147 U.S. 375 (1893), 72, Cooke v. Avery

Docket Nº:No. 72
Citation:147 U.S. 375, 13 S.Ct. 340, 37 L.Ed. 209
Party Name:Cooke v. Avery
Case Date:January 23, 1893
Court:United States Supreme Court

Page 375

147 U.S. 375 (1893)

13 S.Ct. 340, 37 L.Ed. 209




No. 72

United States Supreme Court

January 23, 1893

Submitted December 5, 1892




In view of the requirements of Rev.Stat. § 903, respecting the authentication of bills of exceptions, it will be assumed, where a bill is certified by a district judge holding circuit court, that the circuit justice and circuit judge were not present at the trial, unless the record clearly and affirmatively shows the contrary.

When it appears that some title, right, privilege or immunity, on which the recovery depends will be defeated by one construction of the Constitution or a law of the United States or sustained by the opposite construction, the case is one arising under the Constitution or laws of the United States.

When a party, on the first trial of a cause in a circuit court, sets up such a right as the ground of federal jurisdiction and the jurisdiction is sustained, he cannot be permitted, on the second trial, to oust the jurisdiction by contending that no such right is in controversy.

Where a plaintiff's title rests upon the validity of a lien claimed to have been acquired under a judgment of a circuit court of the United States, the disposition of the issue depends upon the laws of the United States and the rules of its courts, and a federal court has jurisdiction.

An index to an abstract of judgments in Texas, made under its laws for acquiring judgment liens, is sufficient which gives the defendants' name or names correctly and the names of the plaintiffs by a partnership title.

In Texas, in trespass to try title, the defendant cannot question the validity

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of his grantor's title at the time of the conveyance to him when the plaintiff claims under the same grantor, unless he claims under a paramount title.

If the defendant in such an action pleads his title specially, he waives the general issue, and is confined to the defense specially pleaded.

The defendant in such an action, not having been in possession of the land in dispute for twelve months next before the commencement of the action under written evidence of title, offered to show that immediately after concluding his bargain for the property, he entered into possession and commenced making improvements, and erected improvements of great valve on the property before he knew of the plaintiff's lien. This was done in order to enable him to get the benefit of the provisions in the Texas statutes relating to improvements. Held, that the offer was too vague.

A married woman was codefendant in an action of trespass to try title in Texas. Her interest was a community interest in the property by virtue of a conveyance to her husband. Held that a personal judgment in damages for use and occupation, and for costs, could not be rendered against her.

This was an action of trespass to try title to a tract of land in Hunt County, Texas, brought by W. W. Avery, December 24, 1886, against J. H. Cooke, his wife, M. E. Cooke, and the Scottish-American Mortgage Company in the Circuit Court of the United States for the Northern District of Texas, the plaintiff alleging that he was a citizen of the State of North Carolina, that the defendants Cooke were citizens of the State of Texas, and that the mortgage company was an alien corporation, and a subject of Great Britain.

The petition averred that on the 25th of November, 1886, plaintiff was lawfully seised and entitled to the possession of the land in question, located in Hunt County, Texas, in the Northern District of said state, and entitled to hold the same in fee simple, and that defendants Cooke unlawfully dispossessed him thereof, and still unlawfully withhold the same.

The mortgage company demurred, and also pleaded that on January 1, 1886, the defendants Cooke, who were at that time in possession of the land and seised of good title in fee simple, and had the right to convey the same, executed a deed of trust thereon to one Simpson, as trustee, to secure a loan of money made by the company to the Cookes. The other defendants answered to the merits, and subsequently, on February

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13, 1888, defendant J. H. Cooke withdrew his answer, and filed a plea to the jurisdiction of the court to the effect that the land had been conveyed to plaintiff by citizens of Texas on November 25, 1886, without consideration, and for the purpose of conferring jurisdiction, and on the same day, not waiving his plea to the jurisdiction, he answered (1) not guilty; (2) that he purchased the land in controversy from J. H. Payne, under whom the plaintiff claimed,

in actual ignorance of any lien upon said land, and in the belief that said tract of land was the homestead of said J. H. Payne, and that no creditor of said Payne could acquire a judgment lien thereon. That this defendant, for more than twelve months before the commencement of this suit, had actual adverse possession of said land in controversy, and that during said period defendant made upon said land permanent and valuable improvements, in good faith, as follows: [The alleged improvements were enumerated, and the total value stated to be $11,900.] That said tract of land, without said improvements, is of the value of $2,000, and by said improvements the same is enhanced in value by the cost or value, aforesaid, of said improvements. Defendant prays for the value of said improvements, if plaintiff recovers said land,


