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Mr. Justice Brewer dissented from the opinion of the court, holding that the constitutional requirement of uniformity was violated by the progressive feature of the tax.

§ 138. Involuntary alienation. — Except the power which the court of chancery possesses in certain cases, and which of course is subject to repeal or regulation by the legislature, the power to effect an involuntary alienation rests upon legislative enactment. As a general proposition, the legislature cannot divest one of his vested rights against his will. It can enact laws for the control of property and of its disposition, but it cannot take the private property of one man and give it to another. But there are certain well-known exceptions to this general rule, where the interference of the legislature is necessary to save and protect the substantial interests of individuals on account of their own inability to do so, or to promote the public good. In some of the State constitutions there is a provision against the enactment of special laws, operating upon particular individuals or upon their property. In those States, therefore, involuntary alienation can only be effected by a general law, applicable to all persons under like circumstances. But in the absence of such a constitutional provision, the transfer of lands may be made by special acts of the legislature, as well as under a general law. But wherever such a transfer by special act of the legislature would involve the assumption of judicial power, it would be generally beld void, under the common con

1 Wilkinson o. Leland, 2 Pet. 658; Adams o. Palmer, 51 Me. 494; Commonwealth o. Alger, 7 Cush. 53 ; Varick o. Smith, 6 Paige, 159; Matter of Albany Street, 11 Wend. 149; John and Cherry Street, 19 Wend. 676; Taylor o. Porter, 4 Hill, 147; Heyward o. Mayor, 7 N. Y. 324; Bowman o. Middleton, 1 Bay, 252; Russell o. Rumsey, 85 Ill. 374; Good o. Zercher, 12 Obio, 868; Deutzel o. Waldie, 30 Cal. 144.

2 Sobier o. Mass. Gen. Hospital, 3 Cush. 483; Kibby o. Chitwood, 4 B. Mon. 95; Edwards o. Pope, 4 Ill. 473.

stitutional provision which denies to the legislature the exercise of such powers.

One of the most important, and the most easily justified, cases of involuntary alienation, is one affecting the property of persons under legal disability. Where persons are under a legal disability which prevents them from making a valid sale of their property, and such sale and reinvestment of the proceeds of sale are necessary for the conservation of their interests, the State, in the capacity of parens patriæ, has the power to authorize a sale by the guardians of such persons. This may be done by special act or by a general law. The law which imposes the disability may very properly provide against the injurious consequences of such disability.

But the property of persons who are not under a disability cannot be sold by authority of the courts, on the ground that such a sale would be beneficial. In most of the States there are general laws authorizing the courts to empower the guardians of minors, lunatics, and other persons under disability to make sale of the real property of such persons.

The law also provides for sales of real property by the administrators and executors of the deceased owner. Where one dies without having made proper provision, for such contingencies, it is often necessary that some one should be authorized to make a sale of the lands for the purpose of making an effective administration,

1 Rice v. Parkman, 16 Mass. 326; Jones v. Perry, 10 Yerg. 59; Lane o. Dorman, 4 Ill. 238; Edwards v. Pope, 4 Ill. 473.

2 Sohier v. Mass. Gen. Hospital, 16 Mass. 326; 8. C. 3 Cush. 483; D&vidson v. Jobonot, 7 Metc. 395; Cochran v. Van Surlay, 20 Wend. 365; Estep v. Hutchman, 14 Serg. & R. 435; Doe o. Douglass, 8 Blackf, 10; Kirby v. Chitwood, 4 B. Mon. 95; Shehan v. Barnett, 6 B. Mon. 594; Jones v. Perry, 10 Yerg. 59. See Willis v. Hodson, 79 Md. 327.

3 Wilkinson o. Leland, 2 Pet. 658; Adams o. Palmer, 51 Me. 494; Sohier v. Mass. Gen. Hospital, 3 Cush. 483; Heyward o. Mayor, 7 N. Y. 324; Ervine's Appeal, 16 Pa. St. 256; Palairet's Appeal, 67 Pa, St. 479.

and to protect and satisfy the claims of those who are interested in the property. If the deceased leaves a will he very often, perhaps generally, empowers the executor to make sale of the land, when necessary. Where the executor has the testamentary power, his sales are presumed to be under this power, and there is no need of a resort to the statutory power. But these express testamentary powers are supplemented by statutes, which authorize courts of probate to order a sale of the decedent's lands by the administrator or executor, whenever this is necessary to the full performance of his duties. Thus, if the personal property is not sufficient to satisfy all the debts, the administrator or executor may, under order of the court, make a valid sale of the lands, and the proceeds of sale will constitute in his hands a trust fund, out of which the claims of the creditors must be satisfied.2

A statute, which authorized administration upon the estate of one, who has not been heard from for seven years, as if he were dead, was held to be unconstitutional, because it deprived one of property without due process of law. 3

