for a re-hearing:
Having but recently been employed to assist the counsel of the plaintiff in his application for a rehearing, we feel great diffidence in attempting to impugn an opinion so elaborate as that pronounced in this case.
The first question treated by the court is that of jurisdiction, and to that we first respectfully invite a reexamination. After a condensed statement of what the court considered “ the leading allegations of the petition,” the opinion states that “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 defendants reside; that the action is therefore local, and cannot be maintained in the State courts of Louisiana.” The validity of this plea must depend upon the nature of the demand contained in the petition.
The opinion says, that so far as the action “may be styled a real action, we think that the State courts of Louisiana have no jurisdiction on it. An action for the reveridication of immovables is a real action, (0.' P. 4,) and an action to compel a conveyance of lands falls within this category.”
It must be in reference to this demand, j;o these allegations, and to the plea interposed against them in limine litis, that these observations of the court are to be applied. They cannot be applied to any suggestions contained in the answer to the merits filed after this plea was overruled. If this plea had been sustained, the petition would have been dismissed, and none of the matters contained in the answer to the merits, would have found their way to the attention of this court. Acting on an appeal from a decision so rendered, your attention would have been confined to the petition and the plea. In this manner only, we most respectfully suggest, is this question now to be investigated, without reference either to allegations of the answer, or proofs in the cause. How far the defendants are at liberty to set up any questions of disputed title, and thus embarrass the true issues in this cause; and how far such defence is supported by the proofs, are questions for future consideration in connection with the merits, but they are manifestly foreign to the present inquiry, which must rest for its solution on a sound application of precedents and principles to the original issue presented by the petition and the plea.
Can this be properly “styled a real action,” or “an action for the revendi-cation of immovables,” in the language of the opinion; or as the defendants express it in their plea, “ a petitory action for lands.”
We respectfully think not.
*583In such actions the primary object is always the recovery of the thing. • In this the primary object is redess for an injury, and the relief sought is in damages, unless the defendant chooses to accept the alternative presented to him, of surrendering the thing fraudulently withheld. Over such an action, there can be no doubt of the jurisdiction of our courts. That the power of our courts to do justice in such cases, is not restrained by the consideration that their decree may affect lands situated beyond their jurisdiction, is well settled by decisions of this court. In McDowell et als. v. Read et als. it was held that
“Where a court is called upon to enforce a right, it may avail itself of its jurisdiction over the person, to do justice relative to a subject-matter beyond its jurisdiction, though lands be affected by the decree.” 3 Ann. 391. See Copely v. Berry et als. 12 Rob. 80.
Is not this case precisely the case supposed by Chief Justice Marshall, in the case of Massie v. Watts, 6 Cranch, 148, “ where the defendant in the original action is liable to the plaintiff, either in consequence of contract, or as trustee, or as the holder of a legal title acquired by any species of mala fides practiced on the plaintiff.” In such case, this great Judge said, “ the principles of equity give a court jurisdiction wherever the person may be found, and the circumstance that a question of title may be involved in the inquiry, and may even constitute the essential point on which the case depends, does not seem sufficient to arrest that jurisdiction.”
This case is so directly in point, that we must pray to be excused for expressing some surprise at its not having been regarded by this Honorable Court as of controling authority.
The view taken of it in the opinion, is expressed as follows:
“The case of Massie v. Watts, 6 Cranch, 157, relied upon by the plaintiff, was a case from the United States Oircut Court of Kentucky, against a defendant residing there; the land incidentally effected was situated in Ohio, but the question concerned the location of certain titles emanating from the government of the United States, and the case was within the peculiar province of equity, and not remediable at law.”
From this, we think, it must be inferred that, in the opinion of this court, one of the material grounds on which the jurisdiction was sustained, was, that “the question concerned the location of certain titles emanating from the government of the United States,” and that in such a case, by reason of the subject-matter of the suit, the courts of the United States would have jurisdiction, without regard to the situation of the land. If such a ground of jurisdiction existed, it was conclusive, and superceded the necessity of referring to any other. It would hardly have escaped the luminous mind of Chief Justice Marshall, or the notice of his associates.
Yet, we find no allusion to it, as an element in the question of jurisdiction. On the contrary, the decision rests upon the general principles of equity jurisprudence, and not upon any special authority of the Federal Judiciary. After stating the case, and citing minutely the leading English precedents, it concludes in these words: “ Upon the authority of these cases, and of others which are to be found in the books, as well as upon general principles, this court is of opinion that,-in a case of fraud, of trust or of contract, tiie jurisdiction of a Court of Chancery is sustainable wherever the person be found, although lands not within the jurisdiction of that court, may be effected by the decree.”
