that fraud vitiates the most solemn contracts, | judgment or decree, that party has been predocuments and even judgments. There is also vented from presenting all of his case to the no question that many rights originally found- court. ed in fraud become-by lapse of time, by the difficulty of proving the fraud, and by the protection which the law throws around rights once established by formal judicial proceedings in tribunals established by law, according to the methods of the law-no longer open to inquiry in the usual and ordinary methods. Of this class are judgments and decrees of a court deciding between parties before the court and subject to its jurisdiction, in a trial which has presented the claims of the parties, and where they have received the consideration of the court. * On the other hand, the doctrine is equally well settled that the court will not set aside a judgment because it was founded on a fraudulent instrument, or perjured evidence, or for any matter which was actually presented and considered in the judgment assailed. Mr. Wells, in his very useful work on Res Adjudicata,says, sec. 499: Fraud vitiates everything, and a judgment equally with a contract; that is, a judgment obtained directly by fraud, and not merely a judgment founded on a fraudulent instrument; for, in general, the court will not go There are no maxims of the law more firmly again into the merits of an action for the purestablished or of more value in the adminis-pose of detecting and annulling the Fraud. tration of justice than the two which are de-* * Likewise, there are few exceptions to signed to prevent repeated litigation between the the rule that equity will not go behind the judgsame parties in regard to the same subject of ment to interpose in the cause itself, but only controversy," namely: "Interest reipublicæ, ut when there was some hindrance besides the negsit finis litium, and Nemo bis vexari pro una et ea ligence of the defendant, in presenting the dedameausa. fense in the legal action. There is an old case in South Carolina to the effect that fraud in obtaining a bill of sale would justify equitable interference as to the judgment obtained thereon. But I judge it stands almost or quite alone, and has no weight as a precedent." The case he refers to is Crawford v. Crawford, 4 Desau. 176, See, also, Big. Fraud, 170-172. If the court has been mistaken in the law, there is a remedy by writ of error. If the jury has been mistaken in the facts, there is the same remedy by motion for new trial. If there has been evidence discovered since the trial, a motion for a new trial will give appropriate relief. But all these are parts of the same proceeding, relief is given in the same suit, and the party is not vexed by another suit for the same matter. So in a suit in chancery, on proper showing, a rehearing is granted. If the injury complained of is an erroneous decision, an appeal to a higher court gives opportunity to correct the error. If new evidence is discovered after the decree has become final, a bill of review on that ground may be filed within the rules prescribed by law on that subject. Here, again, these proceedings are all part of the same suit, and the rule framed for the repose of society is not violated. But there is an admitted exception to this general rule, in cases where, by reason of some thing done by the successful party to a suit, there was, in fact, no adversary trial or decision of the issue in the case. Where the unsuccess ful party has been prevented from exhibiting fully his case, by fraud or deception practiced on him by his opponent, as by keeping him away from court, a false promise of a compromise; or where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff; or where an attorney fraudulently or without authority assumes to represent a party and connives at his defeat; or where the attorney regularly employed corrupt ly sells out his client's interest to the other side, -these, and similar cases which show that there has never been a real contest in the trial or hearing of the case, are reasons for which a new suit may be sustained to set aside and annul the former judgment or decree, and open the case for a new and a fair hearing. See, Wells, Res Adjudicata, sec. 499; Pearce v. Olney, 20 Conn., 544; Wierich v. De Zoya, 7 Ill., (2 Gilm.) 385; Kent v. Ricards, 3 Md. Ch., 396; Smith v. Lowry, 1 Johns. Ch., 320; De Louis v. Meek, 2 Green (Iowa), 55. In all these cases and many others which have been examined, relief has been granted, on the ground that, by some fraud practiced directly upon the party seeking relief against the The principle and the distinction here taken was laid down as long ago as the year 1702 by the Lord Keeper in the High Court of Chancery, in the case of Tovey v. Young, Prec. in Ch., 193. This was a bill in chancery brought by an unsuccessful party to a suit at law, for a new trial, which was at that time a very common mode of obtaining a new trial. One of the grounds of the bill was, that complainant had discovered since the trial was had that the principal witness against him was a partner in interest with the other