FERGUSON et al. v. BABCOCK LUMBER & LAND CO., 252 F. 705

WOODS, Circuit Judge. The Babcock Dumber & Band Company filed its bill on January 20, 1917, in the District Court for the Western District of North Carolina to quiet its title to a tract of land on Slick Rock creek in that state against the claims of the defendants, J. W. Ferguson and J. C. Blanchard. The defendants answered, setting up title in themselves. The District Court held that the complainant had shown good title and decreed accordingly. The appeal mainly depends on the question whether a decree made in 1896 by the United States Circuit Court for the Eastern District of Tennessee in the case of Chas.

Hebard a.galnst D. W. Holding and others, involving title to a large tract including the land in dispute, is binding on the defendants. The complainant in this case derives title from Hebard, the successful complainant in the Tennessee suit; the defendants derive title from R. C. Cooper, one of the defendants in that suit. If the decree there made was valid, then the complainant’s title is good; if it is void for lack of jurisdiction of the Circuit Court for the Eastern District of Tennessee, the complainant has no title to the land under it against the defendants’ claim of title.

In his bill filed in the Circuit Court for the Eastern District of Tennessee in January, 1896, Hebard, a resident of Michigan, allege/d his ownership of a tract of 40,000 acres of land, under a grant from the-state of Tennessee; the situation of the land in the stale of Tennessee; the residence of some of the defendants in Ohio and New York, and the residence of the defendants R. L. Cooper and J. W.

Cooper in North Carolina; the claim of the defendants to 8,000 acres of the land under grants from the state of North Carolina; the dispute between complainant and the defendants as to the location of the state line; and the purpose of the defendants to cut timber on the disputed land. The relief asked was a perpetual injunction forbidding defendants to cut the timber, the quieting of complainant's title by adjudging it to be valid against defendants’ claims, and 1he cancellation of defendants’ grants from the state of North Carolina as clouds on complainant’s title. The defendant R. L.

Cooper, an inhabitant of North Carolina, was personally served in that state, under the provisions of Act March 3, 1875, 18 Stat. 472, c. 137, § 8 (Comp. St. 1916, § 1039), but lie failed to appear and a decree pro confesso was taken against him. Other defendants answered, denying complainant’s title and setting up title in themselves. The sole question at issue in the cause was whether the land was in Tennessee or North Carolina: if in Tennessee, it belonged to the complainant, Hebard, under the grants from that state; if in North Carolina the grants from that state conferred title on the defendants.

After a full hearing the Circuit Court found this issue in favor of the complainant, and on June 10, 1899, entered a decree accordingly. The Circuit Court of Appeals of the Sixth Circuit, after a careful review of the testimony, affirmed the decree. Belding v. Hebard, 103 Fed. 532, 43 C. C. A. 296. The general rule that a judgment of a court purporting to adjudicate the title to laud outside the limits of its territorial jurisdiction is void for lack of jurisdiction, and will be treated as a nullity wherever encountered, is well established.

But it is also established, by authority which removes the question from the region of discussion, that one who claims title to the land under a grant from one state as land situated in that state, may sue to recover it from citizens of another state who claim under a grant from that other state, in the United States courts of the first state, and have the title finally adjudicated by that court. If this were not so, it would be impossible for sucb claimant to have his title adjudicated.

The right of the claimant under the Tennessee grants to have his title adjudicated, and the jurisdiction of the Circuit Court for the Eastern ’District of Tennessee to make the final adjudication, have been settled -by the Supreme Court of the United States. In Rhode Island v. Massachusetts, 12 Pet. 657, 9 L. Ed. 1233, the court says: “But for the other class of cases, ‘controversies between citizens of different states,’ the eleventh

section of the Judiciary Act [Act Sept. 24, 1789, c. 20, 1 Stat. 73] makes provision; and the Circuit Courts, in their original, and this court, in its appellate, jurisdiction, have decided on the boundaries of the states, under whom the parties respectively claim, whether there has been a compact or not. The jurisdiction of the Circuit Court in such cases was distinctly and expressly asserted by this court as early as 1799, in Fowler v. Miller, 3 Dall. 411, 412 [1 L. Ed. 658]; s. p. [New Jersey v. New York] 5 Pet. 290 [8 L. Ed. 127], In Handley’s Lessee v.

Anthony, the Circuit Court of Kentucky decided on the boundary between that state and Indiana, in an ejectment between these parties; and their judgment was affirmed by this court. 5 Wheat. 375 [5 L. Ed. 113; Robinson v. Campbell] 3 Wheat. 212-218 [4 L. Ed. 372]; s. p. Harcourt v. Gaillard, 12 Wheat. 523 [6 L. Ed. 716]. When the boundaries of states can be thus decided collaterally, in suits between individuals, we cannot, by any just rule of

interpretation, declare that this court cannot adjudicate on the question of boundary, when it is presented directly in a controversy between two or more states, and is the only point in the cause.” Ayers v. Polsdorfer, 187 U. S. 585, 23 Sup. Ct. 196, 47 L. Ed. 314; Stevenson v. Fain, 195 U. S. 165, 25 Sup. Ct. 6, 49 L. Ed. 142; Anderson v. Elliott, 101 Fed. 609, 41 C. C. A. 521 (Fourth Circuit). These decisions take the case entirely out of the general rule argued forcibly by appellant’s counsel.

