and Parmalee, the court finds that the allegations of the bill are true, but that as to them they are untrue. It therefore granted relief by the injunction as to all of them except these three, as to which it was denied. It is to be observed, however, that the Bank takes no appeal from the part of the decree denying relief to these three shareholders.

These principles require the affirmance of the decree of the circuit court; and while there will be found in them a sufficient answer to the questions certified by the judges of that court, we do not think it necessary to make a more specific answer to each of them. The decree is affirmed.

The bill sets out at considerable length and with much regard to details a great array of alleged facts connected with the issue of said patents, the former appropriation of the land, and the alleged fraudulent acts and practices of said Beebe with reference to said land. In substance they are as follows: That said lands were formerly a part of the Quapaw Indian reservation, but were ceded to the United States by the Treaty of August 24, 1818, and thereby became part of the public domain; that afterwards, to wit, in 1819 and 1820, they, with other lands not involved in this controversy, were located with what is known as "New Madrid Certificates" issued by the recorder of land titles at St. Louis in November, 1815, under and in accordance with the provisions of the Act of Congress approved February 17, 1815, entitled "An Act for the Relief of the Inhabitants of the Late County of New Madrid, in the Missouri Territory, Who Suffered by Earthquakes," 3 Stat: at L. 211; that by virtue of said locations all of said lands were surveyed, and the surveys were returned to the recorder on the

Power of attorney-general-defenses of Statute 17th of October, 1820, whereby said lands be

of Limitations and laches.

1. The attorney-general may institute a suit in the name of the United States to set aside a patent obtained from it by fraud or mistake.

2. In cases where the Government, although a nominal plaintiff, has no real interest in the litigation, but has allowed its name to be used therein for the sole benefit of a private person, the defenses of laches and the Statute of Limitation are available, the same as in suits between private in

dividuals.

[No. 180.]

Argued Feb. 10, 13, 1888. Decided April 30, 1888.

a decree the Circuit Court

came legally appropriated by the holders and owners of said certificates, and thus severed from the mass of the public domain; that the equitable title to said lands thus became vested in the locators of said certificates and their assigns, and was afterwards, by proper assignments and conveyances, transferred to and be came vested in one W. M. O'Hara, who subsequently conveyed the lands in undivided moieties to Nathaniel Philbrook and Chester Ashley; that in 1824 said Philbrook died intestate, seised and possessed of an undivided half interest in said lands held under the title aforesaid,

same descended to his

of the United States for the Eastern Dis-Philbrook, a citizen of New Hampshire and trict of Arkansas, sustaining a demurrer and his sole heir at law, who, dying in 1828, by dismissing an action to set aside patents for last will and testament devised all his interest land. Affirmed. in and to said lands to Thomas H. Ellison and six of his other children and grandchildren; that Statement by Mr. Justice Lamar: said devisees and heirs of such as are deceased This is a suit in equity brought by the attor-have, by proper deeds, conveyed said lands to ney-general on behalf of the United States to George V Dietrich, Jabez C. Hurst, citizens of set aside and cancel certain patents issued in Galesburg, Illinois, and John F. Calder, a citifavor of Roswell Beebe, in 1838 and 1839, for zen of Troy, New York, in trust to apply for about 480 acres of land upon which the present and obtain patents thereto from the United City of Little Rock, Arkansas, is partly built. States; that said trustees applied to the United Roswell Beebe having died many years ago, States recorder of land titles at St. Louis, Misthis suit is prosecuted against his heirs and le- souri, for patent certificates in support of said gal representatives. It was brought in the original "New Madrid" locations, and, on the United States Circuit Court for the Eastern 10th day of September, 1875, that officer issued District of Arkansas, the bill having been filed such certificates in the names of the original on the 31st of January, 1883. The ground up- locators and their legal representatives for on which it is asked that said patents may be said lands, as he was authorized to do by the said set aside and canceled is, that at the date of Act of February 17, 1815; that afterwards said their issue, and for a long time prior thereto, trustees made application for patents for said the United States did not own the land em- lands to the proper United States authorities, braced in them, but that, on the contrary, said but that such patents were refused because of land was legally appropriated by other persons, the existence of the outstanding patents issued and was therefore segregated from the public to said Beebe as aforesaid; that from the time domain; that said Roswell Beebe and others of said locations, surveys, and returns in 1819 fraudulently conspired together for the purpose and 1820, up until the issuance of the Beebe of securing said patents, and by false represen- patents in 1838 and 1839, the said New Madrid tations, pretenses, and undue influence persuad- locations were the only titles to said lands, and ed and "coerced the register" of the United under them the Town of Little Rock was laid States Land Office at Little Rock into the be-out and built on said lands, was duly incorporlief that he (Beebe) was entitled to said patents, etc.; and that by reason of said premises said patents are fraudulent and void.

