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No act of Congress was passed, subsequent , affirmed that such possible refusal was not ly to the making of the contract, which made within the contemplation of the contracting it unlawful, and it was lawful when made. parties when the contract was made. Many It is true that the sailing of the vessel with causes, it was known, might operate to obout a clearance would have been unlawful, struct the transportation of articles conand the deputy collector refused to grant traband of war. This particular form of that necessary document while the lead was impediment may not have been actually on board the steamship. But that did not within the minds of the parties to the conrender unlawful the contract to transport. tract, but there was, as the agreed facts He had the power to refuse to grant the show, present to their minds the fact that clearance, and he did refuse unless the lead there might be trouble in procuring the were taken off. In so doing he undoubtedly transportation of the lead because of its violated his duty. He was not justified in character as contraband of war, and in the exacting any such condition for granting light of those facts the contract was made, the clearance.

and, in substance, ratified after it was made. Upon the facts in this case, we are of The railroad receivers took the risk of this, opinion that this refusal of the deputy col- | as of other obstructions, in making the conlector constituted no defense to the action tract, and they ought to be held to it. on the contract. It is not within the excep- As the act of the deputy collector was an tion referred to by Mr. Justice Jackson, in erroneous one, and a clearance should have delivering the opinion of the court in Chi- been given while the lead was on board the cago, M. & St. P. R. Co. v. Hoyt, 149 U. S. steamship, we think his refusal should not 1, 37 L. ed. 625, 13 Sup. Ct. Rep. 779. This be at the expense of the shippers, who had contract, in view of all the facts, we think obtained this contract for transportation was made in contemplation of trouble arising while all parties actually knew the difficulfrom the character of the lead as contraband ties that might concern the exportation of of war.

the lead from Tacoma. The state had not The statement of facts shows that the ques- intervened to prevent the performance of the tion of whether the lead might not be ex contract, as was the case in Touteng v. Hubcluded from transportation as contraband in bard, 3 Bos. & P. 291, where Lord Alvanley view of the war then existing between China held that in such circumstances the party and Japan was fully understood before the will be excused. In that case there was an contract was made, and after it was made, embargo laid by the British government, and the steamship refused to carry the lead, after the contract was made, on all Swedish the trading company, upon being so in- vessels. formed by Fitch, notified him that they Here there was no intervention of the govwould hold the receivers responsible for fail-ernment of the United States. The exportaure to fulfil the contract; and thereafter, tion of lead was never prohibited by the with the attention of all the parties directed Treasury Department during the war beto the subject, it was finally agreed that tween China and Japan. There was no the lead should be received and transported, change in the law or the policy of this govand the refusal was then withdrawn. ernment subsequently to the making of the

It is true that the special and particular contract, by which its performance was exdifficulty was first made by the steamship cused. The exportation of the lead was company which refused to transport the legal when the contract was made, and conlead, yet, still, the attention of all the par- tinued to be so after the execution of such ties was, from the very first, directed to the contract, although the deputy collector mispeculiar character of the freight as contra- takenly refused to grant the clearance unband of war, and whether the contract less the lead was taken off the vessel. Such should on that account be made, or, having mistaken decision did not render the orig. been made, whether the shipment should not inal loading of the lead on the ship unlawbe refused. The receivers, therefore, knew ful, nor would it have been unlawful for the that there might be difficulty in relation to ship to proceed with the lead on board prothe transportation, and yet, after full knowl- vided the clearance had been had. It was edge on the subject, they agreed to, and did, not an act of the state, therefore, which prewithdraw their refusal; and they thereupon vented the sailing of the vessel, within the took the lead for transportation under the true meaning of such a term, but a miscontract.

taken act of a subordinate official, not jusUnder these circumstances, it ought not tified by law, and not sufficient as an excuse to be held that the mistaken action of the for the nonperformance of the contract in deputy collector in refusing to give the question under the circumstances already clearance should operate as an excuse for the detailed. If the bill of lading were regarded nonperformance of the contract, which was as applicable for this purpose, the refusal not thereby rendered illegal. It cannot be' of the clearance did not constitute a "re

straint of princes, rulers, or people,” within said assignee," without attempting to ad. that clause of the bill.

judicate the amount of that interest, if any. It was one of the contingencies of which

[No. 47.] the receivers undertook by their special contract of transportation to take the risk. It submitted November 3, 1904. Decided De was not a contract that they should violate

cember 5, 1904. the law, but they took the risk of its misapplication, believing of course, that such contingency was most remote, and that, if IN ERROR to the Supreme Court of the

