Where, in an ejectment action, the plaintiffs' statement of
their right to the possession of the land discloses no case within
the jurisdiction of the circuit court of the United States, that
jurisdiction cannot be established by allegations as to the defense
which the defendant may make or the circumstances under which he
took possession.
This was an action of ejectment, commenced in the Circuit Court
of the United States for the Eastern District of Arkansas, based
upon the same title which was presented in
Muse v. Arlington
Hotel Co., 168 U. S. 430, and
Filhiol v. Maurice, 185 U. S. 108. A
demurrer to the complaint was sustained on the ground of want of
jurisdiction, and a judgment entered for the defendant, and
thereupon the case was brought directly to this Court on writ of
error.
Page 194 U. S. 357
MR. JUSTICE BREWER delivered the opinion of the Court.
The only question decided by the circuit court was one of
jurisdiction, but the record contains no certificate of that
question, nor anything which can be considered an equivalent
thereto. The demurrer filed by the defendant stated three grounds
therefor: first, a want of jurisdiction over the present defendant;
second, a like want of jurisdiction over the subject matter of the
action; and, third, that the complaint did not state facts
sufficient to constitute a cause of action. The judgment was that
the "demurrer to the jurisdiction . . . be sustained" and the
complaint dismissed. In the opinion of the court, only the question
of jurisdiction over the subject matter was discussed. The
assignment of errors contains nine specifications, some going to
the matter of jurisdiction; others, such as the fifth, eighth, and
ninth, running to the merits, the ninth being general and in this
language: "The court erred in divers other matters manifest upon
the face of the record of said action." The petition for a writ of
error alleged that the plaintiffs,
"being aggrieved by the judgment made and entered
Page 194 U. S. 358
in the above entitled cause on the twelfth day of January, 1903,
and the several rulings of the court herein, file herewith their
assignment of errors in said cause, and pray a writ of error, to
the end that the rulings and judgment of said court in said cause
may be reversed by the Supreme Court of the United States."
This petition was allowed generally, and without any limitation
or specification. The necessity of a certificate was affirmed in
Maynard v. Hecht, 151 U. S. 324, and
what may be considered a sufficient certificate, or taken as
equivalent thereto, considered in
In re Lehigh Mining a&
Manufacturing Company, 156 U. S. 322;
Shields v. Coleman, 157 U. S. 168;
The Bayonne, 159 U. S. 687;
Interior Construction Company v. Gibney, 160 U.
S. 217;
Van Wagenen v. Sewall, 160 U.
S. 369;
Chappell v. United States, 160 U.
S. 499;
Smith v. McKay, 161 U.
S. 355. The case of
Chappell v. United States,
supra, is closely in point. In that case, Mr. Justice Gray,
speaking for the Court, after referring to tests laid down in prior
cases, observed (p.
160 U. S.
508):
"The record in the present case falls far short of satisfying
any such test. The defendant, among many other defenses and in
various forms, objected to the jurisdiction of the district court
because the act of Congress under which the proceedings were
instituted was unconstitutional, because the proceedings were not
according to the laws of the United States, and because they should
have been had in a court of the State of Maryland, and the court,
overruling or disregarding all the objections, whether to its
jurisdiction over the case, or to the merits or the form of the
proceedings, entered final judgment for the petitioners. There is
no formal certificate of any question of jurisdiction; the
allowance of the writ of error is general, and not expressly
limited to such a question, and the petition for the writ, after
mentioning all the proceedings in detail, asks for a review of all
the 'rulings, judgments, and orders' of the court 'upon the
question of jurisdiction raised in said exceptions, pleas, and
demurrers, and the other papers on file in this cause,' without
defining or indicating any
Page 194 U. S. 359
specific question of jurisdiction. Here certainly is no such
clear, full, and separate statement of a definite question of
jurisdiction as will supply the want of a formal certificate under
the first clause of the statute."
There being no sufficient certificate of jurisdiction, counsel
for plaintiffs in error rely upon the proposition that there is
involved in the case the application of the Constitution of the
United States, and also the meaning and force of the treaty of
October 21, 1803, between the United States and the Republic of
France, and that therefore the case was rightfully brought directly
to this Court.