Nottingham said, in the case of Anglasse v. Muschamp, 1 Vernon, page 75, “ the defendant residing in England, having fraudulently obtained a rent charge on lands lying in Ireland, a bill was brought in England to set it aside.
“To an objection made to the jurisdiction of the court, the Chancellor replied, ‘this is surely only a jest put upon the jurisdiction of this court by the common lawyers; for when you go about to bind the lands and grant a sequestration to execute a decree, then they readily tell you that the authority of the court is only to regulate a man’s conscience, and ought not to affect the estate, but that this court must agree in personam only; and when, as in this case, you prosecute the person for a fraud, they tell you that you must not in-termeddle here, because the fraud, though committed here, concerns lands that lie in Ireland, which makes the jurisdiction local, and so wholly elude the jurisdiction of this court.’ The Chancellor, in that case, sustained his jurisdiction on principle, and on the authority of Archer v. Preston, in which case a *584contract made respecting lands in Ireland, the title to which depended on an act of settlement, was enforced in England, although the defendant was a resident of Ireland, and had only made a casual visit to England. On a rehearing before Lord Keeper North, this decree was affirmed.
“In the case of the Earl of Kildars v. Sir Maurice Eustace and Fitzgerland, 1 Vernon, 419, it was determined, that if the trustee live in England, the Chancellor may enforce the trust, although the lands lie in Ireland.
“In the case of Toller v. Coteret, 2 Vernon, 494, a bill was sustained for the foreclosure of a mortgage of lands lying out of the jurisdiction of tho court, the person of the mortgagee being within it.
“Subsequent to these decisions was the case of Penn v. Lord Baltimore, 1 Vernon, 449, in which the specific performance of a contract for lands lying in North America was decreed in England.
“ Upon the authority of these cases, and of others which are to be found in the books, as well as upon general principles, this court is of opinion that in a case of fraud, of trust, or of contract, the jurisdiction 'Of a Court of Chancery, is sustainable wherever the person be found, although lands not within the jurisdiction of that court may be affected by the decree.
“ The inquiry, therefore, will be, whether this be an unmixed question of title, or a case of fraud, trust or contract.”
The question of jurisdiction might be safely rested here; but its importance induces us to call the attention of the court to a few additional authorities on the point.
“ The principles thus laid down apply with the same force, where the equitable obligation in question has its origin in the contract of the defendant, as when it originated in a wrongful disregard on his part of the antecedent equity of the complainant. It is, therefore, well settled, that a contract for the sale of land will be specially enforced against a defendant within the jurisdiction of the court, although the land itself may be without it. The law was so held in the eases of Fairley v. Shippen, Wythe’s Ch. Cases, and Guerrant v. Fowler, 1 Hen. & Mumford, 4, before the decision in Massie & Watts, and since •then in Shattuck v. Cassidy, 3 Edwards, 152, and seems to be now too well settled for controversy. In Ward v. Arredondo, Hopkins, 213, the doctrine that rights growing out of contract are not tied down to any special locality, was applied under circumstances somewhat peculiar, and where the parties to the coniract were beyond the reach of the court, as well as the property, to which the contract related. The defendants, who reside at Havana, had agreed to sell land to the complainants, who were residents of New York, and had actually sent a conveyance of the property, which was returned for some informality in its execution. The mistake was corrected, and the deed placed in the hands of defendants’ agent in New York, but with directions not to deliver it to the complainant, unless on the payment of a sum of money in addition to that stipulated for in the original contract. Under these circumstances, the court sustained a bill for an injunction to prevent the agent from returning the deed to the defendants, and to compel him to deliver it to the plaintiffs in execution of the contract.”
The decisions above cited were fully sustained in the recent case of De Klyn v. Watkins, 3 Sandford, 186, where it was held, that when land which had been obtained by fraud from the complainant, was sold to a subsequent purchaser with notice of the fraud, the purchase would be set aside, and a recon-veyance directed, although the land lay beyond the jurisdiction of the court.
“ The general principle, that the performance of equitable obligations will be enforced, without regard to the situation of the property, to which they relate, was applied in the case of Mitchell v. Bunch, 2 Paige, 606, by decidin g that equity would compel the discovery of assets fraudulently concealed an d withheld by a debtor, and their application to the payment of his debts, although consisting of lands in another State.” White & Tudor’s Leading Oases in Equity, p. 324, et se([.
