TINDALL et al. v. WESLEY, 65 F. 731

HUGHES, District Judge (after stating the case as above), The first assignment of error in this case relates to the testimony of W. H. Lyles on cross-examination, tending to show that the plaintiff below, Edward B. Wesley, had made the purchase of the premises with the secret intention of paying the deferred installments of the purchase money in a valueless kind of paper issued by the state called “Blue Ridge Railroad Bond Scrip.” The court below refused to allow this evidence to go to the jury, and this ruling is assigned as error.

The payment of the first installment of the purchase money, the execution of the deed of conveyance to the purchaser, and his counter execution of bond and mortgage for the deferred install-merits, made tlie transaction a perfect and complete one to confer title upon the purchaser, and to entitle him to possession of the premises.

The suit which he brought for this possession involved no other inquiry than whether his first payment had been made, whether a valid deed of conveyance had been executed, and whether he had further complied with the terms of sale relating to the bond and mortgage for the future installments. 'What might have been his secret intentions with respect to the deferred payments was a question foreign to his suit for possession of the premises to which he had become entitled, and all evidence in regard to such intentions was properly ruled out.

The second assignment of error, based upon a denial that any evidence had been introduced showing a grant of the premises from the state to the plaintiff below, is waived by the defense, and a consideration of it by ns rendered unnecessary.

The third and principal ground assigned as error is a denial of the jurisdiction of the court below to try the cause, because of the allegations in the pleadings that the premises in dispute were, on the date of plaintiff’s demand for possession, and have been ever since, the property of the state of South Carolina, in actual public use; that the defendant's below were officers of the state, and in custody of the premises only as such, and that they have no right, title, interest, or estate of any kind to or in the said premises. It is well-settled law that a sovereignty cannot he sued except by its own consent.

The doctrine applies alike to the government of the United States and to the states themselves, composing the Union. But it is equally well settled that suits may be. brought, under special circumstances, for property claimed by a state, and in the possession of individual persons holding for and in the name of the sovereign. There is some confusion in the decisions on this question when they come to define what the special circumstances and conditions are under which the property of a sovereign in possession of agents or officers may he the subject of suits against such persons.

Tn the present case we are saved the task of entering upon a general survey of the decisions on this vexed question that have been rendered in the courts of this and the mother country. The case at bar is practically and in principle all fours wiih that of U. S. v. Lee, or Kaufman v. Lee, 106 U. S. 196, 1 Sup. Ct. 240, and is ruled by the decision in that case and in Stanley v. Schwalby, 147 U. S. 508, 13 Sup. Ct. 418.

The complaint in the case at bar specifically charges that, “the plaintiff being lawfully possessed of the premises, the defendants, on the 20th of February, 1892, wrongfully entered into said premises and ousted plaintiff, and that the defendants are, and ever since have been, and still are, withholding the same from the plaintiff,” against his demand. Issue was joined on this allegation, and the verdict was for the plaintiff below, on evidence proving an ouster and tort. The action was, in substance, for trespass and tort, and it is in this respect that the case at bar is all fours with that of Kaufman v.

Lee, and ruled by the decision of the supreme court therein. In the case of Stanley v. Schwalby, at page 518, 147 U. S., and page 418, 13 Sup. Ct., the supreme court say: “It may be accepted as unquestioned that neither the United States nor a state can be sued as defendant in any court in this country without their consent, except, etc. Accordingly, whenever it can he clearly seen that a state is an indispensable party to enable a court, according to the rules which govern its procedure, to grant the relief sought, it will refuse to take jurisdiction.

But, in the desire to do that justice which in many cases the courts can see will he defeated by an extreme extension of this principle, they have in some instances gone a long way in holding the state not to he a necessary party, though its interests may he more or less affected by the decision. Among these cases are those where an individual is sued in tort for some act injurious to another in regard to person or property in which his defense is that he has acted under the orders of the government.

In those cases he is not sued as an officer of the government, but as an individual, and the court is not ousted of jurisdiction because he asserts the authority of such oificer. To make out that defense he must show that his authority was sufficient in law to protect him. In this class of cases is included U. S. v.

Lee, where the action of ejectment was held to be in its essential character an action of trespass, with the power in the court to restore the possession to the plaintiff as part of the judgment; and the defendants, Strong and Kaufman, being sued individually as trespassers, set up tbeir authority as officers of the United States, which this court held to be unlawful, and therefore insufficient as a defense.” A case rarely arises in the courts more fully within the terms of a ruling decision than is the case at bar within the meaning and tenor of the language- of the supreme court • in the case of Stanley v.

Schwalby, confirming and explaining the decision in Kaufman v. Lee. We think there was no error in the action of the court below in entertaining this suit as not a suit against the state of South Carolina, and in giving, judgment for the plaintiff below. The judgment of the court below is affirmed.