side. The Lord Keeper said: "New matter may in some cases be ground for relief; but it must not be what was tried before; nor, when it consists in swearing only, will I ever grant a new trial, unless it appears by deed, or writing, or that a witness, on whose testimony the verdict was given, were convict of perjury, or the jury attainted." The case seems to have been well considered, for the decree was a confirmation of one made by the Master of the Rolls. The case of Smith v. Lowry [supra] was also a bill for a new trial, on the ground that the witness, on whose testimony the amount of damages was fixed, was suborned by the plaintiff; and that complainant had learned since the trial that a fictitious sale of salt had been made, for the purpose of enabling this witness to testify to the market-price. Chancellor Kent said that complainant must have known, or he was bound to know, that the price of salt at the place of delivery would be a matter of inquiry at the trial; and he dismissed the bill for want of equity, citing the case of Tovey v. Young with approval. And he cites a number of cases to show that chancery will not interfere though new evidence has been discovered since the trial, which, if the party could have introduced it, would have changed the result. In Bateman v. Willoe, 1 Sch. & L. 201, Lord Redesdale said: "I do not know that equity ever does interfere to grant a trial of a matter which has already been discussed in a court of | essential to the decree. To overrule the demurlaw, a matter capable of being discussed there, rer to this bill would be to retry, twenty years and over which the court of law had full juris- after the decision of these tribunals, the very diction." The rule must apply with equal force matter which they tried, on the ground of fraud to a bill to set aside a decree in equity after it in the document on which the decree was made. has become final, where the object is to retry a If we can do this now, some other court may matter which was in issue in the first case and be called on twenty years hence to retry the was matter of actual contest. same matter on another allegation of fraudulent combination in this suit to defeat the ends of justice; and so the number of suits would be without limit and the litigation endless about the single question of the validity of this docu The same doctrine is asserted in Dixon v. Graham, 16 Iowa, 310; Cottle v. Cole 20 Iowa, 482; Borland v. Thornton, 12 Cal., 440; Ridille v. Baker, 13 Cal., 295; R. R. Co., v. Neal, I Wood, 353. ment. We have alluded to an allegation concerning the agent representing the United States before the Board of Commissioners. But perhaps the best discussion of the whole subject is to be found in the case of Greene v. Greene, 2 Gray,361, by Chief Justice Shaw. That was a bill filed by a woman against her hus- The substance of it is that Howard, one of band for a divorce. The husband had five years the present defendants, then the law agent of before obtained a decree of divorce against the the Government before the Board, had notice, wife. And in her bill she now alleges that the derived from the papers in some other suit, of former decree was obtained by fraud, and col- the fraudulent character of the Micheltorena lusion, and false testimony, and she prays that grant, and that he failed and neglected to inthis may be inquired into, and that decree set form the commissioners of the fact, or otheraside. The court was of opinion that this alle- wise to defend the interest of the United States gation meant that the husband colluded or com- in the matter. If there had been a further albined with other persons than complainant to legation that Howard was then interested in obtain false testimony, or otherwise to aid him the Richardson claim, or that Richardson had in fraudulently obtaining the decree. The Chief bribed him, or that from any corrupt motive Justice says that the court thinks the point set- he had betrayed the interest of the Government, tled against the complainant by authority, not the case would have come within the rule which specifically in regard to divorce, but generally authorizes relief. But nothing of the kind is as to the conclusiveness of judgments and de-alleged; and the statement is a mere charge of crees between the same parties. He then ex- carelessness or negligence on the part of the amines the authorities, English and American, attorney for the Government, which would not and adds: "The maxim that fraud vitiates have supported a motion for a new trial in a every proceeding must be taken, like other gen case at law at the same term, much less a suit eral maxims, to apply to cases where proof of in chancery to set aside a decree twenty years fraud is admissible. But where the same matter after it had been rendered. has been actually tried, or so in issue that it might have been tried, it is not again admissible; the party is estopped to set up such fraud, because the judgment is the highest evidence, and cannot be contradicted." It is otherwise, he says, with a stranger to the judgment. This is said in a case where the bill was brought