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by his debtor, nor is it the sale of the interest of the owner of the fee in the property, but, in addition to these, it includes the determination of the amounts and priorities of the liens upon it, the sale of the entire property discharged from those liens, and the distribution of the proceeds among the parties to the suit, according to their respective rights. It matters not that the plaintiff in such a suit might have maintained an action against the owner of the fee alone, and that the controversy between them might have been fully and completely determined without the presence of the incumbrancers. The only relief that could be obtained in such an action would be to determine the amount of the plaintiff's lien as against the owner, and to subject the interest of the owner of the fee in the property to a sale, subject to the rights of the incumbrancers. This falls far short of that complete relief usually sought in such suits, and far short of the relief prayed for in this action. The plaintiff has the right to this complete relief in a single suit in equity. To a suit in which the plaintiff seeks such relief every lienor of equal rank, and every junior incumbrancer, is an indispensable party, since his rights cannot be adjudicated nor foreclosed until he has had his day in court. The statute of South Dakota to which we have referred made the hardware company, and every other lienor, an indispensable party to this suit by its very terms.

In his complaint the plaintiff avers that the hardware company claims some interest in or lien upon the property in question which is inferior to his lien, and prays that the property be sold and the proceeds applied to pay his own claim. The railroad company insists that the controversy here is over the amount of the plaintiff's claim and the existence of his lien, that it is wholly between the plaintiff on one side and the railroad company and the two Fitzgeralds on the other, and that it can be fully determined between them alone. But the hardware company has the same right as the railroad company to contest the amount and the existence of the plaintiff's lien, and, if it can establish its own, it has every interest to defeat the plaintiff's. If it can entirely defeat it, the proceeds of the sale will inure to its sole benefit to the full amount of its lien, and, if it succeeds but in part, its proportion of the proceeds will increase as the claim of the plaintiff is diminished. A plaintiff in a suit to foreclose a lien cannot be compelled, at the option of any of the defendants, to divide his cause of action into as many separate controversies as there are separate defendants entitled to contest his claim. The option is with the plaintiff, and not with the defendants, to determine whether or not he will have the complete relief to which the rules and practice in equity entitle him, in a single suit or in several suits. Yet every lienor is entitled to contest the plaintiff's claim. How, then, can it be successfully maintained that the controversy over it can be fully determined between the plaintiff and the owner of the property without the pres ence of the incumbrancers? Every subsequent incumbrancer is a necessary party to its complete determination, and every such incumbrancer is interested to defeat or to diminish the amount of the lien of the plaintiff, and naturally ranges himself on the same

side of the controversy as does the owner of the property. It matters not that controversies may arise in the case over the priorities of liens, or over other minor issues, in which only a part of the parties may be interested, nor that different defendants in the suit may have separate and different defenses. These contests are mere incidents to the main suit. They do not constitute separable controversies, within the meaning of the act of congress, and separate defenses do not make separable controversies.

In my opinion, congress has not given this court jurisdiction of this suit, because the cause of action stated in the complaint is single and indivisible, the respective interests of the plaintiff and the hardware company range them on opposite sides of the controversy involved in it, that controversy cannot be fully determined without the presence of both of them, and they are citizens of the same state. Hax v. Caspar, 31 Fed. 499; Ayers v. Chicago, 101 U. S. 184; Safe Deposit Co. v. Huntington, 117 U. S. 280, 6 Sup. Ct. 733; Graves v. Corbin, 132 U. S. 571, 588, 10 Sup. Ct. 196; Brown v. Trousdale, 138 U. S. 389, 396, 11 Sup. Ct. 308; Torrence v. Shedd, 144 U. S. 527, 531, 12 Sup. Ct. 726; Bellaire v. Railroad Co., 146 U. S. 117, 13 Sup. Ct. 16.

The motion to remand must be granted.

For similar reasons, like motions must be granted in Nos. 84, 85, 86, 87, 88, 90, 91.

OWEN V. PRESIDIO MINING CO. et al. (Circuit Court of Appeals, Fifth Circuit.

No. 58.

1. MEXICAN LAND GRANTS-PROOF OF EXECUTION.

March 13, 1893.)

A grant which would include over 2,000 square miles of land was alleged to have been made January 25, 1832, by the alcalde of Presidio del Norte, state of Chihuahua. The sole documentary proof thereof was a certified copy of an alleged testimonio record in Bexar county, Tex., in 1851, showing the original grant, a subsequent act of transfer, and various certificates. These papers were of different dates, not in chronological order, but all apparently constituting one document. For the purpose of procuring the record to be made, two persons had made affidavit of the genuineness of the signatures, but the terms of one affidavit were unsatisfactory, and the authors of both were shown to have been dependents of the persons then claiming under the grant. It further appeared that in the interest of those claimants, a forged paper, purporting to be a decree confirming the grant by the congress of Chihuahua, was surreptitiously introduced into the public archives of Juarez, Mexico. The parol testimony as to whether such a grant had ever been heard of prior to 1848 was conflicting, and gave rise to no inferences favorable to the claimants. Held, that the evidence was insufficient to establish the execution of the grant. 2. SAME-POWERS OF ALCalde.

