Opinion of the court. objection is not a valid one under the statutory rules of pleading prescribed in that State. Suppose the general rule, however, to be otherwise, still the court is of the opinion that the objection, even if it had been made earlier, could not avail the defendants, as they did not make it by demurrer or in the answer, as the express provision of the statute is that unless it is made by demurrer or answer "the defendant shall be deemed to have waived the same." Justice requires that that rule shall be applied in this case, as the case has been pending more than ten years, having been twice heard in the Common Pleas, once in the Supreme Court of the State, twice before the present hearing, including the hearing on the motion, in this court, and a second time in the Supreme Court of the State, and is now here on a second writ of error after this court has decided that the plaintiff has a complete, perfect, and unqualified right, under the patent granted to the original donee or his legal representatives. Unless the rule suggested is applicable in this case it is difficult to imagine a case where it would be, as the petition presents every fact constituting the cause of action, and it cannot be denied that the relief prayed is appropriate to the cause of action alleged, and the practice in such a case is, under the system of pleading adopted in that State, that the court will give the relief, no matter whether it be legal or equitable, if the facts alleged are fully proved, as the rule is that if the facts stated in the petition give a right of action the plaintiff ought to recover.* Where a cause is tried by a court without a jury, the Supreme Court of the State will affirm the judgment if the facts found support the judgment. Under the code the plaintiff is entitled to all the relief that would formerly have been afforded him both by a court of law and equity. If the defendant has answered, * Scott v. Pilkington, 15 Abbott's Practice Reports, 285. Robinson v. Rice, 20 Missouri, 236; Butterworth v. O'Brien, 24 Howard's Practice Reports, 438. Rankin v. Charless, 19 Missouri, 493; Winterson v. Railroad Co., 2 Hilton, 392; Patrick v. Abeles, 27 Missouri, 185. Opinion of the court. the court may grant the plaintiff any relief, under the code, consistent with the case made by the complaint and embraced within the issue. So, where the facts are sufficiently stated in the petition, the Supreme Court of the State hold that the plaintiff may have such judgment as the facts stated will give him, although he may have asked for a different relief in the prayer of his petition.† Exactly the same rule is laid down in numerous adjudications in other States, and those of very high respectability, showing that such is the general rule in many jurisdictions, and it is believed that no case can be found where a different rule has ever been adopted in a case finally determined in the Supreme Court of Errors, and remanded to the subordinate court under a mandate directing the subordinate court to execute the decree of the appellate tribunal. Where a defendant put in his answer, instead of a demurrer, and the cause came to be heard on the merits, Chancellor Kent held that it was too late to object to the jurisdiction of the court on the ground that the plaintiff might have pursued his remedy at law.‡ After a defendant has put in an answer to a bill in chancery, submitting himself to the jurisdiction of the court, it is too late, says Chancellor Walworth, to insist that the complainaut has a perfect remedy at law, unless the court is wholly incompetent to grant the relief sought by the bill.§ Such a defence was never made in the case until the first opinion of the court heretofore delivered in the case was read in court and published. In that opinion the court decided that Labeaume did not acquire the legal title to the tract of 4 x 4 arpents, under the patent granted to him, as Marquat v Marquat, 12 New York, 341. Miltenberger v. Morrison, 39 Missouri, 78; Meyers v. Field, 37 Id. 434. Underhill v. Van Courtlandt, 2 Johnson's Chancery, 369; Livingston v. Livingston, 4 Id. 290. ? Grandin v. Le Roy, 2 Paige, 509; Hawley v. Cramer, 4 Cowen, 727; Ludlow v. Simond, 2 Caines's Cases, 56; Le Roy v. Platt, 4 Paige, 81; Davis v. Roberts, 1 Smedes & Marshall's Chancery, 550; Osgood v. Brown et al, 1 Freeman's Chancery, 400; May v. Goodwin, 27 Georgia, 353; Burroughs v. McNeill, 2 Devereux & Battle's Equity, 300; Rathbone v. Warren, 10 Johnson, 595. Opinion of the court. the saving clause in the patent reserved any valid adverse right which may exist to any part of the tract; that the patent granted to Joseph Brazeau at the same time never became operative, as he refused to accept the same, and returned it to the land department; that the subsequent action of the Secretary of the Interior in cancelling the same, and in ordering a new survey, was authorized by law; that Joseph Brazeau, by virtue of that survey, and the patent granted to him June 10th, 1862 acquired the legal title to the tract of 4 x 4 arpents, notwithstanding the saving clause in the patent, as he was the rightful owner of the incomplete title to the same, as acquired by the concession granted under the former sovereign. Directed, as the court below was, to proceed in conformity to the opinion of the court, it is quite clear that it was their duty to reverse their judg ment and to grant to the plaintiff the relief prayed in his petition, that is, to enter a decree divesting out of the defendants all the right, title, and interest acquired or claimed by them and each of them from the other claimant, or any one claiming under him, and invest the same in the.plaintiff, and to put him in possession of the premises. Such being the conclusion of the court, it only remains to decide what disposition shall be made of the case. Having been once before remanded and the cause being here upon a second writ of error, the court, under the Judiciary Act, may at their discretion remand the same a second time or "proceed to a final decision of the same and award execution."