be erroneous was the affirmance of a judgment | its claim, if any, to the minerals in the soil, is of the district court of the 13th judicial district a license to all the world to take it; such a supof California. The judgment thus affirmed was posed license is either "an authority exercised rendered in an action brought by Boggs against under the United States," or "a commission held the company, to recover possession of one hun- under the United States," within the meaning dred and sixty acres of land on the Mariposa es- of the judiciary act, and that an argument in tate, and to restrain the defendant from using favor of such a license is an argument upon the or permitting waste upon the property. The "validity" of such "authority," or the "concomplaint alleged a patent from the United struction" of such "commission." This theory States to General Frémont; a lease by him might properly be thus restated: the forbearto the plaintiff for seven years; and the entry ance of the government to forbid the taking of and committing of waste by the defendant. The its minerals is a license to everybody to take it; answer alleged, among other things, the in- everybody, therefore, holds either "an authority validity of the patent to Frémont, and claimed under the United States" or "a commission unthat the land, of which the company had taken der the United States," to take it. The argupossession, was vacant and unappropriated. ment for such a license is an argument upon the The trial was by the court without a jury. validity of the authority, or the construction of the commission; and a decision that the forbearance does not constitute a license, is a de

The court decided and found the following points and matters of law, to wit:

First. That it was not competent for the decision against the validity of the authority, or fendant to attach or impeach the patent mentioned in the complaint and answer. Second. That the plaintiff was not estopped from insisting on his legal title to the premises sued for.

Third. That the defendant was not entitled to any legal or equitable relief against the plaintiff's title.

Fourth. That the plaintiff was entitled to the judgment and decree of the court against the defendant, for the recovery of the possession of the premises sued for as described in the complaint, with the appurtenances and for the sum of $1,690, damages, and costs of suit; and it was ordered that judgment be entered accordingly.

It was, therefore, considered, adjudged and decreed by the court, that "the said plaintiff Biddle Boggs, do have and recover of and from the said defendant, the Merced Mining Company, the possession of the said premises set forth in said complaint.

And it was further considered, adjudged, and decreed by the court, that "the said plaintiff do have and recover of and from the said defendant, the said sum of $1,690 in damages." On appeal to the supreme court, his judgment was, at first, reversed; but a re-argument being ordered, the judgment was finally affirmed.

Mr. David Dudley Field, for the motion: In these findings of fact and law, there does not appear to have arisen any question respect ing the "validity of a treaty or statute of, or any authority exercised under the United States;" or respecting "the validity of a statute of, or any authority exercised under the state" of California, "on the ground of their being repugnant to the Constitution, treaties, or laws of the United States;" or respecting "the construction of a clause of the Constitution, or of a' treaty or a statute of, or commission held under, the United States."

The question whether a patent of the United States to land in California carried the minerals under its service, is undoubtedly discussed; but the decision was in favor of such an operation of the patent. There should seem, therefore, to be, so far as the findings are regarded, no reason for saying that the case comes within the 25th section of the judiciary act.

There certainly can be no pretense for such an allegation, because, it being the theory that the forbearance of the United States to assert

against the title, right, privilege, or exemption specially set up or claimed under the commission. The statement of this theory would seem to be a sufficient refutation of it.

The construction given to the judiciary act in respect to appeals from state courts, has been so often stated and restated by this court, that it would almost seem to be superfluous to refer to authorities. The case must be more clearly within the act, and the point must have been distinctly taken and ruled in the state court, before this court can take jurisdiction.

In the case of Farney v. Towle, 1 Black, 350, 17 L. ed. 216, Mr. Chief Justice Taney took occasion to restate the doctrine of this court.

For the authorities in relation to the general question, see Gelston v. Hoyt, 3 Wheat. 246; Lessee of Fisher v. Cockerell, 5 Pet. 248; Menard v. Aspasia, 5 Pet. 516; Neilson v. Lagow, 7 How. 772; Maxwell v. Newbold, 18 How. 511, 15 L. ed. 506; Hoyt v. Sheldon, 1 Black, 520, 17 L. ed. 66; Day v. Gallup, 2 Wall. 97, 17 L. ed. 855.

