Argument for Appellees.

it; the ascertainment of the respective interests of parties claiming under them; and the cancellation of such as appear to convey no interest. Its real object is stated near its close as follows: "That no remedy at law exists to enable the complainant to obtain his share of said lands in kind, or of proceeds if sold, and he is wholly without remedy except in chancery, for that, unless all the shareholders of said lands and all the lienholders thereon are discovered and marshalled, and the valid sustained, and the invalid excluded, and the legal titles quieted as against the illegal, the said lands will forever remain a forlorn wilderness." It is thus sought in one action to determine who are the owners of the land, and then to partition the same, which cannot be done. Chapin v. Sears, 18 Fed. Rep. 814. This is sought, regardless of adverse claims, interests, and conflicts.

etc.

The bill further seeks to recover all money expended by the plaintiff in this litigation, directly or indirectly, or in holding an alleged adverse possession, for taxes paid, for counsel fees, This is sought to be taken out of the proceeds of the sale of the land, upon final decree in partition, regardless of the fact that some of the adverse owners may succeed in establishing their titles to all or portions of the property.

It is further shown that a sale of the property will be neces sary. Reasons are alleged why the land cannot be partitioned after the title is litigated, but must be sold by commissioners under the decree of the court.

In order that such sale may be decreed, it is necessary that all parties interested in the property be joined in the proceedings. To decree such a sale while the title is in any manner in dispute, would be decreeing clouds upon the title, rather than clearing them up. The object of the bill thus being for a sale of the land, rather than for partition, such a bill must be distinguished in principle from one in which one or more parties seek the mere partition and setting off of their particular interests, in such manner that none of the parties interested can be injured or in the least affected. In the one case the object of the bill is simply to stake off the interest of the complainants; in the other it is to affect every foot of land so

Argument for Appellees.

that a purchaser at the sale decreed shall obtain a perfect title to the whole. In the former case the controversy might be separate, and all adverse claimants or parties interested might not be indispensable parties; but in the case at bar every party claiming any interest is a material and necessary party. The litigation cannot go on without affecting each and all. If dismissed as to one, it must be as to all, and, under such circumstances, relief cannot be granted to any. Barney v. Baltimore City, 6 Wall. 280.

In view of the citizenship of the parties, it follows that the court did not err in dismissing the bill for want of jurisdiction. The Federal Constitution allows to United States courts certain maximum jurisdiction, to be granted by Congress from time to time. Jurisdiction of the bill at bar can only be maintained under that clause of the Constitution which authorizes jurisdiction in suits between citizens of different States. The primary prerequisite in this case is that there shall be a controversy between citizens of different States. Congress has delegated to United States Circuit Courts jurisdiction between "citizens of different States," using the very language of the Constitution, with the limitation that in cases in which jurisdiction is dependent upon difference in citizenship, suit shall be brought only in the district of the residence of plaintiff or defendant. Act of August 13, 1888, c. 866, sec. 1; 25 Stat. 433. The entire scope of jurisdiction of these courts is laid down in section 1 of that act, and is not found elsewhere. Smith v. Lyon, 133 U. S. 315; Jewett v. Bradford Savings Bank, 45 Fed. Rep. 801.

A controversy between citizens of different States, when there are several plaintiffs or defendants, has been uniformly held for more than ninety years to be one in which each plaintiff is competent to sue, and each defendant liable to be sued at the place where suit is brought. There is no difference in this respect between cases at law and equity. Smith v. Lyon, 133 U. S. 315; Anderson v. Watt, 138 U. S. 694; Coal Co. v. Blatchford, 11 Wall. 172; Karns v. Atlantic & Ohio Railroad, 10 Fed. Rep. 309. Every party on one side. must be a citizen of a different State from every party on the other. Blake v. McKim, 103 U. S. 336.

Argument for Appellees.

In determining who are the parties, the court is not bound by the title of the cause, or the form of the pleadings. It can examine the record, ascertain the matter in dispute, and arrange the parties on opposite sides, according to the facts, without regard to their technical places in the litigation. Pacific Railroad v. Ketchum, 101 U. S. 289; Blake v. McKim, 103 U. S. 336; Peninsular Iron Co. v. Stone, 121 U. S. 631. This power extends to partition suits in chancery, Beebee v. Louisville &c. Railroad, 39 Fed. Rep. 481; Covert v. Waldron, 33 Fed. Rep. 311; Rich v. Bray, 37 Fed. Rep. 273; and is applicable to original suits as well as to those removed from state courts. Karns v. Atlantic & Ohio Railroad, 10 Fed. Rep. 309; Pacific Railroad v. Ketchum, 101 U. S. 289; Peninsular Iron Co. v. Stone, 121 U. S. 631.

