[623] Co. 109 U. S. 680 (27:1073); Van Ness v. Mayor, | inches on F Street. Part of this property, Sheld. Subr. § 24, 25, 46-47; Reynolds v. Crawfordsville First Nat. Bank, 112 U. S. 405, 413 (28:733, 736); Richardson v. Traver, Id. 423, 432 (28:804, 807). Payment of an incumbrance by one whose Herr v. Barber, 2 Mackey, 554; Factor's & T. Messrs. H. H. Wells and S. Shellabar- namely, the one hundred feet front on 7th It is necessary for the court to declare what tract. Merriam v. U. S. 107 U. S. 437 (27:531), citing Subrogation is the creature of justice and Clevinger v. Miller, 27 Gratt. 740; Chicago v. This right of subrogation is not defeated by Sheld. Subr. 38, and cases there cited; Valle v. Fleming, 29 Mo. 152; Williams v. Williams, 2 Dev. Eq. 69; Richardson v. Traver, 112 U. S. 423 (28:804). The law conclusively implies interest on U. S. v. McKee, 91 U. S. 451 (23:327); Selleck Mr. Justice Bradley delivered the opinion In or about August, 1873, the Board of Public Works of the City of Washington cut down the grade of the streets around Mr. Robbins's corner several feet, and rendered the buildings on his property somewhat insecure; the board, pretending that they were in danger of falling, in October, 1873, ordered them to be taken down and removed. Robbins remonstrated, and some arrangement was made for strengthening them. Robbins claimed damages against [624] the city for the injury done to his property, and an award of $4,098 was afterwards made and paid to the bank, after it came into possession of the property as hereafter mentioned. On the 10th of September, 1873, Hitz, the "WASHINGTON, D. C., September 10, 1873. The bill in this case was filed on the 25th of In 1873, the defendant Zenas C. Robbins was in possession of the property known as the Federal Building, situated on the southeast corner of 7th Street and F Street northwest, in the City of Washington, immediately opposite the Postoffice Department Building, being one hundred feet on 7th Street and 129 feet 3 Street and one hundred and twenty-nine (129) [625] [626] leasehold, with like privilege for $12,000. Said "All taxes upon said property are to be paid Mutual Benefit Life Ins. Co., Newark, N. J... 66 Gideon 11110 lease from execu- 25,000 00 12,000 00 $77.000 00 And the balance in cash or its equivalent 93,000 00 $170,000 00 "Any other incumbrances are to be paid by said Robbins, and the conveyance to said Hitz is to be free from any dower right in the wife of said Robbins. of the whole controversy in the present suit, 'Whereas, the said party of the first part is seised in fee simple of all that certain parcel of land in square numbered four hundred and fifty-six (456), in the City of Washington, D. C., contained within the following metes and bounds: Beginning for the same at the northwest corner of said square and running thence east along the line of F Street forty (40) feet, and running south with this width one hundred (100) feet, it being the same that was conveyed to the said party of the first part by George S. and Juliana Gideon, executors of Jacob Gideon, deceased, by deed dated July 21, 1869, and recorded in Liber D, No. 10, folio 288 et seq., of the land records of the District of Columbia; "And whereas, the said party of the first part has a leasehold interest in a certain part of [627] lot numbered fourteen (14) in said square, par"The purchase by said Hitz is conditional ticularly described in a certain indenture of on his approval of the title to said property lease from George S. Gideon, trustee for Cathand the increase by the German-American Sav-arine C. Gideon, to the said party of the first ings Bank of its capital stock according to law. "Z. C. ROBBINS. [SEAL.] part, dated November 30, 1864, and duly recorded in Liber N, C. T., No. 52, folio 101 et seq., of said land records, with the privilege of purchasing said property in fee simple for the sum of eight thousand ($8,000) dollars, and has also a leasehold interest in a certain other part of said lot numbered fourteen (14), particularly described in a certain indenture of lease from Catharine N. Shanke and John Hitz and wife to the said party of the first part, dated May 31, 1865, and duly recorded in Liber N, C. T., No. 57, folio 456, of said land records, with the privilege of purchasing said property in fee simple for the sum of twelve thousand (12,000) dollars; and has also a leasehold interest in a certain other portion of said lot fourteen (14) and a part of lot numbered fifteen (15) in said square, particularly described in a certain indenture of lease from George S. and Juliana Gideon, executors of Jacob Gideon, deceased, to the said party of the first part, dated May 31, 1865, and duly recorded in Liber N, C. T., No. 59, folio 128 et seq., of said land records, with the privilege of purchasing said property in fee simple for the sum of twelve thousand ($12,000) dollars; and has also a leasehold interest in a certain part of lot numbered thirteen (13) in said square, particularly described in a certain indenture of lease from George S. Gideon, trustee for Christiana Larner, to the said party of the first part, dated November 30, 1864, and recorded in Liber N, C. T., No. 52, folio 106 et seq., of said land records, with the privilege of purchasing said property in fee simple for the sum of ten thousand ($10,000) dollars, the whole of said propThereupon the first agreement was aban-erty, fee simple, and leasehold interests, hav doned, and the following agreement and lease, ing a front on 7th Street west in said square of upon which the present