Messrs. Reverdy Johnson and Henry MoCrea, contra.

Mr. Chief Justice Chase delivered the opinion of the court:

A motion has been made to dismiss the writ of error in this cause for want of jurisdiction.

On looking into the record, we find that Boggs brought suit against the Merced Mining Company, in the state of California, for the possession of certain mineral lands, with the mines therein, situated in Mariposa county, and eventually recovered judgment in the supreme court of that state.

The case was submitted to the court both as to matters of fact and matters of law, without a jury.

The recovery was resisted on several grounds, among which was possession of the land prior to any claim of the lessor of Boggs, according to the usages and regulations established and in force in the mining district, within which it was, for the purpose of extracung the gold from the rock; by which prior possession of the said mineral lands, an appropriation of the quartz veins therein, the mining company claimed to have acquired a perfect right thereto.

No question is raised by the pleadings, of which this court has jurisdiction upon writs of error to the supreme court of California, unless

It is the same case, in principle, as would be made by an allegation in defense to an action of ejectment, of a patent from the United States with an averment of its loss or destruction, and a finding by the jury that no such patent exist- THE LA CROSSE & MILWAUKEE R. R. CO. and Selah Chamberlain;

this court would have no jurisdiction to re- THE MILWAUKEE & MINNESOTA R. R. CO., view it.

Such general appearance, after being entered, cannot, after the lapse of a term, be altered by the Argued Mar. 29, 1866. Decided Apr. 3, 1866. clerk to a special appearance, nor withdrawn, without leave of the court.

That upon this Cleveland bill, a final hearing was had on the merits, and the court rendered a decree; that the decree did not merely declare the lease and judgment void as to creditors; but that the court absolutely annulled the lease and vacated the judgment inter partes and as to all the world.

trict of Wisconsin, on the 11th day of January, | itors and was, therefore, void; and that the 1860, for $14,413.18, with the usual allegations judgment was equally void. of a creditor's bill in regard to the issuance and return of the execution, the amount due, etc. That the railroad company, on the 26th day of September, 1857, was greatly embarrassed and in failing circumstances; and that attachment suits had been and were being commenced against the company; that the company was unable to pay its debts and prosecute the com- That, notwithstanding said perpetual injuncpletion of its road: "And that the company tion, the said Chamberlain continued in possesthen and there designing and intending to hin- sion until after December 1st, 1859, and that der, delay and defraud its creditors, and to after the said Cleveland decree he received net hold its creditors in defiance and apply its rev-earnings amounting to $192,548. enue and means to the completion of its road, did pretend to make, and in form did make, execute and deliver to said Selah Chamberlain, a pretended deed or lease," copy of which is attached as an exhibit. The bill avers that the company had no legal power to make the lease, and it was, for that reason, null and void.

"All of said sums being net earnings and moneys accruing from the rents tolls and income of said railroad company, and which said Chamberlain received without shadow of right and without any claim thereto; and all of which money the said Chamberlain holds in trust for the said railroad company or its creditors," etc. Messrs. Matt. H. Carpenter and Caleb Cushing, for the appellants: We impeach this lease and judgment upon the following grounds:

without authority of law, and is ultra vires; (3) the lease is void on its face, apart from the intention with which it was given, in that it does in fact and by its own terms, hinder, and delay creditors and reserve to the company the benefit of its property in defiance of its creditors; (4) that both lease and judgment are obsolutely annulled and vacated inter partes by the Cleveland decree.

