There was no third person present when Lansburgh signed this paper, and one of the disputed questions in this case is whether Lansburgh's approval was unconditional, or upon the verbal condition that it was not to bind him until concurred in by other parties in in terest. Blout and Clark, each holding a one-sixth interest in the property, declined to approve the sale to Cochran. The firm of Ryon & Tracy, owning a one-sixth interest, and Henry C. Tracy, owning a one-sixth interest, were willing to carry out the sale as made. Lansburgh, having learned that some of the parties in interest refused to acquiesce in the sale, de clined to convey his share. Subsequently, on November 14, 1889, Cochran filed a bill against Blout and all the parties in interest, seeking to have specific performance of the contract of sale made by Dyer and approved by Ryon & Tracy and Lansburgh. Blout and Clark filed answers, alleging that they had not authorized Lansburgh or Dyer to make the sale to Cochran, and that they had never approved or ratified the same. 353] *Ryon & Tracy and Henry C. Tracy conveyed their respective interests in the square to Cochran. Evidence was taken, and Cochran, finding that he could not maintain his bill against Blout or Clark, dismissed his bill as against them; and subsequently, on July 21, 1890, filed the present amended bill. Lansburgh answered, alleging that he had approved the sale with the understanding with Dyer that the latter should obtain the consent of Blout before his own approval should take effect. Blout answered, denying the right of Dyer to make the sale, and asserting his ignorance of other matters alleged in the bill. James P. Ryon answered that he and Tracy had assigned and transferred to Cochran their interests in the trust property held by Blout, and expressing his willingness to sign a deed, to be executed by Blout, trustee, conveying Lansburgh's undivided one-third interest in said square. Issue was duly joined on these answers, and testimony was taken. The case was heard in the special term of the supreme court of the District of Columbia, and a decree was rendered for specific performance by Lansburgh as to his one-third interest in the square. In the general term, on appeal by Lansburgh, the decree of the special term was reversed and the bill dismissed. From this decree of the general term Cochran appealed to this court. Messrs. Samuel Maddox and A. S. Worthington, for appellant: One who has made a valid agreement in writing to sell real estate and give a good title, if his title prove defective as to a part of the land only, may be compelled in equity to perform the contract so far as practicable by conveying such title as he has with an abatement of a part of the purchase money to compensate the vendee for the defect in the title. v. Daughdrill, 51 Ala. 312; Towle v. Ionia, E. & B. F. Mut. F. Ins. Co. 91 Mich. 219. Messrs. A. B. Duvall and Leon Tob. riner, for appellees: To entitle a party to specific performance there must not only be a valid and binding agreement, but as a rule the contract at the time it was entered into must have been capable of being enforced by either of the parties against the other. Rutland Marble Co. v. Ripley, 77 U. S. 10 Wall. 339 (19: 955); Richardson v. Hardwick, 106 U. S. 252 (27: 145); Geiger v. Green, 4 Gill, 476; Luse v. Deitz, 46 Iowa, 205; Bronson v. Cahill, 4 McLean, 19; Snyder v. Neefus, 53 Barb. 63; Price v. Griffith, 1 1 DeG. M. & G. 80; Bodine v. Glading, 21 Pa. 50, 59 Am. Dec. 749; Peacock v. Deweese, 73 Ga. 570; Cooper v. Pena, 21 Cal. 401; Maynard v. Brown, 41 Mich. 298; Boucher v. Vanbuskirk, 2 Α. Κ. Marsh. 345. Mr. Justice Shiras delivered the opinion of the court: In order to be able to enforce specific performance by Lansburgh, as prayed for in his amended bill of complaint, Cochran must show that, at the time he made the agreement with Dyer, Lansburgh either held himself out as the owner of the entire square, or as [354 having authority from his co-owners to sell the whole of it. It is a conceded fact that Lansburgh was the owner of but one third interest in the land concerned, and it is clear that, on September 26, 1889, Dyer was aware that there were other owners. This appears from the fact that prior to that date Dyer reported to Lansburgh that one Holtzman had made a proposal to buy a part of the square, and had been told by Lansburgh that he was not the sole owner of the property, and would have to see others. The fact that the paper given by Dyer to Cochran was signed by the former as agent for Lansburgh and others was sufficient to show that Dyer was aware that Lansburgh was not the sole owner, and was notice to Cochran of that fact. There remains, then, the other alternative. Did Lansburgh claim to have authority from his co-owners to act for them in selling the whole? If he did so, and if