Statement of the case. survey for Labaume's representatives, so procured by fraud, covin, and misrepresentation, conflicted with the patent and survey for Brazeau's representatives, and constituted a cloud upon the plaintiff's title. "Wherefore,"-thus ran the prayer of the plaintiff's petition" to the end that equity and justice may be meted out to the plaintiff, and that he may be protected in his just rights," the plaintiff prayed: 1. That the court would divest out of the defendants all right, title, and interest acquired or claimed by them and each of them under Labaume. 2. And would vest the same in the plaintiff. 3. And would put the plaintiff in possession. 4. And would cause an account to be taken of the rents and profits of the land, and give to the plaintiff judgment therefor. 5. And would give to him "such other relief as might be proper in the case." The patent to Labaume's representatives granted all the land in its exterior limits, "saving and reserving any valid adverse right that might exist to any part thereof.” The patent to Brazeau's representatives granted all the land included in its exterior limits, "saving and reserving any valid adverse right which might exist to any part thereof." The defendants answered on the merits of the case to the following effect: 1. That the 4 x 4 arpents confirmed to Brazeau were not properly located by the United States survey thereof inside of Labaume's survey. 2. That the confirmation to Brazeau was void. 3. That the survey for Brazeau's representatives was void for want of legal authority in the officers to make it. 4. That the patent to them was void for the same reason. 5. That the plaintiff, claiming under the confirmation and survey for Brazeau's representatives, was estopped to locate the land inside the Labaume patent, by matter in pais, long before their date. Statement of the case. 6. That the survey and patent for Labaume's representatives vested a title in them in fee simple. 7. That the defendants had no notice of Brazeau's claim, and were innocent purchasers of the Labaume title. 8. That the plaintiff, claiming under Brazeau, was barred by the statute of limitations. The defendants denied that any part of the 4 x 4 of Brazeau was inside the Labaume patent; that the patent or survey for Labaume's representatives was procured by fraud, covin, or misrepresentation; that the plaintiff had the Brazeau title to the 4 x 4. They set forth a former suit and judgment against the plaintiff prior in date to the plaintiff's survey and patent, in bar of this suit. And, finally, denied every averment in the plaintiff's petition in conflict with any part of their answer. And, "so having fully answered, the defendants asked for judgment and their costs." The cause "having been submitted to the eourt for a decision on the plaintiff's petition, and the answers of all the defendants and the exhibits and other evidence in the cause," the court found "all the issues in the cause for the plaintiff;" that the survey for Labaume, in 1799, was made to include the Brazeau's land by mistake or design; that the land was situated inside of the Labaume survey and patent; and that the Labaume survey and patent were issued and procured by fraud and misrepresentation, and in combination and confederacy by the defendants to keep the plaintiff out of possession of his property, and its rents and profits. The court then entered a decree extinguishing the claims. of the defendants in these words: "The 4 x 4 arpents is hereby decreed to the plaintiff, and all the right, title, and interest of each and every one of said defendants in and to said tract of land is hereby divested out of said defendants, and each of them, and is vested in and passed to plaintiff, to have and to hold to said plaintiff, his heirs, and assigns;" and "it is ordered, adjudged, and decreed that plaintiff do have and recover of defendants respectively the rents Statement of the case. and profits accrued during the respective possessions, and forasAch as the court is not advised what is the amount and other particulars thereof, Alexander Martin is appointed commissioner to take an account," &c. As soon as this finding and decree was made, the defendants moved for a new trial, because the court had improperly received or rejected evidence; because of an alleged erroneous holding which it had made about the power of a Secretary, of the Interior, and because the decision was against law and equity, and against the evidence and the weight of evidence. The motion for new trial was overruled, and the defendants appealed to the Supreme Court of Missouri. That court reversed the judgment of the Court of Common Pleas, and dismissed the plaintiff's petition. The grounds on which this reversal was made were not stated in the judg ment as entered of record.