for the purpose of impeaching the decree directly, and not where it was offered in evidence collaterally. We think these decisions establish the doctrine on which we decide the present case, namely: that the acts for which a court of equity will on account of fraud set aside or annul a judgment or decree, between the same parties, rendered by a court of competent jurisdiction, have relation to frauds, extrinsic or collateral, to the matter tried by the first court, and not to a fraud in the matter on which the decree was rendered. That the mischief of retrying every case in which the judgment or decree rendered on false testimony, given by perjured witnesses, or on contracts or documents whose genuineness or validity was in issue, and which are afterwards ascertained to be forged or fraudulent, would be greater, by reason of the endless nature of the strife, than any compensation arising from doing justice in individual cases. The case before us comes within this principle. The genuineness and validity of the concession from Micheltorena produced by complainant was the single question pending before the Board of Commissioners and the district court for four years. It was the thing and the only thing that was controverted, and it was Nor is there any such clear statement of the notice which Howard had as is necessary to establish his negligence. In fact, one great, if not fatal defect in the bill is the absence of any declaration of the means by which the fraud has been discovered or can be now established. There is another objection to the bill which, though not going to the merits, is, in our opinion, equally fatal to it in its present shape. We are of opinion that, unless by virtue of an Act of Congress, no one but the AttorneyGeneral, or some one authorized to use his name, can bring a suit to set aside a patent issued by the United States, or a judgment rendered in its courts on which such a patent is founded. That is the case before us, and we see nothing in the bill to indicate to the court that it ever received the sanction of the Attorney-General, or was brought by his direction. The allegation in the opening of the bill already cited implies that Mr. Van Dyke, the district attorney, is plaintiff; but if, construing it liberally, we hold that the United States is plaintiff, the statement is clear that it is brought by the district attorney, and not by the Attorney General. Leaving out of consideration all mere questions of form, there arises no presumption from the Act of Congress which gives the Department of Justice a general supervision over the district attorneys, that this suit was brought by his direction; for the district attorneys bring innumerable suits, indictments and prosecutions, in which the United States is plaintiff, without consulting the Attorney-General, and In they do this in the strict line of their duty. bill. There is appended to this record, though no part of it, a bond to the United States, to save it harmless of costs in regard to this suit, given by some private citizens. If it is intended by this to show that the Attorney General authorized the suit, it fails to prove it, though the bond recites that that officer had directed the district attorney to bring the suit. It is not in this way that the Attorney-General should place himself on the record as responsible for such a bill. In confirmation of this view, it does not appear that that officer or his successors have ever given the slightest attention to the case. In the argument of it before us, no officer of the Government appeared in the case. It would be a very dangerous doctrine, one threatening the title to millions of acres of land held by patent from the Government, if any man who has a grudge or a claim against his neighbor can, by indemnifying the Government for costs, and furnishing the needed stimulus to a district attorney, institute a suit in chancery in the name of the United States to declare the patent void. It is essential, therefore, to such a suit, that, without special regard to form but in some way in which the court can recognize, it should appear that the Attorney-General has brought it himself, or given such order for its institution as will make him officially responsible for it, and show his control of the cause. It is unnecessary at this day to say that, as a substantive matter, standing alone, the circuit court has no jurisdiction to interfere with or relieve against a survey which, by the allegation of the bill itself, is pending before the district court. For these reasons, we are of opinion that the decree of the Circuit Court sustaining a demurrer to the bill and dismissing it on the merits is right, and it is accordingly affirmed. nite, uncertain and vague as to its boundaries, at- the Secretary of the Interior, the grant remains 4. Extrinsic proof of the boundaries of the land ERRO RROR to the Circuit Court of the United States for the Eastern District of Missouri. The case, which arose in the court below, is fully stated by the court. Messrs. Montgomery Blair and B. A. Hill, for plaintiffs in error: 1. The question in this case is, whether the Act of 1874 completed plaintiffs' title and made the question of location a judicial question. At the December Term of 1855, in the case of Stanford v. Taylor, 18 How., 409 (59 U. S., XV., 453), this court decided that an action could not be maintained on this title without a survey, holding that the case of West v. Cochran, 17 How., 416 (58 U. S., XV., 115), controlled the case. The Act of 1874, declares that "All the right, title and interest of the United States, in and to all of the lands of the State of Missouri, which have at any time heretofore been confirmed to any person or persons by an Act of Congress, or by any officer or officers, or Board or Boards of Commissioners, acting under and by authority of any Act of Congress, shall be and the same are hereby granted, released and relinquished by the United States in fee simple to the respective owners of the equitable title thereto, and to their respective heirs and assigns forever, as fully and completely, in every respect whatever, as could be done by patent issued therefor according to law." 2. The Act is remedial. Its declared object is, to make these confirmations complete titles in themselves. The defect in the Law of 1807, for which the Act of 1874 was the remedy, had been shown by the action of the department and the court upon this and the Brazeau confirmation, which was similar in all respects. It was in these cases that the rulings of the state court, holding such confirmations to be complete titles, had been overruled by this court; the confirmations being held to be incomplete titles, and that the power was reserved by the Act of 1807 to the Land Department, to determine the location of the grant. This construction of the Act, Chief Justice Taney, with whom concurred Mr. JusADELAIDE SNYDER ET AL., Plffs. in Err., tice Grier, had declared, in his dissenting opin Cited 101 U.S., 479, 520; 106 U. S., 454; 107 U. S., 528; 108 U. S., 512; 111 U. S., 520; 112 U. S. 32, 365, 368; 2 McCrary, 229, 650, 651; 7 Sawy., 476; 65 How.. Pr., 90; 66 How. Pr., 459. v. THEODORE SICKLES ET AL. (See S. C., 8 Otto, 203-217.) Spanish grant--survey--issuing patent-evidence. 1. A Spanish grant of land, which has been confirmed by the commissioners, and which is indefi ion, Magwire v. 1yler, 1 Black, 203 (66 U. S., XVII., 142) invested the department with judicial power; the question of location referred to the department being a judicial question, which depends altogether upon the description in the deed and not upon the survey made by the Surveyor-General of the United States, nor upon the judgment or decision of the Land Office; and in consequence of this construction of the Act, the litigation respecting the Brazeau grant, commenced nearly thirty years ago, after being four times before this court, had not terminated. Moreover, after a struggle protracted for more than fifty years, Magwire had succeeded in getting the Land Department to survey and patent the land granted to Brazeau. The land in dispute being then patented to both Brazeau and Labeaume, the court had to pass upon the question of location, and the decision, Magwire v. Tyler, 8 Wall., 650 (75 U. S., XIX., 320), showed that it was in its nature a purely judicial question. 3. But it was not to claimants alone that this feature of the Act of 1807 was injurious. It was decided in three of Magwire's cases- -Magwire v. Tyler, 1 Black, 199 (66 U. S., XVII., 140); 8 Wall., 650 (supra); Tyler v. Magwire, 17 Wall., 253 (84 U. S., XXI., 576)—that the refusal of one secretary to do his duty did not prevent his successor from carrying out the law, and that until a secretary could be prevailed upon to grant a survey and patent for the land confirmed, "it stood as it existed in 1810, when the commissioners confirmed it as valid." It necessarily followed also, as decided in Gibson v. Chouteau, 13 Wall., 99 (80 U. S., XX., 536), that, while the owner was thus disabled from asserting his rights, no length of adverse possession would bar them. Hence, a principal object of the Act of 1874 was to render the Stat ute of Limitations operative by investing the confirmees at once with complete title. Messrs. P. Phillips and Thos. T. Gantt, for defendant in error: As to the Act of 1874. It did not, however, cure any defect in the original title. If the title was void for want of identity before the Act, it was not made good by it. All that was done was a mere relin quishment of the interest of the United States in and to the land. It is impliedly admitted that up to 1874, the plaintiff had no standing in court. As was said in U. S. v. King, 3 How., 787, "Though the instrument contained clear words of grant, yet if the restriction of boundary is vague and indefinite, and there is no official survey to give it a certain location, it creates no right of private property ascertainable in a court of justice." In addition, we call attention to the 2d section of the Act of 1874, not adverted to in the brief of the plaintiff in error. By this section it is provided "That nothing contained in the 1st section of this Act shall in any manner abridge, devest, impair or prejudice any