Dyer, acting upon such a representation, contracted, as agent for the owners, with Cochran for a sale of the entire tract, then it may be conceded that Cochran, upon compliance by him with the terms of the contract, might, on learning that some of the owners had not authorized Lansburgh to sell their interests and refused to be bound, hold Lansburgh to make good his representations by conveying his individual interest in the land sold. In his amended bill of complaint Cochran charges that Lansburgh claimed to act under authority from the other owners in placing the lands in the hands of Dyer for sale. Lansburgh, in his answer, denies that he claimed to act for the others, and asserts that he fully informed Dyer that he would have to secure the approval of the other owners; that Dyer acted upon that information and endeavored vainly to procure their assent to the sale, and that his, Lansburgh's, approval of the sale, was condi 1 Story, Eq. Jur. 779; 3 Pom. Eq. Jur. § 1407, note 3; Fry, Specific Performance, § 1222; Hepburn v. Dunlop, 14 U. S. 1 Wheat. 200 (4: 71); Mortlock v. Buller, 10 Ves. Jr. 292-315; Burrow v. Scammell, L. R. 19 Ch. Div. 175; Waters v. Travis, 9 Johns. 450; Bogan |tional on such assent. In the issue thus formed as to this question of fact the burden is upon Cochran. He must | overcome the responsive effect of the sworn answer, and satisfy a court of equity that the facts were as alleged by him. And this we think he has failed to do. 355] *The testimony was conflicting, and our examination of it leads to the adoption of the conclusion of the supreme court of the District, and its decree dismissing the bill is accordingly afirmed. Statement by Mr. Justice Shiras: In the circuit court of the United States for the district of Massachusetts, Gordon McKay, as trustee for the McKay Sewing Machine Association, and a citizen of the state of Rhode Island, filed a bill of complaint against Frank W. Smith and others, citizens of the state of Massachusetts, doing business as copartners in the firm name of Smith, Stoughton, & Payne. The bill was brought upon a lease between said parties, bearing date January 23, 1878, whereby the complainant had granted to the defendants, in consideration of *rent or license [356 fees, the right to use certain sewing machines and other patented devices belonging to the complainant. The bill alleged a failure by the defendants to comply with the terms of the GORDON MCKAY, Trustee for the MCKAY lease, and prayed for a discovery, accounting, FRANK W. SMITH ET AL., Appts., v. SEWING MACHINE ASSOCIATION. (See S. C. Reporter's ed. 355-359.) Certificate of jurisdiction of circuit court-ques tion-appeal. 1. The question of the jurisdiction of the circuit court is sufficiently certified to this court under the judiciary act of March 3, 1891, §5, where the record discloses that the appeal was taken upon the express ground that the court erred in taking jurisdiction and not dismissing for want of jurisdiction, and appellant prayed that the ques tion of jurisdiction be certified, and that such appeal was allowed; and the certificate further states that a copy of so much of the record is sent up as is necessary to determine the question of jurisdiction, and a part of the record so certified is the opinion, in accordance with which the motion to dismiss for want of jurisdiction was denied in the court below. 2. The question of the jurisdiction in equity of the circuit court, based on the alleged existence of a complete remedy at law, when that court has jurisdiction of the parties by reason of diverse citizenship and of the subject-matter, is not a question of jurisdiction in that court which can be certified to this court under the judiciary act of March 3, 1891, § 5, the objection being, not to the want of power, but to the want of equity. 8. When the requisite citizenship of the parties appears, and the subject-matter is such that the circuit court is competent to deal with it, the jurisdiction of that court attaches. If any error is comnatted in the exercise of such jurisdiction, it can caly be remedied by an appeal to the circuit court of appeals. [No. 83.] Argued December 20, 1895. 