rights and obligations one hundred (100) feet and on F Street north of the parties depend, was entered into. We of one hundred and twenty-nine (129) feet set it out at large, because it is the foundation | three and one half (34) inches: "A few days after my return from Virginia Mr. Hitz came to me and made me this proposition: He said that if I preferred to change the sale into a lease of the property perhaps we could make a new negotiation, and he made this proposition-that he and his associates, Mr. Mattingly and Mr. Prentiss, would take the property on a ten years' lease; would pay the purchase money under the four leases; would pay the incumbrances of record, amounting to $35,000; would pay me $600 a month during the term of the lease; pay all the taxes that might be assessed on the fee-simple property and leasehold estates, and would relieve me of all care and responsibility, expense, and charges of every name, nature, and description relating to the fee-simple and the leasehold estates during the whole term of the lease, provided I would embody in the lease the privilege of the purchase of my fee-simple property by the lessees for the sum of $93,000 at any time during the term of the lease. Another provision of the contract was, he gave me the option of a conveyance of the four leasehold estates by paying the several amounts of purchase money named in the leases, with eight per cent interest from the date of payment. [628] [629] "Now, therefore, this indenture witnesseth: That the said party of the first part, for and in consideration of the rents, covenants, and agreements hereinafter reserved and contained to be paid down and performed by the said parties of the second part and the survivor of them, his heirs, executors, administrators or assigns, does hereby assign, transfer, and set over unto the said parties of the second part and the surivors and survivor of them, his executors, administrators, and assigns, all said leasehold interests in said several parcels of land and said leases, and the unexpired portion of said several terms, together with all the rights and privileges and subject to the obligations in said several leases contained, and does also hereby demise, lease, and to farm let unto the said parties of the second part and the survivors and survivor of them, his executors, administrators, and their and his assigns, all of said parcels of land so held in fee simple as aforesaid by the said party of the first part for the term of ten years from and after the first day of November, A. D. 1873, and thence next ensuing, and fully to be complete and ended, they and he yielding and paying unto the said party of the first part, his heirs and assigns, the sum of six hundred (600) dollars per month on the first day of each and every month during the said term, and observing and performing all and singular the covenants and agreements set forth in these presents on their and his part to be observed and performed; and the said parties of the second part, for themselves and each of their heirs, executors, and administrators, do hereby covenant with the said party of the first part, his heirs and assigns, in manner following, to wit: That they, the said parties of the second part, and the survivors and the survivor of them, his heirs, executors, and administrators and their and his assigns, shall and will pay or cause to be paid said monthly rent as herein above stipulated, and shall and will pay and cause to be paid the incumbrances of record against said property, or any portion thereof, the same being two deeds of trust of twenty-five thousand and ten thousand dollars respectively, and shall and will exercise the said several privileges of purchasing in fee simple granted in said leases by paying or causing to be paid said several amounts of purchase money as provided in said leases, and shall and will pay or cause to be paid all taxes and assessments hereafter levied or imposed upon said property or any portion thereof; and the said party of the first part, for himself, his heirs, executors, administrators and assigns, does hereby covenant with the said parties of the second part and the survivors and survivor of them, his heirs, executors, administrators, and their and his assigns, that he, the said party of the first part, his heirs or assigns, shall and will, at any time within said term of ten years, convey unto the said parties of the second part and the survivors and survivor of them and his heirs and their or his assigns, in fee simple, said parcels of land so held in fee simple as aforesaid by the said party of the first part, free and discharged from all right of dower on the part of the wife of the said party of the first part, on the payment to him, the said party of the first part, or his heirs, executors, administrators or assigns, of the sum of ninety three thousand dollars; and, further, that he, the said party of the first part, has full and lawful right to execute these presents, and that he, his heirs, executors, administrators and assigns, will at any and all times hereafter, when requested so to do, execute and deliver any other or further assurance in law to the said parties of the second part and the survivors and survivor of them, his heirs, executors and administrators, and their and his assigns, which their or his counsel learned in the law may advise, devise or require; and it is hereby mutually understood and agreed by and between the parties hereto as follows, viz.: The said party of the first part or those claiming under or through him shall pay all taxes