Names of. Counsel. Savings Bank v. United States, 19 Wall. 227, 240; King v. United States, 99 U. S. 229; Hagar v. Reclamation District No. 1, 111 U. S. 701; Davidson v. New Orleans, 96 U. S. 97; Walston v. Nevin, 128 U. S. 578, 581. The motion to dismiss the writ of error is denied, and the judgment of the Supreme Court of Pennsylvania is affirmed. CHESTER CITY v. PENNSYLVANIA. Error to the Supreme Court of the State of Pennsylvania. No. 1498. Submitted January 27, 1890. Decided March 10, 1890. Motions were made in this case similar to those made in Bell's Gap Railroad Co. v. Pennsylvania. MR. JUSTICE BRADLEY delivered the opinion of the court. This case, so far as any federal question is concerned, is similar, in all substantial respects, to that of Bell's Gap Railroad Co. v. Pennsyl vania, just decided, and must be governed by the decision in that case. The motion to dismiss the writ of error is denied, and the judgment of the Supreme Court of Pennsylvania is affirmed. Mr. James W. M. Newlin for the plaintiff in error. Mr. William S. Kirkpatrick and Mr. John F. Sanderson for defendant in error. Mr. M. E. Olmsted and Mr. Wayne McVeagh, on behalf of W. W. Jennings, plaintiff in error in No. 1242; Mr. W. B. Lamberton and Mr. George R. Karcher, on behalf of the North Pennsylvania Railroad Company, defendant in error in No. 1556; and Mr. M. E. Olmsted, on behalf of the Delaware Division Canal Company, The Lake Shore and Michigan Southern Railway Company, The New York, Lake Erie and Western Railroad Company, The Clearfield Bituminous Coal Corporation, The Delaware, Lackawanna and Western Railroad Company, and The Lehigh Valley Railroad Company, filed briefs entitled in Bell's Gap Railroad Co. v. Pennsylvania and City of Chester v. Pennsylvania. Syllabus. DEPUTRON v. YOUNG. UNITED STATES FOR THE ERROR TO THE CIRCUIT COURT OF THE DISTRICT OF NEBRASKA. No. 1151. Submitted January 6, 1890. - An averment of diverse citizenship by the plaintiff, necessary to confer a jurisdiction, not being controverted by the defendant, must be taken as true under the practice in the courts of Nebraska. When the jurisdictional allegations of the plaintiff are not traversed by the defendant, no question involving the capacity of the parties to litigate in the federal courts can be raised before the jury, or treated as within the issues they are empanelled to determine. The objection, under section 5, of the act of March 3, 1875, c. 137, 18 Stat. 472, that parties to a suit have been improperly or collusively made or joined for the purpose of creating a case cognizable under the act, should be taken at the first opportunity; and delay in its presentation will be considered in examining into the grounds upon which it is alleged to rest. A suit cannot properly be dismissed by a Circuit Court, as not involving a controversy within the jurisdiction of the court, unless the facts, when made to appear on the record, create a legal certainty of that conclusion. In Nebraska a tax deed, not executed by the county treasurer under his seal of office, is void. In Nebraska a tax deed, though void on its face, is sufficient color of title to support an adverse possession to the property therein described. The adverse possession which bars a recovery in an action of ejectment must be continuous, uninterrupted, open, notorious, actual, exclusive and adverse. Where the rightful owner of real estate is in the actual occupancy of a part of his tract, he is in the constructive and legal possession and seisin of the whole, unless he is disseised by actual occupation and dispossession; and where the possession is mixed, the legal seisin is according to the legal title. A power from an owner of real estate authorizing the donee to make and execute deeds to convey the real estate to purchasers, as the same may be sold to such purchasers in tracts by a third party who acts under a contract with the donor of the power, is a naked power to convey as sales may be made, and a deed made by the donee to a person who was not such a purchaser is a fraud upon the power. In the case of a naked power not coupled with an interest, every prerequisite to the exercise of that power should precede it. In Nebraska the title of a purchaser at an executive sale depends not alone VOL. CXXXIV-16 Statement of the Case. upon his bid or payment of the purchase money, but upon the confirmation of the sale by the court. One purchasing at an execution sale in Nebraska submits himself to the jurisdiction of the court as to matters affecting that sale; and as the court has power during the term to vacate or modify its own orders or to rescind a decree affirming the sale, he is concluded by the result of the proceedings to confirm or annul it. THIS was an action of ejectment brought in the Circuit. Court of the United States for the District of Nebraska, June 14, 1884, by Rowena Young, a citizen of Ohio, against John C. Deputron, a citizen of Nebraska, to recover certain premises in the petition named. The defendant answered, denying plaintiff's ownership and right to possession; and setting up title under a tax deed and purchase in good faith and without notice for $10,000 paid, being the full value, and ten years' adverse possession. To this answer a reply, specifically denying its averments, was filed by the plaintiff. At the November term, 1885, of said court, a trial was had, which resulted in a verdict for the defendant and judgment thereon, which was set aside on motion of plaintiff, and a new trial awarded. In March, 1886, the cause was tried a second time, and a special verdict of forty-one findings rendered by the jury as set forth in the margin.1 1 1st. That Jane Y. Irwin obtained title to said lands by patent from the United States December 15, 1862, and on the 9th of August, 1867, conveyed the same to William P. Young, who, on the 5th of February, 1874, reconveyed the same to Jane Y. Irwin, who, on the 11th day of June, 1884, conveyed said lands to the plaintiff, Rowena Young. 2d. On the 31st of March, 1874, Jane Y. Irwin and husband entered into a contract with N. S. Scott, Samuel Boyd and Milton La Master for the selling and subdivision of said lands. 