation that the judgment must be a decision on the merits, a judgment founded upon non-joinder or misjoinder of parties, or merely defective pleading, or any technical ground or collateral or incidental questions whereby the merits of the case were not and could not have been' determined, will not preclude an inquiry into the merits in a subsequent suit so instituted as to avoid the objection by which the first was defeated;" citing authorities. This is certaInlyon a line with the doctrine of the case of Gould v. Railroad Co., 91 U. 8.534, which has neither been overruled nor modified. The decree ;is for complainant; and will be entered accordingly·.
t.l,
PVGSLEY
'I).
BROWN et ua:. July 23,1888.)
(Oircuit Court, D. Oolorado.
PUBLIC LANDs-IN])IAN TITLES- DECISION OF SECRETARY OF INTERIOR-RE' VIEW. .
Defendant claimed .title to a tract of land under adeed alIeged to have been executed in behalf of the original locator of Chippewa scrip, which was void, because issued' witbout authority by the commissioner of Indian affairs. Plaintiff claimed u.ndera deed subsequimtly executed by such locator, and alleged that defendant's deed was executed under a forged power of attorney, and was therefore void. In proceedings before the secretary of the interior, . of whiCh plaintiff's grantor had notice, the land was awarded to defendant. Held. that defendant was within the provisions of 17 U. S. St. 340, authorizing the secretll,ryto give title. to lands held under such scrip whenever it shall be shown to his satisfaction that said lands are held by innocent parties, in good faith, and that the locations under such scrip have been made in good faith, alld by innocent holders of the same; and that the decision of the secinvolved no question of law, but simply the question of fact as to the good faith of the claimants, and therefore was not subject to review by the "cour.t. .
lnEquity. Bill to declare a trust in certain realty. Bill inequity, filed by Leonora S. Pugsley against Henry C. Brown an,d wife, to have defEmdant Brown declared a trustee of certain lands held b.y him under a patent. ·SeldQn. Bacon. for plaintiff. J. H,., Brown: for defendants. HALLETT, J. Chippewa scrip issued to Mary Dauphinais by the missioner of Indian under the seventh 'claus6of the second article
PUGSLEY 11. BROWN.
689
of the treaty of September 30, 1854, (10 St. 1110,) was located on the land in controversy by the defendant Henry C. Brown, February 9, 1867. This scrip was by its terms limited to the use of the grantee named therein, and therefore it was necessary to make the location in the name of Mary Dauphinais, rather than in Brown's name. Brown testifies that he paid $1,000 for the scrip. By whom it was soM is not stat"ed; but from the ordinary course of such matters it is fair to assume that it was sold by some dealer who had purchased it from Mary Dauphinais, or who was acting as her agent. Daniel Witter, who was the attorney of Brown in these proceedings, testifies that he received with the scrip two powers of attorney, one of which authorized him to locate the scrip, and the other to convey the land in the name of Mary Dauphinais, when extitle should be obtained. Apparently those powers of attorney ecuted in blltlik, and filled up by Witter to meet the necessities of the occasion, after they were received by him. As to the source of title, both parties were quite willing to let it lie beneath the dust of 20 years, and the facts are to be collected as much from what the witnesses carefully overstep as from what is affirmatively stated. December 29, 1868, a patent was issued to Mary Dauphinais on Brown's entry, and this was followed January 25, 1869, by a deed from Mary Dauphinais, by Dan'iel Witter, her attorney in fact, to Brown, for the same land. There is nothing in the record to show that Mary Dauphinais had any knowledge ofthese proceedings, either as to the entry of the land or the conveyance to Brown. On the conttary, it does appear that Witter was proceeding npon Brown's employment, and at his instance only. Thus matters remained until April 4, 1873, when Mary Dauphinais, with Michael, her "husband, executed a deed for the premises to John B. Bottinpau; and Bottineau conveyed to Byron M. Smith, October 2, 1873, one-half, and the remainder September 11, 1874. Smith conveyed to complainant November 12,1884. On the ground that the power of attorney of January 10, 1867, from Mary Dauphinais to Witter was ,forged, complainant claims to be the true owner of the Dauphinais title. Mary Dauphinais testifies that she did not execute this power of attorney, or in fact any paper relating to the land, excepting the deed to Bottineau. According to this witness, the power of attorney by which the scrip was located, as well as that by which the deed to Brown was made, was false, and for that reason void. In February, 1874, Brown seems to have leatnedthattheDauphinais patent was void for want of authority in the ·commissionerofIndian affairs to issue the Chippewa scrip, and he then applied to the secretary of the interior for leave to purchase the land under the act of June 8, 1872; (17 St. 340.) Notice olthis application was given to Byron M. Smith, complainant's grantor, who was at that time, it is said, the only true and proper representative of the Dauphinais title; and a hearing waS had before the Secretary, which resulted in awarding the title to Brown. Alleging that the secretary erred iI? recognizing Brown as the party entitled to the land under the act of 1872, complainant seeks in this bill to have Brown declared a trustee for her under the patent of December v.o5F.no.l0-44
REPORTER.
