Statement of the Case.

1889. MR. CHIEF JUSTICE FULLER said that the same questions were presented upon the record in this case as in the District of Columbia, Plaintiff in Error v. Lawrence E. Gannon, No. 182, just decided, and that for the reasons there given the writ of error must be

Mr. A. G. Riddle for plaintiff in error.

Mr. S. S. Henkle for defendant in error.

Dismissed.

STEVENS v. NICHOLS.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF MISSOURI.

No. 190. Argued March 11, 1889. Decided April 1, 1889.

A petition for removal which alleges the diverse citizenship of the parties in the present tense is defective, and if it does not appear in the record that such diversity also existed at the commencement of the action, the cause will be remanded to the Circuit Court with directions to send it back to the state court, with costs against the party at whose instance the removal was made.

THE case as stated by the court was as follows:

This action was commenced on the 25th day of July, 1881, in one of the courts of Missouri, by the defendant in error against the Texas and Atlantic Refrigerator Car Company, a corporation of that State, Robert S. Stevens and Henry D. Mirick. Its object was to reach, and have applied in satisfaction of a judgment obtained by the plaintiff against the car company, the several amounts due from Stevens and Mirick on their subscriptions of stock in that company.

Stevens and Mirick filed a joint petition for the removal of the case into the Circuit Court of the United States, upon the ground of the diverse citizenship of the parties. The allegation in the petition was that the plaintiff "is a citizen of the State of Missouri," and that the defendants "are not citizens

Opinion of the Court.

of the State of Missouri, but are citizens of the State of New York."

The state court made an order for the removal of the case to the Circuit Court of the United States. In the latter court, the necessary pleadings having been filed, the case was tried, resulting in a verdict and judgment against Stevens for the sum of $5027.33, and against Mirick for the sum of $627.41. The court having overruled a motion for new trial, and also a motion in arrest of judgment, Stevens has brought the case here for review.

No question was made in the court below or in this court as to the right of Stevens and Mirick to remove the case from the state court.

Mr. A. H. Garland and Mr. James Carr for plaintiff in

error.

Mr. George P. B. Jackson for defendant in error.

MR. JUSTICE HARLAN delivered the opinion of the court.

1. It was held in Robertson v. Cease, 97 U. S. 646, 649, upon writ of error from a Circuit Court of the United States, that "in cases where jurisdiction depends upon the citizenship of the parties, such citizenship, or the facts which in legal intendment constitute it, should be distinctly and positively averred in the pleadings, or they should appear affirmatively and with equal distinctness in other parts of the record." Mansfield, Coldwater &c. Railway v. Swan, 111 U. S. 379, 382; Hancock v. Holbrook, 112 U. S. 229, 231; Thayer v. Life Association, 112 U. S. 717, 719; Continental Ins. Co. v. Rhoads, 119 U. S. 237, 239.

2. The case was not removable from the state court, unless it appeared affirmatively in the petition for removal, or elsewhere in the record, that at the commencement of the action, as well as when the removal was asked, Stevens and Mirick were citizens of some other State than the one of which the plaintiff was, at those respective dates, a citizen. Gibson v.

Statement of the Case.

Bruce, 108 U. S. 561, 562; Houston & Texas Central Railway v. Shirley, 111 U. S. 358, 360; Mansfield, Coldwater &c. Railway v. Swan, 111 U. S. 379, 381; Akers v. Akers, 117 U. S. 197.

3. The petition for removal does not allege the citizenship of the parties except at the date when it was filed, and it is not shown elsewhere in the record that Stevens and Mirick were, at the commencement of the action, citizens of a State other than the one of which the plaintiff was, at that date, a citizen. The court, therefore, cannot consider the merits of the case. Metcalf v. Watertown, 128 U. S. 586; Morris v. Gilmer, 129 U. S. 315, 325.

The judgment is reversed upon the ground that it does not appear that the Circuit Court had jurisdiction, and the case is remanded to that court, with directions to send it back to the state court, the plaintiff in error to pay the costs in this court and in the court below. Mansfield &c. Railway v. Swan, 111 U. S. 379.

