In Tennessee a party failing to testify as to matters shown to be necessarily within his personal knowledge affords a presumption against him.

Dunlap v. Haynes, 4 Heisk. 479; Alley v. Connell, 3 Head, 578; Louisville & N. R. R. Co. v. Garrett, 8 Lea, 438.

The refusal of the party to produce his books or papers raises a presumption adverse to the party.

Clifton v. U. 8. 45 U. S. 4 How. 242 (11; 957); Hanson v. Eustace, 43 U. S. 2 How. 653 (11: 416); 2 Whart. Ev. §§ 1265, 1266.

The nonproduction of evidence clearly within the power of a party creates a strong presumption against him.

Miller v. Jones, 32 Ark. 337. Messrs. W. G. Weatherford and T. B. Turley, for appellees:

An assignment that points to no specific error is too vague and indefinite, and should be disregarded.

Deitsch v. Wiggins, 82 U. S. 15 Wall. 539 (21: 228); Ryan v. Koch, 84 U. S. 17 Wall. 19 (21: 611).

The questions involved being matters of fact, this court will affirm the decree.

Harrell v. Beall, 84 U. S. 17 Wall. 590 (21: 692); Alviso v. U. S. 75 U. S. 8 Wall 337 (19: 305); Parker v. Phetteplace, 68 U. S. 1 Wall. 684 (17: 675); Lytle v. Arkansas, 63 U. S. 22 How. 193 (16: 306).

Acknowledgment cannot be proven by parol

Chrisman v. Partee, 38 Ark. 31; Wood v. Terry, supra.

When a written contract is to be proven by parol, the substance of the agreement ought to be proven satisfactorily.

Tayloe v. Riggs, 26 U. S. 1 Pet. 600 (7: 279); Findley v. Hinde, 26 U. S. 1 Pet. 245 (7:130); Vattier v. Hinde, 32 U. S. 7 Pet. 266 (8: 680); Nichols v. Kingdom Iron Ore Co. 56 N. Y. 618; Edwards v. Noyes, 65 N. Y. 125.

Mr. Justice Miller delivered the opinion of the court:

This is an appeal from the Circuit Court of the United States for the Western District of Tennessee.

The suit was originally brought in the Chancery Court of Shelby County, held in the City of Memphis in that State, in regard to a controversy which arose concerning the title to certain real estate situated in the State of Arkansas. The principal defendant, Asa Hodges, was a citizen of Arkansas, and upon that ground procured an order in the chancery court to remove the case into the Circuit Court of the United States for the Western District of

"In the Chancery Court of Shelby County, Tennessee.

"To the Hon. W. W. McDowell, Chancellor: time of the institution of this suit was, a citizen "Your petitioner states that he is, and at the of the State of Arkansas, and not of the State of Tennessee, and that none of the complain

ants are or were at that time citizens of the

State of Arkansas; that said suit is of a civil nature, and the matters in controversy exceed, exclusive of costs, in value the sum of five hun

dred dollars; that the controversy affects the ownership of real estate in said State of Arkansas, and can be wholly decided between complainants and this defendant. Wherefore he prays an order for the removal of said cause from this court to the United States Circuit

Court for the Western District of Tennessee, at Memphis, and he tenders herewith the requisite bond, as required by law, for the removal thereof.

"Asa Hodges, the petitioner, being sworn, says the matters set forth in the above petition are true as far as stated on his own knowledge; Asa Hodges.

the rest he believes to be true.

"Sworn to this October 2, 1882.

"J. M. BRADLEY, Deputy Clerk and M.” While this petition sets forth the citizenship of Hodges to be in the State of Arkansas, both at the commencement of the suit and at the time of the application for removal, it does not state that of any of the complainants, but merely says "that none of the complainants are or were at that time citizens of said State of Arkansas;" nor have we been able to find in the record any evidence, allegation or statement as to the citizenship of any of them. That the defendant Hodges was a citizen of Arkansas, in connection with the fact that none of the complainants were citizens of that State, is not sufficient to give jurisdiction in a Circuit Court of the United States. Brown v. Keene, 33 U. S. 8 Pet. 115 [8: 886].

The adverse party must be a citizen of some other named State than Arkansas, or an alien. All the complainants might be residents and citizens of the District of Columbia, or of any Territory, and they might not be citizens of the State of Tennessee where the suit was brought, or indeed, of any State in the Union. A citizen of a Territory, or of the District of Columbia, can neither bring nor sustain a suit on the ground of citizenship, in one of the circuit courts. Barney v. Baltimore, 73 U. S. 6 Wall. 280 [18: 825].

