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as to the exact device used, which, though | claim must be made to depend upon the pe bearing a general resemblance to the one culiarities of the board, di. Admitting that patented, may differ from it in the very par additional elements are necessary to render ticular which makes it patentable, is such the device operative, it does not necessarily as to render oral testimony peculiarly un follow that the omission of these elements trustworthy; particularly so if the testimony invalidates the claim, or that the precise be taken after the lapse of years from the elements described in the patent as rendertime the alleged anticipating device was ing it operative must be read into the claim. used. If there be added to this a personal If Steward were in fact the first to invent bias, or an inrentive to color the testimony the pivotal extension to a butt adjuster, he is in the interest of the party calling the wit entitled to a patent therefor, though the inness, to say nothing of downright perjury, fringer may make use of other means tbad its value is, of course, still more seriously those employed by him to operate it. Loom impaired. This case is an apt illustration of Co. v. Higgins, 105 U. S. 550, 584. In such the wisdom of the rule requiring such antici case any appropriate means for making it pations to be proven by evidence so cogent operative will be understood. Otherwise the as to leave no reasonable doubt in the mind infringer might take the most important part of the court that the transaction occurred of a new invention, and, by changing the substantially as stated. The very exhibit method of adapting it to the machine to produced by the witness Heller contradicted, which it is an improvement, avoid the charge so far as it could contradict, his testimony, of infringement. The invention of a needle and the witnesses who ought to have corrob- , with the eye near the point is the basis of orated his story gave a version which show all sewing machines used; but the methods ed it to be untrue in more than one impor- of operating such a needle are many, and it tant particular.

Howe had been obliged to make his own Under the circumstances, it would be going method a part of every claim in wbich the too far to reject bis entire testimony; but, needle was an element his patent would have giving it all the weight to which it can rea been practically worthless. We think it sufsonably be entitled, it shows no more than ficiently appears that Steward was the inthat he affixed some sort of an extension to

ventor of the pivoted extension described in a butt adjuster connected with an Appleby the twentieth claim; that the claim is valid, machine. If, as he says, in 1878, he tried and was infringed by the defendant. a rigid extension, and found it unservice We agree, however, that the defendant able, and subsequently, in the same season, made use of a different method of adjustings he invented a pivoted extension, and it work this extension, which is neither*the same in ed well, it is improbable that he would have vented by Steward, nor a mechanical equivacast it aside altogether at the end of the sea. lent of the same. We hold, therefore, that son, and taken up again the theory of a rigid the twenty-first claim was not infringed. extension, and applied it not only to his own, But, for the reasons given above, the de but to a number of other, machines. His ex cree of the court below must be reversed, cuse that the biuder was incapable of doing and the case remanded for further proceedsatisfactory work during the season of 1879, ings in conformity with this opinion. by reason of the shortness of the grain that season, is evidence that it was inoperative.

(155 U. S. 404) If It had been a success, he would hardly have thrown it aside permanently. Doubt

DICK V. FORAKER. less he did use a rigid extension of some

(December 17, 1894.) sort; but if he ever used a pivoted device at

No. 89. all-of which we have* considerable doubt JURISDICTION OF FEDERAL Court QUIETING TI. his efforts in that direction must be relegat. TLE-SALE FOR TAXES-RES JUDICATA. ed to the class of unsuccessful and abandon.

