not jurisdiction in this court to set aside a sale made in a court of the state, with a view of ordering another sale, the sale not having been made pursuant to the statute. That portion of the bill, therefore, should .be dismissed, without prejudice to the right of the plaintiff to maintain another bill for tile same cause in any court of competent jurisdiction. . I believe that covers the whole ground. It is pretty clear to us that plaintiff has no other right than to have this money back, with interest. We are not disposed to maintain his possession by injunction. If the defendants here get legal title from the sheriff they can assert that title in an action at law; we are not dispose0 to interfere in a suit of that kind.
MCCONVILLE v.. HOWELL and others. 1
(Circuit Court, D. Colorado.
June 27, 1883.)
Under the 4atule of Colorado non-resident aliens may own, inherit, and convey property, real or personal, the same as citizens and residents.
A contract for the purchase an1 sale of an interest in mining property, at a price Hamed therein, in which contract is the following clause: "Provided, always, in the event of such failure to complete such purchase, he, (the purchaser,1 his heirs and assigns, upon the delivery of possession of sa.d lands and milling premises as aforesaId to the parlies of the first part, their heirs and assigns, shall in nowise be held responsible for the payment of said purchase money," Ilfld, that up:m refusal to redeliver the property to the sellers on demand, the latter had the right to treat the contract as a sale, and proceed to enforce its specific performance in e'oluity.
N. F. Cleary and G. G. for plaintiffs. George, Maxwell J; Phelps and Mark/Lim, Patterson J; Tholn'ls, for
defendants. MCCRARY, J., (orally.) In the case of Edll'ard MeeD/wille v. C. C. Howell et al. I have reached certain conclusions, which I am prepared now to state. It is a bill in equity, brought for tho purpose of obtaining a decree for the specific pedormance of a written contract whereby these complamants agreed to sell to the defendant Howell, and the defendant Howell agreed. to pnrchase, certain interests in mining property situated in Lake connty, in this state. It is alleged that the complainants are the heirs at law of one John McConville,'who died at Leadville some time in Novemher, 1880. Some discussion has been had as to whether the proof in this case is sufficient to establish the heirship. Some of the statements given by the principal witness, Mr. Burne, are in the nature of family history, and, to some extent,
the Colorado Law Reporter.
:r.r'CONVILLE V. nOWELL.
hearsay; but they probably fall within the.very liberal rule which prevails upon that subject. Whether they do or not, I am prepared to say that, in this particular case, the court is satisfied with the proof. We should not apply a very strict rule in a case of this character, for it must be borne in mind that Howell, the defendant, who was the purchaser of this property, was the administrator of the estate of John McConville, deceased, and he dealt with these plaintiffs as the heirs of John McConville, and bought the property from them as snch heirs. He must be presumed to know who the heirs were. It was his duty to ascertain that fact. He was the trustee for them, and if they had chosen to repudiate the contract upon the ground that he acted as their trustee, they could in all probability have done so, upon the doctrine that the executor has no right to purchase the property of the heir while he is acting in that capacity. They have not seen fit to do that, and I mention it merely to show that the court ought not to adopt a very strict rule in reference to proof of heirship. I hold, therefore, that the proof is sufficient to show the heirship of these complainants. In the second place, it is established that the said John McConville was, at the time of his death, tlIe owner of an undivided interest in the several mining claims mentioned in the bill. Precisely what his interest was, it is not material here to consider, but that he had an undivided interest is well established. In the third place, the complainants, though non-resident aliens, were capable of inheriting property in this state by virtue of the statute of the state upon this subject. The complainants, it appears, are non-resident aliens, and it is insisted that for that reason they were incapable of inheriting any interest in this pruperty from J olm McConville, and, consequently, had nothing which they could sell. It is said that the result is that there is no consideration for this contract. But the statute of this state upon that sJbject is very explicit. Chapter 4, p. 90, Gen. Laws Colo. § 15, provides:
"All aliens may take, by deed, will, or otherwise, lands and tf'nements, nUll any interest therein, and alienate, sell, and transmit the sallie to their heirs, or any other persons, whether such heirs or other persons be citizens of the United States or not; and. upon the decease of any alien having title to or interest in any lands or tenements, such laIHls and tenements shall (lass and descend in the same manner as if such alien were a citizen of the United Statel:!; and it shall be no objection to any person having an interest in such estate that they are not citizens of the United States; hilt all SIlf'h persons shall the same rights and remedies, and in all tlling!> lJe placed upon the sallie fouting. as natural-born citizens of the United. Stales. The personal el:!late of an alien, dying intestate, who, at the time of his death. shall reside in this state, shall he distribnted. in the same manner as the estate of n.ttllral-lJorn citizens; and all persons shall be entitled. to their proper d. striblltive slmres of such estate under the laws of this state, whether they are aliens or not."
