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Opinion of the Court.

would operate directly upon him, and would not contravene that provision of the statute prohibiting a court of the United States from granting a writ of injunction to stay proceedings in a state court. It would simply take from him the benefit of judgments obtained by fraud:

It was contended at the bar that the cases of Mougué v. Clapp, 101 U. S. 551, and Graham v. Boston, Ilartford & Erie Railroad, 118 U. S. 161, 177, announce a different rule. We do not understand those cases to proceed upon any ground inconsistent with the principles announced in the cases above cited. It is true that in Nougué v. Clapp the Circuit Court of the United States was asked to set aside a decree of a state court, as well as a sale had under it, upon the ground that the decree was obtained and the sale conducted pursuant to a fraudulent conspiracy, to which the person obtaining the decree, and who became the purchaser at the sale, was a party. Here the resemblance between that case and the one before us ends; for in Nougué v. Clapp it did not appear, nor was it alleged, that the facts constituting the fraud were not, before the rendition of the decree, within the knowledge of the party seeking its annulment, or could not have been discovered in time to bring them in some appropriate mode to the attention of the court while the decree was within its control. For aught that appears, that suit was brought simply to obtain a rehearing in the Circuit Court of the United States, sitting in equity, of issues that were, or, by proper diligence, could have been, fully determined in the suit at law in the state court. The relief there asked could not have been granted consistently with the rule that equity will not interfere with a judgment at law, even where the party has an equitable defence, if he could, by the exercise of diligence, have availed himself of that defence in the action at law to which he was a party. This requirement of diligence is, as it ought to be, enforced with strictness.

The case of Graham v. Boston, Ilartford & Erie Railroad does not differ in principle from Nougué v. Clapp.

The case before us is unlike the two last cited. While the court, upon final hearing, would not permit Mrs. Marshall,

Opinion of the Court.

being a party to the actions at law, to plead ignorance of the evidence introduced at the trial, it might be that relief could be granted by reason of the fact, distinctly alleged, that some of the necessary proof establishing the forgery of the letter was discovered after the judgments at law were rendered, and after the legal delays within which new trials could have been obtained, and could not have been discovered by her sooner. It was not, however, for the state court to disregard the right of removal upon the ground simply that the averments of the petition were insufficient or too vague to justify a court of equity in granting the relief asked. The suit being, in its general nature, one of which the Circuit Court of the United States could rightfully take cognizance, it was for that court, after the cause was docketed there, and upon final hearing, to determine whether, under the allegations and proof, a case was made which, according to the established principles of equity, entitled Mrs. Marshall to protection against the judgments alleged to have been fraudulently obtained.

For the reasons stated, we are of opinion that this suit was removable from the state court; and that the court below should have reversed the judgment of the Eighth District Court in and for the Parish of Madison, and remanded the cause to the latter court with direction to set aside all orders made after the filing of the petition and bond for the removal of the suit into the Circuit Court of the United States, and to proceed no further in it. The judgment is reversed, and the cause remanded for such

proceedings as are consistent with this opinion.

Statement of the Case.

JOHNSON v. ST. LOUIS, IRON MOUNTAIN AND

SOUTHERN RAILWAY COMPANY.

ST. LOUIS, IRON MOUNTAIN AND SOUTHERN

RAILWAY COMPANY V. JOHNSON.

APPEALS FROM THE DISTRICT COURT OF THE UNITED STATES FOR

THE EASTERN DISTRICT OF ARKANSAS.

Nos. 60, 71. Argued October 30, 1891. – Decided November 16, 1891.

Under a written contract J. was to build a road for a railroad company for

$29,000, and to have possession of the road and run and use it till he should be paid. He completed the road, but was not paid, and, while in posses. sion, was forcibly ejected by the company. In an action against it for forcible entry and detainer he had judgment. Meantime, another company purchased the road, but before that, by a written agreement between J. and the first company, the amount due him under the contract was fixed at $25,000. The judgment was attirmed by this court, but before any judgment was entered on its mandate, the second company tendered to J. the $25,000 and interest, which he refused, and it then tiled a bill in equity, for a perpetual injunction against J. from taking possession of the road, and obtained an order for a temporary injunction, on paying the money tendered, into a depository of the court, to its credit, with the right to J. to receive the money when he pleased. J. defended the suit on the ground that the agreement as to the $25,000 was conditional and temporary and that the condition had not been fulfilled. The court decreed that on the plaintiff's paying into court the costs of the suit, and $1000 for the expenses of J. in preparing to take possession of the road, a perpetual injunction should issue. Both parties appealed. Held, (1) The agreement as to the $25,000 was binding on J.; and its terms

could not be varied, by showing a contemporaneous verbal under

.

standing that the $25,000 was to be paid in cash in a limited time: (2) The tender and the payment into court changed the condition of

affairs, and the right of J. to possession of the road ceased; (3) The case was distinguishable from that of Ballance v. Forsyth, 24

How. 183; and like that of Parker v. The Judges, 12 Wheat.