1. A United States circuit court has jurised experiments, which, as we have repeated

diction of a suit to remove a cloud from a title

to land situated in the district where the suit is ly held, do not affect the validity of a subse

brought, though defendant is a citizen of anothquent patent. The Corn-Planter Patent, 23 er state, under Rev St. $ 738, and Act 1975, Wall. 181, 211; Coffin v. Ogden, 18 Wall. 120,

2. Under Laws Ark. 1881, p. 64, providing 124.

for a suit by a citizen in the name of the state Defendant further insists that the twenti. to obtain a sale of lands for failure to pay tar. eth claim of this patent is invalid, by reason

es, and for a notification of all persons having of the fact that, if the board, di, be con

interest in the land, and for a publication of a

copy of the order to show cause in a newspastrued, as it evidenly must, as a board pivot per, a sale of land on the filing of a complaint ed to the butt adjuster, the combination is is invalid where the record does not show eiincomplete and inoperative, because the

ther the notice or the publication required by

the statute. means by which it is held and controlled are

3. The fact that a complaint in a bill to not stated in the claim; and if the additional obtain the sale of land for taxes under Log elements, namely, the arms, da, ds, and d4,

Ark. 1881, p. 61, is brought in the name of the be read into it, it becomes the same as the

state, does not estop the state to subsequently

convey the land under another sale for taxes, twenty-first claim, and the novelty of the where there was no copy of the order to show

302

8 8.

cause in the equity suit served on defendant, cause of fatal Irregularities in the proceed. and no publication as required by statute, and ings themselves. The court below decreed the sale thereunder was therefore void.

in favor of the complainant. From this deAppeal from the Circuit Court of the Unit cree the cause was brought here on appeal. ed States for the Eastern District of Arkan The defendant's title is derived from a sale sas.

made by the commissioner of lands of the Action by Joseph B. Foraker against state of Arkansas, treating the lands as forGeorge F. Dick to remove a cloud from his feited to the state, this sale baving been title. Judgment for complainant, and de made subsequent to the proceedings upon fendant appeals.

which the complainant relied as his muniThe appellee, a citizen of the state of Ohio, ment of title. brought his complaint in the circuit court of The statutory provisions authorizing the the United States for the Eastern district of proceedings upon which complainant's title Arkansas against the appellant, a citizen of rests are found in the Laws of Arkansas of the state of Illinois. The bill sought to re 1891 (page 64), and read as follows: move a cloud from a title held by complain. "Sec. 1. That hereafter any citizen of this ant, and charged, in substance, that under an state, who shall give security for cost, may act of the legislature of Arkansas approved file a complaint in equity in the name of March 12, 1881, and an act amendatory there. the state in the court having equity Jurisdicof, approved March 22, 1881, a decree was tion in the county in which the lands lie, rendered in the Ashley county circuit court setting forth that taxes are due on lands to directing the sale of certain lands, for the be therein described, or that for any reason purpose of realizing taxes due upon them; lands lying in the county have not been asthat under this decree a sale was made on sessed for any one or more years, and praySeptember 15, 1884, by a commissioner of the ing that a lien may be fixed on such lands, court; that at said sale the complainant be. by a decree of the court, for such unpaid came a purchaser of the property, a descrip. taxes, and that the lands may be sold for the tion of which was given in the bill; that the payment thereof. The county court of any proceedings, as well as the sale, were in ac county may direct such complaint to be filed cordance with the statute; that the lands in the name of the county, and when it shall thus purchased were not redeemed as pre be filed in pursuance of such direction, it scribed by law, and accordingly the court or shall be prosecuted by the attorney for the dered the commissioner to execute a deed county, or by some attorney to be retained therefor, which the commissioner did on May

