Formerly it was held in some of the circuit courts that the
averment of citizenship in a different state from the one in which
the suit was brought, and which it is necessary to make in order to
give jurisdiction to the federal courts, must be proved on the
general issue. But the rule now is that if the defendant disputes
the allegation of citizenship which is made in the declaration, he
must so plead in abatement.
Page 59 U. S. 77
The change of citizenship from one state to another must be made
with a bona fide
intention of becoming a citizen of the
state to which the party removes.
It was not such a bona fide
change where the plaintiff
only made a short absence, and it appeared from the deed under
which he claimed that he was in fact prosecuting the suit for the
benefit of his grantor, who could not sue, receiving a portion of
the land recovered as an equivalent for paying one third of the
costs and superintending the prosecution of the suit.
In such a case, the federal court has no jurisdiction.
This was an action of trespass to try title brought by League
against Jones and the other plaintiffs in error. League averred
himself to be a citizen of Maryland in his original petition or
declaration, and claimed title to a tract of land in the County of
Refugio, on St. Joseph's Island in the State of Texas.
League claimed under a deed made to him on the 11th of May,
1850, by one John Power, a citizen of Texas, acting for himself and
Hewetson and the representatives of Walker. This deed contained the
following trust, namely:
That League would commence the necessary suits to try title;
that if decided adversely, he would carry the cases to the Supreme
Court of the United States; that when the litigation should be
finally determined, he would convey two-thirds of the lands
recovered to the grantors; that League should pay one third of the
expenses of litigation heretofore incurred and all costs and
expenses for the future; that League might make sales and divide
the proceeds in the proportion of one third to himself and two
thirds to the grantors &c.
The defendants pleaded four pleas in abatement to the
jurisdiction of the court. The first plea set forth the substance
of the above deed, and then alleged that Power was, at the time of
the commencement of the suit, a citizen of Texas; that League was
also a citizen of Texas, but went to Maryland for the purpose of
setting up a pretense of being a citizen of that state, and after
remaining less than four months in Maryland, he returned to Texas;
that it was a fraudulent device to enable him to bring the suits
which Power could not have brought &c.
The second and third pleas need not be noticed, as no question
arose upon them in this Court. The fourth alleged that at the time
of the commencement of the suit, League was a citizen of the State
With respect to the first plea, the plaintiff demurred to it,
and the demurrer was sustained by the court. On the fourth plea,
the plaintiff took issue upon it, and a trial was had, which
resulted, under the instructions of the court, which will presently
be mentioned, in a verdict of the jury for the plaintiff. In order
to understand the instructions, it is necessary to say that it
Page 59 U. S. 78
admitted of record by the plaintiff, for the purposes of the
trial, that he was a citizen of the Republic of Texas from 1838 up
to the time of annexation of the United States, that he remained
domiciled in the State of Texas; and that he was a citizen of the
State of Texas, on the first day of July, A.D. 1850, and he waived
the necessity of proving the above facts.
And thereupon the court instructed the jury that
"It is incumbent on the defendants on the issue made to show
that the said plaintiff was a citizen of the State of Texas at the
time of filing the petition in this cause; that the admission made
by the plaintiff as above stated was, in law, presumptive proof
that at the time of filing the petition, the said plaintiff was a
citizen of the State of Texas; but that on the other hand the
allegation in the petition, that the plaintiff was, at the time of
filing the same, a citizen of the State of Maryland was prima
or presumptive proof that he was, as alleged, a citizen
of the said State of Maryland at that time, that these two
contradictory presumptions, one arising from the plaintiff's
admission, the other from the allegation in his petition, were
equivalent in weight, and counterbalanced or destroyed each other,
and that if there was no other testimony beside the admissions of
the plaintiff adduced on the part of the defendants to show that
the said plaintiff was, at the time of filing the petition, a
citizen of the State of Texas, the jury would on this point find
for the plaintiff, to each and every part of which charge except
the first and second clauses thereof, to-wit, that the burden of
proof was upon the defendants and that the plaintiff's admissions
was presumptive proof of his being a citizen of Texas at the date
of filing the petition the said defendants by their counsel
excepted, and tender this their first bill of exceptions, which
they pray may be signed, sealed, and made a part of the record in
this cause, and the same is now done accordingly."
"[SEAL] JOHN C. WATROUS"
"January 28, 1854"
Other exceptions were taken in the progress of the trial, but it
is not necessary to notice them.
Page 59 U. S. 79
MR. JUSTICE McLEAN delivered the opinion of the Court.