That afterwards, on the 12th day of October, 1857, the company and Chamberlain did on that day further combine and confederate together to hinder, delay, and defraud the creditors of the said company, etc., and "did then and there (1) Both are by the demurrer admitted to agree that said company should, and said com- have been given and confessed with the intent pany then and there did, confess and suffer a thereby to hinder, delay, and defraud the credjudgment against it, and in favor of said Cham-itors of the company; (2) the lease was given berlain in, the district court of the United States for the district of Wisconsin, without service of process or suit brought, for $629,089.72;" and "that said company, when it confessed and suffered said judgment to pass as aforesaid, was not indebted to the said Chamberlain in any considerable amount," and "that said indebtedness was less than $50,000;" "that said company never received any consideration for said judgment except said indebtedness; and that said judgment was only confessed by said company in pursuance of said unlawful combination and confederacy between said company and said Chamberlain, and for the purpose of bolstering up said fraudulent deed or lease, and for the purpose and with the intent and design on the part of said company and its board of directors and the said chamberlain, to thereby hinder, delay and defraud the creditors of said company," etc.

That said lease, apart from the design with which it was executed, did, in fact, in its practical operations, hinder and delay creditors unreasonably; and created and continued trusts in favor of said company to an unlimited amount; and enabled the company to prosecute its business and apply the earnings of its road to its completion in defiance of creditors.

That Chamberlain, immediately after the execution of said lease, entered into possession under it.

That on the 3d day of October, 1857, one Newcomb Cleveland, obtained a judgment in said district court against said company for over $100,000; issued execution thereon, and levied on the railroad and property covered by the lease to Chamberlain. That afterwards said Cleveland exhibited his bill of complaint against said company and said Chamberlain; that the Cleveland bill sought to set aside the Chamberlain lease and judgment upon two grounds: (1) That the lease was executed without authority by the company, and was, therefore, ultra vires and void; (2) that it was given to defraud cred

The Cleveland decree was not one merely postponing the lease and judgment of Chamberlain as to other creditors; it absolutely annulled the lease and vacated the judgment. The language of the decree is as follows: "It is ordered, adjudged and decreed by the court, that the article of agreement (the lease) be, and hereby is vacated, annulled and made void, so that the same shall not hereafter be of any force or effect whatever."

"And that the said Chamberlain be, and hereby is perpetually enjoined and restrained from using, managing, running, controlling or meddling with said railroad, or the rolling stock, personal property, or any of its appurtenances or franchises, or anything connected therewith, under or by virtue of said article of agreement."

"And it is further ordered, adjudged, and decreed by the court, that the judgment of the said Selah Chamberlain against the La Crosse & Milwaukee Railroad Company entered in this court;" "And all executions and proceedings thereon be, and hereby are vacated, annulled, made void, set aside, so that the same shall have no further effect whatever."

When a judgment is absolutely "vacated annulled, made void, set aside, so that the same shall have no further effect whatever," can it possibly be claimed that the judgment is perfectly good as between the parties to it, and remains a lien upon the debtor's property against all the world except one Cleveland?

It is certain Chamberlain could not thereafter manage the road under his lease, for he was "perpetually enjoined and restrained from

pany, and entitled to all the remedies of such | completed, entered into articles of agreement creditor, still, neither it nor any other creditor, with Chamberlain, for the double purpose of except Cleveland, could claim any benefit from insuring its completion and securing to him a said decree. Only such creditors as attack the large debt, alleged to be due from the company. fraudulent conveyance by legal proceedings, are By this contract the road was leased to Chamentitled to share in the benefits resulting from berlain, in consideration that he would apply setting it aside. The conveyance is good be the income to the operation and extension of tween the parties, and can be vacated by credit the road; to the payment of interest on debts ors only by legal proceedings, and such proceed- of the company; and to the payment of Chamings can only avail those who are parties to the berlain's own debt, on satisfaction of which, record and their privies. Other creditors would either by application of the income or othernot be bound, if the decision was in favor of the wise, the road was to be restored to the comconveyance, and, therefore, cannot claim its pany. After the execution of this contract and benefits when adverse to it. Estoppels must be in the following month, the company confessed a judgment in his favor for $629,089.72. Afterwards, and in the same month, Cleveland recovered a judgment against the company for $111,700.71.

mutual.