“ Although the property of a defendant is beyond the reach of the court, so that it can neither be sequestered nor taken in execution, the court does not lose its jurisdiction in relation to that property, provided the person of the defendant is within the jurisdiction. By the ordinary course of proceeding, the defendant may be compelled either to bring the property in dispute, or to which the complainant claims an equitable title, within the jurisdiction of the court; or to execute such a conveyance or transfer thereof, as will be suffi*585cient to vest the legal title, as well as the possession of the property, according to the lex loairei sitm," Ibid, p. 325.
“Although the question, how far the courts of our country are authorized to proceed against foreigners temporarily within their jurisdiction, in relation to contracts made in another country, has been frequently raised, it appears now to be well settled, both in this State and in England, that they have jurisdiction to enforce the performance of such contracts, where the party proceeded against is within the jurisdiction of the court. And it makes no difference whether the defendant is actually domiciled here,, or is temporarily within the jurisdiction at the time of the service of the process to appear and answer the plaintiff’s demand. Sicard v. Whale, 11 John. R. 194, Peck v. Hozier & Mulock, 14 id. 346; Smith v. Spinola, 2 id. 198; Imley v. Ellessen, 2 East’s Reports, 453. Neither is this practice of entertaining suits against, or between foreigners, of recent origin, or confined to the courts of this country and of England. By referring to the digest, it will be found that the courts of Rome not only took cognizance of suits between foreigners, but that a Judge was specially authorized to discharge that duty. White & Tudor’s Leading Oases in Equity, p„ 326.
“In general, the fact that the property is not within the jurisdiction constitutes no bar to a proceediug in a court of equity, if the person is within the jurisdiction, for a court of equity acts upon the person, or, to use the appropriate phrase, moquitas agit in personam." Story Eq. PI, §489.
The opinion says: “It is true the English Court of Chancery, in the exercise of its peculiar power over the consciences of parties served with its subpoena, has indirectly assumed a jurisdiction touching real property situated abroad; but, even then, 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: ihat the parties defendant reside within the jurisdiction ; that the land to be affected by the decree is under the domion 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 jurisdiction have borrowed their doctrine and their practice from English precedents.”'
We have shown that neither in England nor in the United States does the jurisdiction of a Court of Chancery depend upon the residence of the defendant. In the case of Massie v. Watts, the language is: “the jurisdiction of a Court of Chancery is sustainable whenever the person be found.”
In Archer v. Preston, “ a contract respecting lands in Ireland was enforced in England, although the defendant was a resident of Ireland, and had only made a casual visit to Enguland. In several English and American cases we have cited from White and Tudor, vol. 2, part 2, p. 326, it was held to make “ no difference whether the defendant is actually domiciled here, or is temporarily within the jurisdiction at the time of the service of the process to appear and answer the plaintiff’s demand. In this respect, then, there is certainly no difference between those cases, in which the English and American courts have taken jurisdiction, and the case before the court. As to the second ground of difference, “ that the land to be affected by the decree is under the dominion of the crown,” which, in another part of this opinion, is applied to the States of this Union, as being, except in their federal relations, “foreign States in close amity,” each sovereign, and bound to respect the sovereignty of each, we respectfully suggest that in no English or American decision which we have been able to find, is the question placed upon that ground. In those quoted, it is put upon the jurisdiction of the court, and not upon the power of the sovereign. In the case of Massie v. Watts, it was admitted that if the case involved “a naked question of title, the jurisdiction of the Circuit Court of Kentucky would not be sustained,” and yet the lands lay within the dominion of the general government. In the English cases, the land was situated beyond the jurisdiction of the court, but clearly within the dominions of the crown, and yet the jurisdiction was supported on the general power of the court to act upon the person, without the slightest allusion to the situation of the lands as within the dominions of the crown. As to the third ground of difference, “that without the interposition of Chancery there must be a failure of justice,” we respectfully think it constitutes no difference, because our courts are courts of equity as well as courts of law.
*586Bat the leading opinion, after commenting upon the decision of the Supreme Court of the United Slates, which we have quoted, proceeds to say: “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 controversy concerning land titles in Texas, even if that court had been endowed by the Legislature with chancery powers. But the people of Louisiana have always resisted the encreachments of foreign modes of procedure, and especially the peculiar doctrine 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 imparting in our simple system of remedies one of the most subtle doctrines by which the Chancellors of England extended their jurisdiction and aggrandized their powers; a doctrine which, if carried into effect here, without the limitations already alluded to, might occupy the courts of New Orleans with the 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 the prerogatives claimed by courts of common law and courts of chancery, and all their artificial rules and peculiar dogmas, should bo usurped by the courts of Louisiana.”