This court has always been very particular in requiring a distinct statement of the citizenship of the parties, and of the particular State in which it is claimed, in order to sustain the jurisdiction of those courts; and inasmuch as the only citizenship specifically averred and set out in the case before us is that of the defendant Hodges, at whose instance the cause was removed, and as that is the only ground upon which the removal was placed, it seems clear that the circuit court did not have jurisdiction of it, and that the suit should have been

dismissed or remanded for that reason. Robertson v. Cease, 97 U. S. 646 [24: 1057]. The allegation which was made in that case, that Cease, who was the plaintiff, in the action in the Circuit Court for the Western District of Texas, "resides in the County of Mason and State of Illinois," was held not to be a sufficient averment of his citizenship in Illinois. See, also, Godfrey v. Terry, 97 U. S. 171 [24: 944]. This court has uniformly acted upon the principle that, in order to protect itself from collusive agreements between parties who wish to litigate their controversies in the federal courts, it would, on its own motion, take the objection of the want of jurisdiction in the circuit court, especially as regards citizenship. Hilton v. Dickinson, 108 U. S. 165 [27: 688]; Morgan v. Gay, 86 U. S. 19 Wall. 81 [22: 100]. We have considered the application of Hodges, the defendant in error, to supply the want of averments in regard to the citizenship of the complainants in this suit. The difficulty here, however, does not relate to the jurisdiction of this court,-in regard to which evidence by affidavit has sometimes been received where the defect was as to the amount in controversy, and perhaps in relation to some other point. The jurisdiction of this court in the present case is undoubted, but, as the previous remarks in this opinion shows, the circuit court never had jurisdiction of it; and while we may be authorized to reverse the decree so rendered we have no power to amend the record so as to give jurisdiction to that court by proceedings here. The case in this court must be tried upon the record made in the circuit court. In this instance there has been a removal from a tribunal of a State into a Circuit Court of the United States, and there is no precedent known to us which authorizes an amendment to be made, even in the circuit court, by which grounds of jurisdiction may be made to appear which were not presented to the state court on the motion for removal. In fact, under the fifth section of the Act of March 3, 1875, it being manifest upon the face of the affidavit or petition for removal in the present suit that the case had been improperly removed into the circuit court, it was the duty of that court, at all times and at any time during its pendency before it, to have remanded the case to the tribunal of the State where it originated. We can do no more, however, than to reverse the action of the court below, from which this appeal was taken, because it had no jurisdiction of the

case.

The decree in this case is reversed for want of jurisdiction in the Circuit Court, and the case remanded for further proceedings.

3. A record from the office of the register of deeds of a county in Michigan, containing a certified copy of a will executed and proved in New York, is admissible in evidence, to show the will as probated in Michigan, where the record shows due notice by publication and due proof of its execution. 4. A declaration of trust, held not admissible in evidence to impeach the conveyance of the trustees, where it appears that they had power and authority to sell and convey the property, and that the proceeds were to be divided according to the instrument creating the trust.

5. A tax deed in Michigan is void where it appears that a portion of the tax for which it was given was excessive and invalid; and such deed is not admissible to sustain the grantee's title. 6. Parol evidence of the payment of part of the tax for illegal purposes is admissible, where the records show that it was raised for such purpose. [No. 217.]

Argued April 11, 1888. Decided April 30, 1888.

States for the Western District of Michigan, to review a judgment for plaintiff in an action to recover land. Affirmed.

ERROR to the Circuit Court of the United

The facts are stated in the opinion.

Messrs. D. H. Ball, A. T. Britton, A. B. Browne and Walter H. Smith, for plaintiff in error:

The deed from William A. Pratt should not have been received in evidence.

Howell, Stat. § 5658; Crane v. Reeder, 21 Mich. 60; Brown v. Cady, 11 Mich. 535; Clark v. Graham, 19 U. S. 6 Wheat. 577 (5:334.)

The record of the will of Edward C. Wilder should have been excluded.

Howell, Stat. § 5806; Pope v. Cutler, 34 Mich. 152.

The deputy auditor-general had power to execute conveyances on sale of lands for taxes. Westbrook v. Miller, 56 Mich. 148.

These deeds were prima facie evidence of the regularity of all proceedings, to and including the sale, and of title in the grantee.

Groesbeck v. Seeley, 13 Mich. 329; Hunt v. Chapin, 42 Mich. 24; Stockle v. Silsbee, 41 Mich. 615.

The record cannot be contradicted. Taymouth v. Koehler, 35 Mich. 22; Young v. Duvall, 109 U. S. 577 (27:1037).

Messrs. B. J. Brown and Edward Cahill, for defendant in error:

The deed from William Pratt is an old deed, and the courts will sustain it.

Carpenter v. Dexter, 75 U. S. 8 Wall. 513 (19: 426); Morse v. Hewett, 28 Mich. 481.

Probate courts are courts of record, and all presumptions will aid their judicial action. Church v. Holcomb, 45 Mich. 29; Alexander

v.

THE H. WITBECK COMPANY.

(See S. C. Reporter's ed. 326-337.)

The deed of October 29, 1855, from William A. Pratt and wife to Manning & Wright, was an absolute conveyance in fee.

Trask v. Green, 9 Mich. 358; Maynard v. Hoskins, Id. 485; Weare v. Linnell, 29 Mich.

It was not the purpose of the statute (How. Stat. 5569) to require resulting trusts to be declared in writing.