State of Illinois to review a judgment the steamship company would receive the which, on a second writ of error, affirmed a lead for transportation, the chief obstacle judgment of the Superior Court of Cook to the fulfilment of the contract would be County in that State in favor of defendant, thereby removed.

in a suit to establish title to real property. After the lead had been unshipped, and

Affirmed. within half an hour after the sailing of the

See same case below, 202 Ill. 83, 66 N. E. vessel, the telegram which the deputy col. 869; on first writ of error, 152 Ill. 387, 38 lector had sent to the collector in regard to N. E. 888. the matter was answered by the latter in such terms that, undoubtedly, if the ship

Statement by Mr. Justice Brown: had been still in port, the lead would have

This was a bill originally filed February been placed thereon and transported to Ja-1, 1888, in the superior court of Cook county pan. The master, however, as soon as the by the plaintiff in error, Cramer, under her determination of the deputy collector was then name of Fannie N. Dresser, against her given, immediately, and without appealing sister, Lilly B. Dresser, Henry H. Gage, to the collector, unshipped the lead, and Julia Wilson, and two others for the partisailed for his destination at once. The re- tion of certain real estate in Chicago, for a sult of the failure thus to carry the lead settlement of equities or liens thereon, for a on that vessel was that it did not arrive in receiver, and for the removal of certain Yokohama until on or about January 4, clouds upon complainant's title. 1895, instead of on or about November 18,

The material facts of the case are as fol1894, which it would have done had it gone lows: Shortly before the beginning of this forward as contracted for. In the mean-suit Fannie N. Dresser was the record owner time, the war between China and Japan of the property in question through a patent ceased, the value of the lead fell, and the from the United States. On January 31, trading company was damaged as stated in 1888, the day before this suit was comthe finding of facts.

menced, Fannie N. Dresser conveyed to her We think the objections made to this, re- sister, Lilly B. Dresser, an undivided one covery are untenable, and the decree of the third of the property in question. The court court below is, therefore, affirmed.

found this deed to have been collusive, and executed by an arrangement with the de

fendant Gage, who held certain tax deeds to (195 U. S. 408)

the premises, found to be invalid, and for FANNIE N. DRESSER CRAMER et al., the purpose of filing this bill for partition, Piffs. in Err.,

and the removal of a cloud upon the title

caused by another tax deed, acquired by FREDERICK R. WILSON, Deft. in Err. Frederick R. Wilson in 1864. His interest

in the property was conveyed by him to his Error to state court-Federal question--sister, Julia Wilson, in 1877. Julia Wilson constitutional law-full faith and credit.

was made defendant to the bill as the owner

of this tax title. 1. The contention that conveyance was

It appeared, however, that Julia Wilson either in fraud of creditors under the state died on December 15, 1887, leaving Fredlaw, or that a residuary estate remained in the grantor which would pass under an as

erick R. Wilson her sole legatee and execusignee's sale in proceedings in bankruptcy, tor. The suit was then abated as to Julia presents a local, and not a Federal, question, Wilson, and Frederick R. Wilson was suband cannot, therefore, be considered by the stituted as defendant in her place. The Federal Supreme Court on writ of error to a

deed to this property from Frederick R. state court.

Wilson to his sister was a conditional con2. Full faith and credit are not denied an or

der of a court of bankruptcy refusing to set veyance, but by agreement of the parties it aside the sale by an assignee, for inadequacy was subsequently treated by them as absoof price and want of notice of sale, by the re- lute; and upon the death of Julia Wilson, in fusal to treat such order as res judicata as to December, 1887, the property again became the bankrupt's interest in the property, where the order of sale directed the assignee to sell vested in Frederick R. Wilson as her only simply "the interest of such bankrupt and of 'heir at law and next of kin, and as her sole

V.

