The City of New Orleans commenced an action in March, 1895, in
the Civil District Court for the Parish of Orleans, in Louisiana,
to recover from Werlein a tract of land of which he was in
possession, having acquired title under the following
circumstances: in March, 1876, one Klein commenced an action
against the city, to recover principal and interest on certain city
bonds, and obtained judgment for the same in 1876. Under a writ of
fieri facias, real estate of the city was seized to
satisfy the judgment, and was advertised for sale. The city
commenced a suit against Klein to prevent the sale, and obtained an
interlocutory injunction. After hearing, this injunction was
dissolved, and the complaint was dismissed. The property was then
sold under the judicial proceeding to a purchaser through whom
Werlein claims title. This suit was brought by the city to set
aside that sale on the ground that it was null and void because the
real estate was dedicated to public use long before the alleged
sale, and formed part of the public streets of New Orleans; that it
was not susceptible to alienation or private ownership or private
possession. Judgment was rendered in favor of the city, which was
affirmed by the supreme court of the state.
Held:
Page 177 U. S. 391
(1) That this Court had jurisdiction to revise that
judgment.
(2) That if there were no question of a prior judgment, proof
that the land had been properly dedicated for a public square to
the public use, and therefore had been withdrawn from commerce,
would furnish a defense to the claim by any person of a right to
sell the property under an execution upon a judgment against the
city.
(3) That, as the city did not set up that defense, although it
was open to it to do so, in the former action, it could not set it
up now.
(4) That although the city holds property of such a nature in
trust for the public, that fact does not distinguish it from the
character or in which it holds other property, so as to bring the
case within the meaning of the rule that a judgment against a man
as an administrator does not bind him as an individual.
(5) That the former judgment should have been admitted in
evidence upon the trial of this action.
This action was commenced in March, 1895, by the City of New
Orleans in the Civil District Court for the Parish of Orleans in
the State of Louisiana, for the purpose of recovering from the
defendant below, Philip Werlein, a certain lot of land situated in
that city and described in the petition, and of which he was in
possession. The facts upon which the suit was brought are as
follows:
In March, 1876, one John Klein, a citizen of the State of
Mississippi, commenced an action against the City of New Orleans in
the Circuit Court of the United States in the District of Louisiana
for the recovery of over $89,000 and interest upon certain bonds
issued by that city, and fully described in the plaintiff's
petition. The city filed an answer denying all and singular the
allegations contained in the plaintiff's petition. The case came on
for hearing before the court without a jury, a jury being waived,
and resulted in a judgment for the plaintiff against the city for
the sum of $89,000, with six percent interest, as stated in the
judgment which was entered on May 2, 1876. The plaintiff, in order
to obtain satisfaction, issued a
fieri facias on the
judgment to the marshal, who thereupon seized and took into his
possession all the right, title, and interest of the city in and to
the portion of ground described in the marshal's return to the writ
(and being the premises in question), and advertised the property
for sale. The City of New Orleans thereupon commenced an action
against Klein
Page 177 U. S. 392
in the United States circuit court for the Eastern District of
Louisiana, to prevent him from selling the property under his
judgment.
In its bill of complaint the city alleged the recovery of
judgment by Klein against the city, that he had issued a writ of
fieri facias upon such judgment for the purpose of
enforcing satisfaction of the same, and had seized under the writ
the property already described, which was advertised to be sold on
a day named in the bill, and that Klein had no right to issue the
writ in that suit, or to cause the seizure, advertisement, or sale
of the property thereunder, for the reasons and causes stated in
the bill, which were (1) that he had registered the judgment in the
office of the Administrator of Public Accounts for the City of New
Orleans in accordance with an act of the legislature passed in the
year 1870, and therefore had no right to issue any writ for the
collection of the judgment against the city; (2) because Klein had
assigned and transferred all his interest in the judgment before
the writ was issued, to certain parties named; (3) that the writ
upon which the property had been seized and advertised to be sold
had issued for a larger sum than was due on the judgment. The city
therefore prayed for an injunction restraining Klein, his attorneys
and agents, from proceeding further in the advertisement and sale
of the property under the writ, that the seizure of the property by
the marshal might be adjudged to be illegal and void, and for
general relief.
