This suit was instituted in the Fourth District Court of New Orleans, on the 1st of November, 1851.
The plaintiff, Jacob Mussina, describes himself as a resident of Louisiana, and the four defendants, Stillman, Belden, Basse and Rord, as citizens of Texas; the other defendant, Ailing, being a citizen of Louisiana.
The leading allegations of the petition are the following:
That the plaintiff, together with two of the defendants, Stillman and Bel-den, on the 9th of December, 1848, entered into a written contract, by which they agreed to hold jointly certain land titles intended to cover the town called Brownsville, situated on the Rio Grande, in the State of Texas, the interest of the parties to be in the following proportions: Stillman one-half, Belden one-fourth, and Mussina one-fourth; that the defendant Ailing, (who was the partner of Belden, in the firm of Belden & Go., trading at Brownsville,) was secretly-interested with Belden in this contract of the 9th of December, 1848, or shortly afterwards became so; that Stillwell, Belden, and the petitioner, (constituting the Brownsville Town Company,) employed the defendants, Basse & Rord, as attorneys at law in relation to their land speculations aforesaid, and that Basse & Rord continued to act in that capacity, as well as in the capacity of agents for the company, up to the- day of December, 1849, when Still-man, Belden, Basse and Rord, aided and abetted by Ailing, combined and entered into a conspiracy to defraud the plaintiff out of his just rights, under the agreement of the 9th of December, 1848, and to slander him and his titles *569to the property embraced in the agreement, with a view of crippling his resources, &c.
That, on the 14th December, 1849, Stillman and Belden sold out to Basse & Eord, all their own interest, as well as that of the petitioner, under the said agreement, for the pretended price of $15,000; that, owing to the fiduciary relations between the parties, it was not competent for Stillman and Bel-den to sell, nor for Basse & Eord to buy, so as to defeat the rights of the plaintiff; but, as he deems it for his advantage to adopt this purchase, he does so, and claims to be the beneficiary thereof and the rightful owner of the whole property thus purqhased by Basse £ Eord, subject to the obligations by them contracted in the several deeds now of record.
That the property included in the partnership agreement, at the time of the said sale, was worth $300,000,' and that Basse and Eord, and Stillman and Belden before them, had made large sales and realized $136,000, which they had fraudulently appropriated and refused to account for.
That the defendant, Ailing, had aided and abetted Basse £ Eord in effecting sales under their said purchase, slandered the petitioner’s title, and warranted the titles of Basse & Eord.
That the value of the Brownsville property had been impaired by the fraudulent sale to Basse £ Eord.
That Basse £ Eord were insolvent, and wholly irresponsible for the amount of property thus thrown into their hands.
That Ailing and Belden, on the 5th of January, 1851, for the price of one dollar, accepted a title from Basse £ Eord, to a valuable piece of property, included in the agreement of the 9th of December, 1848, and now have possession of the same, with a view to defraud the plaintiff.
That Stillman also accepted their title to another valuable piece of the same property, for one dollar, with the same fraudulent intent.
That all the defendants had conspired to secrete certain maps of the Brownsville property, which were originally intrusted by the Company to Basse & Eord, as attorneys.
That the petitioner being somewhat embarrassed, as was confidentially known by Stillman, Basse and Eord, and having purchased an interest in some lands in Texas, about Point Isabel, for which he was unable to pay, consulted with the defendant Eord, under whose advice a deed of trust was drawn up, upon his interest in the Brownsville property, to secure his vendors for the price of the Point Isabel property, in the sum of $28,750. Eord being the trustee and advising the beneficiaries, who also were his clients, on the 20th of October, 1849, when the deed was made, that Mussina's interest in Brownsville was a sufficient security for that amount.
That there was pending in the United States District Court at Galveston, Texas, a suit entitled Cavazos et al. v. Stillman et al., in which the title of Stillman, Belden and Mmsina, was contested, and an adverse title set up ; that Basse £ Eord were employed, among other counsel, for Stillman, Bel-den and Mussina, in that case, and had neglected to take the testimony proper to sustain the defense; that Eord had been made a witness in the cause, and had testified, that since the institution of the suit, he had purchased the entire interest of Stillman and Belden, two of the defendants, and was also interested in favor of the establishment of the old title which he was called to *570prove up ; that this double employment in favor of the complainants and defendants was a betrayal of professional trust and a fraud upon the parties; that Basse & Eord had made a collusive agreement with the complainants, Gmazos and wife, by which the subject-matter of the suit had been compromised on an agreement to divide the property, which was in fraud of the petitioner’s right; that Ailing, Belden and Stillman, further conspiring with Basse & Hard, on the 26th of February, 1851, caused an amended answer to be filed for Stillman and Belden, in the said Chancery suit, ^denying that the plaintiff Mussina had any title in the town site of Brownsville, and averring that Stillman owned three-fourths, and Belden one-fourth of the whole.