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devisee under her last will and testament. | Dresser conveyed her interest to Henry H.
Shortly after the deed to Julia, Frederick Gage; that Julia Wilson, to whom her
R. Wilson went into bankruptcy (August brother, Frederick R. Wilson, had conveyed
30, 1878), and Robert E. Jenkins was ap- his interest in the property, died testate,
pointed his assignee. The property was sub- leaving her interest in the property to Fred-
sequently ordered to be sold, and in 1889 erick R. Wilson, and that this interest sub-
was purchased from the assignee by one sequently passed to Snow by purchase from
Taylor E. Snow for the sum of $250. Both the assignee, Jenkins.
Jenkins, the assignee, and Snow, the pur-

This decree was reversed by the supreme chaser, were made parties defendant to the court (152 Ill. 387, 38 N. E. 888), which bill, and subsequently filed answers and a held that there was no evidence of a title cross bill.

in fee in complainants, derived from the govIt appeared that Gage, after the beginning ernment; that, although Frederick R. Wilof the suit, bought the interest of Lilly B. son showed a deed to himself from the city Dresser, and also that the purchase by Snow of Chicago, dated May 24, 1864, and possesat the bankruptcy sale was made in his in- sion under such deed, he conveyed his interterest; so that the real parties to this liti- est to his sister, Julia Wilson, in 1877; that gation are Gage upon one side and Wilson about a year thereafter he went into bankupon the other.

ruptcy, and that at the assignee's sale nothUpon the first hearing, the court entered ing passed to the purchaser, Snow, but the a decree of partition denying Wilson's claim interest of the bankrupt on August 30, 1878. of title, and holding that his interest passed "But,” said the court, “the evidence shows to Snow by the assignee's sale. This decree that at that time he had no interest, having, was reversed by the supreme court of Illi- more than a year prior to that date, July 6, nois upon the ground that the plaintiff had 1877, conveyed it to Julia Wilson; and the not proved her title from the government to evidence is undisputed as to the fact that the property. Leave was given the parties she took possession under that deed, and reto amend, and subsequently an amended bill tained it by her tenants to the date of her was filed and answered. Upon the second death, and that her tenants remained in such hearing, the court held that the premises possession when this suit was begun.” The were the property of Frederick R. Wilson, court found that there was nothing to show and had been his from 1864 until 1877, when that Julia Wilson had not died seised of he conveyed them to his sister; that at the the property, and that it was not until her time of bankruptcy proceedings, in 1878, the death, in 1887, that defendant became retitle was in Julia Wilson, and that upon possessed of it. The case was reversed, and the death of Julia Wilson, in 1887, the title remanded with leave to amend the pleadings again vested in Frederick R. Wilson; that and put in additional testimony. at the time Frederick R. Wilson was ad Upon a rehearing in the superior court, judged a bankrupt Julia Wilson was alive a decree was entered in favor of the defendand vested with the title to this property, ant, Wilson, establishing his title to the and that the defendant Snow acquired no premises, subject to the repayment of certitle when he purchased all of the estate, tain taxes paid by Gage. Upon the second real and personal, of the bankrupt, Fred-appeal to the supreme court that court held erick R. Wilson.

that, it having been shown that defendant This decree was affirmed by the Illinois and his sister had been in possession of the supreme court (202 Ill. 83, 66 N. E. 869), property for more than twenty years prior and it is to reverse that decree that plain to the bringing of that suit, defendant had tiff's have taken a writ of error from this a good title by limitation, unless it was cut court.

off and defeated by the assignee's sale to

Snow; but that, as he had sold to his sister, Alessrs. Frederick W. Becker, Robert Julia Wilson, in July, 1877, thirteen months A. Childs, and Charles Hudson for plain- before the bankruptcy, and she had taken tiff in error.

possession, he had no title, and none passed Messrs. David K. Tone and George to Snow by purchase from the assignee. Gillette for defendant in error.

Complainants, however, took the position

that the deed from Wilson to his sister was Mr. Justice Brown delivered the opinion not absolute, but was made to secure a debt, of the court:

and was constructively a mortgage, and that Upon the first hearing, the superior court an equity of redemption remained in Fredentered a decree of partition, finding that erick R. Wilson, which would pass to Snow the Dresser sisters were the owners of the as purchaser at the time of the assignee's property at the beginning of the suit, sale. But the court held that, under the through a title derived from the govern- arrangement between the parties, the deed ment; that after the suit began Lilly B.' became absolute long before the defendant

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was adjudged a bankrupt. That, under the assignee. Of course, this involved a conlaw of Illinois, when land has been construction of the bankrupt act. veyed by deed, absolute in form, though in- If there be any Federal question, it arises tended as security for the payment of a debt, from the denial of the petition of the appelthe payment of the debt may be abandoned, lee, filed in the bankruptcy court September and the deed treated as an absolute convey- 17, 1889, about two months after the sale ance, although originally intended as a mort. was confirmed, to set aside and vacate such gage, and that such arrangement may be sale for inadequacy of price and want of nomade by parol, and be binding. 202 Ill. 83, tice that the sale would take place. It is 66 N. E. 869.