We respectfully suggest that this passage contains errors, which have unconsciously influenced the conclusions of the opinion. The true question presented is not one of practice but of jurisdiction; not by what rules and modes of procedure our courts shall act, but whether they have the powner to act at all; not whether the “artificial rules and peculiar dogmas” of an English Court of Chancery should be “ imported into our simple system of remedies,” but whether our courts possess equity jurisdiction, and are competent to administer relief under our simple system of petition and answer.
The case of Massie v. Watts, we respectfully suggest, was authority to show what is a proper case for equitable relief, and so &r as its facts are analogous to those of this case, it was a precedent. Supposing this to be such a case, and that the Fourth District Court was competent to afford equitable relief, we respectfully ask whether the authority of that case, and the English and American decisions we have cited, should not be considered safe guides in leading you to the conclusion that its jurisdiction over the person, arising from the nature of the case, was not restrained by the locality of the lands which might be affected by its decree.
That our courts possess full and complete equitable powers cannot be questioned. See Hennen’s Digest, p. 466.
Although it may be that “ the people of Louisiana have always resisted the encroachments of foreign modes of procedure, and especially the peculiar doctrines and forms of chancery," yet we are not aware that they have ever contended that our courts were not invested with full powers to enable them to do justice. The lawyers of Louisiana have always maintained that our courts were fully competent to afford equitable relief in all cases. Case of Livingston v. Story, 9 Peters, 652.
Assuming, then, that the court below had full jurisdiction, and was authorized by our laws to administer the relief sought, we proceed to other portions of the opinion, connected with the merits, which we, respectfully suggest may require revision, the inquiry is, how far the plaintiff’s case, as stated in his petition, is supported. At the threshold of this inquiry, it must be borne in mind that the case is not presented to this court as an original one, but as an appeal from the verdict of a jury sanctioned by the court of the first instance, that the case was one of damages for fraud, breach of trust, violation of contract, conflicting proof, one, therefore, peculiarly of the province of the jury, and in which this honorable court has been heretofore in the habit of attaching great weight to their verdict, the doctrine of this court, as collected from numerous decisions, is thus stated in Hennen’s Digest, vol. 1, page 94:
*587“When the evidence is contradictory, the verdict of the jury upon questions of fraud and simulation, the assessment of damages, the credibility of witnesses, and other matters of fact peculiarly within its province, will not be disturbed unless manifestly erroneous.”
We respectfully ask if there is not error in the views taken of the relative position of the parties, which have had a material influence on the decision. The opinion says, the plaintiff and defendants, Stillman and Belden entered into an agreement on the 9th of December, 1848, “to hold jointly certain land titles intended to cover the town called Brownsville, etc.”
It further says: “The plaintiff, in asking for damages, assumes that the Brownsville Company absolutely owned the'town of Brownsville, whereas they only owned certain pretensions of doubtful validity, under which they took possession.”
We contend that the defendants stood in such relation to the plaintiff by their original agreements, and by their repeated recognition of his rights, and of the completeness of the title, and they cannot be permitted to set up, as a defence to this suit, any questions of disputed title, or to embarrass this’case with any inquiry into title.
The contract of the 9th December, (to be found at p. 127 of the record, and on p. 2 of the original brief,) and the acknowledgments and recognitions of title, to which we shall now beg leave to refer your honors, as found in both record and original brief, prove, we most respectfully think, that the parties agreed to hold, not mere “land titles,” but lands; not mere titles, “intended to cover the town called Brownsville,” but the land itself on which the town then stood. Not “mere pretensions of doubtful validity under which they took possession,” but the land itself, of which they had the peaceable, open, notorious and quiet possession, under titles perfect in all respects, derived from persons who had similar possessions, during a period sufficient to cover all defects by the aegis of prescription. And we further contend, that the fiduciary relations in which defendants stood towards the plaintiff forbade such a defence to this action.
We respectfully consider that it is clearly established that Basse & Hord acted throughout as the attorneys-at-law and as the agents both of the Brownsville Company and its individual members, in all matters connected with these lands, and as the attorneys-at-law of Jacob Mussina individually, in relation to •certain other lands.
