WILLIAM COOK et al., Plff. in Err.,

v.

ALBERT T. BURNLEY and Royal A. Porter.

(See S. C. 11 Wall. 659-672.)

Mexican title of Juan Cano, valid-insufficient adverse possession-plea in abatement, when too late-former suit-objection to deposition -continuous possession-Texas decisions as to innocent purchaser-decision on discretionary questions, not available as error.

Title of Juan Cano, a colonist, in the empressario grant of Martin De Leon, and to whom the commissioner of that colony conveyed the league of land Apr. 11, 1835, as decided in White et al. v. Burnley, 20 How. 235, is valid.

Where a defendant sets up title under a landwarrant, which he had located within the boundaries of the grant to plaintiff's grantor, and relied on adverse possession of three years under the junior title, such defense is insufficient.

A plea in abatement of a suit put in after the defendants had pleaded to the merits is too late.

Where the parties to a suit in a state court were not the same as in the present case, the suit in the state court cannot be pleaded in abatement.

Where, in a deposition taken under the 30th section of the judiciary act, there is no certificate by

NOTE. Piea in abatement of another suit pending, when good.

The law abhors multiplicity of actions and, therefore, whenever it appears on record, that the plaintiff has sued out two writs against the same defendant for the same thing, the second writ shall abate. 9 H. 6; Mo. 418, 539,; 5 Co. 61; Doctr. Pl. 10, 67; Renner v. Marshall, 14 U. S. (1 Wheat.), 215; Johnston v. Bower, 4 H. & M. 487.

Plea of a prior action pending for the same cause between the same parties is a good plea in abatement, and, if true when filed, cannot be defeated by a subsequent discontinuance of the prior action. Frogg v. Long, 3 Dana, 157; S. C. 28 Am. Dec. 69; 1 Chit. 443; 1 Salk. 329; 2 Raym. 1014.

Pendency of a suit in a foreign court or in a court of the United States is not pleadable in abatement or in bar of a proceeding in a state court. Mitchell v. Bunch, 2 Paige, 606 S. C. 22 Am. Dec. 669; Maule v. Murray, 7 Term. 470; Imlay v. Ellefsen, 2 East, 453: Trubee v. Alden, 6 Hun, 78; B'k of Australia v. Nias, 16 Q. B. 717; Ld. Dillon v. Alvares. 4 Ves. 357; Foster v. Vassall, 3 Atk. 587; Cox v. Mitchell, 7 C. B. N. S. 55; Eaton, &c. R. Co. v. Hunt, 20 Ind. 457; Lyman v. Brown, 2 Curt. 559.

Pendency of an action for same cause in U. S. circuit court, having jurisdiction, is a good plea in abatement in the state courts for the same district.

the magistrate that he reduced the testimony to writing himself, or that it was done by the witness in his presence, such omission is fatal to the deposition.

What is a continuous possession is a mixed question of law and fact.

Where a survey of a plat granted by the commissioner was laid down on the public map of the district, which was deposited in the general land office as a matter of record, this, according to the decisions in the courts of Texas, deprives the junior locator of the character of an innocent purchaser; so does actual notice of the prior grant.

Exceptions to the rulings of the court on motions to postpone the trial and to change the venue are not available on writ of error.

[No. 13. Dec. Term, 1867].

Submitted Dec. 6, 1867. Decided Dec. 23, 1867. N ERROR to the District Court of the Unit

The case is further stated by the court.

The suit was brought by Burnley and Porter, to recover a league of land situate on the western shore of Matagorda Bay, near the mouth of the River Levaca, in Calhoun County, Texas.

Messrs. W. & A. L. Merriman, George W. Paschal, and A. H. Evans for plaintiffs in error. Messrs. Greene Adams and W. P. Ballinger, for defendants in error:

The parcel in immediate controversy lies Smith v. Atl. Mut. F. Ins. Co. 22 N. H. 21; otherwise if it be for a district in another state. Sloan v. McDowell, 75 N. C. 29; Loyd v. Reynolds, 29 Ind. 299.

