Smith et al. v. Kernochen.

derivation of title of the lessor of the plaintiff. The proper termination of the objection is not to the jurisdiction at all, but to the right to recover, equally fatal in all jurisdictions, State or Federal.

It is nowhere denied that the assignment was duly signed, sealed, and delivered, was upon a sufficient consideration, and, between the parties, a good and valid transfer, sufficient in law to pass the right of the mortgagee, whatever it was, to the transferee. How it can be said that such a deed is void is altogether inconceivable. Probably the explanation of what is meant is to be sought in the words which follow, that it "could give no title which this court" (the Circuit Court) "would enforce." The reasoning, then, *208] would be, it is good *elsewhere, but it is void here; and the ground must be, that it is so void because it was made to give this court jurisdiction. This position is answered authoritatively by one of the decisions of this high court, quoted in the printed argument of the plaintiff in error. In McDonald v. Smalley, 1 Pet., 620, (A. D., 1828,) Chief Justice Marshall, in page 624, declares the motive to be of no consequence. The case is very similar to the present, and what is there said is now considered to be the settled doctrine of this court. The reasons of it will be found very fully stated in an opinion of the late Judge Story, in his circuit, which will be again referred to in a later stage of the argument. (Briggs v. French, 2 Sumn., 251.) The motive, therefore, is not an unlawful one to entertain or to act upon, and cannot affect the validity of the deed, if in other respects valid and good. "This court" (the Circuit Court) would enforce it as fully as any other court. It would have been error to decline the jurisdiction.

3. The judge is charged with error in deciding, as alleged, that this, if true, was matter in abatement, that it ought to have been pleaded, and could have no influence after the general issue pleaded.

What the judge really did say is in the bill of exceptions, and is as follows:-" And the court charged, that any matter in abatement should have been pleaded in abatement; and that the facts proved by the defendant, on the trial, as set forth in the bill of exceptions, after the plea of the general issue, could be of no avail to the defendant, and could not abate the suit."

If the facts proved by the defendant could be of no avail, either upon a plea in abatement or upon the general issue, then the decision of the judge, as imputed to him, would be wholly immaterial, and therefore it is not error to reverse the

Smith et al. e. Kernochen.

judgment. Authority (which is abundant) need not be quoted for this obvious conclusion of common sense. If it could not be made available in either way, the case was against the defendant, and the decision must be against him, so that what was said by the judge could neither help nor hurt him. This point was thus immaterial.

But the charge of the judge must be understood with reference to all that had previously occurred in the case, and in fairness must be interpreted as intended to express, in a concise way, his opinion upon the several points the case presented upon the evidence or upon the requirement of counsel. It must be remembered, therefore, in the first place, that there was not the least pretence of evidence to affect the lessor of the plaintiff, or to impugn the integrity of his conduct. All that *was before the court was the evidence as to the motive of the mortgagee, which, as already stated, [*209 was of no manner of consequence. In his charge, he begins with stating the law,-"that any matter which abates the suit should have been pleaded in abatement," which, undoubtedly, is true,-universally true, unless this be an exception. The remainder of the sentence must be understood to say, that, if so pleaded, they would be insufficient, under the circumstances proved, "to abate the suit."

It is not worth while, however, to occupy the time and attention of the court with an effort to bring this question to the most exact precision. Interpreted in either way, the charge is right, and there is no error in it. If the court should be of opinion that the learned judge below meant to say that the matter alleged could be of no avail to the defendant, after pleading the general issue, we contend that he was right, and there was no error.

The plaintiff's argument, it will be seen, embraces two propositions in law, namely, that, upon the trial of the general issue, the evidence in the case was competent and was sufficient to oust the jurisdiction, and also that no plea in abatement was necessary to entitle the evidence to be heard, and to produce this legal effect.

To maintain these propositions, but one case is cited, namely, Maxfield's Lessee v. Levy, reported in 2 Dall., 381, and more at large in 4 Dall., 330. Reference is also made to two dicta of a later period, which will be noticed hereafter.

What Maxfield's Lessee v. Levy decided, it seems to have been difficult to express in legal language. In the first of the reports, the purpose of the deed, and that there was no consideration, are stated as the grounds of the decision. In the index to the second, it is thus stated:"A fictitious convey

Smith et al. v. Kernochen.

ance of land, to give jurisdiction to the Federal court, detected, and the suit dismissed.". The word "fictitious" here used will be found to be adopted afterwards, but what it means is nowhere stated or defined. The word is an ambiguous one, as here applied, and the two cases where it is subsequently found did not require attention to its meaning, because the objection founded upon it was answered decisively by other matter. All that need be said is, that if the "purpose" or "motive " is held to make it " fictitious" and unlawful, it is contrary to what has been decided by this court in the case already referred to.

The decision of the Circuit Court, however, is not authority here. It is entitled to respect so far only as it is reasonable and consistent with law; and to that respect it is entitled only in cases where the facts and circumstances are the same. *Now they are not so, in the present case, as must be most obvious.

*210]

In Maxfield's Lessee v. Levy there was no question of the competency of the evidence upon the general issue, nor of its sufficiency to oust the jurisdiction. It does not appear that the general issue had been pleaded, or any other plea, nor, of course, that the defendant, by pleading, had waived his right to except to the jurisdiction. The case was decided upon a rule to show cause why the ejectment should not be dismissed from the record.

