1. The Court of its own motion will dismiss an appeal not within
its jurisdiction. P.
264 U. S.
19.
2. The federal jurisdiction of the district court must appear in
the plaintiff's statement of his case. P.
264 U. S.
20.
3. A bill to quiet title, averring diversity of citizenship, and
showing that the land in question was allotted Indian lands
conveyed to plaintiff under the federal law and generally that the
defendant asserts a conflicting title, but not showing that the
conflict will involve the validity of conveyances made in virtue of
the federal law, invokes the jurisdiction of the district court on
the ground of diverse citizenship only, so that review of the
decree on the merits, even though federal issues were brought in by
answer and cross-bill, or at the trial, and decided, is final in
the circuit court of appeals (Jud.Code, § 128) unless the Court
shall grant a certiorari (
id., § 240). Pp.
264 U. S.
19-21.
4. Section 3 of the Act of June 25, 1910, authorizing appeals to
this Court "in all suits affecting the allotted lands within the
eastern district of Oklahoma," etc., was repealed by the Judicial
Code. P.
264 U. S.
21.
Appeal to review 283 F. 24 dismissed.
Appeal from a decree of the circuit court of appeals which
affirmed a decree of the district court for the plaintiff Kunkel
and the Prairie Oil and Gas Company, made defendant by a cross
bill, and against the defendants and cross-plaintiffs, Barnett
et al., in a suit brought by Kunkel to quiet title to a
piece of land in Oklahoma. Certiorari was refused. 260 U.S. 738. A
petition for rehearing was denied.
Page 264 U. S. 17
MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.
W. A. Kunkel, a citizen of Indiana, began this suit in the
United States District Court for the Eastern District of Oklahoma
to quiet title to 160 acres of land in that district, and made
defendants Hannah C. Barnett, her husband, Tucker K. Barnett, and
others, all citizens of Oklahoma residing in the district. In his
amended bill the complainant averred that he deraigned his title
from one Mehaley Watson, a Creek citizen, to whom was allotted the
land in question; that a patent was issued in her name, signed by
the principal chief of the Creek Nation and approved by the
Secretary of the Interior; that she died in October, 1908, before
the issue of the patent in March, 1909; that she was an
illegitimate child of the defendant, Hannah C. Barnett, a Creek of
the full blood, who was her heir and inherited the land in
question; that, on March 22, 1909, in consideration of $500, the
mother executed and delivered a warranty deed for the tract to one
B. O. Sims; that, on the same day, the deed to Sims was approved by
the county court of Hughes County, Oklahoma, the court having
jurisdiction to settle the estate of Mehaley Watson, deceased; that
Sims conveyed to Brannan; that Brannan conveyed to Berrian and
others, from whom, by some 11 mesne conveyances, the details of
which were set out in the bill, the land was conveyed, in March,
1913, to one R. S.
Page 264 U. S. 18
Litchfield; that, the question then having arisen whether
Mehaley Watson was not a resident of Okfuskee County, instead of
Hughes County, when she died, Mrs. Barnett and her husband filed
their petition in the County Court of Okfuskee County asking
approval of her deed of March, 1909, to B. O. Sims, and obtained
the approval of that court accordingly in consideration of $2,000
paid her by Litchfield; that Sims, on the same day, made and
delivered a quitclaim deed of the land to Litchfield; that, by
several mesne conveyances, set forth, the tract became ultimately
vested in the complainant, and that complainant, in May, 1914,
leased the land to the Prairie Oil & Gas Company for oil and
gas purposes, which entered upon the land and was operating wells
thereon and paying complainant rentals and royalties.
The bill then alleged that the defendants and each of them were
asserting title adverse to that of the complainant, by leases and
conveyances of the land and otherwise, and, unless restrained,
would make others, all of which were or would be clouds upon
complainant's title; wherefore he prayed that defendants be
required to set forth such right, title, or interest as may be
asserted by them, and that the title of complainant be adjudged
valid and quieted against defendants' claims.
To the amended bill the defendants Hannah C. Barnett and her
husband filed an answer and cross-bill in which they attacked the
validity of her deed to Sims as violating § 9 of the Act of
Congress of May 27, 1908, 35 Stat. 315, in three respects: first,
it was executed two days before the patent to Mehaley Watson was
approved by the Secretary of the Interior; second, the approval of
the deed by the Hughes County Court in 1909 was of no effect
because Mehaley Watson died a resident of Okfuskee County; and,
third, the purported approval of the deed by the Okfuskee County
court in 1913 was void for the reason that it was made by the
Page 264 U. S. 19
judge of that court during a vacation of the court at his
residence, and not at the courthouse, and that it was obtained by
fraud upon the judge and Hannah Barnett. By cross-bill, the Prairie
Gas & Oil Company, a corporation of Kansas, was made defendant.