insisted that this denial was res judicata of It thus appears that the case turned upon Wilson's interest in the property, and that the validity of the deed from the appellee the refusal of the court to so treat it denied to his sister, Julia Wilson. It was insisted to the order of the bankruptcy court the that the deed was either fraudulent and void full faith and credit to which it was enas against creditors, or that a residuary in- titled. But, on referring to the order of terest remained in Frederick R. Wilson, sale of June 27, 1889, we find that the aswhich would pass under the assignee's sale. signee was directed to sell simply "the interThis was a local, and not a Federal, ques- est of such bankrupt and of said assignee,” tion. The deed, having been made a year without attempting to adjudicate what that before the proceedings in bankruptcy were interest was, or whether he had any interest begun, and eleven years before the com- at all. It was left for other courts in other mencement of this suit, was not attacked as proceedings to determine what his interest, invalid under the bankrupt law of 1867 [14 or that of his creditors, was on August 30, Stat. at L. 517, chap. 176], then in force, but 1878, the day on which he was adjudged a as a fraudulent conveyance under the state bankrupt. That interest would, of course, law. The question of fraud was ignored by pass to the assignee. We have already seen the state court, although it was directly in that the supreme court found he had none volved in the issue, and, hence, must be upon that day. The district court authortreated as overruled. It was admitted that, ized the sale of such as he had, but made if the property were that of Julia Wilson at no attempt to determine or guarantee that the commencement of the bankruptcy pro- he had an interest that would pass by the ceedings, nothing passed under the assignee's sale. The refusal to set aside the sale was sale; and it was only upon the theory that largely a matter of discretion, and may have it was the property of the bankrupt that the been justified by the consideration that the assignee could convey anything to the pur. bankrupt was not injured by the fact that it chaser. To reverse the state court upon this had taken place. There was certainly no atpoint would be to hold that it improperly tempt to adjudicate the amount of his construed its own laws with reference to interest. fraudulent conveyances. The assignee's sale The circumstance that, nine years after as a conveyance of the property of the bank his adjudication in bankruptcy, he took title rupt was not attacked in any way. He was to the property as the devisee of his sister, a mere conduit through which the interest does not lend any significance to the fact of Frederick R. Wilson, if he had any for that, at the date of his bankruptcy, his sishimself or his creditors, passed to Snow. ter was the owner, in possession by tenants, We have repeatedly held that, when the and that the supreme court found her title question in a state court is not whether, if to be absolute. the bankrupt had title, it would pass to his The decree of that court is, therefore, afassignee, but whether he had title at all, firmed. and the state court decided that he had not, no Federal question is presented. Scott v.

(195 U. S. 395) Kelly, 22 Wall. 57, 22 L. ed. 729; McKenna

JOHN F. HILL, Plff. in Err., v. Simpson, 129 U. S. 506, 32 L. ed. 771, 9 Sup. Ct. Rep. 365. The same principle was

WARREN E. MOCORD. applied to a different class of cases in Blackburn v. Portland Gold Min. Co. 175 U. S. Courts-conclusiveness of findings of fact571, 44 L. ed. 276, 20 Sup. Ct. Rep. 222; public lands-confirmation of premature De Lamar's Nevada Gold Min. Co. v. Nes- commutation entry. bitt, 177 U. S. 523, 44 L. ed. 872, 20 Sup. Ct. Rep. 715. In Williams v. Heard, 140 U. S. 1. The conclusiveness on the courts of a find529, 35 L. ed. 550, 11 Sup. Ct. Rep. 885, re- ing of the Land Department, made in allied upon by the plaintiff in error, the prop- lowing a homestead entry, of the sufficiency of erty in dispute belonged admittedly to the

settlement, residence, and improvements, 18

not affected by a later decision, in a second bankrupts, and the question was whether it

contest between the same parties, that the was of such a character as to pass to their alienation of the land was a bar to supple.