Since the passage of the act of 1888, the Circuit Courts of the United States have no original jurisdiction in law or equity, in suits between citizens of one State, and citizens of the same and of another State. Karns v. Railroad Co., 10 Fed. Rep. 309; Smith v. Lyon, 133 U. S. 315; Covert v. Waldron, 33 Fed. Rep. 311. And as they will not allow their jurisdiction to be imposed upon by improperly invoking it, or allow parties by subterfuge or collusion to successfully thrust jurisdiction upon such courts, they will investigate such matters of their own motion, as it has been the constant effort of Congress and of United States courts to prevent litigation between citizens of the same State in United States courts. Anderson v. Watt, 138 U. S. 694; Rich v. Bray, 37 Fed. Rep. 273; Börs v. Preston, 111 U. S. 252; Bland v. Freeman, 29 Fed. Rep. 669.

The bill was therefore properly dismissed because, jurisdiction depending only upon difference in citizenship, the suit was not brought in the district of the residence of plaintiff or defendant. On this point the act of August 13, 1888, already referred to, reads as follows:

"But no person shall be arrested in one district for trial in another in any civil action before a Circuit or District Court. And no civil suit shall be brought before either of said courts against any person by any original process or proceeding in

tion

Argument for Appellees.

any other district than that whereof he is an inhabitant, but where the jurisdiction is founded only on the fact that the action is between citizens of different States, suit shall be brought only in the district of the residence of either the plaintiff or the defendant." This must be considered as a limitaupon that other clause of the same section granting generally to Circuit Courts jurisdiction in controversies between citizens of different States. The very language shows this, "and when jurisdiction depends," etc. Congress was empowered by sec. 2, art. 3, of the Federal Constitution to grant jurisdiction without this limitation, in controversies between citizens of different States, but this has never been done. It has been the constant effort of Congress and the courts to limit jurisdiction. It is narrower under the act of 1887 than theretofore. McCormick Harvesting Machine Co. v. Walthers, 134 U. S. 41; Anderson v. Watt, 138 U. S. 694; Smith v. Lyon, 133 U. S. 315; Bensinger Cash Reg. Co. v. Nat'l Cash Reg. Co., 42 Fed. Rep. 81.

That the last-named decision, in its construction of sec. 1, did not intend to limit it to cases at common law, or to any particular class of chancery cases, is evident from the cases cited therein. Most of them are chancery cases, and some are cases to enforce liens upon real or personal property within the district. As to the latter see Coal Co. v. Blatchford, 11 Wall. 172; Peninsular Iron Co. v. Stone, 121 U. S. 631; 30 L. Ed. 1020; New Orleans v. Winter, 1 Wheat. 91.

But the appellant contends that jurisdiction is given by § 8 of the act of March 3, 1875, c. 137, 18 Stat. 470, known as the Publication Act. That statute does not enlarge the jurisdiction of United States courts, but only provides a method of bringing parties before the court in a certain class of cases wherein there is jurisdiction otherwise. Brigham v. Ludding ton, 12 Blatchford, 237; Pacific Railroad v. Missouri Pacific Railway, 3 Fed. Rep. 772; Jewett v. Bradford Savings Bank, 45 Fed. Rep. 801; Van Antwerp v. Hulburd, 7 Blatchford, 426; Detweiler v. Holderbaum, 42 Fed. Rep. 337; Remer v. Mackay, 35 Fed. Rep. 86.

United States courts have no jurisdiction except such as the

VOL. CLV-5

Argument for Appellees.

statutes clearly confer. No presumption of jurisdiction exists. Sewing Machine Cases, 18 Wall. 553; Anderson v. Watt, 138 U. S. 694; Börs v. Preston, 111 U. S. 252; Menard v. Goggan, 121 U. S. 253; Robertson v. Cease, 97 U. S. 646; Brown v. Keene, 8 Pet. 112.

The entire jurisdiction given to the courts is sought to be concentrated in § 1 of the act of 1888. This is the general jurisdictional clause, and none other is intended. The wording of the act is significant. Jurisdiction is granted in § 1, with the limitation that "where the jurisdiction is founded only on the fact that the action is between citizens of different States, suit shall be brought in the district of the residence of either plaintiff or defendant." Then comes § 8 and says that the act shall be so construed as to keep in force the publication act. This does not mean that the publication act shall be paramount, and that citizenship and district within which a party is entitled to be sued shall be disregarded.

If the section which keeps the publication act in force was intended to change any of the provisions of § 1 it would have been mentioned therein as a limitation, just as is the limitation to the clause providing for controversies between citizens of different States, viz., the provision as to where parties shall be sued.

If the publication clause is a jurisdictional clause, it is broad enough to go beyond anything permitted by the Constitution, as it is without limit as to difference of citizenship, or as to districts. Any one could sue any other person anywhere in the whole world in a Circuit Court, regardless of citizenship or any other constitutional limitations, in a certain class of cases therein named. It is plain to be seen that such a construction would array the publication clause in conflict with all the limitations contained in § 1, and we would have an act inconsistent with itself and impossible to be construed. Brigham v. Luddington, 12 Blatchford, 237; Bensinger Cash Register Co. v. National Cash Register Co., 42 Fed. Rep. 81.

If, however, this clause is construed to give a right to proceed by publication only in cases in which the court otherwise