Mrs. Barnett, asserting ownership in the land in herself, prayed
for a decree declaring the Sims deed void and quieting her title
and an accounting for the profits made from the land by complainant
and the Prairie Oil & Gas Company. Evidence was heard and a
decree rendered by the district court, finding for the complainant
and quieting title in him. An appeal was taken to the circuit court
of appeals, in which the decree of the district court was reversed
(259 F. 394), and the case remanded for another hearing because of
the exclusion of material evidence. Upon a second hearing, the
decree was again for the complainant, and, on the second appeal,
the decree of the district court was affirmed. 283 F. 24. A
petition for certiorari was filed and submitted to this Court
October 23, 1922, and was denied November 13, 1922. 260 U.S.
738.
No question of our jurisdiction to hear this appeal is raised by
the appellees. That, however, does not relieve us from the duty of
inquiring into it. The jurisdiction of the district court was
invoked on the ground of diverse citizenship of the parties. There
was no other ground set forth in the bill. The complainant, in
deraigning his title, disclosed the fact that it rested on the
allotment of the land in question to a deceased Creek Indian minor;
that the land was inherited by the minor's mother, and was conveyed
by that mother as a full-blood Creek Indian, with approval of the
county court, all in accordance with and by virtue of a law of
Congress; but there was nothing to show on the face of the bill
that the validity of this conveyance was questioned under that law.
The averment that the defendants were asserting
Page 264 U. S. 20
a conflicting title or interest did not show that the issues
which the assertion of their claims would present for trial would
necessarily involve the validity of the conveyances made under and
by virtue of the federal law any more than the legal sufficiency of
the many other conveyances set forth in the bill in the chain of
complainant's title. It is true that the issues made by the answer
clearly involved a consideration and construction of the effect of
the federal statute of May 27, 1908, and perhaps others, but that
fact subsequently developed would not furnish a ground for
jurisdiction of a federal district court. In
Florida Central
Railroad v. Bell, 176 U. S. 321,
176 U. S. 327,
it was said:
"It must be regarded as conclusively established by our
decisions that the jurisdiction of the circuit court must appear in
the plaintiffs' statement of their case,"
citing
Metcalf v. Watertown, 128
U. S. 588;
Colorado Central Mining Co. v.
Turck, 150 U. S. 138;
Oregon Railway v. Skottowe, 162 U.
S. 490;
Hanford v. Davies, 163 U.
S. 273;
Press Publishing Co v. Monroe,
164 U. S. 105.
And (pp.
176 U. S.
328-329):
"In view of the frequent and recent decisions of this Court on
this subject, it is not necessary to argue the proposition that the
mere assertion of a title to land derived to the plaintiffs, under
and by virtue of a patent granted by the United States, presents no
question which, of itself, confers jurisdiction on a Circuit Court
of the United States.
Blackburn v. Portland Gold Mining
Co., 175 U. S. 571."
The subject is discussed and cogent reasons for the rule are
given in
Shulthis v. McDougal, 225 U.
S. 561,
225 U. S. 569.
See also Taylor v. Anderson, 234 U. S.
74;
Shoshone Mining Co. v. Rutter, 177 U.
S. 505;
De Lamar's Nevada Co. v. Nesbitt,
177 U. S. 523.
Had the bill of complaint in this case averred that the suit
arose under the laws of the United States because
Page 264 U. S. 21
Hannah Barnett insisted that her deed to Sims was void under the
statutes of the United States, and so had created a cloud upon
complainant's title by her subsequent leases and contracts, the
district court could have taken jurisdiction on that ground alone.
Hopkins v. Walker, 244 U. S. 486,
244 U. S. 490;
Lancaster v. Kathleen, 241 U. S. 551;
Wilson Cypress Co. v. Del Pozo, 236 U.
S. 635,
236 U. S.
643-644. But nothing of this kind appeared in the bill,
and the development of the real federal issues in the answer or on
the trial could not supply the defect in the original jurisdiction
of the suit as one arising under the laws of the United States.
It being established that the sole ground for jurisdiction in
the district court was diverse citizenship, the decree of the
circuit court of appeals, affirming the decree of the district
court on appeal, was final, § 128 Judicial Code, and can only be
reviewed in this Court by writ of certiorari under § 240 Judicial
Code.
Schulthis v. McDougal, 225 U.
S. 561.
The appeal is dismissed for lack of jurisdiction.
-----
On March 178, 1924, the Court, through the Chief Justice, made
an order in this case as follows:
The court orders that there be added to the opinion already
filed herein the following:
"The third § of the Act of Congress approved June 25, 1910, c.
408, 36 Stat. 836, was repealed by the last paragraph of § 297 of
the Judicial Code, approved March 3, 1911, c. 231, 36 Stat. 1087,
1169."
The petition for rehearing is denied.