Thompson v. Maxwell Land Grant & Railway Co.

after stating the case, delivered the opinion of the court.

It is the settled law of this court, as of others, that whatever has been decided on one appeal or writ of error cannot be reexamined on a second appeal or writ of error brought in the same suit. The first decision has become the’settled law of. the case. Supervisors v. Kennicott, 94 U. S. 498 , and cases cited in the opinion; Clark, v. Keith, 106 U. S. 464 ; Chaffin v. Taylor, 116 U. S. 567 ; Northern Pacific Railroad, v. Ellis, 144 U. S. 458 ; Great Western Telegraph Company v. Burnham, 162 U. S. 339 , 343.

"Whenever a case comes from the highest court of a State for review, and by statute or settled practice in that State the opinion of the court is a part of the record, we are authorized to examine such opinion for the purpose of ascertaining the grounds of the judgment. N. O. Water Works Co. v. Louisiana Sugar Refining Co., 125 U. S. 18 ; Kreiger v. Shelby Railroad, 125 U. S. 39 ; Egan v. Hart, 165 U. S. 188 . We take judicial notice of our own opinions, and although the judgment and the mandate express the decision of the court, yet we may properly examine the opinion in order to determine what matters were considered, upon what grounds the judgment was entered and what has become settled for further disposition of the case.

We, therefore, turn to the former opinion and the mandate to see what was presented and decided. The ground upon which the reversal was ordered was that the bill as presented, especially after the amendment, was technically a bill of review, and as such could not be maintained for three reasons: First, because the decree sought to be reviewed was a consent decree; secondly, because the bill, was filed on behalf of an assignee of the original defendant; and, thirdly, because it sought a modification of the decree upon a matter of fact not appearing upon the record, without alleging any newly discovered evidence unknown to the parties before that decree. The opinion by Mr. Justice Bradley gives a full history of the litigation, the substance of the allegations in the bill of com

“Nevertheless, the general purpose which it evidently had in view — the quieting of the title to the land in question — is one towards which a court of equity is always liberally ■ disposed, as tending to promote the peace of society and the security of property. And if, instead of seeking to reverse the decree of September, 1866, (which, for like reasons of public policy, as applicable to the security of judgments that have passed into rent adjudicatam, is not allowable,) the bill had sought to carry that decree more effectually into execution, it would have been' free from legal objections, and equally conducive to the object in view.”

And then, after quoting from Lord Redesdale, it adds:

“ The bill in this case, as originally filed, before it was converted by amendment into a bill of review, and abating the allegations of error in the original decree, approximated to the character of such a bill as might have been sustained. The proofs show a case which, in our judgment, supports the conclusions of the decree, to the effect that the terms of compromise made by the adult parties to the suit (including the mother and guardian of the infant heirs of Alfred Bent) were advantageous to the said infants, and were so considered and accepted by the court in their behalf. But, so far as the present decree undertook to reverse and modify the decree of September, 1866, we think it is clearly erroneous. Still, although we feel obliged to reverse the present decree, we do not think that the bill should be absolutely dismissed. And, as the whole question between the parties has been fully'litigated on the proofs, it would be unreasonable to require that these should be taken over again.

“ Our conclusion is, that the present decree must be reversed

with costs, and that the cause be remanded to the court below, with directions to allow the complainants to amend their bill as they shall be advised, and with liberty to the defendants to answer any new matter introduced therein; and that all the proofs in the cause shall stand as proofs upon any future hearing, thereof, with liberty to either party to take additional proofs upon any new matter that may be put in issue by the amended pleadings.”

The mandate contained an order in the language of the last paragraph.

Although the former decree was reversed on the ground that the bill as it stood was technically a bill of review and could not, under the circumstances, be maintained, obviously the decision went beyond the determination of. this matter. The case was not remanded with instructions to dismiss the bill as one not maintainable. It was decided that there were allégations in the bill which, if certain matters were stricken out, would make it properly one to more effectually carry into execution the consent decree of September, 1866, to establish beyond further controversy the settlement then made, and to quiet the title of the plaintiffs. It was also perceived and decided that the' proofs already taken made out a case which justified such relief, and that while the proofs did not establish one of the principal facts set forth in the original bill, to. wit, that the settlement was simply carrying into effect a compromise concluded with Alfred Bent, the father of the minors, during his lifetime, they did establish that such settlement made by the mother and guardian was advantageous to the infants, and was so considered and accepted by the court in their behalf.' Not only was there no dismissal of the bill,' but beyond that, the case was not opened for new proofs in respect to matters distinctly put in issue by the pleadings as they stood, and in respect to which it was determined that the proofs already in were sufficient. The plaintiffs were authorized to amend their bill, as they should be advised’, but obviously this contemplated such amendments as would make the bill one of the character,and scope indicated in the opinion. The defendants were given leave to