ated, and contained hundreds of inhabitants prior to and at the time when said patents were issued; that said Beebe patents were issued on

562; Vance v. Burbank, 101 U. S. 514 (25; 929); | has a direct interest, or is under an obligation U. S. v. Schurz, 102 U. S. 401 (26: 173); Quinby respecting the relief invoked. See the opinion v. Conlan, 104 U. S. 426 (26: 802); Marquez v. of the court delivered by Mr. Justice Miller in Frisbie, 101 U. S. 476 (25: 801); Lansdale v. United States v. San Jacinto Tin Company, 125 Daniels, 100 U. S. 118 (25: 589.) U. S. 273 [31: 747], decided this term of the

If the heirs of Philbrook had a valid claim court. they might abandon it.

House v. Talbot, 51 Tex. 467; Thornton v. Murray, 50 Tex. 161; Minter v. Crommelin, 59 U. S. 18 How. 87 (15: 279); MacKay v. Easton, 86 U. S. 19 Wall. 630 (22: 214); Fremont v. U. S. 58 U. S. 17 How. 542 (15: 241); French v. Fyan, 93 U. S. 172 (23: 813); Grignon v. Astor, 43 U. S. 2 How. 319 (11: 283).

The heirs of Philbrook are estopped from setting up any claim to the land.

Even if it had not thus been authoritatively settled, it would have been difficult, upon principle, to reach any other conclusion. The public domain is held by the Government as part of its trust. The Government is charged with the duty and clothed with the power to protect it from trespass and unlawful appropriation, and, under certain circumstances, to invest the individual citizen with the sole possession of the title which had till then been common with

Danley v. Rector, 10 Ark. 212; Shall v. Biscoe, all the people as the beneficiaries of the trust. 18 Ark. 165; Hornor v. Hanks, 22 Ark. 583; If a patent is wrongfully issued to one individChapman v. Chapman, 59 Pa. 214; Cumber-ual, which should have been issued to another, land Valley R. R. Co. v. McLanahan, Id. 23. or if two patents for the same land have been The claim is barred by the Statute of Limi-issued to two different individuals, it may proptations and this fact appears on the face of the bill.

Where this is the case the objection may be made by demurrer.

Lansdale v. Smith, 106 U. S. 391 (27: 219); Bradstreet v. Huntington, 30 U. S. 5 Pet. 446 (8: 186); Voorhees v. Bank of U. S. 35 U. S. 10 Pet. 473 (9: 499); Bryan v. Forsyth, 60 U. S. 19 How. 334 (15: 674); Cosby v. Buchanan, 90 U. S. 23 Wall. 453 (23: 142).

In no courts have the Statutes of Limitation been more favorably construed than in those of the United States.

Bell v. Morrison, 26 U. S. 1 Pet. 360 (7:178); McCluny v. Silliman, 28 U. S. 3 Pet. 278 (7: 678); Hawkins v. Barney, 30 U. S. 5 Pet. 466 (8: 193); Wright v. Madison, 59 U. S. 18 How. 57 (15: 283).

After such great laches, the suit will not lie. MacKay v. Easton, 86 U. S. 19 Wall. 619 (22: 211); Cunningham v. Ashley, 55 U. S. 14 How. 379 (14: 463); U. S. v. State Bank, 96 U. S. 36 (24: 648); U. S. v. Bostwick, 94 U. S. 66 (24: 66); U. S. v. Smith, Id. 217 (24: 115); The Siren, 74 U. S. 7 Wall. 159 (19: 132); Briggs v. Light-boat, 11 Allen, 185; U. S. v. Buford, 28 U. S. 3 Pet. 12 (7: 585); Hall v. Law, 102 U. S. 465 (26: 218); Godden v. Kimmell, 99 U. S. 210 (25: 434); Williams v. U. S. 92 U. S. 461 (23: 498).