3d. And said Scott, Boyd and La Master soon after entered upon said lands under said contract, and staked out the block corners and street intersections, being engaged in the survey on the lands in controversy and other lands for a period of about two months, finishing their survey about the last of May, 1874. 4th. On the 12th of August, 1875, Jane Y. Irwin and her husband executed a power of attorney to William T. Donavan to enable him to make conveyances to purchasers when sales were made by Scott, Boyd and La Master, and to facilitate their operations under their contract of March 81st, 1874. Statement of the Case. The defendant excepted to the tenth, seventeenth and nineteenth findings, and moved to set aside each of the same, and 5th. We find that there was no assessment of the land in controversy for taxes in the year 1867, nor was the same borne upon the tax-list of that year. 6th. We find the tax deed of June 12, 1871, executed by John Cadman, county treasurer, was not sealed by the county treasurer with his official seal, nor did the county treasurer then have an official seal. 7th. We find that the county treasurer's deed executed by R. A. Bain, dated September 15, 1871, was not sealed by the county treasurer, nor did the county treasurer then have an official seal. 8th. We find the forty acres of land sold by the sheriff to E. J. Curson and conveyed by deed October 10, 1877, was at that time of the value of $20,000. 9th. That the confirmation of sale was set aside by the District Court of Lancaster County, in which it had been made November 3, 1877, before E. J. Curson had made any conveyance to any one, and was never afterwards confirmed. 10th. The jury find that Nelson C. Brock and his grantees had mixed possession of the west half of the southwest quarter of section 24, township 10, range 6, in Lancaster County, Nebraska, for ten years prior to the commencement of this suit, but the jury find that parties claiming under defendant's grantors held portions of said property and parties holding under plaintiff's grantors held portions of said property, so that said possession was in controversy and disputed and mixed down to the year 1877. 11th. That up to the year 1876, the said defendants and their grantors had mixed possession of the land in dispute, to wit, the northeast quarter of the southwest quarter of section 24, township 10, range 6, but said land was open, vacant and unoccupied, except by the city pest-house, and was used as a common. 12th. The jury also find that parties held mixed possession of portions of the west half of the southwest quarter of section 24, township 10, range 6, during the years 1874 and 1875, who did not attorn to or acknowledge possession in either the plaintiff or the defendants or any one under or by whom they claim. 13th. The jury find that the conveyance from Jane Y. Irwin and John Irwin by William T. Donavan, attorney-in-fact, to J. P. Lantz was a fraud upon the power held by said Donavan, and was given by Donavan and taken by Lantz with the intention of defrauding Jane Y. Irwin, and that Samuel W. Little had full knowledge of such facts, and procured such conveyance to be made with such knowledge and design. 14th. That the said deed by Donavan to Lantz and the deed of same by Lantz to Little were executed at the same time and were parts of one transaction, and that the northeast quarter of the southwest quarter of section Statement of the Case. for a judgment for the defendant and against the plaintiff upon the verdict as thus amended; and the plaintiff filed his 24, township 10, range 6, was on the 25th day of October, 1879, worth $30,000, and that the balance of the land then by Donavan conveyed would exceed $70,000 in value at that time. 15th. That during the years 1874, 1875 and 1876, parties holding under the grantors of plaintiff held portions of the west half of the southwest quarter of section 24, township 10, range 6. 16th. We find that all the defendants had full knowledge of the revocation of the power of attorney aforesaid upon the record by Jane Y. Irwin, and of the facts therein stated prior to any purchase made by them or either of them. 17th. That one N. C. Brock, through whom the defendant traces one chain of his title on the 12th day of June, 1871, received from the county treasurer of Lancaster County, Nebraska, a tax deed of that date of the north half of and 20 acres off the west side of the southwest quarter of the southwest quarter of section 24, township 10, range 6 east, in Lancaster County, Nebraska, the premises in controversy being in the northeast quarter of the southwest quarter aforesaid, which tax deed purported to be issued for the taxes assessed against the above-described parcels of land, respectively, for the year 1867, which tax deed was on the 13th day of June, 1871, recorded in the county clerk's office of Lancaster County, Nebraska. 18th. That on the 15th day of December, 1871, the county treasurer of Lancaster County, Nebraska, delivered to said Nelson C. Brock a second tax deed of that date covering the northeast quarter of the southwest quarter of section 24, township 10, range 6 east, in Lancaster County, Nebraska, including the property in dispute, which deed was issued for the tax of the year 1868, and which tax deed was on the 18th day of December, 1871, recorded in the county clerk's office of Lancaster County, Nebraska. 19th. That on the 18th day of December, 1871, said Nelson C. Brock made, executed and delivered to one Charles T. Boggs a lease in writing of that date of the north half of and the southwest quarter of the southwest quarter of section 24, township 10, range 6 east, in Lancaster County, Nebraska, for the term of two years from that date, which lease contained a leave or license to the lessee to remove all buildings placed upon said premises by him on or before the termination of said lease, which said lease was recorded in the county clerk's office of Lancaster County, Nebraska, on the 2d day of January, 1872. 20th. That on the 18th day of December, 1873, the said Nelson C. Brock made, executed and delivered to said Charles T. Boggs a second lease in writing of that date of the north half and the southwest quarter of the southwest quarter of section 24, township 10, range 6 east, in Lancaster County, Nebraska, for the term of two years from that date, which said lease contained a similar provision permitting the lessee to remove all buildings |