for that purpose. 15, 1887, and the deed was recorded in the “Sec. 2. On filing of such complaint, the e proper office; that, after this purchase, the clerk of the court shall enter on the record defendant (appellant here) purchased through an order, which may be in the following the commissioner of lands of the state of form: Arkansas the said lands from the state, as “ 'State of Arkansas on Relation of forfeited for the nonpayment of taxes; that Plaintiff, 0. Certain Lands on Which Taxes the commissioner wrongfully, and without are Alleged to be Due, Defendant. authority of law, and in disregard of the “ 'Now, on this day came said plaintiff, rights of complainant, executed deeds for the and files here in court his complaint, in lands to the defendant, which deeds were which he sets forth that there are certain recorded, and, taken all together, purport to taxes due on the following lands: convey all of the land purchased by the com [Here insert description of the lands.) plainant under the previous sale to him; “ 'Now, therefore, all persons baving any that the deeds thus executed to the defend right or interest in said lands, or any of ant, while they convey no title, constitute a them, are required to appear in this court cloud upon the complainant's title, and their within forty days from this date, then and appearance upon the record impairs the there to show cause, if any they can, why a value of his property. The bill, moreover, lien shall not be declared on said lands for averred that the land was vacant, and in the unpaid taxes, and why said lands shall not actual possession of neither complainant nor be sold for non-payment thereof.' defendant. The prayer of the bill was that "Sec. 3. The clerk of said court shall at the deeds made to the defendant be canceled, once cause a copy of said order to be published and that the complainant's title to said land for two insertions in some newspaper publishbe quieted as against the defendant and all ed in the county, and, if there is no newspaper claimants under him. The defendant demur- published in the county, he shall cause a red to the jurisdiction of the court, and, up copy of said order to be posted at the door on the overruling of his demurrer, answered, of the court-house of county, or of the room averring the validity of the sale made him in which the court is held, and such publicaby the commissioner of lands, and claiming tion shall be taken to be notice to all the that the sales to the complainant under the world of the contents of the complaint filed proceedings in the Ashley county court were as aforesaid, and of the proceedings had unabsolutely void, because there was no law der it." authorizing them, because the court had no “Sec. 5. At the end of the forty days menJurisdiction of the subject-matter, and be tioned in section 2 of this act, the clerk shal)

.407

enter upon the record a decree pro confesso, record, and below will be found the docket covering all lands named in the complaint, entry of the same made on the judge's dockregarding which no answer has been filed, et, to wit: which order may be in the following form: “ 'Made 9th day of February, 1884, to wit: " 'State of Arkansas on the Relation of “ 'George W. Norman and J. W. Van Gilder

-, Plaintiff, v. Certain Lands on Which appointed masters in chancery to extend the Taxes are Alleged to be Due, Defendant. taxes on said land before the next term of

"'It appearing that the order herein made, the court. requiring the owners of the lands in this “ 'Report of Masters in Chancery. suit to appear and show cause, if any they

‘June 2, 1884. could, why a lien should not be declared on u "To the Honorable Circuit Court of Ashcertain lands, named in the complaint here ley County: in, has been duly published in the manner re " "The undersigned, masters in chancery, quired by statute, and that no answer has appointed to extend the taxes in the case now been put in as to the following tracts or pending in said court on the relation of W. parcels of land, that is to say.

H. Arnold vs. certain lands upon which it is “'[Here describe the land.)

alleged taxes are due, beg leave to report “ 'It is now, therefore, ordered that the that they have discharged said duty as folcomplaint be taken as true and confessed as lows, by consent of parties representing the to said lands above described.'"