'Jhat Simon Mussina was the plaintiff’s agent in all the Brownsville matters, and had full knowledge of all the frauds practised by the defendants.
Upon these allegations the plaintiff, in his original petition, asked that Ailing and Belden be condemned to make him a title of the property they bought of Basse <& Eord, for the price of one dollar, and to account for the revenues, and in default thereof to-pay him $12,000; that Ailing, Stillman, Basse & Eord, be condemned to convey to him, by good and sufficient title, all the property included in the contract of 9th December, 18é8, and acquired by subsequent purchase under the said contract, as well as all the property acquired by either of the said parties in fraud of the petitioner’s rights, and that in default of so doing, they be condemned, in solido, to pay him $800,000 in the way of damages; there was also a prayer for general relief.
Ailing was cited in New Orleans, the place of his domicil.
Belden, Basse and Eord, casually found in New Orleans, were cited there.
Stillman has not been cited, nor has he made an appearance in the cause.
All the parties who were brought into court, excepted to the jurisdiction in limine litis.
They averred that the demand on its face was in the nature of a petitory action, for lands lying in the State of Texas, where all but one of the defendant’s reside; that the action is therefore local, and cannot be maintained in the State Courts of Louisiana.
This plea being overruled, the parties answered, still protesting against the jurisdiction, and reserving all their rights under the exceptions filed.
Nearly a year after the institution of his suit, the plaintiff presented a supplemental petition, asking the court to take it as an amendment and addition to the prayer of his original petition, and that, besides the relief already sought, it should be decreed that Stillman make the plaintiff a title to the property he bought of Basse & Eord for one dollar, and to account for the revenues, and further that all the defendants-be condemned, insólido, to pay him $75,000 in damages for the wrongs, injuries, &c., growing out of the fraudulent combination and conspiracy of the said defendant, against him, as set forth in the original petition.
The supplemental petition was not put at issue by default or answer.
One Antonio Longorie, a citizen of Mexico, intervened in the suit, praying leave to join the plaintiffs in seeking to compel the defendants to make a conveyance of the real estate described in the petition, and in procuring a recognition of the title of Jacob Mussina, oh the alleged ground that Mussina had conveyed the said property to him in trust for the vendors of the Point Isabel property, upon which the sum of $25,750 was said to be still due by the plaintiff. Longorie, as trustee, further prayed judgment for the said sum of *571$28,750, and that the land described in the plaintiff’s petition be sold to satisfy said claim by privilege and preference, &c.
This petition in intervention was served upon the plaintiff’s attorney and upon the defendant Ailing only, but does not appear to have been put at issue. At the plaintiff’s instance the cause was tried by a jury.'
The trial appears to have occupied about ten days, the evidence being voluminous and complicated. The records of several suits in the courts of Texas, touching various titles and claims to the lands in question, form a portion of the evidence.
The jury rendered a verdict in the following form :
We, the jury, find that the defendants shall convey unto Jacob Mussina, the plaintiff, by good and sufficient title, all the rights of property acquired by Basse &Rord, under the transfer of conveyances of the 14th December, 1849, and 31st January, 1850, within ninety days from the date hereof, and that JSlisha Basse, B. R. Hard, S. A. Belden and W. Ailing, pay to the plaintiff the sum of $25,000 damages. We, the jury, further find that 8. A. Belden and W. Ailing convey to J. Mussina the property purchased by them from Basse & Rord on the oth January, 1851, and, on the said defendants complying with the above, the said plaintiff shall refund the said amounts advanced b}r defendants for the purchase of the property, and in default of the defendants making the above conveyances within ninety days, we, the jury, find in favor of the plaintiff, J. Mussina, for the sum of $214,000, in lieu of the title to the property.”
A judgment was rendered pursuant to this verdict, and the District Judge having overruled the motion for a new trial, offered by the defendants, the latter appealed.
In this court the plaintiff has joined in the appeal, averring that there is error in the judgment to his prejudice, and that upon finding the issues of fact in favor of the appellee, he is entitled upon the proofs and pleadings to a judgment in solido against the defendants, for the amount claimed in the petition, and supplement'll petition, to wit: $375,000. Wherefore, he prays that the judgment of the court below be so amended as to give him an absolute judgment for $375,000, and without prejudice to any equitable lien he may have upon the lands in controversy, and that the judgment so amended be affirmed with costs.”