In the light of that decision it is not difficult to reach a conclusion upon the record as it now stands. When the case went back to the trial court the plaintiffs added no new matter to their bill. They made ten amendments, nine of which consisted simply in striking' out certain paragraphs and sentences, and the tenth in transposing the position in the bill of one paragraph. There was, therefore, nothing new to which the defendants were called upon, or permitted by the decision, to make answer. The parts of the bill stricken out were such as tended to make it, according to the opinion ,of this court, technically a bill of review, and left it strictly such a bill as was approved of in that opinion. The defendants filed answers to the amended bill. These answers contained new. matter. This new matter was substantially that the consent decree of September, 1866, was not made at the request or with the consent of the solicitor of the defendants or any of them, nor did the minors or any one haying authority to represent them ever authorize any solicitor to consent to any decree for the transfer or surrender of their rights; that the pretended agreement and proceedings were fraudulent as

But passing that, and considering the case in the light of the issues as they stand upon the amended pleadings and the findings of fact madé by the lower court, we are clearly of opinion that its decree in favor of the plaintiffs must be sustained. ' These findings show that in the lifetime of Alfred

That infants are. bound by a consent decree is affirmed by the authorities, and this notwithstanding that it does not appear that a prior inquiry was made by the court as to whether it was for their benefit. In 1 Dan. Oh. PI. & Pr. 163, it is said:

“Although the. court usually will not, where infants are concerned, make a deci’ee by consent, without an inquiry whether it is for their benefit, yet when once a decree has been pronounced without that previous step, i.t is considered as of the same authority as if such an inquiry had been directed, and a certificate thereupon made that it would be for their benefit. . In the same manner, an order for maintenance, though usually made after an inquiry, if made with- ' out would be.equally binding.” (In support of these propositions many authorities are cited in a note.) . . . “ An infant defendant is as much bound by a.decree in equity as a person of full age.; therefore, if there be an absolute ’decree made against a defendant who is under age, he will not be permitted to dispute it, unless upon the same grounds as an adult might have disputed it; such as fraud, collusion or error.”

In Walsh v. Walsh, 116 Mass. 377 , a decree had been entered as follows: “And the plaintiff and the defendants, . . •. Thomas Keyes, . . . and also in his capacity of guardian ad ■ litem of Bridget "Walsh and William Walsh, consenting to the following decree: And this court, being satisfied upon the representations of counsel that the decree is fit and proper to be made as against the said Bridget and William ; it is thereupon ordered, and adjudged, and decreed,” etc. On

“ An infant is ordinarily bound by acts done in good faith by his solicitor or counsel in the course of the suit, to the same extent as a person of full age. Tillotson v. Hargrave, 3 Madd. 494; Levy v. Levy, 3 Madd. 245. And a compromise, appearing to the court to be for the benefit of an infant, will be confirmed without a reference to a master; and, if sanctioned by the court, cannot be afterwards set aside except for fraud. Lippiat v. Holley, 1 Beav. 423 ; Brooke v. Mostyn, 33 Beav. 457, and 2 De G., J. & S. 373.

“ If the court does pronounce a decree against an infant by consent, and without inquiry whether it will be for his benefit, he is as much bound by the decree as if there had been, a reference to a master and a report by him that it was for the benefit of the infant. Wall v. Bushby, 1 Bro. Ch. 484; 1 Dan. Ch. Prac. 164. The case falls within the general rule, that a decree made by consent of counsel, without fraud or collusion, cannot be set aside by rehearing, appeal or review. Webb v. Webb, 3 Swanst. 658; Harrison v. Rumsey, 2 Ves. Sen. 488; Bradish v. Gee, Ambl. 229; S. C. 1 Keny. 73; Downing v. Cage, 1 Eq. Cas. Ab. 165; Toder v. Sansam, 1 Bro. P. C. (2d ed.) 468 ; French v. Shotwell, 5 Johns. Ch. 555 .”

Ordinarily indeed a court before entering a consent decree will inquire whether the terms of it are for the interest of the infants. It ought in all such cases to make the inquiry, and because it is its duty so to do it will be presumed, in the absence of any showing to the contrary, that it has performed its duty. In this case, while the decree fails to recite the making of such an inquiry, there is nothing to indicate that it was not made; the circumstances tend strongly to show, that it was in fact made, and the finding is that the conclusion reached by the chancellor as to the advisability of the settlement was a sound exercise of his discretion. It is

Again, the copy of the order directing the appointment of the mother as guardian ad Utem and giving her authority to make-the conveyance was incorporated into the deed which she kno.wingly executed, so that any inspection of the deed would have disclosed the fact that proceedings were being taken in court looking to the accomplishment of this compi’omise and settlement. There was no concealmént or secrecy in the matter. In this connection we are referred to this paragraph in the opinion of the Supreme Court of the Territory, filed in the companion case to which we have heretofore referred :

“We do not enter into a discussion at large of the testi

mony by which it is claimed that the decree of September, 1866, is successfully impeached upon the ground of fraud, and while we are not prepared, in view of the testimony submitted since the decision in Thompson v. Maxwell, 95 U. S. 400 , to say that ‘ the proofs show a case which, in our own judgment, support the conclusions of the decree to the effect that the terms of the compromise made by the adult parties to the suit (including the mother and guardian of the infant heirs of Alfred Bent) were advantageous to the said infants and were so considered and accepted by the court in their behalf,’ we do hold that, the judgment of the court at that time in so considering and accepting said terms was shown to be a fair and reasonable exercise of the chancellor’s discretion, and that no fraud, imposition or error has been shown to have entered into said transaction or to have brought about said compromise decree.”

It will be seen from this that while the Supreme Court of the Territory, under the new proofs presented, was unable to express itself as strongly as this court had done, it did consider that the judgment of the chancellor in considering and accepting the terms of settlement was a fair and reasonable exercise of his discretion. In other words, that court seems to have been of the opinion that under the later testimony it could not be said that the settlement was in fact advantageous to the infants, but at the same time found that the. chancellor not only made inquiry and considered the question of advantage, but also exercised fair and reasonable discretion in approving the settlement; and that, certainly, is all that is necessary to uphold a decree of a court. It would be strange, indeed, if, when those authorized to represent minors, acting in good faith, make a settlement of claims in their behalf, and such settlement is submitted to the proper tribunal, and after examination by that tribunal is found to be advantageous to the minors and approved by a decree entered of record, such settlement and decree can thereafter be set aside and held for naught on the ground that subsequent disclosures and changed conditions make it obvious that the settlement was not in fact for the interests of the minors, and that it would have been better for them to have retained rather- than eom-

Again, it is said that it appears from the findings that the guardian ad litem was a Mexican woman, and, at the time of the execution of the deed, ignorant of the English language, unfamiliar with business or her duties as guardian, without knowledge of the boundaries or extent of the grant or of the character and value thereof; that Maxwell represented to Scheurick that the grant was not as large as it was supposed to be; that it did not extend into Colorado or beyond the Red River, whereas it did so extend over 200,000 acres; that Scheu-rick and the guardian ad litem believed and were influenced by said representations; that Maxwell, while generous and magnanimous in many respects, was unscrupulous and tyrannical as well,- a resolute and determined man, of large wealth and great influence throughout the county of Taos and Territory of New Mexico; that he made threats that unless the Bent heirs accepted $18,000 for their claims they would never get anything, and that such threats were communicated to the guardian ad litem, and that these matters influenced her in making the' settlement and conveyance. But it also appears that it was not definitely known at the time where was the boundary line between Colorado and New Mexico; that the guardian ad litem acted in concert with the adult plaintiffs who were dealing with their own interests on the same terms, and that she was willing to make the same settlement they did. And when we take into consideration the character, the ability and standing of the husbands of the other adult plaintiffs, the fact that their interests were alike, that they all acted together, that the settlement which was finally made was so nearly that which the father of these minors had proposed in his lifetime, the fact that no fraud, imposition or

