This is a writ of error to the district court of the United States of the district of Texas.
The plaintiff filed his petition in the district court, alleging that he was seized in fee of a certain tract of land in the county of Refugio, on St. Joseph's island, in the State of Texas; beginning, on said island, at the point nearest the Aransas bar; thence in a northeasterly direction with the sea-shore to the inlet from the sea into the bay; thence north forty-five degrees west to the shore of the bay or lagoon; thence, with the meanders of the bay, to the place of beginning, containing three and one-half leagues, be the same more or less. That the defendants entered the same by force and ejected the plaintiff.
And the petition further represents, that the plaintiff having possession of several other tracts of lands of which he was seized, the defendants forcibly entered and dispossessed him, &c.; and the petitioner prayed that after due trial, according to the forms of law, he may have judgment for his damages aforesaid, for the recovery of the lands aforesaid.
The defendants plead that the court ought not to take further cognizance of the action of the plaintiff, because they say that the plaintiff claims title under and through a pretended indenture, purporting to be made and entered into on the 11th of May, 1850, by a certain John Power, of the county of Refugio, and State of Texas, a certain James Hewetson, of the State of Coahuila, and Republic of Mexico, by his attorney in fact, James Power; and the said James Power, acting for and in behalf of the representatives of Duncan S. Walker, deceased, of the one part, and Thomas M. League, of the city of Galveston, and State of Texas aforesaid, of the other part, but really, and in law and fact, only by the said James Power, of the one part, and the plaintiff, of the other part; which said indenture purported to convey from James Power unto the plaintiff, his heirs and assigns forever, the said tracts and parcels of land described in the petition, and which the plaintiff seeks to recover in this action.
The said conveyance being made to the plaintiff in trust, for the following purposes: that the said League should commence all such suit, or suits, as might be necessary to settle the title to said lands, in the district court, and, should a decision be made adversely in said court, that he would prosecute a writ of error or appeal to the supreme court of the United States; and when the litigation was finally determined, the said League would convey two-thirds of the land recovered, in which the title should be settled, to said Power and Hewetson, and the representatives of the said Walker, and their heirs and assigns; and, until such conveyances were made, should hold said lands for the benefit of said parties; and the plaintiff agreed to pay one-third of the expense of litigation, and the expense before that time incurred, which it was agreed amounted to one thousand dollars.
And the defendants allege, that the said Power, at the time of the conveyance, and for years before and ever since, has been a citizen of Texas; and that the said plaintiff has resided in the State of Texas for twelve years, and is a citizen of that State. That before commencing suit he went to Maryland and other States, and remained absent about four months, and on his return brought this suit as a citizen of Maryland; and that the said conveyance, was colorable, and was made to give jurisdiction to the courts of the United States.
Three other pleas were filed representing that the conveyance was made by Power, a citizen of Texas, and who is the real plaintiff in the case, to give jurisdiction to the federal courts, and that League is a nominal plaintiff.
The plaintiff admits, for the purposes of this cause, that the only legal title which he claims to have to the several tracts of land in his petition described, is that conveyed to him by James Power, of the State of Texas.
A demurrer was filed to the first plea, and issues joined as to the others.
At an early period of this court, it was held in some of the circuit courts, that the averment of citizenship, to give jurisdiction, must be proved on the general issue. And as a consequence of this view, if at any stage of the cause it appeared that the plaintiff's averment of citizenship was not true, he failed in his suit. But it is now held, and has been so held for many years, that if the defendant disputes the allegation of citizenship in the declaration, he must plead the fact in abatement of the suit; and that this must be done in the order of pleading, as at common law.
In this case, jurisdiction is claimed by the citizenship of the parties. The plaintiff avers that he is a citizen of Maryland, and that the defendants are citizens of Texas.
In one of the pleas, it is averred that the plaintiff lived in Texas twelve years and upwards, and that, for the purpose of bringing this suit, he went to the State of Maryland, and was absent from Texas about four months.
The change of citizenship, even for the purpose of bringing a suit in the federal court, must be with the bon a fide intention of becoming a citizen of the State to which the party removes. Nothing short of this can give him a right to sue in the federal courts, held in the State from whence he removed. If League was not a citizen of Maryland, his short absence in that State, without a bon a fide intention of changing his citizenship, could give him no right to prosecute this suit.
But it very clearly appears from the deed of conveyance to the plaintiff, by Power, that it was only colorable, as the suit was to be prosecuted for the benefit of the grantor, and the one-third of the lands to be received by the plaintiff was in consideration that he should pay one-third of the costs, and superintend the prosecution of the suit. The owner of a tract of land may convey it in order that the title may be tried in the federal courts, but the conveyance must be made bon a fide, so that the prosecution of the suit shall not be for his benefit.
The judgment of the district court is reversed, for want of jurisdiction in that court.
Notes edit
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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