The first question to be discussed is the question of jurisdiction.
So far as the action may be styled a real action, we think that the State Courts of Louisiana have no jurisdiction over it. An action for the revendication of immovables is a real action. C. P. 4. Andan action to compel a conveyance of lands, falls within this category.
It is true the English Court of Chancery, in the exercise of its peculiar power over the consciences of parties, served with its subpmna, has indirectly assumed a jurisdiction touching real property situated abroad. But even there, it is believed that the cases generally will be found limited to a widely different state of facts from that which is presented by the record before us, to wit: that the parties defendant reside within the jurisdiction, that the land to be affected by the decree is under the dominion of the crown, and that, without the interposition of Chancery, there must be a failure of justice.
The courts of the United States which have been invested with chancery *572jurisdiction have borrowed their doctrine and their practice from English precedents.
The case of Massie v. Watts, 6 Cranch, 157, relied upon by the plaintiff was a case from the United States Circuit Court of Kentucky against a defendant resident there; the land incidentally affected was situated in Ohio, but the question concerned the location of certain titles emanating from the Government of the United States; and the ease was within the peculiar province of equity, not remediable at law.
These circumstances would hardly make the case of Massie v. Watts a precedent to support the jurisdiction of the Fourth District Court of New Orleans in the present cjontroversy concerning land titles in Texas, even if that court had been endowed by the Legislature with chancery powers.
But the peojjle of Louisiana have always resisted the encroachments of foreign modes cjf procedure, and especially the peculiar doctrines and forms of chancery. ;
After the Act of Congress of the 26th May, 1824, it was reluctantly admitted that the federal courts sitting in Louisiana had equity powers technically so called, and the question divided the Supreme Court of the United States. Livingston v. Story, 9 Peters, 652.
We find no warrant in our law and no justification in principle or necessity, for importing into our simple system of remedies one of the most subtle doctrines by which the chancellors of England extended their jurisdiction and aggrandized their power, a doctrine which, if carried into effect here without the limitations already alluded to, might occupy the courts' of New Orleans with investigation of land titles all round the world.
True, our State courts may. be said to have, both common law and equity jurisdiction in this sense, that they are generally competent to afford such relief, to parties and in cases properly before them, as may be demanded in a judicial proceeding, either at law or in chancery, in those States which recognize the English division of remedies. But it does not follow that all of the prerogatives claimed by courts of common law and courts of chancery, and all their artificial rules and peculiar dogmas should be usurped by the courts of Louisiana.
The case of McDowel v. Reed, 8 Ann. 391, has been cited as an authority in point. We do not find it so. That case was long held under advisement, and the decree was a very guarded one ; in the decree we are to look for the character of the precedent.
The cause was remanded to ascertain if the garnishee, resident in New Orleans, had money in his hands, the proceeds of certain lands and slaves in Mississippi, which, by a contract made in New Orleans, had been conveyed to him in trust, with power to sell for the benefit of certain preferred creditors of the grantor, who was the defendant in execution, and to the prejudice of the complainant who resorted to the garnishee process. The court only intimated by its j udgment, that if the garnishee had money in his hands, the proceeds of this arrangement made in Louisiana between citizens of Louisiana, in violation or in fraud of her laws, he should not be protected by his own reprobated contract from paying it over to the seizing creditor.
No other case has been cited from our reports to show that it was competent for the District Court to decree that the defendants should make the plaintiff a title to lands in the State of Texas.
*573The plaintiff, however, who succeeded in the court below in procuring a judgment for the land, almost in the words of the prayer of his petition, has chosen in this court to complain of that portion of the judgment, to drop the demand for a conveyance, and to ask an absolute judgment for §875,000 in damages.
When we consider that the gravamen of.the complaint is the divestiture of title to lands in another State and their depreciation, by means of a conspiracy concocted there between persons resident there, it might well be doubted whether the incidental and subsidiary prayer for damages, which is now for the first time made the principal and indeed the only prayer, changed the legal aspect of the question of jurisdiction presented by the exceptions taken and overruled in limine. It has been said by high authority that if a court has no jurisdiction of a principal question it has none of its consequences and incidents. Per Kent O. J. in the matter of Ferguson, 9 John. 289. See also as to local actions for land, and damages to real estate. Vattel’s Law of Nations, B. II, Ch. VIII, §103, Story's Conf. Laws, §543 et seq. Rogers v. Woodbury, 15 Pick. 156. Livingston v. Jefferson, 1 Brosch. 203. Howard v. Ingersoll, 23d Ala., 673.