Schulze's Appeal, 1 Pa. St. 251; Schick's Appeal, 49 Pa. see Am. Law Reg. Feb. 1866, 253. The Cleveland decree cannot be used in evidence by the Minnesota company, and it is nei ther a bar nor an estoppel in favor of said company against Chamberlain.

While we admit that the record of a judg. ment is the proper evidence of its existence, and of all the legal consequences resulting from that fact, we deny that it is, or ever was, proof of the existence of the facts upon which it is founded, except as between the parties thereto, or that it is even admissible in evidence as tending to prove said facts when put in issue between other parties.

2 Sm. Lead. Cas. 424-443; 1 Greenl. Ev. 522524; Baring v. Fanning, 1 Paine (C. C.) 549; Wood v. Stephen, 1 Serg. & R. 175; Griswold v. Jackson, 2 Edw. Ch. 468; Brown v. Wyncoop, 2 Blackf. 230; Schulze's Appeal, 1 Pa. St. 251; Schick's Appeal, Am. Law Reg. Fed. 1866, p. 253; King v. Chase, 15 N. H. 9; Outram v. Morewood, 3 East, 174; Hurst's Lessee v. McNeil, 1 Wash. (C. C.) 70.

Mr. Chief Justice Chase delivered the opin

ion of the court:

These two appeals have been properly argued together. They present the same controlling question, to be decided upon the same facts and principles.

That question is: Were the lease made to Chamberlain and the judgment confessed in his favor by the La Crosse railroad company in 1857, annulled as between the parties to the lease and judgment by the decree of the district court of the United States for the district of Wisconsin, at the January term, 1859, or only as against Cleveland, the judgment creditor, in whose suit against the company and Chamberlain the decree was rendered?

To enforce the satisfaction of this judgment by sale of the road and other property of the La Crosse company, Cleveland filed his bill against that company and Chamberlain, with whom were joined some other defendants.

In this bill, according to the account given of it by the complainants in the cases now before us, Cleveland insisted that the lease to Chamberlain, and the judgment confessed in his favor, were without consideration and in fraud of creditors, and that they hindered the collection of his judgment, and he prayed that they might be declared void. The La Crosse company and Chamberlain answered, denying all fraud, and Cleveland took issue by reapplication.

The court found against the respondents and decreed that the article of agreement between the La Crosse company and Chamberlain "be, and hereby is vacated, annulled, and made void, so that the same shall not be of any force and effect whatever," and that "the judgment and all executions and proceedings thereon be, and hereby are vacated, annulled, made void and set aside, so that the same shall have no effect whatever."

The decree also enjoined Chamberlain from "controlling or meddling with the railroad or anything belonging to it under the artcle of agreement." The Minnesota company, by their bill now under review, allege that by this de cree, the agreement and the confessed judgment were made absolutely void, not only against Cleveland, the judgment creditor, but also as between Chamberlain and the La Crosse company; and that Chamberlain, having purchased the Cleveland judgment, remained in possession of the road, notwithstanding this decree, reSome other questions are presented by the ceiving large sums of money, amounting altorecords, but they are comparatively unimpor-gether to more than $200,000, for which he is bound to account. They prayed, therefore, that Chamberlain be ordered to apply to the payment of the Cleveland judgment, from the money so received, a sum sufficient for that purpose; and that he be ordered to account; that he be credited with the sum applied to the Cleveland judgment; that the balance be ascertained; that the Cleveland judgment be ordered to be canceled, and that the ascertained balance, if against Chamberlain, be paid to the Minnesota company; or if in his favor, by the Minnesota company to him. They also pray further relief.

tant.

The Milwaukee & Minnesota Railroad Company, which we will call the Minnesota company, succeeded in 1860, through the purchase of bonds for their benefit, and through their subsequent organization as a railroad company, in order to take and manage the property acquired by that purchase to all the property, franchises, and rights of the Milwaukee & La Crosse Company, which we will call the La Crosse Company, subject, however, to prior en

cumbrances.

Three years before, in September, 1857, the La Crosse company, whose road was not then

*It was the manifest intention of the [*710