And we submit to the court, whether the defendants can be permitted to set up, as a defence to this suit, the condition of the titles to these lands, and lead the court into an investigation of those titles;, whether in so doing they do not lead us away from the true issues in the cause; and whether such a defence can lay in their mouth.
It would be admitted that a defaulting teller of a bank, who had absconded with the funds of the bank, and invested them in the purchase of kinds, in his own name, in the island of Cuba, could not be permitted, if found here and brought personally into one of our courts, at the civil suit of. the bank, claiming damages for his acts of embezzlement, and offering to take from him a conveyance of the land bought with their funds, in lieu of damages, to set up as a de-fence that the titles to these lands were defective and imperfect, and lead the court into an investigation of their validity. Suppose a lawyer or agent, charged by one of our citizens with the defence of his title to real estate in San Eran-cisco, and put into possession of his title deeds and means of defence, should betray his trust and acquire a title in himself to such real estate, and hold it adversely to his client, could he, when made personally amenable to the jurisdiction of one of our courts, in a suit like the present, be permitted to plead in defence that the titles were defective and the lands in liligation? The same principles which exclude such defence in those cases, ought, we conceive, to exclude it in the case stated in the petition, and supported as it is shown in proof.
If, however, we are to bo led, in this case, into an investigation of the character and validity of these titles, we think they will be found, on a closer examination, to be of higher dignity and perfection than they are represented to be in this opinion. It says:
“ The Ayuntamiento of Matamoros parceled out this portion of their municipal domain in labors, or small farms, to tenants from amongst their own citizens; these farmers acquired an inferior and mongrel sort of title, somewhat *588analogous to that conferred on the lessee by the emphyteutical lease of the civil law.”
Respectfully contending that the rights conferred by these labor titles were more extensiva than those “conferred on the lessee by the emphyteutical lease of the civil law,” let us for a moment examine them on the supposition of their analogy.
The emphyteusis is described by Macieldey, as the real right by which a person is entitled to enjoy another’s estate as if it were his own, on condition of cultivating and improving it, and paying, at certain periods, a'certain tax or rent therefor. That although the emphyleuta does not become the owner of the tiling, 3'et he has nearly all the rights of an owner. That he lias the full right of enjoyment, consequently the right of possessing the thing and of reaping all the fruits thereof; that lie has the right of disposing of the thing itself, by sale, on giving notice to the dominus or owner, who must, within two months from such notice, exercise or waive his right of preemption.
“The grant of an emphyteusis,” he says, “is usually founded on a contract. As this contract confers upon the cmphyteuta a sort of ownership, it was regarded by many Roman jurists in the light of a contract of sale; but, as on the other hand, it requires the payment of a yearly rent, others regarded it as a contract of hiring. This controversy among the Roman jurists, respecting the nature of the emphyteutical contract, was settled by the Emperor Zeno, who decided that it was neither one nor the other, but an independent consensual contract.”
It originated in the custom of the Romans to divide conquered lands among the citizens and soldiers, subject to the superior ownership of the State, and bound to the payment of a rent to the cerarium (treasury,) and “it being difficult to find a willing tenant for lands lying waste and uncultivated, or one who would be inclined to expend the necessary labor and capital to bring under cultivation land in which he liad no permanent right, and to pay rent for it without some prospect of an adequate return, to obviate tin's difficult)' and to promote agriculture, the rights of-the tenants of waste lands were extended as far as possible, so as to give him a sort of ownership.” “This expedient had great effect in encouraging persons to undertake to reduce such lands to cultivation ; and afterwards municipal and ecclesiastical corporations also let out lands belonging to them, in a manner similar to emphyteusis.”
The title of ttie empbyteuta descended at his death to his heirs, unless he had disposed of it by will.
Viewed, then, in the light of such a title, so nearly approaching to complete ownership, and only subject to be defeated by the non-performance of conditions subsequent, what did it become when the performance of those conditions were rendered impossible by a change of sovereignty effected by -conquest and •treaty.
He was so far owner, that he could alienate inter vivos or mortis causa, could mortgage the land or burthen it with servitudes without the consent of the dominus. As a means of enforcing his rights, he had the'action m vindiaatio utilis against every possessor, including even the proprietor himself. Besides paying the rent and improving the property, lie had to bear all the public burdens and taxes imposed upon it. Although he was bound to pay the rent .(canon) agreed upon at the time specified, and without any previous demand, yet “he did not forfeit his right ipso jure by a non-performance of his duties, but only through an action brought by the proprietor.”