But we do not find it necessary to decide the case wholly upon this ground. Eor, assuming {according to the oral argument pressed upon us at bar on behalf of the plaintiff) that where two things are prayed for, one within and the other without the sphere of its jurisdiction, the court must listen to the former prayer, and assuming also that we have a right to hear and determine the case upon the simple demand for damages, as if the action were transitory, still, we are compelled to say, after a diligent examination of the entire record, that the plaintiff has not furnished the means of a conjectural approach towards justice between the parties at present, by any judgment for damages whatever.
It may be that the plaintiff has suffered much, it may be that he has suffered not at all.
But, in controversies growing out of joint speculations in real estate, it is not upon wild conjecture that courts of justice should undertake to assess a specific amount of damages.
Such is the volume of the record and such the multiplicity of points both of fact and laws litigated between the parties, that we can only indicate a few of the numerous obstacles which render it impossible to do justice here and now, and which impose upon these litigants the necessity of postponing their controversy about damages, until the main question of title in its complicated bearings shall have been disposed of in the forum and by the law of the place rei sitae.
The plaintiff in asking for damages assumes that the Brownsville Company absolutely .owned the town of Brownsyille ; whereas they only owned certain pretensions of doubtful validity under which they took possession.
The revolutions of seventy years had covered the town site with varions conflicting claims flowing from the various governments under whose empire the territory along the eastern bank of Rio Grande had successively passed.
One of these pretended titles emanated from the city of Matamoros on the opposite side of the river. Most of the lands in question were once a part of the ejidos, or town commons, granted to that city by the Congress of the State of Tamaulipas. The ayuntamiento of Matamoros parcelled out this portion of *574their municipal domain in labors, or small farms, to tenants from amongst their own citizens. These farmers thus acquired an inferior and mongrel sort of title, somewhat analogous to that conferred on the lessee by the emphyten-tical lease of the civil law. The direct dominion remained either in the city of Matamoros or in the sovereign ; the useful dominion passed to the occupant of the labor subject however to various burdens and conditions. These labor titles formed one class of claims which attracted the attention of speculators covetous of acquiring a speedy fortune, .many of whom anticipated that Brownsville would become a thriving city, when the American army loft that neigborhood, after the successful termination of the late war with Mexico.
But some thought that such claims would not be respected by the courts, and contended that the superior title of the city of Matamoros vested in the State of Texas, by the event of war, as that State had declared in 1830, when she was a Republic, that her jurisdiction extended westward to the Rio Grande, and now that boundary was acknowledged. The partisans of this theory supposed that these lands, having de jure constituted a part of the public domain of Texas ever since the legislative declaration of 1830, and de faoto since the military occupation in 1846, had for some time been subject to entry under Texas scrip and head-right certificates, some of which had been thus located by one David Snively since the occupation of the country by the United States troops.
In 1848, the defendant Stillman, a man of wealth, residing there, made investments in both classes of claims with the view of building up a town. He bought labors from Zamora and the two Velas, and scrip located by Snively to the amount of 4,676 acres, and employed surveyors who proceeded to lay out the town in lots.
Simon Mussina, the plaintiff’s brother, and editor of a newspaper in Brownsville, having heard of Stillman's operations and intentions, proposed a partnership with him in speculating in Brownsville titles. As an inducement he held out the fact that he could control some more labors, in which he had been offered an interest by the farmers for the aid he might give them in forwarding their pretensions; he also professed some skill in Mexican titles. The negotiation of Simon Mussina with Stillman resulted in the wrrtten agreement of the 9th December, 1848, which is the main foundation of the plaintiff’s case as presented in his petition. For some reason which does not very clearly appear, Simon put the name of his brother Jacob into the partnership, acting himself as his agent, the plaintiff never having been upon the Rio Grande.
The contract purports to be made between Stillman, Belden and Jacob Mus-sina, and binds them to hold jointly all labors of land which they or either of them had purchased or might thereafter purchase within what is termed the ejidos of Matamoros on the left bank of the Rio Grande, embracing the town of Brownsville, as also all locations and rights under Texas certificates or land scrip situated within the aforesaid ejidos; they also agreed that, after all liabilities should be settled ths profits resulting from the sale of lands should be divided according to their respective shares in the partnership (to wit: Stillman -J-, Belden £ and Mussina all losses and expenses to be divided in the same ratio.
