Deputron v. Young
134 U.S. 241 (1890)

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U.S. Supreme Court

Deputron v. Young, 134 U.S. 241 (1890)

Deputron v. Young

No. 1151

Submitted January 6, 1890

Decided March 10, 1890

134 U.S. 241

Syllabus

An averment of diverse citizenship by the plaintiff, necessary to confer a jurisdiction, not being controverted by the defendant, must be taken as true under the practice in the courts of Nebraska.

When the jurisdictional allegations of the plaintiff are not traversed by the defendant, no question involving the capacity of the parties to litigate in the federal courts can be raised before the jury or treated as within the issues they are empanelled to determine.

The objection, under section 5, of the Act of March 3, 1875, c. 137, 18 Stat. 472, that parties to a suit have been improperly or collusively made or joined for the purpose of creating a case cognizable under the act should be taken at the first opportunity, and delay in its presentation will be considered in examining into the grounds upon which it is alleged to rest.

A suit cannot properly be dismissed by a circuit court as not involving a controversy within the jurisdiction of the court unless the facts, when made to appear on the record, create a legal certainty of that conclusion.

In Nebraska, a tax deed not executed by the county treasurer under his seal of office is void.

In Nebraska, a tax deed, though void on its face, is sufficient color of title to support an adverse possession to the property therein described.

The adverse possession which bars a recovery in an action of ejectment must be continuous, uninterrupted, open, notorious, actual, exclusive and adverse.

Where the rightful owner of real estate is in the actual occupancy of a part of his tract, he is in the constructive and legal possession and seisin of the whole unless he is disseised by actual occupation and dispossession, and where the possession is mixed, the legal seisin is according to the legal title.

A power from an owner of real estate authorizing the donee to make and execute deeds to convey the real estate to purchasers as the same may be sold to such purchasers in tracts by a third party who acts under a contract with the donor of the power, is a naked power to convey as sales may be made, and a deed made by the donee to a person who was not such a purchaser is a fraud upon the power.

In the case of a naked power not coupled with an interest, every prerequisite to the exercise of that power should precede it.

In Nebraska, the title of a purchaser at an executive sale depends not alone

Page 134 U. S. 242

upon his bid or payment of the purchase money, but upon the confirmation of the sale by the court.

One purchasing at an execution sale in Nebraska submits himself to the jurisdiction of the court as to matters affecting that sale, and as the court has power during the term to vacate or modify its own orders or to rescind a decree affirming the sale, he is concluded by the result of the proceedings to confirm or annul it.

This was an action of ejectment brought in the Circuit Court of the United States for the District of Nebraska, June 14, 1884, by Rowena Young, a citizen of Ohio, against John C. Deputron, a citizen of Nebraska, to recover certain premises in the petition named. The defendant answered, denying plaintiff's ownership and right to possession, and setting up title under a tax deed and purchase in good faith, and without notice, for $10,000 paid, being the full value, and ten years' adverse possession. To this answer a reply specifically denying its averments was filed by the plaintiff. At the November term, 1885, of said court, a trial was had, which resulted in a verdict for the defendant, and judgment thereon, which was set aside on motion of plaintiff, and a new trial awarded. In March, 1886, the cause was tried a second time, and a special verdict of 41 findings rendered by the jury, as set forth in the margin. *

Page 134 U. S. 243

The defendant excepted to the tenth, seventeenth, moved to set aside each of the same, and

Page 134 U. S. 244

for a judgment for the defendant, and against the plaintiff, upon the verdict as thus amended, and the plaintiff filed his

Page 134 U. S. 245

motion for judgment on the verdict according to the prayer of the petition. On the 10th day of May, 1886, these motions

Page 134 U. S. 246

coming on to be heard, were submitted to the court on briefs to be filed within sixty days, and on the 24th day of June,

Page 134 U. S. 247

1886, the court entered an order, by agreement of the parties, that the time to settle and sign a bill of exceptions be, and the

Page 134 U. S. 248

same was thereby, extended to the second Monday in November following. The record contains no such bill of exceptions.

Page 134 U. S. 249

On the 9th day of November, 1887, Deputron filed his petition, alleging that Rowena Young was not the real party in interest and that the title of the property in controversy was collusively and fraudulently transferred to her for the sole purpose of vesting apparent jurisdiction in the federal court; that the case did not really and substantially involve a dispute or controversy properly within its jurisdiction, and that Rowena Young had been improperly and collusively made a plaintiff for the purpose of creating a case cognizable under the laws of the United States, and praying that the cause be dismissed, to which the plaintiff answered, denying any fraud and collusion and averring that she was the real party interested. On the 16th day of November, 1888, the following order was entered:

"This cause, coming on for hearing on the petition and application of the defendant to dismiss for want of jurisdiction, was tried by the court, Messrs. Hall and Webster appearing for the plaintiff, and Messrs. Lamb, Ricketts and Wilson, and Harwood, Ames and Kelly, for the defendant; whereupon, after hearing the evidence and argument of counsel, and being fully advised in the premises, it is now, on this day

Page 134 U. S. 250

ordered and adjudged by the court that said petition and application be, and the same are hereby, denied; to which ruling and order of the court said defendant, by his attorneys, then and there duly excepted."

An opinion on the merits was given by the circuit judge December 17, 1888, 37 F. 46, and thereupon the motion of the defendant for judgment was overruled, the motion of the plaintiff for judgment sustained, and judgment entered that the plaintiff recover from the defendant the real property described in the petition and the costs of the action. A bill of exceptions, containing the petitions, answers, and proceedings and evidence adduced upon the question of jurisdiction, was signed and filed in due time. The pending writ of error was then sued out from this Court.

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