The fact of the making of a grant of land by an official of the state of Chihuahua raises no presumption that he had power to do so, if the grant was executed after the adoption of the colonization law of May 25, 1825; and under that law the alcalde of a village had no power, in 1832, to make grants of the public lands.

8. SAME-DECREE OF CONFIRMATION-EVIDENCE TO ESTABLISH.

A claimant of lands under an alleged grant by a village alcalde who had no authority to make it sought to support the same by showing a decree

of confirmation by the congress of Chihuahua in 1834, and for this purpose introduced a paper purporting to be such a decree, but which was entirely in print, without written signature, seals, rubrics, or other marks of attestation. This paper was found in 1890, in the archives of Santa Barbara, a mining town, 150 miles from the capital of Chihuahua, under circumstances not calculated to strengthen any presumptions of genuineness. Further, it bore an irregular or fraudulent number, and there was no entry on the proper registry that such a decree had ever been received and filed. The weight of evidence was that no such decree had ever been heard of in connection with the alleged grant prior to 1887. It appeared further that a forged decree of confirmation had at some time been introduced into the archives of Juarez, Mexico. Held, that the genuineness of the document was not established.

'Appeal from the Circuit Court of the United States for the Western District of Texas.

This is a suit in equity, brought by the complainant, Ernest Dale Owen, as trustee, a citizen of the state of Illinois, against the Presidio Mining Company, a corporation of the state of California, and against William Noyes, the superintendent of said mining company, a citizen of Texas, and John L. Bullis, a citizen of the territory of Arizona, to recover section 8 in block 8 of the survey of the Houston & Texas Central Railway Company in Presidio county, Tex., to quiet the title thereof, and to recover the value of silver ore extracted by the Presidio Mining Company from the mines situated thereon, and praying for a receiver and an injunction.

The original bill of the complaint, said to have been filed on the 29th day of January, 1890, does not appear in the transcript. By the amended supplemental bill of the 13th of July, 1891, complainant claims title to the land in controversy by means of certain conveyances from the heirs of Lieut. Col. Jose Ygnacio Ronquillo under a grant of land alleged to have been made to him by the alcalde (conciliador) of Presidio del Norte, state of Chihuahua, Mexico, on the 25th day of January, 1832, for 15 leagues square of land, or 2,345 square miles, situated on the east bank of the Rio Grande river, and now in the counties of Jeff Davis, Brewster, and Presidio, in the state of Texas.

The bill alleges that in November of the year 1832, Ronquillo petitioned the governor of the state of Chihuahua to be excused from the performance of the condition of the grant by reason of being ordered away from the frontier on an excursion against the Indians, and that the same was allowed on the 12th of November, 1832; that on the 27th of November, 1832, a certificate was made by the alcalde of Presidio del Norte in pursuance of an order made by the governor excusing him from the performance of the conditions of the grant; that the grant was confirmed by the congress of Chihuahua on the 24th day of September, 1834; that in 1849 the testimonio of the grant was offered for record in the office of the county clerk in Bexar county, Tex., that being the proper place and the proper office for such registration at that time; that the testimonio was accompanied by the affidavit of one witness, Cesario Ureta, dated the 17th day of August, 1849, and afterwards an additional affidavit for proof by one Edward Hall was filed, dated July 10, 1851; and that on July 11, 1851, the testimonio was recorded in Bexar county; that in 1850 the grant was surveyed by Richard A. Howard, the official deputy district surveyor for the district of Bexar; that his survey was certified as correct by the official surveyor of Bexar district, and this survey was recorded in the regular surveyor's office of that district, at San Antonio, February 27, 1851; that in 1854, when El Paso county, Tex., was organized, the grant was recorded in the proper records of that county; that the field notes of the Howard survey were also recorded in El Paso county in 1854, both in the record of deeds and the surveyor's records, and again recorded in the surveyor's office of Presidio county in October, 1873; that in 1855 the outline

of this grant was marked on the county map filed in the general land office of Texas, and there designated as the "Ben Leaton Claim."

The defendants, in their answer, deny the claim of title set up by the complainant in his bill and amended bill, and say it is not true in fact that any grant or any portion thereof, was ever made by the alcalde of Presidio del Norte, or by the state of Chihuahua, or by any legal authority of the said state, to Jose Ygnacio Ronquillo on the 25th day of January, 1832, or by any other title; and they deny that the said alleged grant of the 24th of September, 1834, was ever ratified or confirmed by the congress of the state of Chihuahua, or by any other legal authority. Defendants also plead that they are innocent purchasers in good faith, and the statutes of limitations of three and five years. A stipulation in the record admits that the complainant has acquired, by mesne conveyances, whatever title Lieut. Col. Ronquillo had, unless the same has been lost by something occurring since the grant; but it is not admitted that Ronquillo had any title.