An order to show cause why an injunction
pendente lite
should not issue was granted, and upon a hearing it was ordered to
issue.
The defendant Klein answered the bill, admitted the seizure of
the property, and that it was advertised for sale; also, that he
had procured his judgment to be registered as alleged in the bill,
but denied that he thereby lost or forfeited any other remedy for
the enforcement of the judgment, especially that of an ordinary
execution; admitted the assignment of his judgment, but alleged
that it was only as a security or pledge, and denied that the writ
issued for a larger sum than was due, and he therefore asked that
the injunction
pendente lite might be
Page 177 U. S. 393
dissolved, the perpetual injunction denied, and for such further
relief as might be proper.
The case came on for hearing on bill and answer, and the
court
"ordered, adjudged, and decreed that the interlocutory
injunction issued be dissolved, an injunction refused, and
complainant's bill of complaint dismissed with costs."
The judgment was signed June 19, 1878.
After the entry of the judgment dissolving the injunction and
dismissing the bill, the marshal took proceedings to sell the
property which he had seized, and on August 21, 1878, sold the same
to Andrew C. Lewis, the highest bidder, through whom by several
mesne conveyances the appellant claims title, and from the time of
the above sale he or his grantors have been in possession.
The petition in the present suit, filed by the city, describes
the premises in question and alleges that the defendant, appellant
herein, is in possession thereof, and unjustly claims title
thereto, with the improvement thereon, valued in all at $15,000.
The city avers that the defendant is not and never was the owner of
the property, and that his only alleged title thereto is derived
through mesne conveyances from a sale made by the United States
marshal to Andrew C. Lewis, as above stated. The city further
alleges that the sale by the marshal to Lewis was absolutely null
and void, and that no title or right whatever in or to the property
passed by that sale to Lewis or through him to the defendant
herein; that the property was dedicated to public use long prior to
the date of the marshal's sale, by Bertrand and John Gravier, and
that it forms part of the Place Gravier, in the Faubourg St. Mary,
in the City of New Orleans, and that the property was at the date
of the marshal's sale, and has ever since been, unsusceptible to
alienation or private ownership or of private possession, and that
the defendant's possession is illegal and in bad faith. The
petition further alleges that the city was invested by law with the
administration and possession, for the public benefit, of all
property in the city dedicated to public use, and that it had the
right to sue for the recovery of the possession of and to establish
the title and right of use of the public to any such property,
Page 177 U. S. 394
and the petition therefore prayed that the city might have
judgment against the defendant, decreeing the property purchased at
the sale to be property dedicated to public use, and recognizing
plaintiff's right to the possession and administration of the same,
and ordering the defendant to deliver to plaintiff possession of
the property free from all encumbrances, and for costs.
The defendant answered the bill and set up therein the recovery
of the judgment of Klein against the city, the seizure of the
property thereunder, the commencement of suit by the city to enjoin
the sale of the property, and the judgment of the court thereon
dismissing that bill and dissolving the injunction, and defendant
therefore alleged that the right of Klein to proceed and sell the
land described in the petition, under his execution, was in and by
that judgment recognized, affirmed, and established, and such right
was therefore
res judicata.
Other defenses were set up denying that the land had in fact
ever been dedicated to public use, or that it had ever been so
used; also alleging that the city had regularly collected taxes
upon the property ever since its purchase by Lewis (more than
fifteen years), and that, by reason of the facts the city was
estopped from maintaining its action.