No portion of the public domain, unless it be in special cases, not affecting the general rule, is open to sale until it has been surveyed, and an approved plat of the township embracing the land has been returned to the local land office.

A settler upon public land, in advance of the public surveys, acquires no estate in the land which he can devise by will, or which, in case of his death intestate, will pass to his heirs at law, until, within the specified time after the surveys and the return of the township plat, he files a declaratory statement such as is required when the surveys have preceded settlement, and performs the other acts prescribed by law.

Section 2269 of the Revised Statutes has no application to the case of a settler who dies before the time arrives when the papers necessary to establish a preëmption right can be filed.

THE case which makes the federal question is stated in the opinion of the court.

Opinion of the Court.

Mr. William Craig and Mr. Douglas Dyrenforth for plaintiffs in error.

Mr. A. L. Rhodes, Mr. A. T. Britton, Mr. A. B. Browne and Mr. W. J. Curtis for defendants in error.

MR. JUSTICE FIELD delivered the opinion of the court.

This was a suit to charge the defendant Hattie L. Traver as trustee for the plaintiffs, of an undivided half interest in certain lands in San Bernardino County, California, and was commenced in one of the Superior Courts of the State. To the complaint the defendants demurred; the demurrer was sustained and judgment entered that the suit be dismissed. On appeal to the Supreme Court of the State the judgment was affirmed; and the case is brought to this court on writ of

error.

The complaint alleges that on the 2d of February, 1870, one Oscar Traver settled upon a quarter section of land in township two in San Bernardino County, California, and that until his death he lived upon, improved and cultivated the land; that, at the time of his settlement and continuously until the 1st day of July, 1879, it was public property of the United States, and was unoccupied and unsurveyed and subject to the right of preemption; that no approved plat of the township was received at the United States District Land Office at Los Angeles, which embraced the land in controversy, until July 1st, 1879; that at the time of his settlement, and thereafter until his death, which occurred January 2d, 1877, he was a citizen of the United States, and entitled to the benefit of the preemption and homestead laws; that he settled upon, improved the land, and erected a building thereon, intending to acquire a title thereto from the United States as soon as he possibly could; that at the time of his settlement he was a single person and remained so until the 13th of December, 1870, when he intermarried with the defendant Hattie L. Traver; that on his death he left surviving him his widow and two daughters, Lizzie and Annie, and the three were his only

Opinion of the Court.

heirs at law; that the daughters have since married and are the plaintiffs in this suit; that the deceased died intestate; and that no administrator of his estate has been appointed.

The complaint further alleges that on the 16th of July, 1878, the defendant Hattie L. Traver filed in the United States District Land Office at Los Angeles, a preëmption declaratory statement describing the land, alleging settlement on the 2d of February, 1870, and stating her intention to claim the same under the preëmption laws of the United States; that soon after the death of Oscar Traver she wrote to the plaintiffs at San Francisco, informing them of the death of their father, and representing that he had not left any property; that this representation was made with intent to deceive them and prevent them from filing the necessary papers to complete his preemption and homestead rights; that in December, 1882, they discovered for the first time that she had completed those rights and obtained the patent; that she had lived upon the land and received to her own use its rents and profits since his death, which are stated upon information and belief to be $2500; that the land is of the value of one thousand dollars per acre; that the other defendants named claim to have some interest in the land by purchase from her; that such purchase was made with notice of the plaintiffs' rights; and that she denies that they have any rights in the lands, or in the rents, issues and profits thereof. The prayer of the complaint is that the defendant Hattie L. Traver may be charged, as trustee for plaintiffs of an undivided half interest in the lands, and in the rents, issues and profits thereof, and account for and pay over to them such interest in the rents, issues and profits; that the other defendants be adjudged to have no interest in the land or in any part thereof; and that the plaintiffs may have such other and further relief as to the court may appear to be just.

The entire claim and contention of the plaintiffs rest upon two grounds: 1st, that the deceased acquired by his occupation of unsurveyed lands of the United States a right of preëmption to them under the laws of the United States; and, 2d, that the plaintiffs, as heirs at law of the deceased, were equally