"But no question of jurisdiction having been separately
certified or specified, and the writ of error having been allowed
without restriction or qualification, this Court, under the other
clause of the statute, above cited, has appellate jurisdiction of
this case as one in which the constitutionality of a law of the
United States was drawn in question."
Chappell v. United States, supra, 160 U. S. 509.
See also Giles v. Harris, 189 U.
S. 475,
189 U. S.
486.
The title upon which the plaintiffs rest was a grant made on
February 22, 1788, by the governor general, in the name of the King
of Spain, then the sovereign of the territory, and, as contended,
protected by the treaty of 1803, which provided that the
inhabitants of the province ceded should, among other things, "be
maintained and protected in the free enjoyment of their . . .
property." It was alleged that such provision, by a just
construction of the treaty, extended to the property of the
original grantee, and descended from him to his heirs, but that the
United States, denying that plaintiffs were entitled to be
maintained and protected in the enjoyment of their said property by
any construction of the treaty, asserted title to the land,
expelled the plaintiffs from possession, and delivered it over to
the defendant in this action, and that said defendant is in
possession by direction of the United States, in pursuance of the
unlawful and unjust possession so given him, and without any other
right or claim of right than as an officer of the United States.
Plaintiffs also
Page 194 U. S. 360
averred that they were lawfully possessed of the land by
inheritance from their ancestor, and that the United States,
without process of law, and without legal right so to do, took the
same for public use without any compensation, and established
defendant in possession thereof wrongfully and unjustly. By virtue
of these allegations, they contend that there is involved in this
case the construction of a treaty, as well as the application of
the Constitution of the United States, which forbids the taking of
private property for public use without just compensation.
But it is well settled that, in ejectment, the plaintiffs must
rest on their own title. If that title falls, it is immaterial what
wrong the defendant may have committed. There is nothing in the
statutes of Arkansas which changes this rule. The averments of an
infraction by the United States of its obligations under the
treaty, or an unlawful act in taking possession without
compensation, in defiance of the Constitution, do not add to the
plaintiff's title. So far as the cause of action is concerned,
these averments are superfluous. Any action by the government is
matter of defense, and may never be presented by the defendant. He
has a right to go to trial on the sufficiency of the title
presented by the plaintiffs, and need neither plead nor prove the
rightfulness of his possession by whomsoever it may have been given
to him until they have shown that they have a title to the
premises.
"The right of the plaintiff to sue cannot depend on the defense
which the defendant may choose to set up. His right to sue is
anterior to that defense, and must depend on the State of things
when the action is brought."
Osborn v.
Bank, 9 Wheat. 738,
22 U. S.
824.
"By the settled law of this Court, as appears from the decisions
above cited, a suggestion of one party that the other will or may
set up a claim under the Constitution or laws of the United States
does not make the suit one arising under that Constitution or those
laws."
Tennessee v. Union & Planters' Bank, 152 U.
S. 454,
152 U. S.
464.
Page 194 U. S. 361
See also Chappell v. Waterworth, 155 U.
S. 102;
Walker v. Collins, 167 U. S.
57;
Sawyer v. Kochersperger, 170
U. S. 303, in which this Court said:
"The case was removed into the circuit court of the United
States, but improvidently, as it falls within the rule laid down in
Tennessee v. Banks, 152 U. S. 454, notwithstanding
the petition stated that defendants declined to pay on the ground
that the law imposing the taxes was in violation of the
Constitution of the United States."
Florida Central &c. Railroad v. Bell, 176 U.
S. 321,
176 U. S. 329;
Arkansas v. Kansas & Texas Coal Company, 183 U.
S. 185.
We have not considered whether the averments distinctively made
of the plaintiffs' title were sufficient to vest jurisdiction in
the circuit court, for that question was settled against the
plaintiff by the decision in
Filhiol v. Maurice,
supra.
As the plaintiffs' statement of their right to the possession of
this land disclosed no case within the jurisdiction of the circuit
court, that jurisdiction was not established by allegations as to
the defense which the defendant might make, or the circumstances
under which he took possession.
The judgment of the Circuit Court is
Affirmed.