state, the county, and the attorneys who In order to make out his case, the complain. brought the suit against said lands: ant offered the record of the proceedings in “ 'The taxes, penalties, and costs were fixthe Ashley county circuit court, from which ed at 15 cents per acre. or this amount four his title took its origin. The record as of cents is to be paid to the county, two cents fered is in a very imperfect state, but it ap to the state, and the balance appropriated to pears therefrom that on May 4, 1884, on the expenses as follows: The attorneys, 3,200 relation of W. H. Arnold, a bill was filed, dollars; to clerk, 2,500 dollars; to printer, 1,which, after setting out the above provisions 250 dollars; to com'r, 1,000; to masters in of Arkansas law, substantially averred that, chancery, 1,000; and the excess that may be upon certain lands described in an exhibit realized above these amounts be distributed annexed, certain taxes had been extended to the state and county in proportion to two which were past due, and other taxes had to one in favor of the county. been extended which were unauthorized by " 'In making the extension aforesaid, we law; that, in pursuance of a warrant for the were of the opinion that the said six cents collection of taxes on these lands, the collect- per acre about covered the average of taxes or had demanded both the lawful and the un due on said lands, as the alleged forfeitures lawful taxes, and neither were paid, and the occurred at different periods of time. lands were returned as delinquent, and were *“'We further report that we are fully satforfeited and sold to the state for the taxes isfied that a sale of the lands embraced in for which they had been respectively so re this report thus returned to the tax books, turned; that the forfeiture and sale to the the settling of disputed titles, etc., will inure state were void, because unlawful taxes had to the benefit of the entire community; and been extended against the land, and also on we further report that we find certain lands account of many other irregularities; that marked on the bill were claimed by parties hence the state of Arkansas had no valid ti who have made to us satisfactory showing tle to any of the tracts, but, notwithstanding that the said lands were improperly thereon, this fact, the state land commissioner had and that said parties claimed that the taxes conveyed part of the land standing in the thereon had been paid, and that the title of name of the state to such persons as had ap the state to certain other lands was good. plied to purchase, and would convey the bal “ 'In each of said cases we have dismissed ance thereof unless the forfeiture was an said lands, and we desire the record in this pulled.

case should show said fact of dismissal. This complaint as printed in the record is

" John W. Van Gilder. not complete. It contains no prayer, but the

“ 'Geo. W. Norman. following memorandum is at the foot there “ 'Filed June 2, 1884. of:

'E. L. Thomson Ci'k, • "Here, the lower part of the complaint hav

‘By Jackson, D. C.'" ng become worn out and destroyed, it is im It is to be inferred, of course, that the maspossible to furnish a copy of the same or the ters here named were regularly appointed. signature to the same. The complaint was On June 2, 1894, the following was entered of regularly filed, but it is also worn too much record: to be copied. Clerk."

"It appearing that the order herein made Annexed to the bill is a list of lands, con requiring the owners of the lands in this suit taining, among others, those which are claim- | to appear and show cause, if any they could, ed by the complainant. There is also the fol why a lien should not be declared on certain lowing entry in the record:

lands named in the complaint herein, has “No order appointing G. W. Norman and J. been duly published in the manner required W. Van Gilder masters in chancery found on by statute, and that no answer has been put

409

•408

In as to the following tracts or parcels of (18 Stat. 470); Act 1888, § 5 (25 Stat. 433); land, that is to say:

Mellen v. Iron Works, 131 U. S. 352, 9 Sup. “[Here follows a description of the land.] Ct. 781; Arndt v. Griggs, 134 U. S. 316, 10 “And it further appearing that the creditor Sup. Ct. 557; Greeley v. Lowe, 155 U. S. of the state, the relator, the prosecuting at 15 Sup. Ct. 24. torney of the 10tb judicial district, and the The contention is that the law giving jujudge of the county of Ashley have appeared risdiction, as against a person not a citizen of and consented that a decree should go against the district where suit is brought to remove the above-described lands for the taxes, pen a cloud from the title to real estate situated alty, and costs assessed against them as fixed therein, applies only to cases where there by the master's report filed herein,-it is are two or more defendants, at least one of therefore ordered, adjudged, and decreed whom must be found in the district where that the amount of taxes, penalty, and costs the suit is brought; that the jurisdiction exabove set forth are due on said lands, and ists to entertain a suit, like the one before that a lien for said taxes, penalty, and costs us, where there are two or more defendants, on said lands be fixed by this decree; and it but not where there is only one. It was adis further ordered that, if said sum of money mitted that this contention is unsound as ap. so adjudged against said lands shall not be plied to Rev. St. $ 738; but it is insisted that paid within twenty days from the 3d day of the point is well taken in consequence of a June, 1884, the said lands shall be sold by a change resulting from the re-enactment of commissioner to be appointed by the chancel. Rev. St. $ 738, to be found in section 8 of lor, on the notice and at the place prescribed the act of 1875. The Revised Statutes gave by law; and it is further ordered that Thos. the right to bring such a suit where "any S. Stilwell be, and he is hereby, appointed as defendant" resided out of the district. The special commissioner of this court, and that, act of 1875 gives the right "where one or having made the publication required by law, more" may so reside. We see no force in said commissioner proceed to expose the said this argument, which in effect eliminates lands for sale on Monday, the 21st day of