The circuit court having jurisdiction, the decree was final and conclusive of the rights of the parties, and available to the complainant and all claiming under him against the defendants and all claiming under them; and all other courts of the United States were bound to give full faith and credit to . it. R. E. Cooper, a necessary party, having been served in the manner required .by law, and being required by the service to meet the allegations that the land was in Tennessee, hy his default admitted that the land was in that state, and thus brought himself within the provisions of the act of 1875 before cited.

He was as fully bound by the decree pro confesso against him as if he had resisted the suit. Thomson v. Wooster, 114 U. S. 104, 5 Sup. Ct. 788, 29 L. Ed. 105.

Evidence, however convincing, that the court reached, an erroneous conclusion — even a different conclusion by the same court or another court as to the state lines in a litigation between different parties, or even between the same parties with respect to other lands in like situation —could not affect the credit and conclusiveness of this decree in any court to which it was presented that the complainant’s title to this land was good against the parties defendant.

In view of this rule, too well settled for discussion, we proceed to consider the subsequent developments showing conclusively that the Circuit Court for the Eastern District of Tennessee and die Circuit Court of Appeals erred in the finding of fact that the land was in Tennessee and passed under the grants from that state.

Some years after the final decree of the Circuit Court of Appeals in favor of Hebard had been filed, the lost plat and the report of the commissioners empowered to fix the boundary line between North Carolina and Tennessee, dated in 1821, were found in the archives of the slate of Tennessee; this report and plat showed that the land adjudicated to belong to Hebard under the Tennessee grants was in fact on the North Carolina side of the line. On the basis of this report and plat as newly discovered evidence, an application for leave to file a bill of review was granted.

One of the grounds of this application argued by counsel and mentioned in the dissenting opinion of Judge Severens was that the Circuit Court for the Eastern District of Tennessee had no jurisdiction, because the land was actually situated in North Carolina. _ Upon the hearing the Circuit Court made a decree dismissing the bill of review on the merits. This decree was affirmed on appeal by the Circuit Court of Appeals (194 Fed. 301, 114 C. C. A. 261), and on certiorari by the Supreme Court (Hopkins v. Hebard, 235 U. S. 287, 35 Sup. Ct. 26, 59 L. Ed. 232).

The grounds of dismissal were that reconsideration of the merits on the newly discovered evidence was within the court’s discretion, and that the force of the claim of the petitioners, grantees of the original defendants, to reopen the case, was overcome by the fact that they had purchased after the entry of the final judgments against their grantors, and that a third party had purchased from Hebard on the faith of the decree in his favor.

Refusal to open the decree, either on the ground that newly discovered evidence would lead to a different result, or on the ground that it showed the decree to be a nullity for lack of jurisdiction, was a clear recognition of the jurisdiction of the Circuit Court for the Eastern District of Tennessee, and an affirmation of the validity of its decree by the Circuit Court of Appeals and the Supreme Court, ft is true that R. L.

Cooper had died before the petition for leave to file a bill of review was filed, and it is contended that his widow and two minor children, his heirs at law, from whom defendants claim, were not parties to the petition. We do not think it necessary to decide whether they were parties or not, for even if they were not, and the dismissal of the bill of review was not res ad judicata as to them, the decree of dis-, missal nevertheless has the force of highest judicial authority on the point now involved.

In March, 1899, while the bill of review was pending, the state of North Carolina filed in the Supreme Court a bill against the state of Tennessee to settle the boundary. In that suit the Supreme Court, in the light of the report and plat of the commissioners above referred to, so adjudicated the true state line that the land now in controversy is on the North Carolina side. North Carolina v. Tennessee, 235 U. S. 1, 35 Sup. Ct. 8, 59 L. Ed. 97. This decision was made about 20 days before the decree of the court dismissing the bill of review and is reported in the same volume.

If the Supreme Court had considered that its location of the laud in North Carolina reached back to the suit of Hopkins v. Hebard, and withdrew the land from, the jurisdiction of the court that decided that case, surely it would not have taken the pains to consider the merits of a bill to review a void judgment. It seems fair to infer that it would have said there is nothing to review, since the decree is void for want of jurisdiction.

In this language the court, on the contrary, asserts the' validity of the decree attacked: “Notwithstanding our conclusion in the proceeding between the states of North Carolina and Tennessee, where the established fácts in respect to the location of the dividing line were for the most part the same as those disclosed in the record now before us, we think the decree of the Circuit Court of Appeals was right, and it is accordingly affirmed.” Had the decision of the Supreme Court in the litigation between North Carolina and Tennessee been made before the decree in Hopkins v.

Hebard it would have been conclusive of the latter case. As it was made afterwards, it no more impairs the validity of the decree in that case than a like adjudication in a litigation between private parties. To hold that it could would lead to the impossible result that citizens of different states could settle their rights under grants from different states only in suits between the states, which they have no right to require the states to institute.

After the decision of the Supreme Court in the litigation between North Carolina and Tennessee that the land is in North Carolina, it was necessary for the complainant to file this bill in a court having jurisdiction of land in that state for the protection of its rights; but the decree adjudging valid the title under which it claims, having been rendered by a court of competent jurisdiction, must receive in the District Court for the Western District of North Carolina full faith and credit.

These conclusions result in ■ the affirmance of the judgment, and render unnecessary consideration of complainant’s assertion of title by .adverse possession and the effect of the grants from the state of North Carolina introduced by complainant, alleged to be prior in date to that under which defendants claim. Affirmed. <&wkey;For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes