[146] tached from the stove. so that the stove is com plete without them and tuey are complete with APPEAL from the Court of Claims. The history and facts of the case appear Messrs. S. F. Phillips, Solicitor-Gen. and Messrs. Wm. E. Earle and J. J. Darling- Mr. Justice Blatchford delivered the opin. [149] ion of the court: The out being attached; and it also states that they concerning the same; that is to say, upon trust True copy. Test: UNITED STATES, Appt., v. SAMUEL G. LAWTON. (See S. C., Reporter's ed., 146-151.) utor or executors over the said part of my real recover it. 3. No question as to the disposition of such pro- 4. The rulings in U. S. v. Taylor, 104 U. S., 216 *Head notes by Mr. Justice BLATCHFord. [148] was sold at public sale, in December, 1875, for | case, there would have been a surplus of The present case differs from the Taylor Case only in this, that the land was in this case bought in by the tax commissioners for the United States and no money was paid on the sale. It was so bought in for a sum which exceeded by $929.50 the tax, penalty, interest and costs. This was done under the authority of section 7 of the Act of June 7, 1862, as amended by the Act of February 6, 1863, ch. 21, 12 Stat. at L.,640, which authorized the commissioners to bid off, for the United States, land sold for the tax at a sum not exceeding two thirds of its assessed value, unless some person should bid a higher sum, and also provided that at a sale any land which might be selected, under the direction of the President, for government use, might be bid in by the commissioners, under the direction of the President, for and struck off to the United States. The land in the present case having been struck off for and bid in for the United States at the sum of $1,100, we are of opinion that the surplus of that sum, beyond the $170.50 tax, penalty, interest and costs, must be regarded as being in the Treasury of the United States, under the provisions of section 36 of the Act of 1861, for the use of the owner, in like manner as if it were the surplus of purchase money received by the United States from a third person on a sale of the land [150] to such person for the non-payment of the tax. It was unnecessary to go through any form of The appellants rely very much on the provisions of section 12 of the Act of 1862, which require that one half of the proceeds of subsequent leases and sales of land struck off to the United States at a sale for the non-payment of the tax, shall be, under certain circumstances, paid to the State in which the land lies; and contend that those provisions apply to the land in this case bought in under the Act of 1863. The view urged is, that if the United States pays to the appellee the $929.50, and to the State one half of the proceeds of subsequent leases and sales of the land, they will pay out more than the surplus of the proceeds of the original sale. It is not necessary to determine whether section 12 of the Act of 1862 applies to the land in this case, even if it would be proper to do so in a case where the State is not represented, as a claimant to the proceeds of leases and sales. No question as to the disposition of such proceeds can properly affect the right of the appellee to this surplus money. His claim is to the surplus money arising on the original sale, and not to any proceeds of any dealing with the land by the United States afterwards. The application made to the Secretary of the Treasury for the surplus not having been complied with, the appellee was entitled to bring this suit, as on an implied contract to pay over the surplus. It not having been paid to the [151] trustees under the will or to the life tenant, the appellee, as remainder man, is clearly entitled to it. The judgment of the Court of Claims is affirmed. True copy. Test: James H. McKenney, Clerk, Sup. Court, U. 8. EDMOND J. HART, Piff. in Err., v. MARION SANSOM ET AL. (See S. C., Reporter's ed., 151-156.) adjudication-suit to remove cloud on title-effect of service by publication. Former *1. A decree of a state court for the removal of a cloud upon the title of land within the State, ren- *Head notes by Mr. Justice GRAY. NOTE.-Service of notice to appear and defend; S. v. Beverly, 42 U. S. (1 How.), 134. Estoppel by judgment. See note to Aspden v. Nixon, 45 U. S. (4 How.), 487. [152] local statutes, is no bar to an action by him in the son County as aforesaid, are fraudulent and [No. 958.] Submitted Jan. 2, 1884. Decided Jan. 21, 1884. in The history and facts of the case appear Mr. Justice Gray delivered the opinion of This is a writ of error sued out by Edmond J. Hart, a citizen of Louisiana, to reverse a judgment rendered against him in the Circuit Court of the United States for the Northern District of Texas, in an action brought by him against Marion Sansom and the heirs at law of Thomas M. League, citizens of Texas, to recover a tract of land in Johnson County, in that State, of which they had dispossessed him. At the trial, Hart proved his title, under a patent from the Republic of Texas to League and a deed, with general covenants of warranty from League, dated August 19, 1846, and both recorded on December 9, 1879; and it appeared that the defendant Sansom held possession of the land, under a lease from the other defendants and as their tenant. ing the sheriff to serve Hart, being a citizen of That record further showed a default of all That record finally showed a judgment that the plaintiffs recover of the defendants the premises described, and that the several deeds in the plaintiffs' petition mentioned, be and the same are hereby annulled and canceled and for naught held, and the cloud thereby removed, and for costs; and that execution issue for the costs. The circuit court against the plaintiff's objection, admitted the judgment in evidence, instructed the jury that it devested the plaintiff of his title to the land, and directed a verdict for the defendants. The plaintiff, deriving his title under a deed with covenants of general warranty from League, is entitled to maintain this action against League's heirs, who are estopped by those covenants, unless the former judgment in the action brought by them in the state court has adjudicated the title as between them and the present plaintiff. It is, therefore, necessary to consider the nature and effect of that judg ment. The defendants offered in evidence the record The petition combined, in accordance with [154] cept Hart, held recorded deeds, which were The lege that he was in possession or was in privity | rendered, by actual service upon him within its with the other defendants, or that he held any jurisdiction; and constructive service by publideed, but only that he set up some pretended cation in a newspaper is not sufficient. claim and title. And the verdict finds that he courts of the State might, perhaps, feel bound claimed the land but had no title of record or to give effect to the service made as directed by otherwise therein. The judgment is that the its statutes. But no court deriving its authority plaintiffs recover the land of the defendants from another government will recognize a and that the deeds mentioned in the petition be merely constructive service as bringing the and are annulled and canceled, and the cloud person within the jurisdiction of the court. thereby removed, and for costs; and execution The judgment would be allowed no force in is awarded for costs only, and not for any writ the courts of any other State; and it is of no or process in the nature of a writ of possession greater force, as against a citizen of another or habere facias. State, in a court of the United States, though held within the State in which the judgment [156] was rendered. Hollingsworth v. Barbour, 4 Pet., 466, 475; Boswell v. Otis, 9 How., 336; Bischoff v. Wethered, 9 Wall., 812 [76 U. S., XIX., 829]; Knowles v. Gas-Light Co., 19 Wall., 58 [86 U. S., XXII., 70]; Pennoyer v. Neff, 95 U. S., 714 [XXIV., 565]. See, also, Schibsby v. Westenholtz, L. R. 6 Q. B. 155; City of Mecca, L. R. 8 P. D., 106. It is difficult to see how any part of that judgment, except for costs, is applicable to Hart; for that part which is for recovery of possession certainly cannot apply to Hart, who was not in possession; and that part which removes the cloud upon the plaintiffs' title appears to be limited to the cloud created by the deeds mentioned in the petition, and the petition does not allege, and the verdict negatives, that Hart held any deed. But if there is any judgment, except for costs, against Hart, it is, upon the most liberal construction, only a decree removing the cloud created by his pretended claim of title and is no bar to the present action. Generally, if not universally, equity jurisdiction is exercised in personam and not in rem, and depends upon the control of the court over the parties, by reason of their presence or residence, and not upon the place where the land lies in regard to which relief is sought. Upon a bill for the removal of a cloud upon title, as upon a bill for the specific performance of an [155] agreement to convey, the decree, unless otherwise expressly provided by statute, is clearly not a judgment in rem, establishing a title in land, but operates in personam only, by restraining the defendant from asserting his claim, and directing him to deliver up his deed to be canceled, or to execute a release to the plaintiff. Langdell, Eq. Pl., 2d ed., secs. 43, 184; Massie V. Watts, 6 Cranch, 148; Orton v. Smith, 18 How., 263 [59 U. S, XV., 393]; Vandever v. Freeman, 20 Tex., 334. It would, doubtless, be within the power of the State in which the land lies to provide by statute that, if the defendant is not found within the jurisdiction or refuses to make or to cancel a deed, this should be done in his behalf by a trustee appointed by the court for that purpose. Felch v. Hooper, 119 Mass., 52; Ager v. Murray, 105 U. S., 126, 182 [XXVI., 942, 944]. But in In the judgment in question, no trustee to act Such a decree, being in personam merely, can only be supported against a person who is not a citizen or resident of the State in which it is (See S. C., Reporter's ed., 156-162.) Bridge, when a work of internal improvement— A wagon bridge across the Platte River is a work [No. 1236.] Submitted Jan. 4, 1884. Decided Jan. 21, 1884. ERROR to the Circuit Court