1896. PPEAL from payment of rent, and for an injunction restraining the defendants from using the patented machines until they had fully paid the amount found to be due. The defendants filed an answer responding to various allegations of the bill, and averring that the complainant, so far as he had any just cause of action, had a plain, adequate, and complete remedy at law. Subsequently the defendants filed a special motion to dismiss the bill for the alleged reason that the complainant had a plain, adequate, and complete remedy at law. After argument this motion was denied. The cause was heard upon the pleadings and proofs, and at the May term, 1889, an accounting was awarded, a master was appointed, and, on the coming in of his report, on December 22, 1891, a final decree was rendered that the complainant should recover damages in excess of the sum of $5,000 and cost of suit. From this decree an appeal was taken and allowed to this court, and error was assigned to the action of the circuit court in taking jurisdiction of the bill and in not dismissing the same for want of jurisdiction. Messrs. Causten Browne, Payson Eliot Tucker, and Charles Allen Taber for appel lants. Mr. James J. Myers for appellee. Mr. Justice Shiras delivered the opinion of the court: The appellants seek to have this court review the action of the circuit court in entertaining jurisdiction of a bill in equity in a case in which, as they allege, it appears that the complainant had a plain, adequate, and com Decided March 2, plete remedy at law. A It is contended on the part of the appellee that we should dismiss this appeal, because the question of jurisdiction is not properly certified to this court. *The record discloses that the defend- [357 ants below appealed upon the express ground that the court erred in taking jurisdiction of the bill and in not dismissing the bill for want of jurisdiction, and prayed that their appeal should be allowed, and the question of jurisdiction be certified to the supreme court, and that said appeal was allowed. The certificate further court of equity. The objection was the want Dismissed. NOTE.-As to jurisdiction of United States circuit, court depending on parties and residence, see note to Emory v. Greenough, 1: 640. As to colorable conveyances to enable suit to be brought; motive of transfer; when no objection; cou pons: residence of assignor, see note to M'Donald v. Smalley, 7: 287. As to jurisdiction of United States courts over common-law offenses, see note to United States v. Coolidge, 4: 124. states that there is sent a true copy of so much of the record as is necessary for the determination of the question of jurisdiction, and a part of the record so certified is the opinion of the court below, in accordance with which defendants' motion to dismiss the cause for want of jurisdiction was denied. It therefore appears that the appeal was granted solely upon the question of jurisdiction, and this brings the case within the rulings in Shields v. Coleman, 157 U. S. 168 [39: 660], and Re Lehigh Min. & Mfg. Co. 156 U. S. 322 [39: 438]. It is further contended by the appellee that this appeal should be dismissed because there is no right of appeal to this court in such a case as the present one. The appellants claim that this appeal is within the first class under the judiciary act of Marcb 3, 1891, § 5, providing that "in any case in which the question of the jurisdiction of the court is in issue, in such case the question of jurisdiction alone shall be certified to the supreme court from the court below for decision." The position of the appellee is that only questions of Federal jurisdiction can be brought directly here; that if the circuit court has jurisdiction of the parties and of the matters in dispute, the fact that it is contended that it has no jurisdiction on its equity side raises no question of jurisdiction within the meaning of the act under which this appeal is taken; and that whether a case has been made out by the plaintiff in equity or at law is not a question that puts in issue the jurisdiction of the court in the sense in which that phrase is used in the judiciary act. The question thus raised has never been directly decided by this court. It did present itself in the case of World's Columbian Exposi tion v. United States, 18 U. S. App. 42. That was a case in which the circuit court of the 358] United States for the *northern district of Illinois had granted, at the suit of the United States, an injunction against the World's Columbian Exposition, a corporation of the state of Illinois, restraining the defendant from opening the exposition grounds or buildings to the public on Sunday. From this decree an appeal was taken to the circuit court of appeals for the seventh circuit, and that court, speaking through Chief Justice Fuller, presiding, stated and disposed of the question as follows: "The appellees have submitted a motion to dismiss the appeal upon the grounds that the jurisdiction of the circuit court was in issue; that the case involved the construction or application of the Constitution of the United States: that the constitutionality of laws of the United States was drawn in question therein; that therefore the appeal from a final decree would lie to the Supreme Court of the United States, and not to this court; and hence that this appeal, which is from an interlocutory order, cannot be maintained under the 7th section of the judiciary act of March 3, 1891. of equity, and not the want of power. The jurisdiction of the circuit