* Somewhat different rules are enacted in the second section of the act of the 5th of February, 1867, which justify the conclusion that the court in such a case, under that regulation, may at their discretion, though the cause has not before been remanded, proceed to a final decision of the same and award execution, or remand the same to the subordinate court. Much discussion of those provisions is unnecessary, as it is clear that the court, under either, possesses the power to remand the cause or to proceed to a final decision. Judg† 14 Id. 387. * 1 Stat. at Large, 86. Opinion of the court. ing from the proceedings of the State court under the former mandate, and the reasons assigned by the court for their judicial action in the case, it seems to be quite clear that it would be useless to remand the cause a second time, as the court has virtually decided that they cannot, in their view of the law, carry into effect the directions of this court as given in the mandate. Such being the fact, the duty of this court is plain and not without an established precedent.* In causes remanded to the Circuit Courts, if the mandate be not correctly executed, a writ of error or appeal, says Mr. Justice Story, has always been supposed to be a proper remedy, and has been recognized as such in the former decisions of this court. Writs of error from the judgments of State courts have the same effect as writs of error from the Circuit Courts, and the act of Congress in its terms provides for proceedings where the same cause may be a second time brought up on a writ of error to this court. It was contended in that case that the former judgment of this court was rendered in a case not within the jurisdiction of the court, to which the learned justice, as the organ of the court, gave several answers. In the first place, he said, "it is not admitted that, upon this writ of error, the former record is before" the court, as the error now assigned is not in the former proceedings, but in the judgment rendered upon the mandate issued after the former judgment. He also proceeds to show that a second writ of error does not draw in question the propriety of the first judgment, adding that it is difficult to perceive how such a proceeding could be sustained upon principle, and that it had been solemnly held in several cases that a final judgment of this court is conclusive upon the parties and cannot be re-examined. Suffice it to say the rule is there settled, that where the cause has once before been remanded and the State court declines or refuses to carry into effect the mandate of the Supreme Court, the court will proceed to a final decision of the same and award execution to the prevailing party; nor is that a solitary ex * Martin v. Hunter, 1 Wheaton, 354. Opinion of the court. ample, as the decree in Gibbons v. Ogden,* was also entered in this court. It follows that that part of the decree of the Supreme Court of the State dismissing the petition must be reversed, with costs, and that a decree be entered in this court for the plaintiff, that the tract of 4 x 4 arpents claimed by the plaintiff was confirmed by the commissioners to Joseph Brazeau, and that the final survey, and the patent of June 10th, 1862, issued to him or his legal representatives, gave him a complete title to the tract, and that the same tract, as meted and bounded in the petition, be decreed to the plaintiff, and that all the right, title, and interest of each and every one of said defendants in and to said tract of land, be divested out of said defendants and be vested in and passed to the plaintiff, to have and to hold to the said plaintiff, his heirs and assigns, forever. Apart from that, a claim is also made by the plaintiff for the rents and profits, and the record shows that the cause in the court where the original decree was entered was referred to a master to ascertain the amount, and that the master made a report which was confirmed by the court, but the decree of that court was reversed in the Supreme Court of the State, which would make it necessary that a new estimation of the rents and profits should be made before the claim can become the proper subject of a decree. Some reference was made to the subject in the argument, but it was by no means fully discussed. Years have elapsed since the hearing was had before the master, and in the meantime many changes no doubt may have taken place in respect to the occupation of the premises, and many of the occupants of the different portions of the tract may have deceased; great changes may also have taken place in the value of the property and in the state and condition of the improvements, which plainly renders it impracticable to do justice between the parties without a new reference, which is a matter of jurisdiction that this court is not inclined to exercise except * 9 Wheaton, 239. |
