APPEAL from the Circuit Court for the Western District of Texas; the case being thus:
On the 17th of February, 1851, Bainbridge Howard, a citizen of Louisiana, filed his bill in the court below against a certain Herndon, and one Maverick, residents of Texas, setting forth that 'on or about the 22 November, A.D. 1766, the government of Spain, according to the forms of law and by the regularly constituted officers of the government, granted to the Indians of the population of the Mission of San Jos e, a certain tract or parcel of land, situated, lying, and being in what is now the county of Medina, in the State of Texas,' &c., describing it.
The bill alleged that through regular mesne conveyances he, Howard, the complainant, was the owner of the land, 'all of which will more fully and at large appear by the grant to said Indians, and the chain of conveyances to your orator, to which for greater certainty at the hearing your orator begs leave to refer.' It stated further that he was in possession, and that the defendants had made sundry locations of land certificates upon, and claimed patents to the said land, which constituted a cloud upon his title; wherefore, and to avoid a multiplicity of suits, he brought his suit in equity.
The defendants were interrogated as to what locations, &c., they had made within the boundaries of the described tract, and in conflict with the complainant's claim; and what locations and surveys others had made; and the bill prayed,
'That, by decree to be rendered herein, the locations, surveys, and patents, if any, made within the limits of your orator's tract or parcel of land aforesaid, may be determined and held to be void, and thereby the cloud impending over the title of your orator be removed; or that after establishment of the right in such manner as this court may direct by final decree to be then rendered, your orator may be quieted in his title and possession aforesaid, and all obstruction to the full and peaceable enjoyment of his property removed; or that, if your orator is mistaken in the special relief hereby asked, such other or further relief be extended to him, or decree rendered in the premises, as the nature of the case may require.'
The complainant having died, a supplemental bill in the nature of a bill of revivor was filed, and presented in the name of his heirs, representing themselves, one as a citizen of California and the others as citizens of Illinois. Adopting the allegations of the original bill touching the grant of the land from Spain, it represented that the title granted by Spain to the Indians of San Jos e became vested in one John McMullen, with actual possession; that McMullen's title had become equitably vested with possession in Howard; that Howard's title and possession were now in the complainants; and that the heirs of McMullen (whom the supplemental bill made parties) neglected to convey the legal title.
In October, 1860, the default of the defendants, Herndon and Maverick, in not answering the supplemental bill, was entered, with an order that the bill be taken as confessed against them. In January, 1861, the court set aside this order so far as it affected the defendant, Herndon, and granted leave to him, 'upon condition that he shall pay all the costs of the complainant in this case, for which execution may issue upon this decree,' to answer until March following; but confirmed the order as to the defendant, Maverick, and decreed that the complainants 'have and recover of said Maverick the tract of land in the original bill described; and that their title to the same be and is hereby decreed to be free from all clouds cast thereupon by said Maverick, and all persons claiming by, through, or under him. And that the patents, locations, and surveys obtained by said Maverick, in conflict with the title of the complainants, which is decreed to be a good title, are hereby adjudicated to be null and void.' A reference was made to a master to ascertain the facts sought to be discovered, and a decree of specific performance was decreed against the heirs of John McMullen. An execution subsequently issued and a certain part of the costs were obtained, but not all.