Upon these pleadings the parties went to trial, and the
plaintiff, after giving evidence tending to prove its case,
admitted that the defendant held a regular chain of title from and
through Lewis, the purchaser of the land under the sale by the
United States marshal, but denied the validity of such title. The
defendant offered in evidence an exemplification of the proceedings
and judgment in the suit brought to enjoin the sale by the marshal,
which offer was made for the purpose of proving the plea of
res
judicata. The plaintiff objected to the evidence on the ground
that the cause of action involved in the suit was not identical
with the cause of action in the suit on trial, because the sole and
only issues decided in the other suit were whether John Klein,
having registered his judgment against the City of New Orleans in
the office of the comptroller, pursuant to a statute of the state,
and having elected that method of collecting his judgment, had not
waived his right to pursue any other
Page 177 U. S. 395
method of collection; also whether John Klein was the owner of
the judgment, and, if so, whether he was estopped by having
registered in the office of the comptroller a transfer of the same,
and also whether the judgment was not subject to certain credits;
whereas the issue involved in this case was whether the property
upon which it is alleged the execution was levied and the property
sold was legally subject to such seizure and sale; also that the
thing demanded in the other suit was not the same thing demanded in
this suit, the prayer in the other being for an injunction
restraining Klein from selling the property in dispute, whereas the
thing demanded in this case was a decree declaring the sale
effected by Klein absolutely null and void. The court sustained the
objection and refused to admit the evidence, and the defendant duly
excepted.
Oral evidence was then given for the purpose of sustaining the
other defenses set up by the defendant, and the trial having been
concluded, the judge made a finding in favor of the complainant,
and judgment was thereupon entered decreeing that the property
described therein was property dedicated to public use, and that
the right of the city to the possession and administration of such
property must be recognized, and the defendant was ordered to
deliver possession of the property to the city free from all
encumbrances.
An appeal was taken from the judgment to the Supreme Court of
the State of Louisiana, where it was affirmed, and the defendant
below has brought the case here on writ of error. facts, delivered
the opinion of the Court.
MR. JUSTICE PECKHAM, after stating the facts, delivered the
opinion of the Court.
The defendant in error has made a motion to dismiss the writ of
error on the ground of want of jurisdiction. We think it must be
denied. The sole question in the case is in regard to the validity
of the exception to the decision of the trial court
Page 177 U. S. 396
refusing to admit in evidence the judgment recovered in the
United States circuit court in the action of the City of New
Orleans against Klein.
The defendant herein in his answer specially set up such
judgment, and claimed that, under and by virtue thereof the city
was concluded from maintaining its action; the state court refused
to give effect to the judgment, and the denial of this right was
excepted to by the defendant, and was also assigned as error in the
state supreme court. In such case, we think a federal question
exists.
Pittsburgh, Cincinnati &c. Railroad v. Long Island
Trust Company, 172 U. S. 493,
172 U. S. 507,
and cases there cited;
Phoenix Insurance Company v.
Tennessee, 161 U. S. 174,
161 U. S. 184.
Whether full faith and credit have been given the judgment of a
federal court by the courts of a state is a federal question, and
that question exists in this case.
Upon the merits, we have simply to inquire whether the courts
below erred in their decision refusing to admit in evidence the
judgment in the chancery suit above mentioned.
The judgment in that suit was between the city as complainant
and Klein as defendant, and it had reference to the proceedings of
the marshal in the execution of his writ issued upon the judgment
of Klein against the city. The defendant in this suit traces his
title back to Lewis, who purchased upon the sale under the
marshal's writ, and so when the defendant is sued in this action,
he stands as privy to one of the parties to the chancery suit, and
can claim the same rights in the judgment therein as an
adjudication, which Lewis or Klein could have claimed if either
were in possession of the property and this suit had been brought
against the one in possession.
The law in relation to the effect of a judgment between the same
parties is well known, but its proper application to particular
cases is sometimes quite difficult to determine. The following
authorities treat of the subject very fully and exhaustively:
Cromwell v. County of Sac, 94 U. S.
351;
Davis v. Brown, 94 U. S.
423;
New Orleans v. Citizens' Bank,
167 U. S. 371;
Southern Pacific Railroad v. United States, 168 U. S.
1;
Delabigarre v. Second Municipality of New
Orleans, 3 La.Ann. 230;
Slocomb v. de Lizardi, 21
La.Ann. 355.
Page 177 U. S. 397
In the first-cited case, it was said that a former judgment
between the same parties (or their privies) upon the same cause of
action as that stated in the second case constitutes an absolute
bar to the prosecution of the second action not only as to every
matter which was offered and received to sustain or defeat the
claim or demand, but as to any other admissible matter which might
have been offered for that purpose. Where the second action between
the same parties is upon a different claim or demand, the judgment
in the former action operates as an estoppel only as to those
matters in issue or points controverted upon the determination of
which the finding or verdict was rendered.