561;

(4) The appeal by the plaintiff did not involve an amount sufficient to

give this court jurisdiction.

THE court stated the case as follows:

Statement of the Case.

On the 23d of April, 1879, A. H. Johnson, of Helena, Arkansas, and the Iron Mountain and Helena Railroad Company, an Arkansas corporation, entered into a written agreement, whereby Johnson, in consideration of $29,000 to be paid to him as thereinafter stipulated, agreed to complete the grading, tieing, culverting, clearing and grubbing on the company's railroad between its junction with the Arkansas Midland Railroad, eight miles west from Helena, and the town of Marianna, in Lee County, Arkansas, a distance of about eighteen miles, to furnish certain cross-ties and square timber, to lay the iron rails, and to place the road between those points in good running order, the rails, fastenings, spikes, and switches to be furnished by the railroad company, and the road to be completed on or before September 1, 1879, $1000 to be paid as each mile of the road was completed and ready for the running of locomotives and cars thereon, and the balance when the track should be laid and the superstructure completed to Marianna, and ready for the running of locomotives and cars. It was further agreed that all moneys which might be collected by a committee of citizens appointed on behalf of certain citizens of Helena, who had subscribed money to aid in building the railroad, should be paid by said committee to Johnson in discharge pro tanto of the contract; that, until the $29,000 should be fully paid, Johnson should have the possession of the road and the right to run, use and control the same, but such right of possession should cease and determine, and Johnson should deliver up possession of the road to the company, as soon as the $29,000 should be fully paid to him ; that the company might at any time terminate the contract by paying to Johnson the value of the work then done by him; and that, in estimating the value of the work, the whole value, to the town of Marianna, should be fixed at $29,000, and the proportion then performed by Johnson was to be paid for at the rate of $29,000 for the whole. There was a provision for arbitration in case the parties should not agree as to the value of the work, and the company agreed to furnish to Johnson the iron rails, fastenings and spikes, from time to time, as rapidly as he might be ready to lay the same.

Statement of the Case.

Having completed the road, and not having been fully paid according to the contract, Johnson, in September, 1880, was forcibly dispossessed by the president of the company. He brought his action against the company for forcible entry and detainer, in the District Court of the United States for the Eastern District of Arkansas, and, while it was pending, and on the 26th of October, 1882, the St. Louis, Iron Mountain and Southern Railway Company, an Arkansas corporation, became the purchaser of the road from the Iron Mountain and Helena Company, and on the 15th of December, 1882, took possession of the entire line of the latter company, extending from Forest City to Helena, and including the eighteen miles of track in question, and was afterwards made a party to said action. In that action, a judgment was rendered in favor of Johnson, on March 14, 1883, and on a writ of error from this court by the company it was affirmed (119 U. S. 608) on January 10, 1887.

possession of the Before the pur

Johnson took no immediate steps to get eighteen miles of road under his judgment. chase of the property by the St. Louis, Iron Mountain and Southern Railway Company, and on October 6, 1881, and while the forcible entry and detainer suit was pending, Johnson and the Iron Mountain and Helena Company entered into the following agreement:

"It is agreed between A. H. Johnson and the Iron Mountain and Helena Railroad Company as follows, viz. That the amount due said Johnson for constructing that part of said Iron Mountain and Helena Railroad between the former junction with the Arkansas Midland Railroad and the town of Marianna, under a contract executed in April, 1879, is the sum of $25,000 at this date; and it is further agreed that the suit now pending in the United States District Court for the Eastern District of Arkansas, at Helena, is to be continued at the October term, A.D. 1881.

"(Signed)

IRON M'T'N AND HELENA R.R. Co., "Per WM. BAILEY, Pres't

"A. H. JOHNSON."

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