court was therefore not in issue within the intent and meaning of the act." We regard this as a sound exposition of the law, and, applied to the case now in hand, it demands a dismissal of the appeal on the ground that the objection was not to the want of power in the circuit court to entertain the suit, but to the want of equity in the complainant's bill. The appellants' contention in this respect would require us to entertain an appeal from the circuit court in every case in equity in which the defendant should choose to file a demurrer to the bill on the ground that there was a remedy at law. When the requisite citizenship of the parties appears, and the subject matter is such that the circuit court is competent to deal with it, the jurisdiction of that court attaches, and whether the court should sustain the complainant's prayer for equitable relief, or should 359 dismiss the bill with leave to bring an action at law, either would be a valid exercise of jurisdiction. If any error were committed in the exercise of such jurisdiction, it could only be remedied by an appeal to the circuit court of appeals. The learned counsel for the appellants claims in his brief that the case of Mississippi Mills v. Cohn, 150 U. S. 202 [37: 1052], sustains his present contention. That was an appeal from the circuit court of the United States for the western district of Louisiana, under the provisions of the act of February 25, 1889. 25 Stat. at L. 693, chap. 36. The court below dismissed the complainant's bill in equity on the ground that no relief could be had in equity because, under the practice prescribed by a state law, there was a remedy by an action at law. But this court held that the jurisdiction of Federal courts, sitting as courts of equity, cannot be enlarged or diminished by state legislation, and that hence the circuit court had committed error by allowing a state law to overturn the well-settled practice in the Federal court. In the condition of the Federal statutes at that time there was no circuit court of appeals, and the plaintiff's remedy, given him by the act of February 25, 1889, was by appeal to this court. Should such a state of facts again arise, the remedy would now be by appeal to the circuit court of appeals. The appeal from the circuit court is accordingly dismissed. "We do not understand that the power of 1. The issue by a county of negotiable bonds reciting that they are issued and delivered upon a the circuit court to hear and determine the cause was denied, but that the appellants contended that the United States had not, by their bill, made a case properly cognizable in a COUNTY OF SALINE. (See S. C. Reporter's ed. 359-375.) NOTE. As to negotiability of railroad bonds, see note to White v. Vermont & M. R. Co. 16: 221. As to recitals in negotiable bonds or securities as 1895. GRAVES V. SALINE COUNTY. subscription to railroad stock in pursuance of a Company and to the St. Louis & Southeastern vote of the people authorized by statute, with out any reference to a condition on which the subscription was made, where the county was at liberty to make an unconditional subscription, estops the county so withholding from the public the existence of such condition, to plead the breach of this condition as against a bona fide holder of the bonds. 2. The issuing of funding bonds of a county in pursuance of statute, on a vote by the people of the county, to take up other bonds issued by it on a subscription to railroad stock which were invalid because a condition of such subscription was not complied with, is a declaration by the people that there was a substantial compliance with the original condition; and such funding bonds will be valid in the hands of a bona fide holder, where the original subscription might have been made unconditional. [No. 510.] Railway Company respectively. These bonds Submitted December 2, 1895. Decided March eastern Railway should pass and a depot be 2, 1896. NA CERTIFICATE from the United 0 States Circuit Court of Appeals for the Seventh Circuit certifying certain questions to this court in a suit in equity brought by the county of Saline against Luther R. Graves et al. to restrain the levy and collection of a tax to pay interest on bonds of said county. Questions answered. Statement by Mr. Justice Shiras: This case came into the circuit court of appeals for the seventh circuit, at October term, 1894, on an appeal from a decree of the circuit court of the United States for the southern district of Illinois. established within one half mile of the old These bonds to the St. Louis & Southeastern Railway Company were dated January 1, 1872, payable twenty years after date, with option of paying five years after date, and were issued and delivered to that company market by the appellants and for value and February 1, 1872, and were purchased in open