By the early common law, lands were inalienable for any purpose, and consequently they could not be sold to pay the debts of the owner. But as trade and commerce increased, it became necessary that the creditors should be provided with means for satisfying their claims by compulsory process against the debtor's property. In compliance with the popular demand, the statutes merchant and statutes staple were passed, which created in favor of the creditors an estate in the debtor's land, whereby he was enabled to enter into possession and satisfy himself out of the rents and profits. These statutes have been

i Payne v. Payne, 18 Cal. 291; White o. Moses, 21 Cal. 44. ? See Tiedeman on Real Prop., $ 756; 3 Washb. on Real Prop. 209. s Carr v. Brown, 20 R. I. 215. * 2 Bla. Com. 161, 162.

abolished in England, where they are superseded by the writ of elegit, which bears a close resemblance to the American statutes of execution. In all the American States there are statutes which provide that, when a creditor obtains judgment against his debtor, he may cause a writ of execution to be issued against the property of the debtor, under which the sheriff is authorized to make sale of the real property, and to execute the proper deeds of conveyance. In order to further protect the creditor, it is provided by most of tbe State statutes that the judgment, when properly docketed, creates a lien upon all the debtor's real property, which attaches to, and biods, the land into whosesoever hands it may come. The judgment lien enables the creditor to sell the land under execution, although it has been conveyed away by the debtor to a purchaser for value. It is not necessary to attempt to justify these cases of involuntary alienation. When a judgment for debt is rendered, it determines that one man owes another so much property, expressed and estimated in money, and it is a very natural police regulation to give the property to whom it is due. But any statutory change in the law for sale and redemption of real estate, which is sold for the satisfaction of a judgment, can only apply to judgments which have been procured after the passage of the new law.1

The cases are numerous in which the court of chancery has the power to decree a sale and conveyance, and it will be impossible to enumerate them. The more common cases are the decree of sale in the foreclosure of a mortgage, in the enforcement of an equitable lien, in an action for specific performance of a contract for the sale of lands, in the confirmation of defective titles, and the sale of equitable estates to satisfy the claims of creditors. In all of these

1 Greenwood v. Butler, 52 Kan. 424; Moore v. Barstow, 52 Kan. 431; Sheldon v. Pruessner, 52 Kan. 593.

cases, originally, the court in its decree ordered the holder of the legal title, or the owner of the land, to make the proper deeds of conveyance, upon pain of being punished for contempt of court. If the individual was obstinate or beyond the jurisdiction of the court, the court was powerless to effect a conveyance. But now courts of equity generally possess the power to authorize some officer of the court, usually the master, to execute the necessary deeds of conveyance, and such deeds will be as effectual in passing an indefeasible title as the sheriff's deed under execution.

Generally, when a title is defective through some informality in the execution of the conveyance, upon a proper case being made out, the court of equity will afford an ample remedy by decreeing a reformation of the instrument. But cases do arise where, through the absence or death of the parties, or through a want of knowledge as to who they are, it is impossible to obtain a reformation in chancery; and even in cases where the equitable remedy is only troublesome and inconvenient, and the defect is only an informality, which does not go to the essence of the conveyance, and which does not create any doubt as to the intention to make a valid conveyance; the power of the legislature to interfere and cure the defect by special act has been generally sustained by the courts of those States, where special acts are not inbibited by the constitution."

1 Ryder o. Innerarity, 4 Stew. & P. 14; Mummy 0. Johnston, 3 A. K. Marsh. 220; Sheppard 0. Commissioners of Ross Co., 7 Ohio, 271.

:3 Washb, on Real Prop. 219; Tiedeman on Real Prop., § 758.

3 Adams 0. Stevens, 49 Me. 362; Brown v. Lamphear, 35 Vt. 260; Andrews 0. Spurr, 8 Allen, 416; Metcalf v. Putnam, 9 Allen, 97; Conedy o. Marcy, 13 Gray, 373; Prescott v. Hawkins, 16 N. H. 122; Caldwell 0. Fulton, 31 Pa. St. 484; Keene's Appeal, 64 Pa. St. 274; Mills o. Lockwood, 42 ml. 111; Gray o. Hornbeck, 31 Mo. 400.

* See Wilkinson 0. Leland, 2 Pet. 627; 8. c. 10 Pet. 294; Watson v. Mercer, 8 Pet. 88; Kearney v. Taylor, 15 How. 494; Adams v. Palmer, 51 Me. 494 ; Sohier o. Mass. Gen. Hospital, 3 Cush. 483; Chestnut v. Shane's Lessee, 16 Ohio, 599; Tiedeman on Real Prop., $ 765; Lyman v. Gedney, 114 Ill. 388; Barrett o. Barrett, 120 N. C. 127; Pelt v. Payne (Ark.), 30

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