It is conceded, as of course it could not be questioned, that the statute is broad enouglI to include this ca"e; uut it IS suggested that
it is not constitutional. The provision of the constitution referred to is section 27 of article 2, 'which reads as follows:
"Aliens, who are ot' who may hereafter become bona fide residents of this state, may acquire, inherit, possess, enjoy, and dispose of property, real and personal, as native-born citizens."
And the argument is that the necessary purport of this provision of the constitution is to limit the right to possess, inherit, or enjoy property to aliens who are or may hereafter become citizens; in other words, that it prohibits the legislature from extending the right to non-resident aliens. I do not agree to that construction of the constitution. The very same question was decided by the supreme court of California, and I think upon very sound reasoning, in the case of State v. Rogers, 13 Cal. 159. The constitutional provision, and also the statutory provision, in California, were substantially like those in Colorado, and the points decided in this case were these:
" The constitution is not a grant of power, or an enabling act, to the legislature. It is a limitation on the general powers of a legislative character, and restrains only so far as the restriction appears, either by express terms or by necessary inference. .' "The act of April 19, 1856, permitting non-resident aliens to inherit real and personal estate, is constitutional. The constitution (article 1, § 17) [which corresponds to the section of the Colorado constitution I have jnst l'ead] gives the bona fide resident illien certain rights, which may be enlarged, but cannot be abridged, by the legislature." .
That I understand to bea sound rule; the rights guarantied by ,the constitution cannot be taken away, but other rights may be given to the same or to other persons. The legislature may go further in the conferring of these rights upon aliens, but they cannot do less than that which the constitution requires. " It appears that the complainants, through their lawfully authorized agent, and the defendant C. C. Howell entered into the contract set out in the bill, wherehy the defendant agreed to buy the interest in the said mining claims. In my opinion the said contract was not a mere option to buy on the part of Howell, from which he could withdraw at pleasure, without restoring to complainants the possession of the property and of all rights as they existed before the execution of the contract. Here arises a question of a good deal of importance in the case. It depends upon the construction of the contract between the parties; it is a very voluminous contract; I shall not undertake to read it. It is in substance a contract wherebv these heirs agreed to sell this mining property to Howell. Howell "agreed to spend $25,000 within a year in deHlloping the mines, and agreed to pay $33,000 as a consideration for the conveyance at the end of the year. There were other provisions, which need not be referred to. The one relied upon by the defendant, as constituting this contract a mere option, is as follows:
"Provided always, in the event of such fail ure to complete such purchase. he, [that is, Howell,] his heirs and assigns, upon the delivery of possession of said lands and mining premises as aforesaid to the parties of the first part, their heirs and assigns, shall in nowise be held responsible for the payment of said purchase money,"
There is an unequivocal promise in this agreement on the part of Howell to pay the $33,000 within the year, but this clause is added, whereby, as it appears to me, he was given an election to discharge the obligation by a redelivery of the property to the heirs before the end of the year. I suppose that, like many of these transactions, the value of the property was somewhat problematical, and would depend upon development and investigation, and so Mr. Howell desired to reserve the right or privilege of an option, in case it turned out to, be of less value than supposed, to redeliver the property, and thereby \ discharge himself from liability for the purchase money. But he failed and refused to redeliver the possession to these complainants. They demanded possession and were refused. In my judgment the option was at an end; the right of Mr. Howell, which he had re-' served by this clause of the agreement, was no longer available to him after his refusal to avail himself of it when the demand was made, and thereupon the grantors in the contract had a right to treat it as a sale, and proceed in equity for the purpose of obtaining a specific performance. ' I do not overlook the question, which has been discussed a good deal by connsel, as to whether this is a case within the equity jurisdiction of the court; in other words, as to whether there is a plain, speedy, and adequate remedy at law. 'I'hat depends, perhaps, upon the question whether the vendor here is entitled to a lien npon the property for the purchase money. Undoubtedly he woulil not have been if Mr. Howell had redelivered the property to him in accordance with the terms of the contract; but since Mr. Howeil declined to do that, and chose to retain the possession, and still retains it, appears to be in the enjoyment of the property, and engaged in ItS development and use, I have no doubt that the contract becomes, in substance, 8, bond for a deed, or contract fOl; the purchase of real estate, which gives the vendor a lien for his purchase money, which he may proceed in equity to enforce. It is true, there is a conflict of authority upon the question whether a party, under such circummay come into a court of equity, or whether he is obliged SImply to proceed at law. This question, however, is set at rest, so far as this court is concerned, by the decision of the supreme court. of the United States in Lewisv. Hawkins, 23 'Vall. 119. That was a case of a vendor who gave a simple contract toconvey. There was n.o conveyance. He went into a court of equity to enforce the specific performance of the contract, and to claim a lien upon the property. The argument for defendants in that case, by yery distinguished counsel, was precisely the same that been made here. They said:
"The estate in fee being in Lewis, [that is, the vendor,] h'owcan he have a lien? The man cannot have a lien on that which is his own." But the court answered it: "The seller, under such circnmstances, has a vendor's lien, which is certainly not impaired by withholding the conveyance. The equitable interest of the vendee is alienable, descendible, and divisible, in like manner as real estate held by legal title." And so they maintained the jurisdiction in equity to enforce the performance of the contract, and to enforce a lien upon the property, on the ground that, although there was no formal conveJance by the vendor to the vendee, by the contract to convey there was an equitable estate vested in the vendee, which he could sell and dispose of, and the other party had' a right to treat it as a sale, and proceed 10 enforce his vendor's lien upon the property. I think in this case that the complainants are entitled to a decree requiring the payment of the purchase money upon their tendering a deed to Mr. Howell, and for the enforcement of the decree, if necessary, by the sale of the premi"es.
