Dissenting Opinion: Waite, C. J.

It has also been held that a right of preemption can never be acquired by intrusion upon the actual possession of another. Trenouth v. San Francisco, 100 U. S. 251; Atherton v. Fowler, 96 U. S. 513. In the present case, Carr alleges that he was in possession when the entry was made by Doolan and McCue, and this is not denied except by saying that Carr was not ousted at any time while he was the owner of the land.

As these parties have received from the government no recognition of their preëmption entries, therefore, and have not paid the purchase money, they stand before the law as mere volunteers and intruders on the possession of the patentees. They do not and cannot represent the title of the United States as against the patent, and are not entitled to be heard in opposition to it. As to them, in their present situation, the land was as much segregated from the public domain by the issue of the patent as it would have been if there were no dispute about the authority for its issue.

To show that Congress has been accustomed to treat such preëmption settlers as mere intruders and entitled to no consideration by the government, it is only necessary to refer to the act for the relief of purchasers of parts of the Soscol Ranch, just cited, and the act passed March 3, 1887, c. 376, 24 Stat. 556, which directs the Secretary of the Interior immediately to adjust, in accordance with the decisions of this court, each of the land grants made by Congress to aid in the construction of railroads, and theretofore unadjusted, and to demand from the several companies a relinquishment of their title to all lands that had been erroneously certified or patented. It there provides, § 4, that if any of the lands so erroneously certified or patented, with a few specified exceptions, have "been sold by the grantee company to citizens of the United States, or to persons who have declared their intention to become such citizens, the person or persons so purchasing in good faith, his heirs or assigns, shall be entitled to the land so purchased, upon making proof of the fact of such purchase at the proper land office, within such time and under such rules. as may be prescribed by the Secretary of the Interior, after the grants respectively shall have been adjusted; and patents

VOL. CXXV-41

Statement of the Case.

of the United States shall issue therefor, and shall relate back to the date of the original certification or patenting, and the Secretary of the Interior, on behalf of the United States, shall demand payment from the company which has so disposed of such lands of an amount equal to the government price of similar lands; and in case of neglect or refusal of such company to make payment as hereafter specified, within ninety days after the demand shall have been made, the AttorneyGeneral shall cause suit or suits to be brought against such company for the said amount."

I cannot believe that one whose claim to rights under the laws of the United States is thus ignored by Congress in what was decided in Frisbie v. Whitney, ubi supra, to be valid legislation, can avail himself of a want of authority in the officers of the government to issue a patent, which is valid on its face, to protect himself against eviction from the patented land on which he has entered as a trespasser, and without any color of title.

JOHNSON v. CHRISTIAN.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF ARKANSAS.

No. 195. Submitted April 2, 1888. Decided April 16, 1888. Decree vacated May 14, 1888.

In a suit in equity, in a Circuit Court, to obtain a release of land from liability under a deed of trust, the plaintiff had a decree. On an appeal to this court by the defendant, no evidence of the jurisdiction of the Circuit Court on the ground of citizenship was found in the record. This court reversed the decree with costs, and remanded the case for further proceedings.

The decree reversing the decree of the Circuit Court in this case on the ground that the record contained no evidence of the jurisdiction of that court was then vacated, because the record showed that the suit was brought to restrain the enforcement of a judgment in ejectment recovered in the same Circuit Court.

BILL IN EQUITY. The prayer of the bill was that the complainants"may have the order and decree of the court releas

Opinion of the Court.

ing their said lands from further responsibility under the said original deed of trust from James F. Robinson to Lycurgus L. L. Johnson, and the cloud upon their title to said lands and premises by virtue of the sale and purchase by defendant of their said lands and premises at the sale made by I. L. Worthington and Theodore Johnson, as executors, &c., as aforesaid, be removed, and that the pretended deed made to the defendant at such sale for the lands of complainants be decreed to be delivered up and cancelled, and that in the meantime complainants may have a temporary restraining order, issuing out of and under the seal of this court, enjoining and restraining defendant — enforcing or attempting to enforce his judgment in ejectment against said lands until the further order of the court, and that at the final hearing hereof said injunction be made perpetual;" and for further relief.

The decree was in the complainants' favor, from which the respondent appealed. The case is stated in the opinion.

Mr. Attorney General and Mr. D. H. Reynolds for appellant. Mr. U. M. Rose for appellees.