The company thus constituted sold some lots, chiefly on a credit, giving bonds for title, or actual titles, with the warranty of the company; and for some time lots were in demand, Basse & Eord acting as the agents of the company in making sales.
*575But the lots owed their value, not to the intrinsic worth of titles derived from Mexican labor tenants, or from Texas scrip locations, but mainly to the warranty of Stillman and Belden who were residents of the country and in good credit.
It is amply proved that Jacob Mussina of New Orleans was insolvent, and it. would seem that his brother and agent, who testifies that he was equally interested with him in all his operations upon the Rio Grande, was not in much better condition.
It appears that the warranty of Mussina, an insolvent absentee, added nothing to the value of the lots.
Directly after the company commenced operations, their claims under the labor settlements and scrip locations were assailed by an ancient title descending from the Spanish crown.
On the 12th January, 1849, or less than five weeks after the partnership contract was signed, Garujos and wife and various other persons representing themselves as the heirs of the original grantee Don Jose Salvador de la Garza, asserted their title dating back to the year 1781, by instituting a suit for the lands in question against Stillman, Belden et als., in the United States District Court for the District of Texas.
At this time Mussina was unquestionably indebted to the company for his share of the expenses, and it is not surprising that his partners, encountering a law-suit at the outset, should have demanded a contribution from him. He appears to have gained time, and induced them- to postpone their demand, by a proposal of his agent Simon, who, on the 12th January, 1849, addressed a letter to Stillman inclosing some Texas land certificates, which he estimated at §1,540 and which he requested Stillman to hold “ as collateral for advances made in the purchase of Brownsville. ”
The plaintiff avers in his petition, that he entered into the agreement of 9th December, 1848, in good faith, and has fully discharged all the duties and obligations that devolved upon him under it: he assumed the affirmative of that issue ; but the letter above referred to, as well as the testimony of his agent called by the defend"nt to testify against his interest, show that he did not contribute his quota to the joint expenses of a hazardous enterprize. The same testimony indicates that he contended for a point which would have wrought injustice towards his partners, viz: that the sale of lots should go on under the warranty of the company (which as we have stated derived its value from the names of Stillman and Belden) and that the proceeds should be divided among the partners before the titles were finally tested at law.
As the collaterals were afterwards returned to the plaintiff and he has not to this day paid a contribution, the judgment for §375,000 which he seeks would be a clear gain, with no valuable consideration other than the time spared by Simon Mussina from his editorial duties in attendance upon the courts and correspondence about the titles.
So embarrassed was Simon Mussina in October 1849, that he availed himself of his agency for his brother to mortgage his interest in Brownsville, to some of his own creditors by a deed of trust.
In tlie following December •Slillman and Belden sold out to the defendants, Basse & Hard, who were agents of the town company. This sale of the 14th Dec., 1849, does not purport to convey to Basse & Hord the interest of Mus-sina. But a dispute had arisen as to what that interest was under the circum*576stances then existing. Slülman and Belden insisted that he had forfeited all rights under the contract by failing to contribute to the expenses or to the responsibility of the partnership. He contended that he was not bound* to contribute, and that the profits of the speculation would pay his share of the expenses incurred. It would appear that just before the sale of the 14th December, Simon Mussina laad some difference with Basse & Hord, about another matter, to wit: the advice they had given their clients, Simon Mussina's creditors, relative to the registry of the deed of trust, just mentioned, upon the Mussina interest in Brownsville, executed on the 24th October, 1849, in which Hord was appointed trustee. The result was that another trustee was substituted to Hord, on the 15th December, 1849.
The purchase by Basse & Hord, two days afterwards, of the interest of Stillman and Belden would seem to have aggravated the dissensions which had grown out of Mussina’s alleged failure to contribute to the expenses of the company.
On the 28th January, 1850, the scrip deposited as collateral for advances was returned to Simon Mussina, and Stillman and Belden gave public notice that all business connection between them and Jacob Mussina had ceased on account of his failure to comply with his engagements.
On the 30th January, Simon Mussina having come to an open quarrel with-Basse & Hord also, wrote a formal notice for the press in the following words: cí All authority vested by me in Elisha Basse and Robert H. Hord, of the firm of Basse & Hord, to act as my agents or attorneys in the affairs of the Brownsville Town Company, as also all other matters and things whatever, has been revoked. (Signed) Jacob Mussina, p. p. Simon Mussina.”