Fisher v. Fobes, 22 Mich. 454; Bumpus v. Bumpus, 53 Mich. 346.

nation of the proofs and allegations of the petitioner, that said deceased was, at the time of his death, a resident of the City of New York, in the State of New York, and died leaving his last will and testament, which was duly approved and allowed in the surrogate court for, in and of the County of New York, in the State of New York, according to the laws thereof."

This, being a recital in the record of the Judgment of the court admitting the instrument to probate, certifying that it had been fully proved by the "examination of the proofs and allegations of the petitioner," and that it was duly admitted to record, is sufficient. Unless the necessary parties in such cases could be brought before the court by publication there would be in many cases an impossibility of doing it at all. Grignon v. Astor, 43 U. S. 2 How. 319 [11:283].

There appears to be some controversy in the brief submitted by counsel as to the fact that the copy of the instrument offered in evidence [334] is certified from the office of the register of deeds; but as no such objection was made upon the trial of the case, it is unnecessary to discuss it here.

The fourth assignment of error is founded upon the rejection of a deed, called a declaration of trust, made by Still Manning and William Wright, which was offered by the defendant. This instrument was signed and acknowledged in the month of November, 1855, and covered the land now in controversy. The deed from Manning and Wright to Wilder, referred to in the second assignment of error, was executed in July, 1860, nearly five years after this declaration of trust. The object of the defendant in offering the latter was to show that the legal title had passed out of Manning and Wright and that Wilder did not get the title by the deed which was made to him. Upon the objection of the plaintiff to the introduction of this deed, it was rejected by the court; to which ruling the defendant excepted.

The proposition upon which the defendant sought to introduce this instrument is founded upon certain statutes of the State of Michigan, of a character similar to those common in other States, found in Howell's Statutes, sections 5563 to 5573, inclusive. They comprise the usual provisions for abolishing uses and trusts, and enact in substance that the use shall vest in the cestui que trust as a legal title, except when otherwise provided. Most of these statutes, however, have relation to implied trusts, and it is not necessary here to go through all of them, nor to enter upon their critical discussion at this time. It is sufficient to say that the paper presented in this case is not a conveyance to anybody, but it purports to declare in express terms that the parties executing it hold the property in trust for themselves and two other persons. It is therefore an express trust, and comes within the language of section 5578, which reads as follows:

"5578. Every express trust, valid as such in its creation, except as herein otherwise provided, shall vest the whole estate in the trustees in law and in equity, subject only to the execution of the trust; and the person for whose benefit the trust was created shall take no estate

or interest in the lands, but may enforce the performance of the trust in equity."

This declaration of trust evidently contemplated that the legal title remained with the trustees, and that they had the power and authority to sell and convey the property, the profits or proceeds to be divided according to the interest which was declared in the instrument creating the trust. We think the legal title remained in Manning and Wright, until by the deed to Wilder they transferred to him the strict legal title. The deed was therefore properly rejected.

The next and last assignment of error which we propose to consider relates to the production of various deeds conveying the lands in question to persons under whom the defendant claims on account of sales for taxes. These deeds were offered in evidence, and rejected by the court; to which ruling the defendant excepted.

The principal ground upon which they were held to be invalid was that the tax levy under which they were sold included an illegal allowance for extra compensation to Goodwin and Eddie, who were judges of the state court which included within its jurisdiction the County of Marquette. It appeared that the supervisors of that county allowed and paid to them, out of the tax levies, an additional compensation of $400 per annum in excess of their salary. It does not seem to be controverted that, by the law of Michigan, if this sum was included in the assessment and levy of taxes on account of which the sales were made that these deeds represent, the title based upon them is void. Both parties admit this proposition in argument, and certain authorities referred to in the briefs establish it as the settled doctrine of that State. Lacey v. Davis, 4 Mich. 140; Case v. Dean, 16 Mich. 12; Edwards v. Taliafero, 34 Mich. 13.

In Hammontree v. Lott, 40 Mich. 195, the court said: "A tax deed is void if a portion of the tax for which it was given was excessive and invalid.” In the recent case of Silsbee v. Stockle, 44 Mich. 561, the whole subject was very elaborately reviewed by Judge Cooley, of that court, and the principle here stated fully established. The strength of the opinion in that direction may be seen by the following extract from the syllabus of the case:

"The statutory provisions that no sale for delinquent taxes shall be held invalid unless it be made to appear that all legal taxes were paid or tendered, and that all taxes shall be presumed to be legally assessed until the contrary is affirmatively shown (Comp. L. § 1129), are unconstitutional so far as they sustain sales for taxes which are in part illegal.”

Counsel for plaintiff in error deny the sufficiency of the evidence produced in regard to the increase of salary by the county, above what the State allowed to the judge, or that the fact is established by competent testimony; and it is urged with much force that this attempt to show now, some fifteen or twenty years after the transaction, that the tax levy for the particular years in question, did include this increased compensation, cannot be accomplished by parol testimony. We think, however, that there is enough in the bill of excep