of the United States for the District of Nebraska. Messrs. Wm. H. Munger, Lewis A. Mr. Wm. Marshall, for defendants in er ror. Mr. Justice Gray delivered the opinion of the court: This is a writ of error to reverse a judgment of the Circuit Court of the United States for the District of Nebraska, denying a peremptory [157] writ of mandamus to command the County Commissioners of the County of Dodge, in the State of Nebraska, to levy a special tax upon *Head note by Mr. Justice GRAY. valuation of the taxable property within the the taxable property within Fremont Precinct, | upon by the voters of the precinct, contained a The decision of this case depends upon the peculiar provisions of the statutes of Nebraska, and an examination of those statutes leaves us in no doubt how it should be decided. In the Revised Statutes of 1866, the 9th chapter, concerning county commissioners, contained the following provisions: To an alternative writ of mandamus, alleging the facts above stated, the County Commissioners filed an answer alleging that the bonds, which were signed and sealed by the County "Sec. 19. The said commissioners shall have Commissioners, were in this form: power to submit to the people of the county, at "United States of America, State of Nebraska: any regular or special election, the question It is hereby certified that Fremont Precinct, whether the county will borrow money to aid in the County of Dodge, in the State of Nebras- in the construction of public buildings, the ka, is indebted unto the bearer in the sum of question whether the county will aid or con$1,000, payable on or before twenty years after struct any road or bridge, or to submit to the date, with interest at the rate of ten per cent people of the county any question involving an [159] per annum from date. Interest payable an- extraordinary outlay of money by the county; nually on the presentation of the proper cou-and said commissioners may aid any enterprise pons hereunto annexed. Principal payable at designed for the benefit of the county as aforethe office of the County Treasurer, in Fremont, said, whenever a majority of the people thereof Dodge County, Nebraska; interest payable at shall be in favor of the proposition as provided the Ocean National Bank, in the City of New in this section. York. Sec. 20. When county warrants are at a deThis bond is one of a series issued in pur-preciated value, the said commissioners may, suance of and in accordance with a vote of the in like manner, submit the question whether a electors of said Fremont Precinct at a special tax of a higher rate than that provided by law election held on the 11th day of November, shall be levied; and in all cases when an addiA. D 1870, at which time the following propo- tional tax is laid, in pursuance of a vote of the sition was submitted: people of the county, for the special purpose of repaying borrowed money, or of constructing or ordaining to construct any road or bridge, or for aiding in any enterprise contemplated by the preceeding section, such special tax shall be paid in money and in no other manner. 'Shall the County Commissioners of Dodge County, Nebraska, issue their special bonds on Fremont Precinct, in said county, to the amount not to exceed $50,000, to be expended and appropriated by the County Commissioners, or as much thereof as is necessary in building a wagon bridge across the Platte River, in said [158] precinct; said bonds to be made payable on or before twenty years after date, bearing interest at the rate of ten per cent per annum, payable annually?' which proposition was duly elected, adopted and accepted by a majority of the electors of said precinct voting in favor of the proposition. And whereas, the Smith Bridge Company of In witness whereof, we, the said County The answer further alleged that the propo- Sec. 21. The mode of submitting questions to the people, contemplated by the last two sections shall be the following; the whole question, including the sum to be raised or the amount of the tax desired to be levied or the rate per annum, and the whole regulation, including the time of its taking effect or having operation, if it be of a nature to be set forth, and the penalty of its violation, if there be one, is to be published at least four weeks in some newspaper published in the county. If there is no such newspaper published, the publication is to be made by being posted up in at least one of the most public places in each election precinct in the county and in all cases the notices shall name the time when such question will be voted upon, and the form in which the question shall be taken; and a copy of the question submitted shall be posted up at each place of voting during the day of election. Sec. 22. When the question submitted involves the borrowing or expenditure of money, the proposition of the question must be accompanied by a provision to lay a tax for the payment thereof, in addition to the usual taxes under section 16 of this chapter; and no vote adopting the question proposed shall be valid, unless it likewise adopt the amount of tax to be levied to meet the liability incurred. Sec. 23. The rate of tax to be levied in pur |