The next day, Jan. 31st, 1850, Stillman and Belden executed the recognitlve act to Basse <& Hord, in which, for the first time, they appear to have warranted the latter against the claim of Mussina.
Six weeks afterwards, Jacob Mussina filed a bill of complaint in the United States District Court for the District of Texas, against Stillman, Belden, Basse, Hord, and one George Lyon, setting forth many of the allegations of the petition in this case, but averring the property sold by Stillman and Belden to Basse & Hord to be worth more than $50,000, and the moneys oolleeted for the sale of lots to be about $20,000 in cash and about $10,000 in notes; certain interrogatories were propounded to the defendants, and, besides the prayer for a discovery, the following specific relief was asked: that ail the pretended purchases of Basse & Hord from Stillman and Belden might be adjudged and decreed to have been made by Basse & Hord as the trustees of the complainant, and that, as his trustees, they should account and surrender to him all lands, notes, moneys, credits, bonds and obligations, together with all maps, plats, surveys and litle papers received from Stillman and Belden, and that the petitioner be subrogated to the place and stead of Basse <& Hord, in respect to the property, etc., received by them under the conveyances of the 14th December, 1849, and31sl January, 1850, upon compliance on his part with the terms conceded by Stillman and Belden to Basse & Hord; there was a further prayer that the defendants^ compelled to account to the petitioner for all sales of lots and other receipts.
This bill was met by a demurrer, but, so far as the record informs us, it is still pending in the United States Court for the district of Texas.
In the court below, Belden pleaded the pendency of this suit by way of exception, and the same plea is set up in the answer of Basse & Hord.
*577The amendment asked for by the appellee in this court, as stated in his brief, reduces the case to a question of damages; it is said that the land is no longer in controversy here.
But the land is in controversy in Texas between the same parties, Ailing alone excepted. How can we guage the damages, until we know what the Texas tribunal will do with the plaintiff’s suit for the land there? A judgment in his favor simply for damages here will not bar the claim for specific relief pending there. And if his legal position be correct, that by reason of their former employment as agents and attorneys of the company, the purchase by Basse & Sorel of the three-fourths interest of Stillman and Belden enured to his benefit, (a point which it is for the Texas tribunal, already possessed of that controversy, to determine,) and if his allegations about the value of the company’s claims be also correct, he will turn out to be a gainer by the alleged frauds practiced by his former partners and the partnership attorneys, and we should not give him an additional reward in damages.
And as to the proceeds of lots sold, the present- petition is not so framed as to call for a liquidation of the partnership. The plaintiff’s bill in equity, pending in Texas, has called the defendants to account for these matters, and there, at the domicil of the partnership, it is proper they should be adjusted. If there were any evidence before us (which there is not) to show the amounts received, they are still liable to be refunded to the vendees and warrantees of the company, should their titles not prevail, and, by the terms of the partnership, nothing is to be distributed till all liabilities shall have been settled.
The depreciation in the value of lots which is complained of, is also an incidental question. The evidence shows that this was owing rather to commercial depression, a diminished population, and the clouds of adverse titles that thickened over the company’s claims, than to the quarrel between the partners and the denial of Mussina's interest. Besides, if the plaintiff is not yet entitled to the lots or their value, he is not entitled to damages .for their depreciation.
We now return to the Cavazos suit, in which the De la Corea title was asserted against the defendants, Stillman and Belden, to which suit Jacob Mussina voluntarily made himself a party, and which resulted in a decree recognizing that title as paramount.
The inconsistent positions taken by the plaintiff with regard to this decree have contributed to our embarrassment in the case.
He first contends that the decree is void for want of jurisdiction, and then claims in argument a large amount of additional damages, not charged in any of his pleadings, because, as he avers, that decree defrauds him of the Point Isabel tract of land bought in the name of Simon Mussina.
It is difficult to see how a decree, void for lack of jurisdiction, can have destroyed a title not in contestation in the suit.
From Mussina, who volunteered an appearance, the denial of jurisdiction, rationepersona, cannot be heard. And it is plain that the court had jurisdiction of the subject-matter of the suit. If other parties should have been made, it does not follow that the decree is void as between the parties that were made. Can the plaintiff claim damages for this decree, which he has not sought to set aside by any of the direct modes known to the practice of the Texas or the United States tribunals ?
We do not pretend to say that the decree was right. But Mussina, present in court by his separate counsel, as well as by his agent, contested the case, *578with full knowledge of all the material facts which he now sets up collaterally in avoidance of the decree.