* * The opinion of the court, which, however, according to the well-settled rule of this court, would not, even if inserted in the transcript, inake any part of the record, disclosed the grounds of the reversal. (See 40 Missouri, 433.) The opinion opens with the declaration that the suit is one "in the nature of a bill of equity, seeking to divest out of the defendants the title held by them, and to vest the same in the plaintiff, and to put him in possession," &c. “The answer denies the equities . . . pleads in bar a final decree in chancery, in a former suit, between the same parties, and insists that the suit is barred by the great lapse of time." ... The court then enters into a comparison of title under the patents to the respective parties, and considers the equities lying behind the patents. It then says: "Courts of equity in this State exercise jurisdiction according to the principles of equity jurisprudence, excepting only as the same may have been modified by some special statute. . . . There is really no case made on the record which can entitle the plaintiff to relief under any head of equity jurisprudence." The court then sustains the plea of res judicata, saying that "the former decree in chancery between these parties proceeded upon the same substantial facts and grounds of equity that are here alleged again." As respects the plea of the statute of limitations the court says: "The great lapse of time and the statute of limitations have been urged on our consideration. On this it will be enough to say, that the defence resting upon a Spanish possession, under a concession and recorded survey, and continued to the present time under an absolute title from the United States, dated from the year 1806, needs no help, and could derive no additional strength from any statutes of limitations." The judgment for these reasons was reversed and the petition dismissed. ་་་་་་་ ་་་ ་་ ་ Statement of the case. The plaintiff claiming under a former patent from the United States then brought the case here,* as within the 25th section of the Judiciary Act,† under the assumption, of course, that the Supreme Court of Missouri had passed on his title set up under the United States, and had decided against it. It was here elaborately argued, and an opinion given by Mr. Justice Clifford in behalf of the court, in which it was decided "that the legal title to the tract of 4 x 4 arpents remained in the United States till June 10th, 1862; and that on that day, by virtue of a survey referred to and a patent of that date, Brazeau acquired the legal title to the tract."" The opinion went, however, largely besides into the merits of the case, and gave utterance upon every question at issue between the parties which it was necessary to decide to dispose of the case on their merits. These it declared were entirely with the plaintiff or complainant, who, it said, was justly and honestly owner of the land, and ended with an order of reversal of the decree of the Supreme Court of Missouri, "with directions to affirm the decree of the St. Louis Court of Common Pleas." Immediately upon the announcement of this order, Mr. P. Phillips, for the defendants in error, remarking to the court that the mandate should be merely to reverse, and "to proeeed in conformity with the opinion of this court," moved to reform the order; and the question whether the order to "affirm" was a proper one, was directed by the court to be argued. It was afterwards argued at length, Mr. Phillips and Mr. B. R. Curtis contending that it was not; but, as already said, that the decree in this court should be simply an order of reversal with directions to the Supreme Court of Missouri to proceed in conformity to the opinion that had been given here. The position of the counsel was that the answer of the defendants set up special defences involving the statute of limitations, res adjudicata, bonâ fide purchase, and similar matters of a local kind, purely, and over which the State court alone had jurisdiction; that the decree * See Magwire v. Tyler, 8 Wallace, 650. Statement of the case. of the Supreme Court of Missouri had been silent as to the grounds on which it dismissed the plaintiff's petition; that while if that court passed merely on the title derived from the United States (as in view of this court's taking jurisdiction of the case was now to be assumed), this court, under the twenty-fifth section, had authority to review and reverse it, yet that under no circumstances had this court authority to pass on those defences set forth in the record which were of a local nature only; and that no opinion of the judges of this court, separately or collectively, bound by authority the State court of Missouri on those points, or could deprive the defendants in error of the right to have that court pass upon them. Any mandate, therefore (the learned counsel argued), directing the Supreme Court of Missouri" to affirm the decree of the St. Louis Court of Common Pleas" would be a judgment by this court upon questions upon which it had no authority to pass. Mr. Justice CLIFFORD, delivering the opinion of the court on this new matter of the propriety of the form of order, as he had delivered that on the principal case, stated that the court, in the opinion delivered in that principal case, had "decided the following propositions," reciting numerous propositions pertinent to the merits; and reciting also, specifically, the decision as to the legal title's being in Brazeau. "Based upon these conclusions of law," the learned judge said, "the court gave the directions recited in the order" objected to; but now, after the argument upon the question of its propriety, had "come to the conclusion that a different direction would be more in accordance with the usual practice of the court." The order was accordingly reformed, and changed into an order such as the counsel for the defendants in error had asked for; that is to say, changed from an order "to affirm the decree of the St. Louis Court of Common Pleas" into an order of reversal, with a remand "for further proceedings in conformity with the opinion of the court." The learned justice said, however: "But the court adheres to the several propositions of law |