Erom what is shown in this record, this labor title seems to be an absolute grant in fee, liable, however, to be defeated on the non-performance of certain conditions subsequent. The grantee became owner. In many instances he had taken possession of and improved the land before obtaining the grant, and the grant was then made, ratifying his possession and confirming his title as owner. The principal if not the sole condition was, it is believed, the payment of a rent almost nominal. See Doc. Ea., Rec. -803; Doc. Q., Rec. 112.
The lands embraced in these titles were held by the grantees, as their own property, and were mortgaged, sold, seized for debt, transmitted by devise and by descent during a great number of years, and no claim of forfeiture or de-feasance was ever made during the existence of the former sovereign. The defendants themselves, we show, treated them as absolute titles, supporting their averments by their oaths.
*589In the case of Soulard et als. v. the United Slates, O. J. Marshall said:
“In the treaty by which Louisiana was acquired, the United States stipulated that the inhabitants of the ceded territory should be protected in the free enjoyment of their property. The United States, as a just nation, regards the stipulation as the avowal of a principle, which would have been held equally sacred, though it had not been inserted in the contract.
“ The term ‘ property’ as applied to land, comprehends every speeie.s of title, inchoate or complete. It is supposed to embrace those rights which lie in contract, those which are executory as well as those which are executed. In this respect, the relations of the inhabitants to their government is not changed. The new government takes the place of that which has passed away.” 4 Peters, 511.
“ Conditions subsequent are not favored in law, and are construed strictly, because they tend to destroy estates; and the rigorous execution of them is a species of summusjus, and in many cases hardly reconcileable with conscience. If the condition subsequent be possible at the time of making it, and becomes impossible to be complied with, either by the act of God, or of the law, or of the grantor; or if it be impossible at the time of making it, or against law, the estate of the grantee, being once vested, is not thereby divested, but becomes-absolute.” 4th Kent, 130.
In the United States v. Arredondo et als. 6 Peters, 745, the Supreme Court says:
“ It is an acknowledged rule of law, that if a grant is made on a condition subsequent, and its performance becomes impossible by the act of the grantor, the grant becomes single.”
The condition was, that the grantees should establish on the lands two hundred Spanish families. The court says in that case :
“We are not prepared to say that the condition of settling two hundred Spanish families in an American territory has been, or is, possible; the condition was not unreasonable or unjust at the time it was imposed. Its performance would have been deemed a very fair and adequate consideration for the grant, had Florida remained a Spanish province. But to exact its performance after its cession to the United States would be demanding the ‘ summum jus’ indeed, and enforcing a forfeiture on principles which, if not forbidden by the common law, would be utterly inconsistent with its spirit. If the case required it, we might feel ourselves at all events justified, if not compelled to declare, that the performance of this condition had become impossible by the act of the grantors— the transfer of the territory, the change of government, manners, habits, customs laws, religion, and all the social and political relations of society and of life.”
These lands had been severed from the public domain and from the ejidos, or commons, and granted by metes and bonds — were so held as property, built upon, improved and cultivated under titles of ownership. Could they, consistently with the principles contained in these cases, and invariably acted upon by the courts of this country, be considered, after the change of government, in any other light than as complete and absolute titles, the duties to the new sovereign in the shape of taxes and other impositions affecting all lands, taking the place of the rent and other impositions of the former sovereign ?
Such, then, was the title under whicn the plaintiff and his associates held their lands, and entered upon their enterpvize. That they attempted to fortify it by a purchase of scrip detracted nothing from the value of the title on which they relied, and is a matter of small consequence, which, however, will receive in its proper place a passing remark. The leading opinion says: “Such is the volume of the record, and such the multiplicity of points, both of facts 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 forum, and by the law of the place rei silos’’
These “ numerous obstacles” are described as “clouds of adverse titles that thickened over the company’s claims.”
These “adverse titles” are enumerated, and we beg leave to call your honors’ attention to them in the order in which they are mentioned in this opinion.
According to the principles settled in the cases above cited, it is clear that the State of Texas did not acquire by “ the event of the war” any title to these lands, which were then owned by individuals, subject only, as in the case of Arredondo, *590to certain conditions subsequent; and consequent^, the purchase by Stillmam of the Snively scrip locations, was at most only a work of abundant caution to avoid litigation or annoyance. But, however, that may be, it does not present, in this case, any conflict of title, inasmuch, as both the labor titles and the scrip titles were united in the hands of the company. The next adverse title mentioned is the De la Garza grant, which the opinion describes as follows: “Directly after the company commenced operations, these elains under the labor settlement 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 sighed, Cavazos and wife, and various other persons, representing themselves as the heirs of the original grantee, Don José De la Garza, asserted their title, dating back to the year 1781, by instituting a suit for the lands in question, against Stillman, Delden, ei als., in the United States District Court of the district of Texas.