Again, in Maxfield's Lessee v. Levy the grantor and the grantee were both parties to the purpose which the learned judge denounced as vitiating the deed. That is not the case here. There is no evidence at all that the assignee was privy to it.

Further, there was no consideration in Marfield's Lessee v. Levy. This was clearly and distinctly proved, and much stress is laid upon it by the learned judge, as may be seen in 4 Dall., 334. It was, indeed, the chief ground of his decision. In the present case, there was a valuable consideration paid.

Not admitting that, under these circumstances, the decision in Marfield's Lessee v. Levy can be supported, yet there are such differences between that case and the present, as fully justify us in concluding that the learned judge who decided Maxfield's Lessee v. Levy would not have decided Kernochen V. Smith otherwise than Judge Crawford has done.

Independently of these considerations,-which, it is submitted, are sufficient here,-could Marfield's Lessee v. Levy be maintained at the present day, if it were now to present itself with the same facts and circumstances, precisely, as were before the late Judge Iredell? The case occurred, it

Smith et al. v. Kernochen.

will be remembered, as early as the year 1797, when the Constitution had been very recently made, its institutions were new and untried, and they were both regarded with jealousy, as likely to encroach upon and swallow up the States. The judiciary, of course, had its full share of the effects of this feeling. Experience has shown that it was groundless. The courts of the United States have carefully kept themselves within the narrowest limits. They have settled, in the first place, that they can occupy no more of the ground belonging to the United States by the Constitution than is assigned to them by acts of Congress. They have, in the next place, settled that their jurisdiction is limited, though they are not inferior courts. And, finally, that their jurisdiction must appear upon the record. The neglect, in this last particular, may be taken advantage of at any time, [*211 even in error. But they have never gone the length of saying that the want of jurisdiction from matters out of the record may be alleged at any time, in any form, or in total disregard of all rule. Still less have they countenanced the position, that a deed, good and real by the laws of the State, and which would be so held in any State tribunal, becomes void by being offered in evidence in a court of the United States, and is to be regarded as fictitious.

The case of Maxfield's Lessee v. Levy has received no countenance or support in this court. It has never been followed, as far as known, by any judge. In the two cases referred to on the other side, there is a reference merely to the subject of "fictitious conveyances," but in both the jurisdiction was supported, without any examination of the doctrine.

It is unnecessary to examine the argument in Maxfield's Lessee v. Levy, because this has already been done by the late Judge Story, in the case of Briggs v. French, 2 Sumn., 252. With the force of ability, learning, and experience, and the high judicial authority, which that eminent and lamented judge could bring to the discussion, it would be a work of supererogation, if not of presumption, especially in this court, where he was so well known as a judge and a jurist, to attempt to add a word to what he has said. This decision. was in the year 1835, with the light of nearly half a century upon the law and practice of the courts of the United States.

Two things, however, irresistibly force themselves upon the mind of any one who reads that case. The one is, how it can be that a court of the United States, constituted to administer, in certain cases, the laws of the States, can declare a deed void which is good by the State law, or hold it fictitious when by the same law it is real. The other, how can a court

Smith et al. v. Kernochen.

constituted a court of law or equity deem itself at liberty to reject a rule of pleading of universal adoption, and conducive to order and justice, to replace it by a mode of proceeding which leads only to confusion, surprise, and wrong?

But it is believed, also, that the decisions of this court have established the contrary. One remark only will be made before referring to them. The jurisdiction in question is founded exclusively upon the character of the parties, and not at all upon the subject-matter. It is not perceived how the latter can affect the former. The one exception made by Congress, with perfect accuracy, in the act of 1789, is founded upon the subject-matter, namely, assignable instruments. No matter who sues upon them, or who is sued, if there was not jurisdiction between the original parties, there is none, in the excepted case, where the assignee is plaintiff. This is plain and practicable. *The purpose or motive

*212] is not regarded, and the simple fact, as to the subjectmatter, is the determining test. The exception only proves the rule. In all other cases, the character of the parties decides the jurisdiction, whatever may be the subject-matter. Congress could have gone further, if they had thought fit to do so. They can do so still, if they so incline. Probably Congress and the people are by this time convinced that the jurisdiction is a beneficial one, and ought to be cavilled at or curtailed.

But now for the decisions of this court, leaving to it, without particular suggestions, to discern how they contradict and overthrow the doctrine of Maxfield's Lessee v. Levy.

Instances of pleas to the jurisdiction will be found in Sere v. Pilot, 6 Cranch, 332; Mollan v. Torrance, 9 Wheat., 537 ; Shelton v. Tiffin, 6 How., 163. Doubtless there are many others.

In D'Wolf v. Rabaud, 1 Pet., 498, (A. D., 1828,) it was decided that the question of citizenship must be pleaded in abatement. Said to have been so recently decided, on full consideration.

In Evans v. Gee, 11 Pet., 80,-see page 83, opinion of Judge Wayne, (A. D., 1837,) the same point was decided. In Sims v. Hundley, 6 How., 1, (A. D., 1848,) that, upon the plea of non assumpsit, evidence cannot be received relating to the residence of the party, bearing upon the jurisdiction of the court. So, in Bailey v. Dozier, 6 How., 23 (same year). See, also, Briggs v. French, 2 Sumn., 251.

In Bonnafee v. Williams, 3 How., 574,-see page 577,(A. D., 1845,) this court decided as follows:-"Where the citizenship of the parties gives jurisdiction, and the legal