So, in
Davis v. Brown, 94 U.
S. 428, Mr. Justice Field, in delivering the opinion of
the Court, said, in speaking of a prior judgment:
"The judgment is not only conclusive as to what was actually
determined respecting such demand, but as to every matter which
might have been brought forward and determined respecting it."
In
New Orleans v. Citizens' Bank, supra, at
167 U. S. 396,
MR. JUSTICE WHITE, speaking for the Court, said:
"The estoppel resulting from the thing adjudged does not depend
upon whether there is the same demand in both cases, but exists,
even although there be different demands, when the question upon
which the recovery of the second demand depends has, under
identical circumstances and conditions, been previously concluded
by a judgment between the parties or their privies."
To the same effect is
Southern Pacific Railroad v. United
States, supra.
The same rule is substantially laid down in the cases above
cited from the Louisiana reports.
Now what was the demand and what was the thing adjudged in the
chancery suit between the City of New Orleans and Klein? In that
suit, the city alleged that Klein had seized under a writ of
fieri facias, in his action against the city, certain
property which was described in the complainant's bill, which he
threatened to sell, and which was advertised to be sold on a
certain day, and the city alleged
"that the said John Klein has no right to issue the said writ of
pluries
fieri facias
Page 177 U. S. 398
in said suit, or to cause the seizure, advertisement, and sale
of the said property thereunder,"
and it set forth in its bill the grounds (already stated) for
such an allegation.
The sole cause of action was the apprehended and threatened sale
of the property, which sale, the complainant alleged, would be
illegal. All the other facts set up in the bill were but the
grounds justifying and proving, as contended, the allegation that
Klein had no right to sell the property, and it was this illegality
of the threatened sale that was the sole cause or foundation of the
action; it was the matter in dispute and the subject of contest. If
the property were not legally subject to seizure and sale, then it
would clearly be an illegal sale if consummated, and that fact
would be material in proof of the cause of action of the city.
Upon the trial, the court adjudged that defendant had the right
to sell the property, and it therefore dissolved the injunction and
dismissed the bill, and judgment to that effect was duly signed and
entered. This would seem to be a full and complete adjudication
upon the right of defendant Klein to sell the property seized under
his writ. That right would not exist if the property were not the
subject of a legal sale. Whether or not it was thus subject was an
inquiry which the court would have had jurisdiction to make had it
been alleged in that suit.
It is, however, contended that as the city had only set up
certain facts as the foundation of its action to prevent the
alleged illegal sale of the property, the judgment only bound it as
to those facts, and therefore it is now urged that the city in this
action was at liberty to prove other facts which would also show
that Klein had no right to sell the property -- namely that the
property had long before the sale been dedicated to public use, and
the city therefore had no right to alienate it, nor had anyone the
right to sell it upon an execution issued on a judgment against the
city.
It is not disputed that if there were no question of a prior
judgment in this case, proof that the land had been properly and
duly dedicated for a public square to the public use, and therefore
had been withdrawn from commerce, would furnish a defense to the
claim by any person of a right to sell the property
Page 177 U. S. 399
under an execution upon a judgment against the city.
New Orleans v. United
States, 10 Pet. 662,
35 U. S. 731,
35 U. S. 736;
Police Jury v. Foulhouze, 30 La.Ann. 64;
Police Jury
v. McCormack, 32 La.Ann. 624;
Kline v. Parish of
Ascension, 33 La.Ann. 562;
Leonard v. Brooklyn, 71
N.Y. 498.
Assuming the law to be a thus stated, the question in this case
is what effect has this judgment under discussion upon the rights
of the parties?
The fact now alleged would have furnished in the chancery suit
but another ground or reason upon which to base the claim of the
city -- that Klein had no right to sell the property under his
writ. In other words, it would have been additional proof of the
cause of action set forth in that suit. The city would have had the
right to set that fact up in its bill and to have proved it on the
trial, and, if proved, it would have been foundation for a judgment
enjoining the sale of the property; but the fact would have been
nothing more than evidence of the right of the city to obtain the
injunction asked for in the chancery suit, and we think it was the
duty of the city to set up in that suit and to prove any and all
grounds that it had to support the allegation that Klein had no
right to seize or sell the property.