Mr. Justice Lamar delivered the opinion of the court:

The points involved in the pleadings and made before the court below have been presented and urged with much earnestness, both in the brief and in the oral argument of counsel.

First. As to the right of the attorney-general to bring this suit.

The authority of the attorney-general, under the Constitution and laws of the United States, to institute a suit in the name of the United States to set aside a patent alleged to have been obtained by fraud or other mistake, whenever denied by a specific pleading before this court, has been uniformly maintained. And it may now be accepted as settled that the United States can properly proceed by bill in equity to have a judicial decree of nullity and an order of cancellation of a patent issued in mistake or obtained by fraud, where the Government

erly be left to the individuals to settle, by personal litigation, the question of right in which they alone are interested. But if it should come to the knowledge of the Government that a patent has been fraudulently obtained, and that such fraudulent patent, if allowed to stand, would work prejudice to the interests or rights of the United States, or prevent the Government from fulfilling an obligation incurred by it, either to the public or to an individual, which personal litigation could not remedy, there would be an occasion which would make it the duty of the Government to institute judicial proceedings to vacate such patent.

In the case before us the bill avers that the patents whose cancellation is asked for were obtained by fraud and imposition on the part of the patentee, Beebe. It asserts that there exists, on the part of the United States, an ob ligation to issue patents to the rightful owners of the lands described in the bill; that they cannot perform this obligation until these fraudulent patents are annulled; and that they therefore bring this suit to annul these fraudulent instruments whose existence renders the United States incapable of fulfilling their said prior obligation.

The court below held that, the bill in this case having been filed on the recommendation of the Secretary of the Interior, for the declared purpose of having the questions which were being pressed upon the Land Department, in connection with the claims of the Philbrook heirs against the Government, determined by the judicial department, which claims were unsettled and important, the appeal to the court was proper. In this we think the learned judge is in full accord with the principle laid down by Mr. Justice Miller in the San Jacinto Case, and within the following language of the court in Hughes v. United States, 71 U. S. 4 Wall. 236 [18: 304], which was a suit brought in the name of the United States to set aside a patent for the benefit of a private citizen entitled to the land covered by said patent. Mr. Justice Field, who delivered the opinion of the court, speaking of the patent to Hughes, said: "Whether regarded in that aspect or as a void instrument, issued without authority, it prima facie passed the title; and therefore it was the plain duty of the United States to seek to vacate and annul the instru

ment, to the end that their previous engagement be fulfilled by the transfer of a clear title,--the one intended for the purchaser by the Act of Congress. Unless, therefore, it appears on the face of the bill that the claim set up has no equity, or that there are valid defenses to the suit, the jurisdiction of the court to entertain it cannot be denied.

Next, as to the defense of the Statute of Limitations, laches, and lapse of time.

The grounds on which the court below sustained the demurrer were (1) that, distinct from and independent of the Statute of Limitations and the laches of the public officers of the Government, the lapse of time constitutes a good defense to this suit, upon those principles of equity which would be administered as between two citizens litigating in this tribunal; and (2) that the United States is bound by the same law. The counsel for the complainant maintain that this conclusion, upon which the decree of dismissal rests, is erroneous, and contrary to the decisions of this court and of every Circuit and District Court in the United States.

that both the State and the Attorney-General are only nominal actors in the proceeding. The bondowner, whoever he may be, was the promoter and is the manager of the suit. *** And while the suits are in the names of the States, they are under the actual control of individual citizens, and are prosecuted and carried on altogether by and for them."

In the case of United States v. Nashville, C. & St. L. Railway Company, supra, in which it was decided that the Statute of Limitations of the State of Tennessee was no defense to an action of the United States upon certain negotiable bonds held by them for public use, Mr. Justice Gray is careful to say: "This case does not present the question what effect the statute may have in an action on a contract in which the United States have nothing but the formal title, and the whole interest belongs to others; and cites Maryland v. Baldwin, 112 U. S. 490 [28: 822]; Miller v. State, 38 Ala. 600.