Basse & Hard never appeared as his attorneys in that case. They appeared only as the attorneys of Stillman and Belden, and of some of the JDe la Gana heirs who were made plaintiffs without authority, and who retired from that position. If Basse & Sord were ever the attorneys of Jacob Mussina, individually, of which we do not find satisfactory proof, they were, as we have seen, publicly discharged on the 30th January, 1850, — more than a year before the Cavazos suit was tried. More than a year before the trial Mussina knew that they had bought out Stillman and Belden and that the latter subsequently warranted them against his interest in the Brownsville titles. He thus dealt with them on the Cavazos trial at arm’s length, and he had no longer a right to rely upon them to look after his interest in that suit. On the record his interest was denied by his former partners. On the other hand he instructed his special attorneys, before the. termination of the suit, to take such steps in the further proceedings as would establish his title to the whole site of Brownsville. Simon Mussina, the plaintiff’s agent, was present and made an affidavit on the trial. He is alleged to have been cognizant of all the frauds practised by the defendants, to have been skilled in Mexican titles, and to have devoted much time and labor to travelling and attending to law suits for the plaintiff.
Now, the plaintiff’s petition in the present cause was filed after the trial but before the rendition of the decree in the Cavazos suit. He seemed to have anticipated that the decree must go against his interests, for he makes it matter of special complaint in the petition, that the procurement of the testimony to prove and maintain the title of the defendants in the Cavazos suit was intrusted mainly to li. H. Sord, and that he neglected to take at Brownsville and elsewhere the necessary depositions to prove up and maintain the rights of the de-fence, and especially the adverse possession of the defendant and their grantors.
If there was any neglect, the plaintiff must charge it upon his agent and counsel and not upon his adversaries.
But it is said that the decree was procured upon the testimony of Sord, an interested party. This does not appear, for the other evidence is not before us nor are any reasons for the judgment given. Were the fact so, still Mussina had the power to object, and did object to the competency of the witness, who, on his voir dire, openly avowed his interest in both the contending titles. Mus-sinawas not deceived on the trial. If the judge ruled incorrectly in admitting Sord to testify, or gave undue weight to his testimony, those are matters for revision upon appeal, but they do not authorize us to override the decree as amere nullity.
Again, it is said that because Basse & Sord were the agents and attorneys of the Brownsville Town Company, their purchase of the Cavazos title must be held to enure to the benefit of Mussina, and so he must be the beneficiary of the fraudulent decree.
It does not appear that Basse <Sb Sord contracted for the purchase of the Ca-vazos claim until some time after the 30th January, 1850, when the plaintiff discharged them from all employment on his behalf.
It is a question, for the courts of Texas to determine, whether the plaintiff has acquired the Cavazos title by reason of the previous relations of Basse & Sord towards the Town Company, and their subsequent purchase from the heirs of JDe la Garza.
*579• Again, we are asked to treat the old Be la Garza grants as stale and fraudu. lent, although it was sustained by the Oavazos decree, to which the plaintiff was a party. If the judgment were out of the way we have not the information which would enable us to take such a responsibility. This grant always excited the serious apprehensions of the company, and it would seem that the plaintiff, or his agent, had even bought an interest under another portion of the same grant in August, 1849. The Cavazos claim was one of the obstacles to the success of the company, rendering the direct warranty of Stillman and Bolden necessary to the sale of lots.
But it was not the only trouble encountered by the holders of the labor claims and scrip locations.
The State of Texas ignored their pretensions, and assumed to have succeeded to the paramount title of Matamoras and of Mexico on the 19th December, 1836, when she declared her boundry on the west to be the Rio Grande. She assumed, moreover, that the ejidos thus acquired,finally confirmed to her by the result of war, had not fallen into the general mass of her vacant lands, and that none of her laws had subjected them to be entered by serip or head right certificates.
Accordingly, on the 24th January, 1860, by an Act of the Legislature incorporating the city of Brownsville, she donated the ejidos, in controversy, to the city itself in trust for certain public charities enumerated ip the charter. This formidable claim must have been discussed for some weeks before it matured into a legislative grant, and it is but reasonable t® suppose that the prospect of encountering it was one of the inducements of Stillman and Belden to make the sale of the 14th December, 1849.
