"The case of the lVctteh 00. v. Meyer,29 Fed. Rep. 225, decided by this coUrt, contains nothing, contradictory to these views. There, in the first inl>tance" the plaintiff commenced an acti(')n of attachment, alleging fraudulent conveyances by the defendant. Succeeding in the action, it filed a bill to subject certain rea,l estate, transferred by one conveyance, to the satisfaction of its judgment. In that action the conveyance was held valid, and a decree rendered against the plaintiff. Thereafter it filed a second bill, allegiJ.'1g that all the conveyances made by the defendant were part and parcel oia voluntary general assignment, under the laws of the state of Missouri, and it was 'entitled to havtl all the property sold, and distributed among all the breditors pro ra,ti:i'·.' ,The difference between the two causes of ll,ction is obvious. In the first, plaintiff's primary right, as alleged, was to have the specific property wholly appropriated to the payment of. itsc1aims bv reason of its attachment, levy, and the fraudulen,! In the second , its priJ,nary right, as alleged, was to have all the property conveyed by the defendant distributed among all the creditors jYt'orata. . . Myconclpsi<>D, the former judgment is a bar to the present. "the plea must tberefQre be and the bill dismissed. It is unneCesaary to take any n.otice,of the demurrer; for, if the bill not be sustained upon. the merits, any inquiry as· to the .sufficiency of the description in the oonveJ'ance of the land would be superfluous.
BERXLlllYf1. UNION PAC.
(Olr;cuit Oourt,!'IJ.OO7qradO, January 18, 1888.)
Where land is conveyed u,p0n consideration that a railroad company fs to' "locate. erect. all!! maintain upon the land its deJlot, and in pursuance of the conveyance 'the depot is erected and tnaintaineil for 11 years, and theni. removed, theJand does not revert. _ It is only a failure of part of t,heeonsideration, entitling the grantor, to his action at law therefor. _
InEquity. On demurrer to bill. -Action by Berkley, plaintiff, against the Union Pacific Railway Company, defendant, to recover possessionoiland. BrcnIJ'M &: Putnam, for TeUer ¢Orahood, for defendant. -BREWER, J. This isa. bill in equity to which a demurrer bas been filed, and the question submitted is on that demurrer. The, bill alleges that ancestor was .the 9wner of a tract of land in the of Boulder; which had been-laid off into lots and blocks; that, in order toenljlancethe value of thatladditibn, he conveyed a tract of a few acres to the Denver. City & Bouldel· Railroad Company, of which
CAMPBELL V. CITY OF NEW YORK.
the present defendant is the successor in interest, the consideration of .which conveyance was the promise of the railroad company to locate, . ,This was in 1872. erect, and maintain its depot on the land It alleges that the rail(oadcompanydid erect and maintain its depot there until 1883,-l1years,-when it changed its depot, and put it about three-quarters ofa mile away; whereupon they claim that the consideration has failed, that therefore the conveyance' also falls, and that they should be restored to the title and possession of the property. It ,is alleged that this contract or promise on the part ofthe railroad company was the consideration of the deed, it containing the following cIause, namely: "As a part consideration, the party of the second part is to locate, erect, and maintain upon the grounds hereinbefore described, its depot for the transaction of its business in the town of Boulder." Then, after alleging that there was a money consideration of one dollar specified, the bill avers that it was not in fact paid, and was nota real consideration, the solitary consideration being the said promise of the railroad company. Now counsel insists that this iss. condition subsequent, which, having failed, the title reverts. I think not. The erection and maintenance of the depot is stated to be a consideration, a consideration perhaps in the nature of a condition subsequent; but the conveyance does not purport to be one upon condition that the p;rantee will perform, but it is a conveyance in consideration of its promise to erect and maintain. That consideration it has partially performed; for 11 years it has maintained its depot there, although it may be and is, according to the lan.guage of th'tfbill, true that it has not paid all the consideration,-that it has or up to the time continued its depot there. Under those circumstances, where there is a part performance,-a part payment,-the title does not revert. There may be a cause of action for damages; but the title does not revert upon s. mere partial failure of the consideration. The demurrer to the bill will be sustained and the bill dismissed.
CAMPBELL t1. MAYOR,ETo., OF
(Oircuit Oourt, 8. D. NeuJ York. February 15,1888.)
In a suit in equity some defendants tlle.d pleas, and then obtained leave to withdraw them, while other defendants demurred. It being doubtful whether to be the better practice to postor not the pleas were before the court· . pone action on the pleae until the hearing on the demurrer.
In Equity. On pleas to supplemental bill. Harvey D; Hadlock, for plaintiff. George Blia and Mareua P. Nurton, for defendants filing pleas.