“ This suit resulted in a final decree, recognizing the De la Garza grant as paramount.”
Neither this claim, nor its final recognition as paramount, can, we respectfully contend, form any obstacle to justice in this cause. The Cavazos suit, and the final decree rendered in it, are charged in the petition as being a part of the complicated machinery of fraud and conspiracy, by which the plaintiff has been wronged and injured, aud it does not now stand in legal contemplation as a conflicting claim against us, because, as is charged and proved, it has been brought in during the pendency of the suit, and before the decree by our agents and trustees, who now claim to be in possession of the property embraced in that decree. What rights these agents and trustees acquired adversly to the plaintiff in this suit, by their arrangements with the complainant in the Cavazos suit depends upon their relations and obligations under a contract, and are examinable in this court; but as a question of disputed title, in which others than the defendants have any interest adverse to the plaintiff, it is forever set at rest by the acts of the defendants themselves.
The next in the enumeration of these adverse titles is described as follows, in the leading opinion, after speaking of the De la Garza claim, and its establishment by a final decree of a competent Texas tribunal':
“ But it,” the De la Garza claim, “ 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 ta the paramount title of Matamoras and of Mexico, on the 19th of December, 1836, when she declared her boundary 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 the vacant lands, and that none of the laws had subjected them to be entered by scrip, or head-right certificates.”
“ Accordingly, on the 24th January, 1850, 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 in the charter. This formidable claim must have been discussed for some weeks before it matured into a legislative grant; and it is but reasonable to 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 now trustees be appointed to carry out the benevolent purposes of the Legislature, in the administration and sale of the property.”
“ The decision is not technically binding on the adverse claimants, as Simon Mussina testifies, because the proceedings were, in form ea: parte. But in reality, Basse & Hard were hoard as amici curm, 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 De 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.” ‘ <
*591This adverse title can present no serious obstacle, as we respectfully maintain, for several reasons:
First — It is directly at variance with the other claim of the State of Texas first mentioned in this opinion, “ that these lands, having de jure constituted a part of the public domain of Texas ever since the legislative declaration of 1836, and de facto since the military occupation of 1846, had, for some time, been subject to entry under Texas scrip and head-right certificates.”
Second — The answer we have given to the first claim, equally applies to this second claim of the State of Texas, to wit: That the lands were private property, and protected by the principles recognized by our courts.
Third — That the attempted donation of the ejidos, or commons, to the city of Brownsville, contained in the charter, or act of incorporation, fell to the ground with the repeal of that act.
Fourth — That the ex parte decree, here spoken of, was reversed by the Supreme Court of Texas. See Basse v. Fountleroy, 11 Tex. Reps.
Fifth — That there is no one before this court setting up any such title, nor is it set forth in any of the answers in this suit.
Sixth — As the defendant’s counsel, in his brief, page 27, tells us: “ The State of Texas formally recognized the De la Garza grant, and relinquished by an Aci of the Legislature, approved February 10, 1852, all its right, title and interest in the lands covered by it, to the original grantee, his heirs and assigns.”
There remains but one more of the series of adverse titles enumerated in the opinion, and it is thus described:
“ 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 divided by the event of war than those of a private owner.”
The only testimony of Simon Mussina on this subject is in the following words: “ Being asked what was the nature of the claim of the city of Matamoras! says: ‘ The city pretended that it owned the property in fee, and had only leased it to those who had established the labors.’”
This testimony does not “ point to” the grounds on which this claim of the city of Matamoras rested. It speaks of it merely as a pretension, and the pretension is evidently unsupported by a shadow of reason. The opinion says : “ Perhaps on the ground that her municipal possessions on this side of the Rio Grande could no inore be divested by the event of war than those of any private owner.” Hut the protection thrown around private property by the conquering nation was never extended to belligerents; and the “municipal possessions” of the city of Matamoras could hardly be respected, when the rights of the sovereignty, of which she was herself a creature, bad been annihilated.
But the defendants themselves furnish a complete answer to this and to all these pretended titles, so far as they affect the present controversy. Their counsel says, page 27 of his brief, that “the decision in the Cavazos case itself, by a court of competent jurisdiction, affirms not only the original validity of the title but determines that the rights of the claimants had not been destroyed by the change of government, forfeiture, or adverse possession, etc.”