It is true the Act incorporating Brownsville was subsequently repealed. But thereupon the District Attorney filed an information in the proper court to provide for the conservation and execution of the trusts; and the court, holding that the repeal of the city charter did not operate a revocation of the charities, and adopting the equitable doctrine that trusts shall never fail for want of a trustee, ordered and decreed that two new trustees be appointed to carry out the benevolent purposes of the Legislature in the administration and sale of the property. This decision is not technically binding on the adverse claimants, as Simon Mus-sina testifies, because the proceedings were, in form, ex parte. But, in reality, Basse & Sard were heard as amici curios in opposition to the motion of the District Attorney, as the holders of two anterior titles. Their pretensions, both under the'Town Company and the Be la Garza grant, are discussed at length in the learned opinion of the District Judge before whom the information was tried, and were there pronounced inferior to the title conveyed by Texas to the charitable uses aforesaid.
The testimony of Simon Mussina also points to another adverse claim, as likely to be asserted by the city of Matamoras, perhaps on the ground that her municipal possessions on this side of the Rio Grande could no more be divested by the events of war than those of any private owner.
The only property the company ever had, being thus beset by actual and impending litigation, the plaintiff would be fortunate, if by resorting to an action of damages in another State, he could exchange his conditional one-fourth interest in the Snively scrip locations and Mexican labor pretensions, for any absolute judgment for the value of the whole of Brownsville. He would thus escape, what were otherwise inevitable, the ordeal of a Texas war of titles, and the contingency of eviction.
*580But, to give him the judgment he seeks, we must assume that, by the laws of Texas, the fraudulent attempt charged upon his adversaries to deprive him of his one-fourth interest in the partnership, has so far redounded to his advantage, as to invest him with his partners’ three-fourths, and not only so, but to make all the defendants his warrantors, that the partnership claims to the Brownsville town site, bought as an experiment and menaced on every side by hostile titles, some of which have been already successfully asserted in the Texas courts, were, nevertheless, perfect and indefeasible. We must pronounce the De la Garza grant to be stale and fraudulent; the Texas donation to the Brownsville charities to be an empty pretence, and the idea of an undivested interest still remaining in the city of Matamoras, to be preposterous. Non nost/rém tantus componeri litis. The courts of Texas must, in the first instance, settle these disputed titles to lands within their jurisdiction, and the demand for damages, if it could ever properly be entertained in the courts of Louisiana, is at least premature in the present stage of the business, and this for causes quite independent of the alleged frauds of the respondents.
If the charge of defeating the plaintiff’s interest in the partnership of December 9th, 1848, by a fraudulent conspiracy were true, the intrinsic damages would be the amount he invested in the partnership; but he invested nothing. The resulting damages would be the amount of profits of which he has been deprived. But the profits would be nothing and the losses great and sure, if either of the rival titles, should prove paramount to those purchased by the company. That such is likely to be the case, may reasonably be inferred, not only /rom the records in evidence, but from the fact that Basse & Hord, notwithstanding the brilliant acquisitions of which it is said they have robbed the plaintiff, are proven by his witnesses to be as insolvent as before.
So much upon the hypothesis that the plaintiff’s interest in the town titles has been destroyed by the machinations of the defendants. We would not be understood to intimate that that interest can have been so destroyed. The plaintiff’s title, such as it is, has been of record in the proper office of the county of Cameron, where the land lies, ever since the 18th of May, 1849, and we see no obstacles to the vindication of his rights in the courts of the locality. Indeed,' his only adequate and complete remedy is there. We are not permitted to entertain a doubt of the ability or disposition of the courts of a sister State, to mete out justice to those who seek it in the right way.
When the plaintiff entered into a Texas partnership in Texas latid claims, he impliedly submitted himself to the Texas laws and tribunals. His attempt to bring those titles before the courts of Louisiana for adjudication, either directly or indirectly, is not to be favored, as it is not necessary for the due enforcement of our own laws, nor for the suppression of fraud within our borders. , Aside from matters confided to the Federal Government by its Constitution, the relation of the States of this Union inter se is that of foreign States in close amity. Each is sovereign in its proper domain. If we would secure respect for our own sovereignty, we should respect the sovereignty of others.
In so far as the residence of the defendant Ailing, exempts him from the operation of some of the principles herein announced, it may be added, that the same difficulties which are at present in the way of even an approximative estimate of damages as against the principal offenders, apply to him, who ip •charged as an aider and abettor.
*581We also deem it proper to say, that the evidence which tends to show that he is liable in solido for the acts of his co-defendants in Texas, appears to us to be slight and inconclusive.
It is therefore ordered and decreed, that the judgment of the District Court be avoided and reversed, and that the plaintiff’s demands be dismissed, as in case of non-suit. It is further ordered and, decreed, that the plaintiff pay costEi in both courts.