The pendency of an action in a state court is not a bar to a suit in U. S. circuit court or in supreme court of District of Columbia for same cause of action between same parties. Stanton v. Embry, 93 U. S. 548; White v. Whitman, 1 Curt. 494; Parsons v. Greenville, etc. R. Co. 1 Hugh, 279; Loring v. Marsh, 2 Cliff. 311.

The pendency of a suit in another state is not matter of abatement to a suit upon the same cause of action. West v. McConnell, 5 La. 424, 25 Am. Dec. 191; Chatzel v. Bolton, 3 McCord, 33; Salmon v. Wooton, 9 Dana, 422; Davis v. Morton, 4 Bush, 442; Bowne v. Joy, 9 Johns. 221; Walsh v. Durkin, 12 Johns. 199; Newell v. Newton, 10 Pick. 470; Telverton v. Conant, 18 N. H. 123; De Armond v. Bonn, 12 Ind. 607; Drake v. Branduer. 8 Tex. 351; Smith v. Lathrop, 44 Pa. St. 326; Humphries v. Davis, 38 Ala. 199; McJilton v. Love, 13 Ill. 486; Allen v. Watt, 69 Ill. 655; Trabee v. Short, 5 Cold. 293.

Tendency of a proceeding in rem in a foreign jurisdiction may be pleaded in abatement of the same cause of action, so also may a proceeding in a mixed action in which a specific thing as well as the performance of a personal obligation is de

north and adjoining Powderhorn Bayou, comprising some one hundred and seventy nine

acres.

Mr. Justice Nelson delivered the opinion of the court:

The plaintiffs derived their title in this case from Juan Cano, a colonist, in the empressario grant of Martin DeLeon, and to whom the commissioner of that colony conveyed the league of land on the 11th of April, 1835.

Several objections are taken to this deduction of title, but it is not material to notice them particularly, as they were before the court in the case of White et al. v. Burnley, 20 How. 235, 15 L. ed. 886, already reported, in which these several objections were overruled. The only difference between that case and the present is, that the plaintiffs, Burnley and Jones, there claimed under a deed by the commissioner 668*] to a colonist by the name of *Benito Morales for a league of land lying on the Matagorda Bay, north and adjoining this grant to Cano. Both these colonists conveyed to Leonardo Manso, one on the 27th, the other on the 20th May, 1835, from whom the present plaintiffs derived title to both tracts. Porter, in the present suit, represents the interests of Jones in the former, and Cook, the principal defendant in this, was a defendant in that one. We find no question here, as it respects the deduction of title under the grant of the commissioner, but was taken in the former case, fully considered and overruled. White, one of the defendants there, and who is a defendant here, set up title under a land-warrant, which he had located within the boundaries of the grant to Morales, and, besides his objections to the deduction of the plaintiffs' title, relied on adverse possession of three years under the junior title. In the present case, Cook sets up a like defense under the location of a head right and survey, which is within the boundaries of the grant to Cano.

Among other defenses relied on in the present case, not in the former, is a plea in abatement of a suit, commenced by Burnley & Jones, against certain defendants, for the same cause manded. Lowry v. Hali, 2 Watts & S. 129, 37 Am. Dec. 495.

Pendency of a suit in a state court of another state for same cause, in which property enough has been attached to satisfy the demand, is ground for abatement of a suit in U. S. circuit court. Lawrence v. Remington, 6 Biss. 44; Nelson v. Foster, 5 Biss. 44; U. S. v. Dewey, 6 Biss. 501.

To sustain the plea of a former action pending it must appear that the first action is for the same cause as the second. It is not enough that the property in controversy in both actions is the same. Dawley v. Brown, 79 N. Y. 390; Stowell v. Chamberlain, 60 N. Y. 272; Kelsey v. Ward, 16 Abb. Pr. 98.

The pendency of an action for goods sold at one date is not a defense to an action for goods sold at a subsequent date. Zimmerman v. Erhard, 83 N. Y. 74.