The threatened sale might have been illegal for a number of
reasons, based upon widely divergent facts, but whatever those
reasons were, the facts upon which they rested were open to proof
in the chancery action, and if the city desired the benefit of
them, they should have been alleged and proved. It would seem to be
quite clear that the plaintiff could not be permitted to prove each
independent fact in a separate suit. Suppose the city had only set
up the fact of the registry of the judgment as a ground for
enjoining the sale, and after a trial on that issue, it had been
beaten and judgment had gone against it -- could the city after
that have commenced another suit for the same purpose, and set up
as a ground for the alleged illegality of the sale the assignment
of the judgment by Klein? In such second action, would not the
judgment in the prior action conclude the city? If not, then, on
being beaten on a trial of that issue, the city could commence
still another action
Page 177 U. S. 400
based on the allegation that the judgment had been paid. Thus,
as many different actions as the city might allege grounds for
claiming the sale would be illegal could be maintained
seriatim, and no one judgment would conclude the city
except as to the particular ground upon which the city proceeded in
each particular case. And yet all these different grounds would
simply form evidence upon which the original cause of action was
based -- namely, the alleged illegality of the apprehended sale.
They would form simply separate facts upon which the cause of
action might rest. There is no difference in the nature of the
ground now urged in this case from the other grounds actually set
up in the chancery suit.
It is true that, in the chancery suit, the thing demanded was an
injunction restraining Klein from selling the property, while in
this suit, it is a decree declaring the sale effected by Klein
absolutely null and void. But the two demands, though different in
terms, are in substance the same, and are founded upon the same
cause of action --
viz., the total illegality of the sale,
whether threatened or accomplished. The demand in the later action
is simply altered to conform to the fact that there had been a sale
of the property, while the demand in the former suit was based upon
the fact that there had not been a sale, and the relief demanded
was an injunction to prevent such sale. In substance and effect,
the thing demanded is the same in both cases.
It is contended, however, that the ground now urged for the
illegality of the sale -- namely, a long prior dedication of the
property to public use -- is of a totally different nature from the
grounds which were set up in the chancery suit; that the city there
appeared in a different capacity from that in which it now appears,
and that it was therefore unnecessary to allege or prove this
ground in that suit, and that a judgment in the former suit in
favor of the right of Klein to sell this property does not conclude
the city from proving that he had no such right by reason of the
character of the property sold. Although the city has been more
than fifteen years in discovering this defense, yet nevertheless it
is now argued that a judgment against the city in the chancery suit
being a judgment against
Page 177 U. S. 401
it in a different capacity from that in which it appears in this
action as a trustee for the public, the rule applies in such a case
as it sometimes does in the case of a judgment against A B, in
relation to property held by him as executor or as trustee, which
would be no evidence for or against A B in his individual and
personal capacity.
Collins v. Hydorn, 135 N.Y. 320.
Although there are exceptions even to that rule.
Morton v.
Packwood, 3 La.Ann. 167;
Fouche v. Harrison, 78 Ga.
360.
We think there is no double capacity in this case, and that the
city appears in the same character and capacity in both these
suits, and that in this suit it is bound by the judgment in the
chancery suit.
The title to land which has been dedicated to public use, as for
a highway or public square in a city, is in the city as trustee for
the public, and it has been held, in the case of such a dedication
of land in a proposed city, to be thereafter built, that the fee
will remain in abeyance until the proper grantee or city comes
in esse, when it will vest in such city. A dedication to
the public may exist where there is no city or town or corporate
entity to take as grantee, and in such case, while the fee may
remain in the individual who dedicates the land, he will be
estopped from setting it up as against the public who may be
interested in the use of the land according to its dedication.
Nevertheless, when a dedication is made in an existing city, the
city takes title as trustee. These statements are borne out by the
following cases:
Pawlet v.