UNITED STATES V. MARSHALL SILVER 1\IINING CO.l
(Circuit Court, D. Colorddo.
June 28, 1683.)
L",cns-CON1WmACY Al'cD FnAUD IN PnOCURlNG.
A bill whu:h charges a conspiracy between defendants and offi"ers of the laud deparlml'ut of the government, With a view to pprpetrate a fraud upon the .!!;overnmenl and other persons, held good on demurrer. QUll:re: To what extl'nt i .jury to the gov,'rnment be shown as a basis of relief 1 Is it enough to show that tue patent was ub,amed ill Viulatiun uf law t
On Demurrer to Bill. Andrew IV. Brazee, Dist. Attv., for the United States. l\Iorrism tt Fillills, for defendants. MCCRARY, J., (orally.) In the case of the United States against the Marshall Silver Mining Company and others I have considered the demuLTer to the hill. The bill charges, at very considerable length, a conspiracy between defendants and certain land-officers to change the houndaries of a claim for a patent, and to do this fraudulently, fur tue purp0cie of extending one claim over the lines of another, and tllUS secure a patent to the defendant here, the Marshall Silver Mining for certain mining property which was in equity the property of McClellan, 'Webster, and Rist, who also had their application pending. Numerous acts and several rulings of the land-officers are charged specifically in the bill as having been wrongful and frauJull:'nt; itS having been done aud male in pursuance of the geu1
Fro.n the Volorado Law neporler.
HOLLINGSWORTH V. PARISH OF TENSAS.
eral conspiracy to perpetrate a fraud upon the United States, and also upon McClellan. Webster, and Rist. I will not take the time to repeat the allegations of the bill, or to go into any discussion upon them. It is sufficient for the present to say that, in my judgment, it charges conspiracy and fraud with sufficient certainty to require an answer. Whether the facts, when fully developed, will show a fraud upon the United States, or only upon McClellan and Webster, or wilether it will show a fraud upon both, are questions we can better determine upon the proofs and on final hearing. They are questions of some importance, perhaps of some difficulty' It is probably not entirely settled as to how far, or to what extent, an injury to the government must be shown, as the basis of relief in a case of this character. It may be thllt it is enough to show that the patent was obtained in violation of the law; possibly it may be necessary to show some actual damage; but these questions may be better determined upon the final hearing of this case than they can be now upon this dE'murrer, and I do not propose to pass upon them any further than I have already indicated. The demurrer to the bill is overruled.
HOLLINGSWORTH V. PARISH OF TENSAs.1
(CirCUit Court, W. D. Louisiana.
LAW-TAKING PllIVATE PROPERTY Fon PuilLIC U;:"l. The plaintiff, owner of riparian property, whose lands adjacent to the Mississippi river are to h'we been taken and damaged for pubhc-levee purposes by the defendant, II parochial corporation. held to have a nght of action for the recovery of ju.t and adequate compensation therefor.
Private property can only he tf/ken, rtpprnT>T'iflted, or drtmrtged for puhlic use through the exercise of tIlt' single principle of eminent domain, which in all cases carrie. with il the right of just indemnity.
POWEH OF STATE-LEVEE.
Cnder the exercise of its ge.leral police power, wh'ch extends only to the f'egul'ltion of the owner's use and d,'minion of priva.e properly, the state of Louisiana cannot. for levee or other public take, appropriate, or dl1lnage private property so as to deprive Ihe owner of its dominion, use, control, and profits, and especlfllly without due compe.lsation first being pllld,-Louisiana stale jurisprudence, as contained in the case of BIlBS v. ::itate, 34 La. Ann. 4!l4, and other cases, to the contrary.
DECISIOl' m' STATE COURTS-WHEl' FOLI,OWED BY FEDERAL COURTS.
National courts are required to follow decisions of stale courts wben they engage in giving dIect to, or the interpretation or construction of, slate stator local laws, but not when employed in g.ving effect to genpral prhciples o.f law. So, when a decision of the supreme court of Louisiana declares the rIght in the legi lature to authorize private property to he taken or damaged, or its use appropriated, withnut compensation, for puhlic under tbe g«:neral police power, or other implied powers of government, it is a dealing wllh general principles of law, and places no restraint on the federal court,
IReported br Talbot Stillman, Esq., of lbe lIlonroe, Lonjgjana. bar.