Both actions must be for the same cause and against the same parties. Owens v. Loomis, 19 Hun, 606; Gardner v. Clark, 21 N. Y. 403; Geery v. Webster, 11 Hun, 428; Harris v. Johnson, 65 N. C. 478; Prosser v. Chapman, 29 Conn. 515.

Where two suits are brought and the subject of the action and the parties are the same and the entire relief sought for in one can be obtained in the other, the last one brought should be stayed. Burlingame v. Parce, 12 Hun, 149; People v. Northern

of action, including the defendant, Cook, in the district court for the county of Calhoun. This plea was stricken from the record on the ground that it was put in after the defendants had pleaded to the merits, upon general principles, and came too late. And, further, that if it had been pleaded in season it would have constituted no bar to the suit in this court. White v. Whitman, 1 Curt. 494; Piquignot v. Penn. R. Co. 16 How. 104, and Wadleigh v. Veazie, 3 Sum. 165. It also appears that the parties to the suit in the state court were not the same as in the present case.

The defendants, in the course of the trial, offered in evidence the deposition of H. Beaumont, taken under the 30th section of the judiciary act, which was objected to and excluded. There is no certificate by the magistrate that he reduced the testimony to writing himself, or that it was done by the witness in his [*669 presence, which omission is fatal to the deposition. Elliott v. Piersol, 1 Pet. 335, 336.

The following portions of the depositions of Moore, Schwartz, and Howeston were excluded, on objections taken by the court. The testimony had reference to the possession of the locus in quo.

"Witness knows that said Cook and his tenants had continued possession of said land since the fall of the year 1849, or early part of the winter of 1849-50; say December, 1849, and down to the present time."

tions of the testimony of the other two are subThis is in the deposition of Moore; the portaken de bene esse, without notice, in December, stantially the same. The depositions had been 1852. In January following the depositions of these same witnesses were taken on notice to the plaintiffs, and these were given in evidence by the defendants.

On looking at the testimony in the first depositions, it will be seen that the witnesses had testified to the fact of the possession of Cook, and of his tenants, naming them; and of the time the tenants held the possession; and when they left the premises; also, the fact of the tenancy under the agreement with Cook; and of the improvements made by the tenants. Whether or not these facts constituted a continuous posR. R. Co. 53 Barb. 98; McCarthy v. Peake, 18 How. Pr. 138. Proceedings in personam and in rem to collect the same demand do not necessarily interfere until satisfaction is obtained in one. Nelson v. Couch,

15 C. B. (N. S.) 99; Harmer v. Bell, 7 Moore, 267; 22 Eng. L. & E. 62; The Kalorama, 10 Wall. 204, 19 L. ed. 941.

A statutory arbitration is a good defense in abatement to a subsequent action between the parties to recover a demand included in the submission. Fahy v. Brannagan, 56 Me. 42.

Party cannot defeat suit brought against him by pleading the pendency of a suit brought by himself against the other party. New England Screw Co. v. Bliven, 3 Blatchf. 240.

It is no ground for the abatement of an action at law, that a suit in equity is pending, in which the plaintiff asks for a decree of the same money, where the result of the action may be necessary for the perfecting of a decree in that suit. Kittredge v. Race, 92 U. S. 116. But see Williamson v. Paxton, 18 Gratt. 475.

Plea in abatement of pendency of suit for same cause of action will not be sustained, if such suit is a nullity, or where the first writ or complaint is so defective that no recovery could be had, or where court had no jurisdiction of former suit. Phillips v. Quick, 68 Ill. 324; Rogers v. Hoskins, 15 Ga. 270; Reynolds v. Harris, 9 Cal. 338.

may be used by the jury for its shape and boundaries. It appears to have been surveyed by magnetic courses and, if the survey returned by Beaumont was not surveyed by the magnetic, but by the true, course, the jury must make allowance for the difference, and Beaumont's cannot be regarded as showing the original survey. The fourth call is from the end of the third line with the bend of the Laguna Madre of Matagorda, to the beginning."

for instructions.

