Supreme Court of United States.
*393 Mr. A.T. Britton, Mr. A.B. Browne, Mr. J.H. McKune, and Mr. W.F. George in support of the motion.
Mr. John Garber, Mr. John H. Boalt, and Mr. Thomas B. Bishop opposing.
MR. CHIEF JUSTICE FULLER, after stating the case, delivered the opinion of the court.
It is axiomatic that, in order to give this court jurisdiction on writ of error to the highest court of a State in which a decision in the suit could be had, it must appear affirmatively not only that a Federal question was presented for decision by the highest court of the State having jurisdiction, but that its decision 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. And where the decision complained of rests on an independent ground, not involving a Federal question and broad enough to maintain the judgment, the writ of error will be dismissed by this court without considering any Federal question that may also have been presented. Eustis v. Bolles, 150 U.S. 361. It is equally well settled that where our jurisdiction depends upon the denial by a state court of a title, right, privilege, or immunity claimed under the Constitution, or any treaty or statute of the United States, it must appear on the record that such title, right, privilege, or immunity was specially set up or claimed at the proper time and in the proper way, and that the decision was against the right so set up or claimed. Schuyler Bank v. Bollong, 150 U.S. 85, 88. We cannot find that the title or right referred to in argument was specially set up or claimed prior to its assertion in the petition for the writ of error, which forms no part of the record of the court below. Clark v. Pennsylvania, 128 U.S. 395.
But such special claim, if duly made, would have been unavailing, as the judgment rested upon the proposition that the grant under which the plaintiff in error deraigned title was simulated, and this was a ground sufficient to sustain it *394 involving no Federal question. The parties claimed under separate private land claims, originating, as alleged, under the Republic of Mexico, and separately confirmed, surveyed, and patented by the authorized officers of the United States.
The eighth article of the treaty of Guadalupe Hidalgo, 9 Stat. 922, 929, provided: "In the said territories, property of every kind, now belonging to Mexicans not established there, shall be inviolably respected. The present owners, the heirs of these, and all Mexicans who may hereafter acquire said property by contract, shall enjoy with respect to it guaranties equally ample as if the same belonged to citizens of the United States."
Upon the acquisition of the country, the rights of the inhabitants to their property were retained, and they were entitled by the law of nations to protection in them to the same extent as under the former government, which protection the treaty also secured. As remarked by Mr. Justice Field in Beard v. Federy, 3 Wall. 478, 492, "the obligation, to which the United States thus succeeded, was of course political in its character, and to be discharged in such a manner and on such terms as they might judge expedient. By the act of March 3, 1851, c. 41, they have declared the manner and the terms on which they will discharge this obligation." This act created a special tribunal for the investigation of claims to land and the determination of their validity as respected the United States. 9 Stat. 631, 634. By section fifteen it was enacted: "That the final decrees rendered by the said commissioners, or by the District or Supreme Court of the United States, or any patent to be issued under this act, shall be conclusive between the United States and the said claimants only, and shall not affect the interests of third persons."
While the confirmation of these claims might be conclusive as against the United States and those claiming under them, such confirmation and patent could have no effect upon the interests of third persons in respect of grants to them from the former sovereign. The state courts were open for the determination between individuals of the priority or validity *395 of conflicting titles under different grants from the same antecedent source, and the issue as to whether one of the two grants was forged or obtained by fraud did not involve the denial of a right or title set up under the treaty or the statute. The treaty extended no protection to a fraudulent claim, nor did proceedings under the statute to which each was respectively not a party or privy determine any such question as between these private parties, neither of whom claimed under the United States by title subsequent, but both of whom claimed under patents based upon Mexican grants. Lynch v. Bernal, 9 Wall. 315, 323. The case was the ordinary one of a contest in respect of a forged or fraudulent deed. In Phillips v. Mound City Association, 124 U.S. 605, 610, it was ruled that the adjudication by the highest court of a State that certain proceedings before a Mexican tribunal, prior to the treaty of Guadalupe Hidalgo, was insufficient to affect the partition of a tract of land before that time granted by the Mexican government, which grant was confirmed under the act of March 3, 1851, presented no Federal question; and Mr. Chief Justice Waite, delivering the opinion of the court, said: "Article VIII of the treaty protected all existing property rights within the limits of the ceded territory, but it neither created the rights nor defined them. Their existence was not made to depend on the Constitution, laws, or treaties of the United States. There was nothing done but to provide that if they did in fact exist under Mexican law, or by reason of the action of Mexican authorities, they should be protected. Neither was any provision made as to the way of determining their existence. All that was left by implication to the ordinary judicial tribunals. Any court, whether state or national, having jurisdiction of the parties and of the subject-matter of the action, was free to act in the premises." The case is in point and is decisive. Martin v. Hunter, 1 Wheat. 304, is not to the contrary, for there the plaintiff claimed under the treaty of 1783, and the state court decided against the title thus set up.
We have not deemed it necessary to examine the question raised under the practice in California allowing separate *396 appeals to lie from a judgment and from an order granting or refusing a new trial, and for the purposes of this case have treated the judgment of the Supreme Court, which not only affirmed the order of the Superior Court overruling the motion, but the judgment as well, as the last and final judgment in affirmance of a final decree in equity in the court below.
Writ of error dismissed.