·1,1876. Ifth\'lsecretaTy.erred only in a matter of fact, ,it is conceded ,that qis' decision is couclusiveupon all parties, and not subject to review in any other forum, JohnsOrt v. Towsley, 13 Wall. 72. It is difficult to see how an error could arise under that act in a matter of law, since the matter to be determined under the act was the good faith of the claimant. By the terms of the act the secretary was authorized to give title to lands held under the treaty ,of 1854 whenever "it shall be shown to the satisfaction of the secretary of the interior that said claims are held by innocent parties in good faith, and that the locations made under such claims have been made in good faith and by innocent holdera of the same." 17 St. 340. But it is urj:{ed that only the original locator of the scrip, or the grantee of such locator j can by any construction of the act come within its terms as an innocent holder in good faith. The statute, however, does not define the title which; the claimant must have, but refers to him only as an owner and holder ingood fai.th. The Dauphinais patent was void in law for want of authority.in thecommissioner of Indian {tffairs to issue the scrip 011; wpich .it was founded. Parkerv. Duff, 47 555, In thatviewthe of passed to protect those who, held Jauds by Buch titll)s,apP!lrentlysetting their faith above the q\lestioI) conduct as such holders in tiUe, and authorizing the secretary oithe interior to gh;eI)ew titles to m.eritorious claimants without much reference .to .the former title. In any case of controversy .betweenclaim,ants unqer·the. act, the decision ,of as to the merits ofjheir is final and conclUsive, within the a\lthorityof adjudged cases. And if the rule is otherwise, and. for a.ny, reason it, is. the,', the court to review the decision of the secretary, the position of Marypauphinais as.an owner and. holder of this land in good faith cannot be maintained. She sold for money the scrip which was for her individual qsej and which, .by its terms, could not be assigned to !1-notherjand it was located on the land in controversy by a stranger toher,without her knowledge ot authority. she never entered upon or ()()cupied the land in any way j but.after long years,and after ascertaining ,the t;londition of affairs, she sought to appropriate the land" to herself by affirming the unauthorized .act of Witter in making the locatioll, and repudiating his conveyance to Browu. Under any circumstances, it is doubt1ul whether she could thus affirm in part the acts ,of Wit,ter as her agent"and reject the remainder of them. Whatever may be S&id on that point,and in any view that may be taken of, the facts, it is entirely clear that she was not, within the terms of the act, and her grantee can have ,uo better position than she herself occupied. It may be true, as alleged, that-Brown, holding under an instrument which he was expressly prohibited from using, is in "no better situation. With that, however, we are not at present COhgerned. Oomplainant seeks only to acquire Brown's title; not to overthrow it. And whether that titkis good or. bad is not for present consideration. The bill will be. disn!issed, atcomplainf\ut's costs.
WARRI!:N II. FURSTENHEIM.
691
WARREN
et al. v.
FURSTENHEIM.
(Oircuit Oourt,
w: n.Tenneaa6e.
July 9,1888.)
I.
ABATEMENT AND REVIVAL-DEATH OF PARTy-FEDERAL COURTS-FoLT,OWING STATE LAW.
The survivability of actions in matters not within the exclusive control of congress being beyond the power of federal legislation, section 955 of the Revised Statutes adopts the local law in that regard for the government of the courts in reviving suits abated by the death of parties.
2.
SAME-AcTIONS FOR TORT.
The legislation of Tenness,ee has left the survivability of causes of action for tort, in all cases except those of injury to the person resulting in death, just where the common law and the ancient statutes of England placed it. unless suit be commenced before the death occurs, in which event the cause of action always survives, no matter what its nature 'may be, if it do not af· feet the character of the plaintiff, in which case alone, does a suit once brought ever abate by the death of a party to it, if it be a personal action as distinguished from a real action, as to whICh no opinion is Whether an action of deceit for fa:se representations as to the credit of another would survive in Tennessee ifno suit be brought before the death occurs. qual1'e,' but whether it would so survive or not, it does survive by the peculiar law of that state saving the right of survival of the cause of action as well as the right of revival of the suit in all cases pending at the death, and this with the same effect in a federal court.
8.
SAME-DECEIT-FALSE REPRESENTATIONS AS TO CREDIT.
At Law. On motion to revive. Wright
Metcalf
Turley, for the motion. Walker, contra.
Damages are claimed for alleged misrepresentations by the defendant concerning a firm of merchants to whom the plaintiffs gave credits that have been lost. There was a mistrial before a jury, and afterwards the defendant died. The motion for a revival of the suit is resisted upon the ground that the" cause of action" does not "survive by law" against the defendant's executor. Rev. St. § 955. If the decision of the question of the right of revival depended upon the determination of the law of Tennessee as to the survival of a cause of action like this as contradistinguished from the right of a plaintiff to revive a suit already commenced, it must be confessed that the subject would be involved in the greatest obscurity and doubt. The position of the defendant's executor is that. by the very terms of the act of congress above cited, it is required that the cause of action shall survive before a suit in the federal court can be revived by or against an executor or adtninistratorjthll.t, congress having ,prescribed this rule for the revival of suits in the courts ofthe United States, it is wholly immaterial that the state of Tennessee has prescribed a different rule suits in the courts of that state, the legislation of congress being neces5arily exclusive j and that as this cause of action could not, under, the1aw of Tennessee, . be originally brought against an executor, this suit must abate. This is a very strong position, which is supported by a.Hne of reasoning conclusive ofitssoumlness as well ,as by all the authoritiesconstruing.theact HAMMOND,
J.
.