670*] *1. "If L. Manso was an alien enemy at the time he executed the deed to Grayson, he conveyed no title through which the plaintiffs

could recover."

This question was before the court in the case of White et al. v. Burnley, 20 How. 235, 15 L. ed. 886, already referred to, very fully considered, and overruled. We need only to refer to that case.

2. "If the plaintiffs' title was not on record in the county where the land lies, or in the General Land Office, at the time the defendant located his land-warrant, and completed his survey, and obtained his patent, he is in the position of an innocent purchaser, and entitled to recover."

The location of Cook under his land-warrant of the premises in question, was made on the 12th September, 1849, and the survey thereon the 15th May, 1850. The first location was under a land-warrant issued to Gwartney, certificate No. 990, and made 5th January, 1847. But this was abandoned, and a new one made at the time above mentioned, under a certificate to J. A. Wells, No. 5072. It appears from the testimony of E. Linn, who has been the legal surveyor of the district in which the premises are situate, from 1838 to 1840, and from 1847 to the time when his deposition was taken, that as early as 1838, this survey of the plat of eight leagues of L. Manso, Cano and Morales, granted by De Leon, the commissioner, was laid down on the public map of the district, and which was deposited in the General Land Office as a matter of record. This, according to the decisions in the courts of Texas, deprives the junior locator of the character of an innocent purchaser. So does actual notice of the prior grant, which is also proved in the present case. Guilbeau v. Mays, 15 Tex. 410, 14 Tex. 391.

3. "If the plaintiffs' title includes an island surrounded by water, it is bad as to the island." There is no testimony in the case tending to prove the fact.

4. "If the jury, from the evidence, can fairly and justly construe both the plaintiffs' and defendants' title, so that each can stand, it is their duty to do so."

671*] *There is no evidence in the case warranting such an instruction. Besides, it was the duty of the court to construe the paper titles of the parties.

The court gave but one instruction to the jury, which was "that the diagram attached to plaintiffs' grant is evidence to show the desig

The point of the objection to this charge is that the court permitted the jury to depart from the survey of the league of land by Beaumont, who had been appointed by an order of the court to make it according to the courses, distances, and landmarks in the original survey by the government at the time the grant was made. The survey on the ground was made by Beaumont in pursuance of this order, but a civil engineer, by the name of Thelipapa, made the map from field notes. He was examined as a witness, and stated that he made the map from field notes furnished him by Beaumont. But, on comparing these field notes with those accompanying the order of survey, they were found to be different. He states that he made the map from courses and distances without any call for corners. In this respect the field notes of Beaumont differed from the original field notes, as they specified, in addition to distances, the corners of the league in the survey by the government. There was, also, some evidence that the original survey was made by magnetic courses, and the one by Beaumont by the true course, which might account for the difference between the two surveys. The court, as will be seen, suggested this to the jury, but left the question to them to make an allowance for the difference. We perceive no objection to this instruction.

Upon the subject of this survey, it is quite apparent on the evidence, that the whole of the controversy between the parties consisted in a difference of opinion as to what line constituted a boundary upon the bay of Matagorda. The defendants insisting that there is a distinction to be made between the lagunas, some of them small, others of considerable magnitude, which are formed by tidal currents extending into the land from the bay, and sometimes connecting with each other along the greater part of this coast, and the waters of the bay itself, while the plaintiffs insist that these lagunas belong to the bay and are parts of it, and that *a [*672 line bounded on the lagunas is the same as bounded on the bay. It seems in this case quite plain that the grant to Cano was bounded or intended to be bounded on the bay, as the first line given in the description of the tract commences on the bay and terminates at the place of beginning, following down the bends of the Laguna Madre, which designates the bay or great lake of Matagorda.

There were other exceptions taken in the case to the rulings of the court in the progress of the trial, such as motions to postpone the trial, and to change the venue, which it is not material to notice further than to say that they are not available on a writ of error.

After the best consideration we have been able to give the case, we think there is no error in the judgment below, and it must be affirmed.