without notice, prior to the year 1876. The railroad was never constructed within one half mile of the old court house in Raleigh, or within one half mile of the church in Galatia, but was constructed in a different direction, plied with, but was waived by the board of and the said condition was in no sense comcommissioners of said county after July 2, The time for the completion of the Belleville & Eldorado Railroad was by the board of commissioners of the county of Saline after July 2, 1870, extended from time to time and *un-[362 til October 20, 1877, and the bonds were issued and delivered on the 19th day of April, 1877, being dated March 9, 1877, and payable twenty years after the 1st day of January, 1873, with option of paying five years after date. The original action was a suit in equity brought in the circuit court of Saline county, 1870. Illinois, by the county of Saline as complainant against the treasurer and auditor of public accounts of the state of Illinois and the col. lector of taxes and clerk of the county court of Saline county, to restrain the levy and collection of the tax required to be levied by the said auditor of public accounts of the state of Illinois, to pay the interest on one hundred registered refunding bonds of the said county. Luther R. Graves, one of the holders of such refunding bonds, intervened in the circuit court of Saline county, and had the cause removed to the circuit court of the United States for the southern district of Illinois, where the Society for Savings, D. B. Wesson, and Wil liam Burgoyne, other holders of such bonds, also filed intervening petitions. That court granted the injunction asked for by the county, and the case was then taken by appeal to the 361] circuit court of appeals of the seventh circuit, and thereupon the latter court certified to this court the following statement of facts and questions for its opinion and instructions: The appellants were, prior to the year 1883, bona fide holders for value and before maturity of certain bonds issued by the county of Saline to the Belleville & Eldorado Railroad evidence of the fact recited and as an estoppel,-see As to mandamus to compel city, town, or county The amendment to the Constitution of the 2, 1870, provided: "No county, city, town, state of Illinois, which went into effect July township, or other municipality shall ever become subscriber to the capital stock of any railroad or private corporation, or make donations to or loan its credit in aid of such corporation; provided, however, that the adoption of this article shall not be construed as affecting the right of any such municipality to make such subscriptions where the same have been authorized, under existing laws, by a vote of the people of such municipalities prior to such adoption." The bonds issued to the St. Louis & Southeastern Railway Company were valid obligations of the county in the hands of the appel. lants under the decisions of the supreme court As to municipal bonids: power to issue; amount: in aid of railroads; ratifying; conditions of issue; rights of bona fide holders; recitals; effect of over issue; valid145. ity-see note to Sutliff v. Lake County Comrs. 37: 46 738 OCT. TERM in the cases of American L. Ins. Co. v. Bruce, ration, and for no other purpose whatever 105 U. S. 328 [26:1121], and Oregon v. Jen- All bonds or other evidences of indebtedness, nings, 119 U. S. 74 [30:323]. The bonds issued to the Belleville & Eldorado Railroad Company were void even in the hands of bona fide purchasers for value, within the decision of German Sav. Bank v. Franklin County, 128 U. S. 526 [32:519]. The bonds to the St. Louis & Southeastern Railway Company were issued before and those to the Belleville & Eldorado Railroad Company were issued after the decision of the supreme court of Illinois, in the case of Eagle v. Kohn, 84 Ill. 292, decided in 1876. The validity of none of these bonds was at any time questioned by the county of Saline until December 30, 1889, and the county had annually paid the interest on all of these bonds from the time of their issue until they were exchanged for funding bonds of the county as hereinafter stated. The county of Saline has always retained and now has the stock in said railway companies obtained by it for the bonds so issued to said railway companies respectively; but such stock is now and always has been wholly worthless and of no value. 