(concurring). The plaintiff’s case was presented to the court below, upon an alternative prayer for the conveyance of the title to land, or for damages.
Before this court, the former alternative is abandoned, and the prayer for damages alone remains.
This claim for damages reposes essentially and indispensably upon an assumption that plaintiff’, on the 9th December, 1818, and subsequently, was owner of an undivided fourth of certain lands situated in Cameron County, Texas, by titles derived from the State of Texas, and from the city of Matamoras.
These titles have been the subject of contestation in a suit in equity in the District Court of the United States, for the District of Texas, having Circuit Court powers; and by final decree of that court, rendered in January 1852, have been declared null and of no effect.
The plaintiff was a party defendant to that suit, having filed his appearance and answer on the 9th July, 1849, and was specially named in the decree.
He instituted the present action on the 1st November, 1851, pending the suit in equity in the Federal Court in Texas, and his petition alleges the pend-ency of said suit, and certain alleged fraudulent and collusive proceedings of some of the defendants (who were engaged in the suit in equity, either as defendants or solicitors,) touching the defence of that suit, as grounds for damages.
To sum up briefly. In November, 1851, whilst a suit in the nature of what we would call a petitory action for land, instituted by third persons, claiming under an adverse title, was pending against the present plaintiff as well as the present defendants, in a court of competent jurisdiction, in the State (Texas) where the land is situated, the present plaintiff cited his co-defendants in the said petitory action, before.a Louisiana tribunal, and demands that the title be here settled in his favor, in the absence of those parties who were plaintiffs in the petitory action, and who might be (and as the result of that action has shown, are,) the true owners of the land. This is a change of venue which I think inadmissible. The action of the Federal Court, in Texas, could not thus be forestalled by that of the Louisiana tribunals.
I do not lose sight of the argument of one of the learned Counsel of plaintiff, that the concession of the fact that plaintiff has lost the land by the judgment of the United States Court, in Texas, does not exclude a claim for *582damages against a party by whose frauds that judgment may have been brought about. But upon this point I observe, first, that there was no judgment in Texas when this suit was instituted, and, therefore, the cause of action supposed had not yet arisen. And, secondly, an inspection of the record of the Texas suit, shows that the plaintiffs, in that suit, claimed under a grant from the Spanish Crown, in 1781, and that Mussina, Belden and Stillman, claimed under titles from the city of Matamoras, dated 1884 to 1844, and under titles from the State of Texas, dated in 1847 and 1848. The judgment of the United States Court, in Texas, declares the Spanish grant to be the older and superior title ; and annuls, by particular reference, so far as they conflict, with the Spanish grant, each and every title held by Mussina, Belden and Stillman, There is no allegation either in the equity suit in Texas nor in the present suit, that the Spanish title was a fraudulent one ; and no matter how negligent, or even how fraudulent may have been the conduct of plaintiff’s partners, or of the other defendants in the management of the Texas law suit, or of the other transactions connected with their joint speculations in lands, in and around Brownsville, it is manifest that plaintiff’s eviction from those lands was dam-num absque injuria, unless upon the hypothesis that the Espíritu Santo grant was an inferior title to that held by Mussina and his partners. Upon that point, the judgment of the court, in Texas, has concluded the plaintiff. At all events, the question is not re-examinable in this court.