On February 11, 1889, plaintiff filed his amended original petition, which further alleged that plaintiff and the defendants derived title from one J. H. Payne as a common source; that defendants deraigned title through a certain deed executed by Payne and his wife January 2, 1886, while the plaintiff claimed title under an execution sale upon a judgment recovered against Payne January 17, 1882, in case No. 198, in the Circuit Court of the United States for the Northern District of Texas at Dallas, in favor of John Deere, Charles H. Deere, Stephen H. Velie, Alvah Mansur, and L. H. Tibbetts, partners under the firm name of Deere, Mansur & Company for the sum of $717.93 and costs of suit, all the proceedings upon and in reference to which were fully set forth. Plaintiff further alleged that by reason of certain laws of the United States and rules of the Circuit Court of the United States for the Northern District of Texas, which were specifically referred

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to, the judgment was a lien upon the property from the date of its rendition, or became such on the date the abstract thereof was recorded and indexed in Hunt County, February 9, 1882, as set out, and continued to be a lien up to the date of the sale by the marshal, by reason whereof plaintiff had a superior title to the property, but that defendants denied that the judgment was ever a valid lien on the property under said laws and rules, and this constituted the controlling question in the case, upon the correct decision of which plaintiff's title depended. Plaintiff therefore averred that this suit arose under the laws of the United States and the rules of the circuit court, and that the circuit at the institution of the suit [13 S.Ct. 342] had, and still has, jurisdiction thereof without regard to the citizenship of the parties thereto.

On June 8, 1889, the defendants Cooke demurred to that part of the amended original petition treating of jurisdiction, and further pleaded

that if they are not the owners of the land in controversy, the title thereto is outstanding in one Y. D. Harrington, to whom it was conveyed by said J. H. Payne before the lien under which plaintiff claims attached, and defendants deny all the averments of said petition.

On the same day, plaintiff demurred and excepted generally and specially to defendants' plea to the jurisdiction, and denied its allegations, and also replied to defendant J. H. Cooke's original answer by general and special demurrers or exceptions, and a general denial.

The cause came on for trial June 8, 1889, and, the court having heard and disposed of the several demurrers and exceptions, the trial was proceeded with.

The plaintiff introduced in evidence a judgment of the circuit court rendered January 17, 1882, in favor of John Deere, Charles H. Deere, Stephen H. Velie, Alvah Mansur, and L. H. Tibbetts, against J. H. Payne, in cause No. 198, for the sum of $717.93, of which the sum of $682.13 was directed to draw interest at the rate of ten percent per annum, and the sum of $35.80 at the rate of eight percent per annum, and for costs, and also a general index of all

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judgments rendered in the court, which showed, under the proper letter, that the judgment in favor of Deere, Mansur & Company against J. H. Payne was entered in Minute Book No. 1, p. 534; also an execution issued on the judgment March 3, 1882, returned, "No property found," and an execution issued August 11, 1886, under which the land in controversy was levied on by the marshal, August 12, and sold by him September 7, 1886, to Charles C. Cobb and John M. Avery; also the marshal's deed to said Cobb and Avery, made pursuant to the levy and sale and dated September 7, 1886. Plaintiff also introduced the papers in case No. 198, including the original petition, which petition was endorsed: "In circuit court of United States. No. 198. Deere, Mansur & Company vs. J. H. Payne," which endorsement was also on all the other papers in the cause, and the citation which was duly served on Payne, notifying him to answer the suit in case

No. 198, of Deere, Mansur & Company, a firm composed of John Deere, Charles H. Deere, Stephen H. Velie, Alvah Mansur, and L. H. Tibbetts, against J. H. Payne, defendant.


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