While we deny the validity of this De la Garza title, and claim the benefit of the defendant’s sworn denunciation of it as “ stale and fraudulent,” and insist that this decree was the result of a fraudulent and collusive conspiracy to injure us, the defendants must be forever estopped by this admission from themselves settingup against us any of the pretended titles which they thus say have been finally set aside in their favor by the decree of a competent tribunal.
"We cannot help thinking that this review of the case must disperse these clouds of adverse titles, and that your honors must see that the only one remaining at all deserving of your consideration is the De la Garza grant, now quietly held by our opponents in this cause, who attempt to obstruct your jurisdiction, and to postpone an examination of the plaintiff’s claim of damages on the ground of conflict and uncertainty in regard to the title.
If we have succeeded in this, we hope to have removed the difficulties which seem to press upon the minds of the Chief Justice and of Mr. Justice Buchanan in their voiy guarded concurrence in the decree.
His Honor the Chief Justice says: “I concur in the judgmentin this case, on the general ground that there is in the record no sufficient evidence on which to base a decree in f.tvor of the plaintiff. The uncertainty which rests upon the title in regard to which the judgment of this court is sought is so great that, in *592my opinion, it precludes, for tho present at least, any safe estimate of damages. The judgment of non-suit, therefore, receives my concurrence.”
Now it appears that there is no uncertainty' as to the title; or, at least, none that the defendants can set up as an obstacle to the plaintiff’s claim for damages ; and that the only question is whether the title now held by Basse & Hol'd, by virtue of the Texas decree, is in their hands a good defence against this claim for damages.
It is true, as stated by Mr. Justice Buchanan, that there was “no judgment in Texas when this suit was instituted.” But plaintiff had alleged in this suit the “ fraudulent and collusive proceedings of the defendants touching the de-fence of that suit;” and, as stated in the leading opinion, had declared in his petition in this suit his anticipation “that the decree must go against his interest,” in consequence of those fraudulent and collusive proceedings. The terms in which this charge is made, and this anticipation expressed, are as strong and explicit as language affords.
Although there may be no express allegation in so many words, “either in the equity suit in texas' or in this suit, that the title was a fraudulent one,” yet we respectfully submit to your honors that such a charge is substantially contained in both, and we have shown that in the answer of Belden and others in this suit, the Oavazos title was expressly declared to be “stale and fraudulent,” and the charge was made under oath.
Lastly, in regard to the foregoing views of Mr. Justice Buchanan, “ that the judgment of the court in Texas has concluded the plaintiff,” and that “ at all events, the question is not reexaminable in this court,” we respectfully conceive that, in this case, your honors are not called upon to override that decree, or to touch it in any respect. So far as the present controversy is concerned, the plaintiff, without admitting its validity or authority', and reserving the right to dispute both on all proper occasions, may well contend that its existence opposes no legal obstacle to his rights or claims in this suit.
It dres not deprive this court of the right to determine, under the facts and circumstances of this case, who are the real beneficiaries of that decree, or, as Mr. Justice Buchanan has expressed it, “does not exclude a claim for damages against a party by whose frauds that judgment may have been brought about.”
Besides, it is also true that the judgment in the Cavazos suit was rendered before the trial of this suit, and the fact was pleaded by the defendant Ailing, and by' him introduced into the cause as evidence, and therefore became a proper element for consideration in this suit. It was proved on. the trial, not only without opposition but by the action of the defendants themselves, that the “anticipated” wrong and injury growing out of the fraudulentcombinations of the defendants had been actually consummated.
These views seem to us to obviate the objection of the learned Judge that plaintiff is attempting a change of venue, and calling upon this court to settle questions of title to lands which are now pending and at issue “ in a court of competent jurisdiction in the State (Texas) where the land is situated,” and this, too, “in the absence of those parties who were plaintiffs in the petitory action (in Texas), and who might be, and, as the result of that action has shown, are the true owners of the land.”
The plaintiff asks of this honorable court neither decision nor inquiry respecting the rights of the plaintiffs in that Texas suit, nor respecting the validity of the Texas decree. He has not sought to introduce here any litigation as to disputed titles. It has been introduced by his adversaries against his strenuous opposition. He contends that it is not germain to this cause. He opposes its introduction as a defence to his claim of damages, and he asks of this court only to settle the questions of right and justice between the present defendants and himself.
A. H. Ogden & Stansbury also filed an elaborate argument for a re-hearing.
Re-hearing refused.