the word "one" from the statute and reJuly, 1884, at the courthouse door, in the places it by the word "two," thus causing it town of Hamburg, and that said sale con to read “two or more," instead of “one or tinue from day to day till all of said lands be more." The suggestion that as the words sold: Provided, that said lands are not to be "one or more,” in section 737, Rev. St., con. sold for an amount less than the taxes, pen. templated a controversy in which two or alty, and costs herein assessed against each more defendants would be involved, there of said tracts of said lands, and that he re fore the words “one or more" mean the same port his action herein to the next term of this in the act of 1875, is fallacious. court. It is further ordered that upon sale Section 737 provides for a case where there aforesaid said commissioner pay the fees and are “several defendants," and "one or more" costs as follows, viz.;

may be outside of the district; the act of “To the attorneys, thirty-two hundred and 1875, on the contrary, provides for a case fifty (3,250) dollars; to the clerk, twenty-five where “one or more of the defendants" may hundred (2,500) dollars; to the printer, twelve be outside of the district; the difference behundred and fifty (1,250) dollars; to commis tween the two being that which exists besioner, one thousand (1,000) dollars, and to tween “one or more of several” and “one or the masters, one thousand (1,000) dollars; more." The demurrer was therefore corand, if enough of said are not sold to rectly overruled. pay the above sums, that the commissioner The act of the Arkansas legislature which pay pro rata."

we have cited provides that, on the filing of The execution of this order was postponed the complaint with the clerk, an order shall by direction of the court; but on September

be entered on the record notifying all per14, 1884, the lands claimed by complainant sons having any right or interest in the were adjudicated to him; and on May 14, lands sought to be sold to appear within 40 1887, upon the expiration of the period al days, and show cause why a lien should not lowed for the redemption, the commissioner

be declared on said land for unpaid taxes, made to complainant a deed, which was ap and why said land should not be sold for proved by the court.

nonpayment thereof. The act directs the

clerk to cause a copy of this order to be W. L. Terry, for appellant. D. W. Jones,

inserted twice in a newspaper published in for appellee.

the county, and, if there be no such news

paper, to post a copy at the courthouse door. Mr. Justice WHITE, after stating the case, It further declares that such publication delivered the opinion of the court.

shall be taken to be notice to all the world The suit was one to remove a cloud from of the contents of the complaint. These are the title to real estate situated in the dis the only provisions made in the act for notrict where the suit was brought. * The de tice to the landowner. The proceedings fendant was a citizen of another state. The leading up to the tax sale, as they appear case was obviously within the jurisdiction on the record before us, do not include the of the court. Rev. St. $ ovo; Act 1875, 8 8 required notice nor any order therefor, por

III.

120.

413

Is It shown that any such notice was put | Especially does that rule apply to proceed. on record in the course of the tax sale pro ings where publication is relied upon as a ceedings. It is true that the order direct substitute for personal service. Bush v. Vising the sale recites: "It appearing that ant, 40 ark. 124; Brodie v. Skelton, 11 Ark. the order herein made requiring the owners

• No process was ever issued in of the land in this suit to appear and show the cause in which the challenged decree cause, if any they could, why a lien should was rendered. The court's determination of not be declared on certain land, has been any question was therefore coram non judice, duly publisbed in the manner required by and binding upon no one.