valid right, title or interest of any person in or to any portion or part of the lands mentioned in the 1st section of the Act." Now if it be admitted that the plaintiff could not, prior to this Act, have claimed a recovery upon such evidence as was proffered on the trial, but could do so subsequent to the Act, then the title or interest of the defendant in the premises is prejudiced and impaired, and is within the protection of the 2d section. Mr. Justice Clifford delivered the opinion of the court: Titles to lands claimed by individuals in Louisiana, at the time the Province was ceded to the United States, were, in most cases, incomplete, as the Governor of the Province never possessed the power to grant a patent. All he could do was to issue to the donee an instrument called a concession or order of survey, which never invested the party with a fee simple title; from which it follows that the plaintiff in a suit to recover the land must prove that his claim had been confirmed under some Act of Congress. Complete titles, of which there were a few when the jurisdiction of the Province was transferred, required no such confirmation, as they needed no other protection than that afforded by the third article of the Treaty of Cession. 8 Stat. at L., 202; U. S. v. Wiggins, 14 Pet.,350. Incomplete titles required confirmation, and Congress passed the Act of the second of March, 1805, to "Ascertain and Adjust Titles and Claims to Land in the Ceded Territory." 2 Stat. at L., 326. Prior to the passage of that Act, however, the Province ceded by the Treaty had been divided into two organized Territories, and the 5th section of the Act, to ascertain and adjust titles and claims to land therein, provided for the appointment of commissioners in each of those Territories, to ascertain and adjudicate the rights of persons presenting such claims. 2 Stat. at L., 283. Such commissioners were required by the Act providing for their appointment to lay their decisions before Congress, but a subsequent Act provided that the decision of the commissioners, when in favor of the claimant, should be final against the United States. 2 Stat. at L., 441. Forty arpents of land in front by forty arpents in depth are claimed by the plaintiffs, and they allege that the tract is bounded on the west by the survey made for Charles Gratiot, assignee of Louis Robert, and that the tract claimed was surveyed April 10, 1865, for John F. Perry, assignee of Angelica Chauvin, under the order of the Commissioner of the General Land Office, as directed by the Secretary of the Interior. Service was made, and the defendants appeared and filed an answer denying that the plaintiffs are entitled to the possession of the premises described in the petition. Subsequently, the parties went to trial before the Circuit Justice and a jury, and the verdict and judgment were in favor of the defendants. ceptions were filed by the plaintiffs, and they sued out the present writ of error and removed the cause into this court. Ex Possession by the defendants being impliedly admitted, the principal question is, whether the evidence introduced or offered by the plaintiffs was sufficient to prove their alleged title to the premises. Enough appears to show that John F. Perry was the assignee of the original donee of the tract under the former sovereign, and that he, Aug. 26, 1806, presented the concession for the same to the Land Commissioners for confirmation. From the concession, which bears date May 12, 1785, it appears that the acting Governor conceded to the applicant forty arpents of land in front by forty arpents in depth, lengthwise the river called Des Peres, from north to south, bounded on one side by Louis Robert, and on the other by the royal domain. | Act of Congress under which the claim in quesEvidence was introduced in support of the tion was confirmed. claim; but the Board rejected it, for the alleged cause that it appeared from the records in their possession that the concession had been revoked and that a new one had been issued to another party. Five years later, the claim came up again before the Land Commissioners; and the record shows that the Board confirmed the same to the assignee of the original donee for the whole amount of the claim, and entered an order that the same be surveyed conformable to his possession and at his expense. Pursuant to the requirement of the 6th section of the Act, the commissioners also delivered to the party an instrument known as a confirmation certificate, stating the circumstances of the case and that he is entitled to a patent for the tract of land therein designated, which certificate, the same section provides, shall be filed with the proper register or recorder within twelve months after date, and the record shows that it was duly is sued and filed as required. 