and assessments against or upon said property or any portion thereof up to November 1, 1873, including the pro rata of taxes to this date for the year ending June 30, 1874, and shall also pay or cause to be paid interest on said incumbrances amounting to $35,000 up to said first day of November, and also all rents in leasehold interests to said November 1, and shall also pay or cause to be paid any and all other incumbrances that may be upon or against said property or any part thereof. Should the said parties of the second part or those claiming under or through them be compelled to pay any sum or sums of money which under these presents ought or should be paid by the said party of the first part or those claiming under him, then the same, with interest at the rate of eight per cent per annum from the date or dates of pay meut, shall be a lien upon said property. Should any one of the buildings on said parcels of land or a material portion thereof fall, either from its present condition or in attempting repairs upon the same, then, at the option of the said parties of the second part or those claiming under or through them, this indenture shall be held null and void, and any moneys expended shall be a lien upon said property and be refunded by the said party of the first part and those claiming under or through him, with interest as aforesaid. Should the said parties of the second part or those claiming under or through them fail to exercise said privileges of purchasing the said fee-simple interest in said property so held by said Robbins, within said term of ten years from November 1, 1873, then the said party of the first part, his heirs or assigns, shall be entitled to a conveyance of all of said property by refunding, within one year from the expiration of said term of ten years, all sums of money paid by the said parties of the second part or those claiming under them, with interest at the rate of eight per centum per annum, in the purchase of the fee simple or any portion of said property and in relieving the same of incumbrances created by the said party of the first part. The said parties of the second part and those claiming under or through them shall have the right and privilege of tearing down, altering or repairing any and all of the buildings on said premises, and of rebuilding or repairing, as they may deem proper. Should the German American Savings Bank of the City of Washington increase its capital stock for the purpose of purchasing said property, then the said party of the first part is to have the privilege [630] [631] [632] If we analyze this document, we find that, like the first agreement, it treats of the entire property, freehold as well as leasehold, and instead of providing for an absolute sale, transfers the leases of the leasehold, with privilege of purchase, and leases the fee-simple part, with like privilege of purchase; the consideration, as before, being the same amount, $170,000; namely, $93,000 for the lot held by Robbins in fee simple, $35,000 to be paid to clear off the mortgages, and $42,000 to be paid to the owners of the four leasehold lots. Looking at the agreement in parts, we find: 1. Robbins, for and in consideration of the rents, covenants, and agreements to be paid and performed by the parties of the second part, assigns to them the leases of the four leasehold lots, with all the rights and privileges conferred thereby; and leases to them the lot held by him in fee simple for the term of ten years, at a rent of $600 per month. 2. The parties of the second part, on their side, covenant and agree to pay the said monthly rent above stipulated, and the incumbrances of record against the said property, or any portion thereof, specifying the two deeds of trust for $10,000 and $25,000; and further agree, that they will exercise the several privileges of purchasing in fee simple the leasehold lots by paying the several amounts provided in the leases, namely, [amounting in the aggregate to $42,000]; and further, to pay all taxes and assessments to be levied on the property or any portion thereof. Suppose the paper had ended here, could there have been a doubt that the payments to be made by the parties of the second part, namely, the reserved rent, the $35,000 for clearing off the mortgages, and the $42,000 for buying in the fee (for themselves) of the leasehold property, constituted the consideration of the lease and assignment made to them by Robbins in the first clause? The parties evidently regarded the privilege of purchasing the four leased lots on F Street for $42,000 as a valuable one. It does not seem at all improbable that Robbins should demand, and that the parties of the second part should be willing to give, $35,000 (the amount of his mortgages) for this privilege. This would make the four lots cost them $77,000. If Robbins's 4,000 square feet on 7th Street were worth $93,000 it is not unreasonable to suppose the 8,900 square feet fronting on F Street, and lying in the rear of the other, and almost necessary to it, should be worth $77,000. The remaining parts of the agreement are not in conflict with the construction suggested. In the next place, 3. Robbins gives to the parties of the second part the privilege of purchasing his fee-simple lot at any time during the ten years' lease for the sum of $93,000. 4. The agreement then provides that Robbins shall pay all interest, rents, taxes, and assessments up to the 1st of November, 1873; and it was further agreed, that if the second party should have to pay any sums of money which Robbins, under the agreement, ought to pay, they should be a lien on the property. 