MR. JUSTICE BLATCHFORD delivered the opinion of the court.

This is a suit in equity, brought in the Circuit Court of the United States for the Eastern District of Arkansas, by George Christian and Jerry Stuart, against Joel Johnson, to obtain a decree for the release of certain land from liability under a deed of trust. The defendant appeared and answered, a replication was filed, and proofs were taken. The court, on final hearing, made a decree in favor of the plaintiffs. The defendant has appealed to this court.

On looking into the record, we can find no evidence of the jurisdiction of the Circuit Court. The bill commences in this way: "The complainants, George Christian and Jerry Stuart, citizens of the county of Chicot and State of Arkansas, would respectfully represent," etc. Joel Johnson is the sole defendant, but there is no allegation as to his citizenship, nor does that appear anywhere in the record. Under these circum

Opinion of the Court.

stances, this court must take notice for itself of the absence of the averment of the necessary facts to show the jurisdiction of the Circuit Court, and must reverse the decree, in accordance with the settled practice.

It is only necessary to refer to the case of Continental Ins. Co. v. Rhoads, 119 U. S. 237, where it was said, citing numerous cases: "It was settled at a very early day that the facts on which the jurisdiction of the Circuit Courts rest must, in some form, appear on the face of the record of all suits prosecuted before them;" and that "it is error for a court to proceed without its jurisdiction is shown."

It was also said in the same case, citing Morgan v. Gay, 19 Wall. 81, and Robertson v. Cease, 97 U. S. 646, that, if the party in regard to whom the necessary citizenship was not shown actually possessed such citizenship, the record could not be amended in this court so as to show the fact, but that the court below might, in its discretion, allow that to be done when the case should get back there.

In accordance with these views,

The decree of the Circuit Court is reversed, with costs, and the case is remanded to that court for further proceedings.

Mr. Rose thereupon, on the 28th of April, 1888, presented and obtained leave to file the following petition, entitled in the cause.

"The appellees beg leave to ask for a reconsideration of the judgment herein, because it is based on an obvious oversight.

"The opinion states that the object of the suit was 'to obtain a decree for the release of certain land from liability under a deed of trust.'

"But the object was to enjoin the execution of a judgment in ejectment obtained by appellant in the court below against the appellees.

"The bill states: 'That afterwards said defendant, [claiming] by virtue of said sale and purchase, instituted his suit in ejectment on the law side of the court, and your complainants, not being admitted to interpose their equitable defence to the

same, he did at the

Opinion of the Court.

term, 188-, obtain judgment in ejectment against them, and now seeks to oust them of the possession of said lands by writ of possession founded on said judgment.' Tr. 3.

"There is a prayer for temporary and permanent injunctions against the judgment at law. Tr. 4.

"The answer admits the allegations as to the judgment at law. Tr. 40.

"Of course in that case the judgment could only be enjoined by the Federal Court, and the citizenship of the parties is of no significance. Freeman v. Howe, 24 How. 450, and cases cited; Stone v. Bishop, 4 Clifford, 597; Dunn v. Clarke, 8 Pet. 1; O'Brien County v. Brown, 1 Dillon, 588; St. Luke's Hospital v. Barclay, 3 Blatchford, 262; Railroad Companies v. Chamberlain, 6 Wall. 748; Jones v. Andrews, 10 Wall. 327.”

On the 14th of May, 1888, MR. JUSTICE BLATCHFORD delivered the opinion of the court.

In this case, on the 16th of April last, this court made a decree reversing with costs the decree of the Circuit Court and remanding the case to that court for further proceedings. This was done upon the view that the record contained no evidence of the jurisdiction of the Circuit Court, arising out of the citizenship of the parties; but the fact was overlooked that the bill states that the defendant had obtained a judgment in ejectment in the same court, (the Circuit Court of the United States for the Eastern District of Arkansas,) and was seeking to oust the plaintiffs from the possession of the land involved, by a writ of possession founded on the judgment. The bill further sets forth that the plaintiffs in this suit, who are the appellants, had not been admitted to interpose in the ejectment suit an equitable defence to the same, which they state with particularity in the bill in this suit, and which they seek to avail themselves of herein. One of the prayers of the bill is for a perpetual injunction restraining the defendant from enforcing or attempting to enforce against the land the judgment in ejectment. The answer admits the recovery of the judgment in the same court.