2 Stat. at L., 441, sec. 6. Beyond doubt, these proceedings were regular; but it is a great mistake to suppose that the confirmation certificate, without more, entitled the party to a patent. Instead of that, the next section of the Act provides that the tracts of land thus granted by the commissioners, unless previously surveyed, shall be surveyed at the expense of the parties, under the direction of the Surveyor-General or officer acting as such, and that the officer making the survey shall transmit general and particular plats of the tracts to the proper register or recorder, and shall also transmit copies of the said plats to the Secretary of the Treasury. 2 Stat. at L., 442, sec. 7. When those acts have been performed, then the closing regulation of section 6 of the same Act comes into operation, which makes it the duty of the register or recorder to "Issue a certificate in favor of the party, which certificate, being transmitted to the Secretary of the Treasury, shall entitle the party to a patent, to be issued in like manner as is provided by law for the issuing of patents for public lands lying in other territories." Certificates signed by the Land Commissioners were issued subsequent to the confirmation, but before the survey required to be made and transmitted to the register or recorder; but the patent certificate, so-called, was required to be issued by the register or recorder, and could not lawfully be issued until the survey and plats had been made and duly transmitted to the register or recorder, as directed by the 7th section of the Act. Suffice to say in that connection, that no such subsisting survey or plat was ever made in this case, nor was any such ever transmitted to the register or recorder, nor did the register or recorder ever issue such a certificate to the party, nor is anything of the kind pretended by the plaintiffs. They made no effort to prove any thing of the sort; but what they attempted to prove was that they had acquired a fee simple title to the land by virtue of certain other proceedings under certain other Acts of Congress, which, as they contend, dispenses with the necessity on their part of showing that they ever complied with the 6th and 7th sections of the Argument to show that the plaintiffs had no sufficient title under the provisions of that Act is unnecessary, as they admit that "No previous survey had been made by Spanish, French or American authority.' Attempt was made by the plaintiffs to supply the omission and cure the defect in the instru ments of title exhibited in the proceedings which followed the decree of confirmation and the issuing of the confirmation certificate, by the evidence, documentary and parol, offered at the trial before the court and jury. Besides the concession of the Governor and the decree of confirmation already mentioned, the plaintiffs also offered in evidence to the jury the petition of the original donee, addressed to the Governor, asking for the concession, and her deed conveying the same to her assignee, together with the petition of the assignee to the Land Commissioners praying for a confirmation of the tract to him as such assignee, which was followed, as before stated, by the decree of confirmation and the confirmation certificate. Appended to the decree of confirmation is the order that the tract be surveyed conformable to his possession, and they also offered in evidence the Act obviating the necessity of issuing patents for certain private land claims, and for other purposes. 18 Stat. at L., 62. Parol evidence was also offered by the plaintiffs tending to show that they held all the title confirmed to the assignee of the original donee; and in order to show that the land in question formed part of the land confirmed, they offered in evidence the concession to Louis Robert, by which the tract claimed by the plaintiffs is bounded on one side, and the survey of that tract by Antoine Soulard, Spanish Surveyor-General of that part of the Province before the cession, and also the concession to Charles Gratiot. Seasonable objection to all this evidence was made by the defendants, and it was excluded from the jury by the court, and the plaintiffs excepted to the ruling. During the trial the plaintiffs introduced_in evidence the letter of the Secretary of the Interior to the Commissioner of the General LandOffice, dated March 18, 1865, directing a second survey of the tract to be made whenever the plaintiffs may request, so that it is bounded on the one side by the land of Louis Robert, which is one of the distinctive calls in the grant. In the course of the letter, the Secretary also remarked that attention should be given to calls upon the River Des Peres, as far as practicable, and added in the same connection, that if the claimant causes the survey to be made and the tract patented upon land not granted to the original donee, it will be his error and misfortune. They also offered in evidence the letter of the Commissioner of the General Land-Office, dated March 24, 1865, addressed to the Recorder of Land Titles at St. Louis, communicating those instructions; and that also was admitted in evidence without objection. Those documents having been admitted, the plaintiffs then offered in evidence the survey returned by William H. Cozzens, on the 10th of April, 1865, in conformity with those instructions, together with the letter of the Secretary of the Interior stating that the survey was made |