Clark, 9 Cranch 292;
Beatty v.
Kurtz, 2 Pet. 566;
Cincinnati
v. White, 6 Pet. 431,
31 U. S.
435-436;
Barclay v.
Howell, 6 Pet. 498;
New
Orleans v. United States, 10 Pet. 662;
Police
Jury v. Foulhouze, 30 La.Ann. 64.
Although the city holds property of such nature in trust for the
public, that fact does not distinguish it from the character or
capacity in which the city holds its other property so as to bring
the case within the meaning of the rule that a judgment against a
man as an administrator does not bind him as an individual. The
city holds all property which it owns as trustee for the public,
although certain classes or kinds of property, such as the public
streets, the public squares, the courthouse,
Page 177 U. S. 402
and the jail cannot be taken on execution against it, for
reasons which are plain to be seen. Such property is so necessary
for the present and daily use of the city as the representative of
the public, as well as for the use of the public itself, that to
allow it to be taken on execution against the city would interfere
so substantially with the immediate wants and rights of the public
whose trustee the city is, and also with the due performance of the
duties which are imposed upon the city by virtue of its
incorporation, that it ought not to be tolerated. Other property
which the city might hold, not being so situated, might be taken on
execution against it, but it nevertheless holds that very property
as trustee. It holds it for the purpose of discharging in a general
way the duties which it owes to the public -- that is, to the
inhabitants of the city. The citizens or inhabitants of a city, not
the common council or local legislature, constitute the
"corporation" of the city. 1 Dillon on Municipal Corporations, 3d
ed. sec. 40. The corporation as such has no human wants to be
supplied. It cannot eat or drink or wear clothing or live in
houses. It must as to all its property be the representative or
trustee of somebody or of some aggregation of persons, and it must
therefore hold its property for the same use, call that use either
public or private. It is a use for the benefit of individuals. A
municipal corporation is the trustee of the inhabitants of that
corporation, and it holds all its property in a general and
substantial, although not in a strictly technical, sense in trust
for them. They are the people of the state inhabiting that
particular subdivision of its territory, a fluctuating class
constantly passing out of the scope of the trust by removal and
death and as constantly renewed by fresh accretions of population.
The property which a municipal corporation holds is for their use,
and is held for their benefit. Any of the property held by a city
does not belong to the mayor, or to any or all of the members of
the common council, nor to the common people as individual
property. If any of those functionaries should appropriate the
property or its avails to his own use, he would be guilty of
embezzlement, and if one of the people not clothed with official
station should do the like, he would be guilty of larceny. So we
see
Page 177 U. S. 403
that whatever property a municipal corporation holds, it holds
it in trust for its inhabitants -- in other words, for the public
-- and the only difference in the trust existing in the case of a
public highway or a public square and other cases is that, in the
one case, the property cannot be taken in execution against the
city, while in other cases, it may be. The right of the city is
less absolute in the one case than in the other, but it owns all
the property in the same capacity and character as a corporation,
and in trust for the inhabitants thereof. Views similar to these
have been heretofore substantially expressed by the late Judge
Denio in speaking for the Court of Appeals of New York in
Darlington v. New York, 31 N.Y. 164.
From these considerations, we are of opinion that there is no
difference in the character of the title by which a municipal
corporation holds these two classes of property, but there is
simply a difference in the power which such corporation can
exercise over its property in the two cases. That difference arises
from the peculiar nature of the use of the property, which in the
one case requires it to be inalienable and not liable for the debts
of the city, while in the other case it is open both to alienation
and to sale under execution. In each case, the character or
capacity in which the city in fact holds the title is the same.
We therefore think the former judgment should have been admitted
in evidence upon the trial of this action. By that judgment it
conclusively appears that this property was legally sold upon the
execution on Klein's judgment, and that the purchaser at the sale
obtained a title which was good. This title the plaintiff in error
now owns, and it must prevail against the claim of the city.
The judgment of the Supreme Court of Louisiana must be
reversed, and the cause remanded to that court for further
proceedings not inconsistent with the opinion of this Court, and it
is so ordered.
MR. JUSTICE McKENNA took no part in the decision of this
case.