In the former case it was held that a suit in the name of a State for the benefit of parties interested is to be regarded as a suit in the name The principle that the United States are not of the party for whose benefit it is brought. bound by any Statute of Limitations, nor Mr. Justice Field, delivering the opinion of the barred by any laches of their officers, however court, said: "The name of the State is used gross, in a suit brought by them as a sovereign from necessity when a suit on the bond is prosGovernment to enforce a public right or to ecuted for the benefit of a person interested, assert a public interest, is established past all and in such cases the real controversy is becontroversy or doubt. U. S. v. Nashville, C. tween him and the obligors on the bond;" and & St. L. R. Co. 118 U. S. 125 [30: 83], and the case was decided upon a consideration of cases there cited. But this case stands upon a the merits as if the party interested was alone different footing, and presents a different ques- named as plaintiff. And he cited, approvingtion. The question is, Are these defenses avail-ly, the following language in McNutt v. Bland, able to the defendant in a case where the Gov-43 U. S. 2 How. 9 [11: 159]: "As the instruernment, although a nominal complainant par- ment of the state law, his (the Governor's) name ty, has no real interest in the litigation, but has allowed its name to be used therein for the sole benefit of a private person?

means of enforcing the rights of a third party, who alone will enjoy the benefits of a recovery."

is in the bond and to the suit upon it; but in no just view*** can he be considered a litigant party. Both look to things, not names; It has not been unusual for this court, for the to the actors in controversies and suits, not to purposes of justice, to determine the real par- the mere forms or inactive instruments used in ties to a suit by reference not merely to the conducting them in virtue of some positive law." names in which it is brought, but to the facts In Miller v. State, the other case cited by Mr. of the case as they appear on the record. Justice Gray, the court said: "As laches is not Thus, in the case decided at this term, Re Ayers, to be imputed to the Government, the Statute 123 U. S. 492, 493 [31: 225], the court held of Limitations does not apply to the State unthat the State of Virginia, though not named less it be clear from the Act that it was intendas a party defendant, was the actual party ined to include the State. *** In our opinion, the controversy. Mr. Justice Matthews, who the rule that the Statute of Limitations does not delivered the opinion, said: "It is, therefore, run against the State has no application to a not conclusive of the principal question in this case like the present, when the State, though a case that the State of Virginia is not named nominal party on the record, has no real interas a party defendant. Whether it is the act-est in the litigation, but its name is used as a ual party *** must be determined by a consideration of the nature of the case as presented on the whole record.” So in the cases of New Hampshire v. Louisiana and New York v. Louisiana, 108 U. S. 76 [27: 656], the court looked behind and through the nominal parties on the record to ascertain who were the real parties to the suit. Chief Justice Waite, in delivering the opinion of the court, used the following language: "No one can look at the pleadings and testimony in these cases without being satisfied, beyond all doubt, that they were in legal effect commenced, and are now prosecuted, solely by the owners of the bonds and coupons. *** The bill, although signed by the attorney-general, is also signed, and was evidently drawn, by the same counsel who prosecuted the suits for the bondholders in Louisiana, and it is manifested in many ways

In Moody v. Fleming, 4 Ga. 115, 118, which was a case where a party was applying for a mandamus in the name of the State, the court said: "It is insisted that here the State is a party, moving the contest, and setting up a right to have this survey certified, and that the tenant will not be protected by his possession, because the Statute of Limitations does not run against the State. We have decided, and the decision is sustained by unbroken masses of authority, that the Statute of Limitations does not run against the State. The answer, however, to this argument is this: The State of Georgia. is not the real party to the proceeding. * * * The process is in the name of the State, but the right asserted is a private right; the issue is between two of the citizens of the State."

Applying these principles to this case, an in- | years ago, the complainants in this bill could spection of the record shows that the Govern- have instituted their action. The death of the ment, though in name the complainant, is not parties charged with the fraud, and also of the real contestant party to the title or prop- most, if not all, of the witnesses having pererty in the land in controversy. It has no in-sonal knowledge of the transaction; the fact terest in the suit, and has nothing to gain from that a city has been built upon the land in the relief prayed for, and nothing to lose if the question; the occupation of large portions of it relief is denied. The bill itself was filed in the by hundreds of innocent purchasers, the homename of the United States, and signed by the steads of many families covering other porattorney-general, on the petition of private indi- tions of it; the uninterrupted possession mainviduals; and the right asserted is a private right, tained for more than a generation, all resting which might have been asserted without the upon faith in the patent issued by the United intervention of the United States at all. States Government,-constitute reasons more than sufficient for the refusal of the court to set aside such patent at the suit of a party who has so long slept upon his alleged rights. For the reasons herein stated, the decree of the court below is affirmed.