The only documentary evidence offered by the complainant in support of said grant is the copy of the alleged testimonio from the records of Bexar county, state of Texas, and the duplicate printed copy of the alleged decree of confirmation certified from the archives of Santa Barbara, a small mining town in the state of Chihuahua, Mexico. The genuineness of the alleged testimonio recorded in Bexar county, Tex., and of the purported printed decree from the archives of Santa Barbara, is denied in the defendants' answer, and both are impeached as forgeries in the affidavit on file in the cause.

On a hearing in the circuit court upon all the evidence the court reached the conclusion that the alcalde who executed the grant had no power to execute the same, and that the same was void; and, further, that the same was never confirmed by the congress of Chihuahua, and thereupon entered a decree dismissing complainant's bill.

Seth F. Crews, John Ireland, A. G. Foster, Wm. H. Burges, and Earnest Dale Owen, for appellant.

Thos. J. Beall, for appellees.

Before PARDEE and MCCORMICK, Circuit Judges, and LOCKE, District Judge.

!

PARDEE, Circuit Judge (after stating the facts). The first question presented in the consideration of this case is, did Cesario Herrera, alcalde of Presidio del Norte, make and execute the alleged grant to Jose Ygnacio Ronquillo on the 25th day of January, 1832? The burden is on the complainant to establish such a grant. He offers for the purpose no original documentary evidence of any kind or description, no record from the alcalde's office, no record, memorandum of, or reference to, any such grant, from any of the public archives or other places where such evidence, if the grant was actually made, should be found, either in the state of Chihuahua or in the republic of Mexico, save and except the printed copy of the alleged decree of confirmation of the congress of Chihuahua, found in Santa Barbara, hereafter referred to. The following admission appears from a stipulation in the record:

"That complainant has made diligent search among the archives and records in the cities of Austin, San Antonio, and El Paso, in the state of Texas, and in Presidio del Norte (or Ojinaga), Juarez, and in the city of Mexico, in the republic of Mexico, for the original expediente, protocol, and testimonio of the grant which complainant claims to have been made to Jose Ygnacio Ronquillo on the 25th day of January, 1832, by Cesario Herrera, alcalde of Presidio del Norte, and that these are all the places where the same might have been reasonably expected to be found, and the said town of Presidio del Norte (or Ojinaga) being the place where by law the original expediente

and protocol of said title was originally required to be filed and archived, and that the same are not among the records and archives; and that complainant has also inquired of and made diligent search with all persons where the same might reasonably be found, and has been unable to find the same; and that the same, if they ever existed, are either lost, destroyed, or cannot be found. It is not admitted, but denied, by defendants that the same ever existed."

The parol evidence offered giving the recollection of witnesses (many of them interested witnesses) as to whether any such grant was known or heard of prior to 1848 is so fully met by contradictory evidence of the same nature, offered on the other side, that, after reading and considering the same, no impression favorable to the complainant is derived from it. The sole documentary evidence offered to establish that such a grant was made is the copy of the record produced from the office of the clerk of the county court of Bexar county, state of Texas, which shows that on the 16th day of August, 1849, a paper purporting to be a testimonio of the title for lands granted in favor of Don Jose Ygnacio Ronquillo on the 25th day of January, 1832; also a public act passed on the 27th day of November, 1832, bargaining the said grant of lands by Jose Ygnacio Ronquillo to one Hypolito Acosta; also a certificate on the 10th day of May, 1833, signed by Hypolito Acosta and Juana Pedrasa, that the said Juana Pedrasa is interested in the lands in question; and also a certificate by said Cesario Herrera, alcalde, on the 27th day of November, 1832, to the effect that Don Jose Ygnacio Ronquillo has complied with all the conditions of law on the subject, and therefore has the right to sell at his will (all, testimonio, transfer, and certificate, though of different dates, apparently forming one document),-was offered for record; and on the same day one Cesario Ureta made affidavit that he was well acquainted with the signatures of Cesario Herrera, Rafael Hernandez, Hypolito Acosta, and Juana Pedrasa to the annexed instrument of writing, and knows the same to be genuine and good; and, further, that the said persons above named resided out of the limits of the state of Texas; and afterwards, on July 10, 1851, one Edward Hall made affidavit that he had transacted business with Cesario Herrera, Rafael Hernandez, and Hypolito Acosta, and that he had often seen them sign their names, and that the signatures of Cesario Herrera, Rafael Hernandez, and Hypolito Acosta, as they appear at the foot of the annexed instrument of writing, he knew to be genuine and good; and, further, that the said Herrera, Hernandez, and Acosta were either dead, or out of the limits of the state of Texas; and thereupon the said document was recorded.

Considering the make-up of the document, and that it purports to be a record of several transactions, not in chronological order, and each purporting to be attested by a different set of witnesses, it is very doubtful whether the affidavits of Ureta and Hall furnished sufficient proof to warrant the county clerk of Bexar county to record the same. The presumption is very strong that the alleged testimonio is, at best, only a copy of a testimonio. As to the propriety of the record as made, see Pasture Co. v. Preston, 65 Tex.

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