The plaintiff filed his petition in the district court, alleging
that he was seized in fee of a certain tract of land in the County
of Refugio, on St. Joseph's Island in the State of Texas,
beginning, on said island, at the point nearest the Aransas bar,
thence in a northeasterly direction with the seashore to the inlet
from the sea into the bay, thence north forty-five degrees west to
the shore of the bay or lagoon, thence, with the meanders of the
bay, to the place of beginning, containing three and one-half
leagues, be the same more or less. That the defendants entered the
same by force and ejected the plaintiff.
And the petition further represents that the plaintiff having
possession of several other tracts of lands of which he was
Page 59 U. S. 80
seized, the defendants forcibly entered and dispossessed him
&c., and the petitioner prayed that after due trial according
to the forms of law, he may have judgment for his damages aforesaid
for the recovery of the lands aforesaid.
The defendants plead that the court ought not to take further
cognizance of the action of the plaintiff because they say that the
plaintiff claims title under and through a pretended indenture,
purporting to be made and entered into on the 11th of May, 1850, by
a certain John Power, of the County of Refugio, and State of Texas,
a certain James Hewetson, of the State of Coahuila and Republic of
Mexico, by his attorney in fact, James Power, and the said James
Power, acting for and in behalf of the representatives of Duncan S.
Walker, deceased, of the one part, and Thomas M. League, of the
City of Galveston and State of Texas aforesaid, of the other part,
but really, and in law and fact, only by the said James Power, of
the one part, and the plaintiff, of the other part, which said
indenture purported to convey from James Power unto the plaintiff,
his heirs and assigns forever, the said tracts and parcels of land
described in the petition, and which the plaintiff seeks to recover
in this action.
The said conveyance being made to the plaintiff in trust for the
following purposes -- that the said League should commence all such
suit or suits as might be necessary to settle the title to said
lands in the district court, and, should a decision be made
adversely in said court, that he would prosecute a writ of error or
appeal to the Supreme Court of the United States, and when the
litigation was finally determined, the said League would convey
two-thirds of the land recovered, in which the title should be
settled, to said Power and Hewetson, and the representatives of the
said Walker, and their heirs and assigns, and until such
conveyances were made should hold said lands for the benefit of
said parties, and the plaintiff agreed to pay one-third of the
expense of litigation and the expense before that time incurred,
which it was agreed amounted to one thousand dollars.
And the defendants allege, that the said Power, at the time of
the conveyance and for years before and ever since has been a
citizen of Texas, and that the said plaintiff has resided in the
State of Texas for twelve years, and is a citizen of that state.
That before commencing suit, he went to Maryland and other states
and remained absent about four months, and on his return brought
this suit as a citizen of Maryland, and that the said conveyance
was colorable, and was made to give jurisdiction to the courts of
the United States.
Three other pleas were filed representing that the
Page 59 U. S. 81
was made by Power, a citizen of Texas and who is the real
plaintiff in the case, to give jurisdiction to the federal courts,
and that League is a nominal plaintiff.
The plaintiff admits, for the purposes of this cause, that the
only legal title which he claims to have to the several tracts of
land in his petition described is that conveyed to him by James
Power of the State of Texas.
A demurrer was filed to the first plea, and issues joined as to
At an early period of this Court it was held in some of the
circuit courts that the averment of citizenship, to give
jurisdiction, must be proved on the general issue. And as a
consequence of this view, if at any stage of the cause it appeared
that the plaintiff's averment of citizenship was not true, he
failed in his suit. But it is now held, and has been so held for
many years, that if the defendant disputes the allegation of
citizenship in the declaration, he must plead the fact in abatement
of the suit; and that this must be done in the order of pleading,
as at common law.
In this case, jurisdiction is claimed by the citizenship of the
parties. The plaintiff avers that he is a citizen of Maryland and
that the defendants are citizens of Texas.
In one of the pleas it is averred that the plaintiff lived in
Texas twelve years and upwards, and that, for the purpose of
bringing this suit, he went to the State of Maryland and was absent
from Texas about four months.
The change of citizenship, even for the purpose of bringing a
suit in the federal court, must be with the bona fide
intention of becoming a citizen of the state to which the party
removes. Nothing short of this can give him a right to sue in the
federal courts held in the state from whence he removed. If League
was not a citizen of Maryland, his short absence in that state
without a bona fide
intention of changing his citizenship
could give him no right to prosecute this suit.
But it very clearly appears from the deed of conveyance to the
plaintiff by Power that it was only colorable, as the suit was to
be prosecuted for the benefit of the grantor, and the one-third of
the lands to be received by the plaintiff was in consideration that
he should pay one-third of the costs and superintend the
prosecution of the suit. The owner of a tract of land may convey it
in order that the title may be tried in the federal courts, but the
conveyance must be made bona fide,
so that the prosecution
of the suit shall not be for his benefit.
The judgment of the district court is reversed, for want of
jurisdiction in that court.