In his letter to the United States District Attorney upon the subject, the attorney-general directs that that officer shall sign his (the attorney-general's) name to the bill, when the attorneys for the petitioners shall present such a bill, and file the same in the proper court; and that after the suit is commenced these attorneys for the petitioners will have the management of the case. Accordingly the subsequent pro- LOUIS D. DE SAUSSURE, Plff. in Err., ceedings in the case have been conducted exclusively by these attorneys, who, in the pleadings, describe themselves as attorneys for the petitioners and beneficiaries of the suit.

We are of the opinion that when the Government is a mere formal complainant in a suit, not for the purpose of asserting any public right or protecting any public interest, title, or property, but merely to form a conduit through whom one private person can conduct litigation against another private person, a court of equity will not be restrained from administering the equities existing between the real parties by any exemption of the Government designed for the protection of the rights of the United States alone. The mere use of its name in a suit for the benefit of a private suitor cannot extend its immunity as a sovereign government to said private suitor, whereby he can avoid and escape the scrutiny of a court of equity into the matters pleaded against him by the other party, nor stop the court from examining into and deciding the case according to the principles governing courts of equity in like cases between private litigants.

These principles, so far as they relate to general Statutes of Limitation, the laches of a party, and the lapse of time, have been rendered familiar to the legal mind by the oft-repeated enunciation and enforcement of them in the decisions of this court. According to these decisions, courts of equity in general recognize and give effect to the Statute of Limitations as a defense to an equitable right, when at law it would have been properly pleaded as a bar to a legal right. They refuse to interfere to give relief when there has been gross negligence in prosecuting a claim, or where the lapse of time has been so long as to afford a clear presumption that the witnesses to the original transaction are dead, and the other means of proof have disappeared.

We think the court below justly and wisely applied the principle to the case under consideration in sustaining the demurrer and dismissing the bill. The rights of the Philbrook heirs, the real parties to this case, which are set up in this bill, originated in 1815. The acts of Beebe perpetrating the alleged fraud were prior to 1838. The alleged illegal action of the Land Department occurred in 1839. More than 45

v.

PETER C. GAILLARD, Treasurer of
CHARLESTON COUNTY.

(See S. C. Reporter's ed. 216-234)

Review of state judgment-federal question— jurisdiction of this court.

1. Who may sue under a state statute, and when, and under what circumstances, are questions for the exclusive determination of the state tribunals, whose judgment thereon is not subject to review by this court, unless the statute denies or injuriously affects a right claimed by a party under the Constitution or laws of the United States.

2. Where the state court based its judgment, not pendent ground, this court will not take jurisdicon a law raising a federal question, but on an indetion of the case, even though it might think the position of the state court an unsound one, 3. To give this court jurisdiction to review a state that a federal question was presented for decision jud.ment, it must appear affirmatively, not only to the state court, but also that the decision of such question was necessary to the determination of the cause, and that it was actually decided, or that the judgment as rendered could not have been given without deciding it. [No. 205.]

Argued April 4, 1888. Decided April 30, 1888.

IN ERROR to the Supreme Court of the State of South Carolina, to review a judgment of that court, affirming a judgment of the Court of Common Pleas of that State in favor of defendant, in an action to compel moneys illegally collected to be refunded. Dismissed for want of jurisdiction.

Reported below in 21 S. C. 560.

Statement by Mr. Justice Matthews:

The complaint in this case, filed in the Court of Common Pleas in the County of Charleston, South Carolina, alleged that the plaintiff was the owner and holder of three bonds of the State of South Carolina, two, designated by the numbers 850 and 851, for $500 each, and one, by the number 2290, for $1,000; that thereby the State of South Carolina promised to pay to the bearers the sums therein named on the 1st day of July, 1893, with interest at the rate of six per cent per annum, payable semi-annually, on the 1st day of January or July of each year, on the presentation of the