363] *The general assembly of the state of Illinois, by act approved February 13, 1865, and by acts amendatory thereto approved April 27, 1877, and June 4, 1879, enacted as follows (Ill. Rev. Stat. (Cothran's Anno. ed. 1881) p. 1119, 2 Starr & C. Stat. chap. 113, p. 1877): "Sec. 1. That in all cases where any county, city, town, township, school district, or other municipal corporation has issued bonds or other evidences of indebtedness for money, or has contracted debts, which are the binding, subsisting, legal obligations of such county, city, town, township, school district, or other municipal corporation, and the same or any portion thereof remain outstanding and unpaid, it shall be lawful for the proper corporate authorities of any such county, city, town, township, school district, or other municipal corpo ration, upon the surrender of any such bonds or other evidences of indebtedness, or any number or portion thereof, to issue, in lieu or place thereof, to the owners or holders of the same, issued under the provisions of this act, shall show upon their face that they are issued under this act, *and the purpose for which they [364 are issued, and shall be of uniform design and style throughout the state, to be prescribed by the state auditor, whose imperative duty it shall be to devise and prepare such uniform style and draft adapted to the classes of bonds herein provided for, namely, the first class to consist of bonds of which only the interest is payable annually; the second class to consist of those of which the interest and 5 per centum of the principal are to be paid annually, and the third class to consist of a graduated series, the first grade made payable, principal and interest, at the end of one year from the date of issue; the second at the end of two years, and thus to the end of the series, the class to be issued being at the option of the legal voters expressed as herein provided. In any case, the new bonds or other evidences of indebtedness authorized to be issued by this act shall not be for a greater sum in the aggregate than the principal and accrued or earned interest unpaid of such outstanding bonds or other evidences of indebtedness. And when such new bonds or other evidences of indebtedness shall have been issued, in order to be placed on the market and sold to obtain proceeds with which to retire outstanding bonds or other evidences of indebtedness, it shall be the duty of the state auditor, on the request of the corporate authorities issuing them, and at the expense of the corporation in whose behalf the issue is thus made, to negotiate the same, at not less than par value, and on the best terms which can be obtained: Provided always, That any such county, city, town, township, school district, or other municipal corporation issuing bonds under the provisions of this act may, through its corporate authorities duly authorized, negotiate, sell, or dispose of said bonds, or any part thereof, at not less than their par value, without the intervention of the auditor of state: And provided further, That no new bonds or other evidences of indebtedness shall be issued under this act, unless the same shall for that purpose." new bonds prepared as hereinafter directed, be first authorized, as hereinafter provided by and for such amounts, upon such time, not ex a vote of a majority of the legal voters of ceeding twenty years, payable at such place, such county, city, town, township, school disand bearing such rate of interest, not ex-trict, or other municipal corporation voting at ceeding 7 per cent per annum, as may be some general election or special election held agreed upon with the owners or holders of such outstanding bonds or other evidences of indebtedness: Provided, That bonds issued under this act, to mature within five years from their date, may bear interest not to exceed 8 per cent per annum. And it shall also be lawful for the proper corporate authorities of any such county, city, town, township, school district, or other municipal corporation to cause to be thus issued such new bonds, and sell the same to raise money to purchase or retire any or all of such outstanding bonds or other evidences of indebtedness; the proceeds of the sales of such new bonds to be expended, under the direction of the corporate authorities aforesaid, in the purchase or retiring of the outstanding bonds or other evidences of indebtedness of such county, city, town, township, school district, or other municipal corpo *Under and by virtue of this provision [365 of law the board of commissioners of the county of Saline duly ordered an election to determine the question of issuing the bonds of the county for the purpose of paying and redeeming the bonds above stated issued to the St. Louis & Southeastern Railway Company and to the Belleville & Eldorado Railroad Company and to another railway company, respectively, and at such election duly held according to law on the 6th day of November, 1883, a majority of the legal voters of the county of Saline voting at such election voted in favor of such proposıtion. On the 15th day of November, 1883, the board of commissioners of the county, by order duly made and entered, ordered in compliance with such vote that one hundred and ninety-five bonds of said county, of $1,000 |