• The restatute," etc. This indirect reference to cital of the decree that there was proper nothe notice is the only record evidence that tice to the parties in interest is not conclusuch a notice was made, put on record, or sive of that fact, but must be read in conpublished.

nection with that part of the record which In Gregory v. Bartlett, 55 Ark. 33, 17 S. W. gives, or is required to give, the official 3+1, the supreme court of that state, having evidence of jurisdiction, as prescribed by before it a case in which the notice re statute. Boyd v. Roane, 49 Ark. 397, 5 S. quired by law under the terms of the second W. 704; Settlemier v. Sullivan, 97 U. S. 444; section was not properly given, said:

Galpin v. Page, 18 Wall. 350. “Without the statutory notice, there can

"If such evidence is not required by the be no jurisdiction. If the clerk makes the statute to be placed upon the record, and the warning order, as the second section of the record recites or is silent as to the*facts nec act requires, but fails to publish or post it, essary to show jurisdiction, their existence and that fact appears in the judgment rec will be presumed, but no presumptions are ord, there could be no justifiable pretense indulged when the evidence is stated upon of jurisdiction. If he publishes the statu the record (Boyd v. Roane, 49 Ark. 397, 5 S. tory warning without first making the order W. 701), or wbere the statute requires the required by section 2, the question is, does Jurisdictional facts to appear of record, and he make a legal publication? In other words, they are not made so to appear." is he authorized by the statute to make pub Thus, the supreme court of Arkansas, in inlication when there is no previous order of terpreting a statute of that state, bas held record? If he is not so authorized, then that the making of the record entry of the the publication is without authority and is notice required, and also the proof of its not legal notice to the owner of the land. publication, are indispensable to the validity When this requirement of the stat

of proceedings under the statute; that such ute is complied with, it furnishes to the recorded notice is essential to give jurisdicowner of delinquent lands a means of in tion to the court; and that, where the notice formation which the statute designed he is not of record, the proceedings are absoshould receive. Searching the records, and lutely void. As we have seen, this record finding no order for a proceeding against does not show either notice or publication. his land, he had a right to presume that The appellee, then, seeks to have a cloud none existed. There is nothing in the stat removed from his title when he holds no title ute to indicate that the legislature consid whatever; for, of course, it follows that, ered the entry of the order upon the rec if the court was without jurisdiction, the ord as of any less significance than the decree by it rendered was utterly vold, and publication of it. in a section of the act the sale, having been made under the dewhere a form of a decree to be entered is cree, was equally vicious and wholly null. given, it is made to recite that the order was The rule in ejectment is that the plaintiff entered of record as well as that it was must recover on the strength of his own title, published; and the requirement as to pub- , and not on the weakness of the title of his lication is that a copy of the record entry adversary. A like rule obtains in an equishall be published. The order is the sole au table action to remove a cloud from a title, thority for the publication, and the evidence and title in the complainant is of the esof it which the statute requires is the rec sence of the rigbt to relief. In Frost v. ord entry.

Spitley, 121 U. S. 5.2. 7 Sup. Ct. 1129, we "The statute does not authorize the clerk said: “Under the jurisdiction and practice to make the order in any manner other than in equity, independently of statute, the obby entry on the record, and authorizes pub- | ject of a bill to remove a cloud upon title, lication of nothing except a copy of the rec and to quiet the possession of real estate, ord. To say that the clerk can dispense with is to protect the owner of the legal title the record, and make his entry, in the first from being disturbed in his possession, or instance, in a newspaper, would be to disre harassed by suits in regard to that title; gard a plain provision of the statute, and and the bill cannot be maintained without dispense with one of the means the law af clear proof of both possession and legal title fords for imparting information to the land in the plaintiff. Alexander v. Pendleton, 8 owner. But when a statutory provision is Cranch, 462; Peirsol v. Elliott, 6 Pet. 93; plain, and is made to aid in the accomplish Orton V. Smith, 18 How. 263; Crews v. ment of a useful end, it cannot be treated Burcham, 1 Black, 352; Ward v. Chamberas merely directory, and so be disregarded. lain, 2 Black, 430. As observed by Mr. Jus

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