Again, it is urged that the whole of the consideration had not been paid by Maxwell at the time of the commencement of - this suit. The findings are that, as to the payment, the testimony is conflicting. It seems that Maxwell gave notes for the amount to each of the three plaintiffs. The guardian ad litem testified that the note she received had been paid — so testifying because her second husband, Thompson, to whom she was married about thirteen months after the death of Alfred Bent, and to whom, at the time of the marriage, she delivered the note with everything else she had, told her it had been paid. Other witnesses testified that only a portion of it had been paid, and the court found that the weight of the evidence was that at the beginning of the suit a considerable sum was still unpaid, but how much could not be ascertained. Maxwell was at all times a man of ample financial responsibility. No part of the proceeds of the note was paid directly to the minors or their mother, but Thompson, her second husband, supported, maintained and educated the minors during their minority with the funds of his wife and himself the same as his own children, keeping no separate account. The sum and substance of all this is, that each of the three separate plaintiffs took notes for the money Maxwell was to pay in settlement. Whether these notes drew interest or not is not disclosed, but Maxwell was a man of large financial ability, from whom the notes could have been collected at any time if the parties desired, and if either of them permitted the note to remain uncollected it must be assumed that it was for some good reason, possibly for the sake of the interest which the note drew. There is no finding that the note to the guardian ad litem had not long since been paid, but simply that it had not been fully paid at the time this suit was commenced, to wit, in 1870. If what was paid was not paid to

These are all the matters which are called to our attention as tending to impugn the validity of this consent decree, and even if we were at liberty under the terms of the prior decision to consider all these new matters we are of opinion that there is not enough in them, singly or together, to justify us in disturbing the settlement which was made and the decree which was entered.

In determining the validity of this transaction it must be remembered that the petition filed in the original case brought by Alfred Bent and his sisters disclosed that the interest which their father claimed in the grant arose out of a parol agreement; and so it is not strange that after a decree had been rendered in their favor their counsel advised.a settlement and the receipt of money rather than take the chances of further review in an appellate court; that Alfred Bent, the father of these minors, with his sisters, entered upon negotiations looking to a settlement of their claims, and that although there

But there is another aspect in which the equities of this ease may fairly be considered. The will of Alfred Bent gave the entire estate to his widow — gave it, it is true, for the maintenance of herself and her children, but nevertheless passed the title to her; and though the will had not been probated at the time of this settlement, it was soon thereafter, and, of course, became operative as and from the date of his death, so that at the time of the settlement the title to this property was in her. The owner by his will gave this property to his widow, and by such will trusted to her to make such disposition of it as she should deem .best, relying upon her to use the proceeds for her own maintenance and that of her children. He had a right to make such a disposition of the property and entrust it absolutely to her, and that in respect to this property it was not an unwise disposition is evident, for although he must have known of her inexperience in matters of business, he also knew that her interests were identical with those of his sisters, and that their common interests would be cared for' by those competent to look after such affairs. If the settlement made by the sisters, as adults,

In conclusion, it may not be inappropriate to call attention to some things which are matters of public history, and which are referred to at some length in the Maxwell Land Grant Case, 121 U. S. 325 . The Mexican colonization law limited the amount of a grant to a single individual to eleven square leagues, and it was claimed that all grants like this in which outboundaries were named were to be taken as simply grants of eleven square leagues per individual, to be laid off within such outboundaries. As there were in this case two grantees, Beaubien and Miranda, it was according to the claim a grant by the Mexican authorities of only twenty-two square leagues, or 97,424j^ acres. While this, with other grants, was on June 21, 1860, confirmed by act of Congress, c. 167, 12 Stat. 71 , claim was still made that the confirmation was operative only for the twenty-two square leagues. Some of the Secretaries of the Interior of the United States refused to issue patents in such cases for any more than eleven square leagues per individual grantee, and not until the case of Tameling v. United States Freehold Co., 93 U. S. 644 , decided in 1876, was it settled that such an act of confirmation was equivalent to a grant de novo, and included all the lands within the out-boundaries. Indeed, in the opinion in the Maxwell Land Grant Case, supra, decided in 1887, it is intimated that the Tameling case was not conclusive upon the question, because that was an action in ejectment in which the legal title shown by the patent prevailed, and not until the case then being considered, in which was a direct attack by the United States upon a patent, eould it be held that there was a final adjudication of the question. So that while the owners of the land grant were claiming as against the Government the whole

We see no error in this record, and the decree is

Affirmed.

Me. Justice Shieas and Me. Justice White dissented.