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mental proofs offered in aid of a premature | February 4. The land was not opened for commutation entry.

entry until February 23, 1891, and on that 2. A finding of a state court that, when a com- day Jacobus made application at the local mutatiou entry under the homestead laws was

land office to enter it as a homestead. On allowed, neither the entryman nor the land officers had actual knowledge of the amend

the same day Hill filed a soldier's declarament of U. S. Rev. Stat. $ 2301, by the act of tory statement for the same tract. A contest March 3, 1891 (26 Stat. at L. 1098, chap. 561, was had before the local land officers, resultU. S. Comp. Stat. 1901, p. 1406), which made ing in a decision in favor of Jacobus. On such commutation premature, is a finding of fact, and, therefore, conclusive on the Federal appeal to the Commissioner of the General Supreme Court, on a writ of error to the state Land Office, this decision was affirmed. Hill's court.

declaratory statement was canceled, and the 8. The right to confirmation under the act of entry of Jacobus allowed on July 6, 1892.

June 3, 1896 (29 Stat. at L. 197, chap. 312, U. on September 20, 1892, Jacobus commuted S. Comp. Stat. 1901, p. 1409), of a commuta- his homestead entry, making and filing in tion entry under the homestead laws, which was only invalid because prematurely made, good faith due, regular, and truthful proofs in actual ignorance of the amendment of U. S. of settlement, occupation, and improvements, Rev. Stat. § 2301, by the act of March 3, paying $400, and receiving a receiver's re1891 (26 Stat. at L. 1098, chap. 561, U. S. ceipt and a certificate of entry certifying Comp. Stat. 1901, p. 1496), is not defeated by that he had purchased the land, and made the entryman's subsequent efforts to protect his grantees by taking a reconveyance, and full payment, and was entitled, on presentaresiding again upon the land, for the purpose tion of the certificate to the Commissioner of enabling him to make proof to secure the of the General Land Office, to receive a title for them.

patent.

On December 27, 1892, McCord and one [No. 49.]

Daniel McLeod purchased the land in good

faith of Jacobus, paying him the sum of Argued November 3, 4, 1904. Decided De- $4,250, and receiving a warranty deed. The cember 5, 1904.

negotiations between these grantees and

Jacobus commenced on or about December IN N ERROR to the Supreme Court of the 17, 1892, and prior to that time they had

State of Wisconsin, to review a decree no interest in the land, and had no negotiaaffirming a decree of the Circuit Court of tions with him. While negotiating with Douglas County, in that State, in favor of Jacobus they asked Hill, at the time residplaintiff, in a suit to establish a trust in cer- ing on a part of the tract, whether he had tain real property. Affirmed.

any claim upon the land, and whether JacoSee same case below, 117 Wis. 306, 94 N. bus had good title thereto; and Hill then W. 65.

and there said to them that he had been

fairly beaten in his contest with Jacobus, Statement by Mr. Justice Brewer: that he had no claim, and that if McCord

This was a suit in equity commenced in and McLeod would buy the tract he would the circuit court of Douglas county, Wis- make no claim. At that time Hill knew consin, by Warren E. McCord, to obtain a that they were looking at the land with a decree adjudging the defendant, now plain. view of purchasing it from Jacobus, and tiff in error, John F. Hill, the holder of the that the inquiry was made of him with reflegal title to the northwest quarter of sec- erence to that purchase; and they did in tion seventeen, in township forty-eight fact rely upon Hill's statement, and purnorth, of range eight west, in Bayfield chased the land and paid for the same by county, Wisconsin, in trust for the plain- reason thereof. tiff. A demurrer to an amended complaint A few days after the deed, and on Januwas sustained by the circuit court, but this ary 4, 1893, for the purpose of putting the ruling was reversed by the supreme court of understanding between themselves and Hill the state. 111 Wis. 499, 84 N. W. 27, 85 N. in writing, the grantees had this instrument W. 145, 87 N. W. 481. Thereafter an an executed and acknowledged by Hill: swer was filed, a hearing had, resulting in a decree for the plaintiff, which was affirmed For the purpose of making a settlement by the supreme court (117 Wis. 306, 94 N. with John F. Hill, and his relinquishment W. 65), and thence the case was brought on the N. W. 4 of section 17, township 48, here on error.

range 8 W., we hereby make him a present The following facts were found by the of a certain lot of logs, now skidded on said trial court, and the findings were sustained land, and give him permission till the 1st by the supreme court: One Philip W. Jaco-day of May, A. D. 1893, in which to enter on bus made an actual settlement on the land said land to remove said logs, and to occupy in controversy on January 28, 1891, and the house on said land, and to remain on actually established his residence thereon' said land until that date, but not thereafter.

25 S. C.--7.

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