5. It was provided that if any of the buildings should fall in repairing, etc., the second party should be released from the contract and refunded the amounts paid by them. 6. It was agreed that if the second party should not exercise their option of buying Robbins's fee-simple property, he should for one year after the expiration of the ten years' term have the privilege of buying them out by refunding all payments they might have made. Now, none of these provisional exigencies took place. The parties of the second part did not exercise their option of buying Robbins's fee-simple property; nor did he exercise his option of buying them out; and the buildings never fell. In all other respects both parties performed their respective parts of the agreement; Robbins paid all interest, taxes, rents, etc., up to November 1, 1873, and paid off the $10,500 judgment lien on the leasehold property; and the parties of the second part and their successors in interest, the German-American Savings Bank and the German-American National Bank, paid the rent of $600 per month, paid off the two mortgages or deeds of trust, amounting together to $35,000, and all interest thereon, paid the rents of the leasehold lots, and bought in the fee simple thereof from the owners, at the stipulated amount of $42,000. So that, at the close of the transaction, the parties stood as follows: Robbins owned his old fee simple lot on the corner of 7th and F Streets, and the complainant, who purchased the interest of the other parties, owned the four lots on F Street. This is the whole case; and we can hardly entertain a doubt respecting the rights of the parties. We think that the court below was in error in sustaining and allowing against Robbins the complainant's claim for the payment of the two mortgages or deeds of trust, and subrogating him to the rights of the mortgagees, Low and the Mutual Benefit Life Insurance Company. The deed of subrogation from the latter company to the German-American Savings Bank was entirely wrong and unauthorized, and should be vacated and declared void. Had a cross bill been filed for that purpose, it should have been so decreed. Remedy can be had by an original bill. We The contract contains no stipulation whatever that the parties of the second part were in any event to have a return of the $35,000 paid in lifting the two mortgages, except in the event of Robbins availing himself of his option to have a conveyance of the whole property-an event which never took place. cannot interpolate such a stipulation. It is not implied by anything that appears on the face of the contract; nor does anything in the surrounding circumstances authorize or require a construction of the contract that would import such a stipulation into it. The first agreement made with Hitz seems to us to have an entirely opposite effect. On all the other points raised in the case, we [633 ERROR to the Supreme Court of the a IN Reported below in 36 La. Ann. 974. A right, title, privilege and immunity was Buck v. Colbath, 70 U. S. 3 Wall. 340 (18: 260); Clements v. Berry, 52 U. S. 11 How. 408 (13:749); Sharpe v. Doyle, 102 U. S. 686 (26: 277); Feibelman v. Packard, 109 U. S. 421 (27: 984); Minnesota v. Batchelder, 68 U. S. 1 Wall. 109 (17:551): Ableman v. Booth, 62 U. S. 21 How. 514, 524 (15:172, 176). Caperton v. Bowyer, supra; State v. Louisiana Board of Liquidation, 98 U. S. 140 (25:114); Ocean Ins. Co. v. Polleys, 38 U. S. 13 Pet. 157 (10:105); Mississippi & M. R. R. Co. v. Rock, 71 U. S. 4 Wall. 177 (18:381); Commercial Bank v. Buckingham, 46 U. S. 5 How. 317 (12:169). This court has no jurisdiction to review the decision of a state court against a right and title under a statute of the United States, unless such right and title be specially set up and claimed by the party for himself, and not for a third party under whom he does not claim. Long v. Converse, 91 U. S. 105 (23:233). Mr. Justice Bradley delivered the opinion of the court: This case arose upon a petition filed in the Civil District Court for the Parish of Orleans, January 23, 1884, by Lanaux, the defendant in error, praying for a mandamus against Eugene May, the recorder of mortgages for the same parish, commanding him to cancel and erase from the books of his office all inscriptions against certain property of the petitioner in favor of the Consolidated Association of the Planters of Louisiana, particularly certain inscriptions designated in the petition as being those of a mortgage on three certain lots in Orleans, June 6, 1848, cure the payment of a subscription for fifteen Mr. B. F. Jonas, for defendant in error: The person who goes into the state court, submits to its jurisdiction, and nowhere asserts in any way the rights of the federal courts in the matter, cannot, after taking his chance for a decision in his favor, and getting one against him, raise in this court the point of want of jurisdiction in the state court. Mays v. Fritton, 87 U. S. 20 Wall. 414 (22: 389); National Bank of the Metropolis v. Kennedy, 84 U. S. 17 Wall. 19 (21:554); The Victory v. Boylan, 73 U. S. 6 Wall. 382 (18:848); Hamilton Mfg. Co. v. Massachusetts, Id. 632 (18:904); Grand Gulf R. R. & Bkg. Co. v. Marshall, 53 U. S. 12 How. 165 (13:938); Smith v. Maryland, 59 U. S. 18 How. 71 (15:269); Caperton v. Bowyer, 81 U. S. 14 Wall. 216 (20:882); Worthy v. Moore County, 76 U. S. 9 Wall. 611 (19:565); Salomon v. Graham, 82 U. S. 15 Wall. 208 (21: 37); Steines v. Franklin County, 81 U. S. 14 Wall. 15 (20:846). [635] [636] |