No act of Congress was passed, subsequent | ly to the making of the contract, which made it unlawful, and it was lawful when made. It is true that the sailing of the vessel without a clearance would have been unlawful, and the deputy collector refused to grant that necessary document while the lead was on board the steamship. But that did not render unlawful the contract to transport. He had the power to refuse to grant the clearance, and he did refuse unless the lead were taken off. In so doing he undoubtedly violated his duty. He was not justified in exacting any such condition for granting the clearance.

Upon the facts in this case, we are of opinion that this refusal of the deputy collector constituted no defense to the action on the contract. It is not within the exception referred to by Mr. Justice Jackson, in delivering the opinion of the court in Chicago, M. & St. P. R. Co. v. Hoyt, 149 U. S. 1, 37 L. ed. 625, 13 Sup. Ct. Rep. 779. This contract, in view of all the facts, we think was made in contemplation of trouble arising from the character of the lead as contraband of war.

affirmed that such possible refusal was not within the contemplation of the contracting parties when the contract was made. Many causes, it was known, might operate to obstruct the transportation of articles contraband of war. This particular form of impediment may not have been actually within the minds of the parties to the contract, but there was, as the agreed facts show, present to their minds the fact that there might be trouble in procuring the transportation of the lead because of its character as contraband of war, and in the light of those facts the contract was made, and, in substance, ratified after it was made. The railroad receivers took the risk of this, as of other obstructions, in making the contract, and they ought to be held to it.

As the act of the deputy collector was an erroneous one, and a clearance should have been given while the lead was on board the steamship, we think his refusal should not be at the expense of the shippers, who had obtained this contract for transportation while all parties actually knew the difficulties that might concern the exportation of the lead from Tacoma. The state had not intervened to prevent the performance of the contract, as was the case in Touteng v. Hubbard, 3 Bos. & P. 291, where Lord Alvanley held that in such circumstances the party will be excused. In that case there was an embargo laid by the British government, after the contract was made, on all Swedish vessels.

The statement of facts shows that the question of whether the lead might not be excluded from transportation as contraband in view of the war then existing between China and Japan was fully understood before the contract was made, and after it was made, and the steamship refused to carry the lead, the trading company, upon being so informed 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, with the attention of all the parties directed to the subject, it was finally agreed that the lead should be received and transported, and the refusal was then withdrawn.

It is true that the special and particular difficulty was first made by the steamship company which refused to transport the lead, yet, still, the attention of all the parties was, from the very first, directed to the peculiar character of the freight as contraband of war, and whether the contract should on that account be made, or, having been made, whether the shipment should not be refused. The receivers, therefore, knew that there might be difficulty in relation to the transportation, and yet, after full knowledge on the subject, they agreed to, and did, withdraw their refusal; and they thereupon took the lead for transportation under the contract.

Under these circumstances, it ought not to be held that the mistaken action of the deputy collector in refusing to give the clearance should operate as an excuse for the nonperformance of the contract, which was not thereby rendered illegal. It cannot be

tion of lead was never prohibited by the Treasury Department during the war between China and Japan. There was no change in the law or the policy of this government subsequently to the making of the contract, by which its performance was excused. The exportation of the lead was legal when the contract was made, and continued to be so after the execution of such contract, although the deputy collector mistakenly refused to grant the clearance unless the lead was taken off the vessel. Such mistaken decision did not render the original loading of the lead on the ship unlawful, nor would it have been unlawful for the ship to proceed with the lead on board provided the clearance had been had. It was not an act of the state, therefore, which prevented the sailing of the vessel, within the true meaning of such a term, but a mistaken act of a subordinate official, not justified by law, and not sufficient as an excuse for the nonperformance of the contract in question under the circumstances already detailed. If the bill of lading were regarded as applicable for this purpose, the refusal of the clearance did not constitute a "re

straint of princes, rulers, or people," within that clause of the bill.

It was one of the contingencies of which the receivers undertook by their special con

said assignee," without attempting to adjudicate the amount of that interest, if any. [No. 47.]

cember 5, 1904.

tract of transportation to take the risk. It Submitted November 3, 1904. Decided Dowas not a contract that they should violate the law, but they took the risk of its misapplication, believing of course, that such

contingency was most remote, and that, if the steamship company would receive the lead for transportation, the chief obstacle to the fulfilment of the contract would be thereby removed.

After the lead had been unshipped, and within half an hour after the sailing of the vessel, the telegram which the deputy collector had sent to the collector in regard to the matter was answered by the latter in such terms that, undoubtedly, if the ship had been still in port, the lead would have been placed thereon and transported to Japan. The master, however, as soon as the determination of the deputy collector was given, immediately, and without appealing to the collector, unshipped the lead, and sailed for his destination at once. The result of the failure thus to carry the lead on that vessel was that it did not arrive in Yokohama until on or about January 4, 1895, instead of on or about November 18, 1894, which it would have done had it gone forward as contracted for. In the meantime, the war between China and Japan ceased, the value of the lead fell, and the trading company was damaged as stated in the finding of facts.

We think the objections made to this recovery are untenable, and the decree of the court below is, therefore, affirmed.

(195 U. S. 408)

Ν

IN ERROR to the Supreme Court of the State of Illinois to review a judgment which, on a second writ of error, affirmed a judgment of the Superior Court of Cook County in that State in favor of defendant, in a suit to establish title to real property. Affirmed.

See same case below, 202 Ill. 83, 66 N. E. 869; on first writ of error, 152 Ill. 387, 38 N. E. 888.

Statement by Mr. Justice Brown:

This was a bill originally filed February 1, 1888, in the superior court of Cook county by the plaintiff in error, Cramer, under her then name of Fannie N. Dresser, against her sister, Lilly B. Dresser, Henry H. Gage, Julia Wilson, and two others for the parti tion of certain real estate in Chicago, for a settlement of equities or liens thereon, for a receiver, and for the removal of certain clouds upon complainant's title.

The material facts of the case are as follows: Shortly before the beginning of this suit Fannie N. Dresser was the record owner of the property in question through a patent from the United States. On January 31, 1888, the day before this suit was commenced, Fannie N. Dresser conveyed to her sister, Lilly B. Dresser, an undivided one third of the property in question. The court found this deed to have been collusive, and executed by an arrangement with the defendant Gage, who held certain tax deeds to 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.,

v.

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

Error to state court-Federal question-constitutional law-full faith and credit.

1. The contention that a conveyance was either in fraud of creditors under the state law, or that a residuary estate remained in the grantor which would pass under an assignee's sale in proceedings in bankruptcy, presents a local, and not a Federal, question, and cannot, therefore, be considered by the Federal Supreme Court on writ of error to a

2.

state court.

in the property was conveyed by him to his sister, Julia Wilson, in 1877. Julia Wilson was made defendant to the bill as the owner of this tax title.

It appeared, however, that Julia Wilson died on December 15, 1887, leaving Frederick R. Wilson her sole legatee and executor. The suit was then abated as to Julia Wilson, and Frederick R. Wilson was substituted as defendant in her place. The deed to this property from Frederick R. Full faith and credit are not denied an or- Wilson to his sister was a conditional conder 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 the bankrupt's interest in the property, where the order of sale directed the assignee to sell simply "the interest of such bankrupt and of

December, 1887, the property again became vested in Frederick R. Wilson as her only heir at law and next of kin, and as her sole

brother, Frederick R. Wilson, had conveyed his interest in the property, died testate, leaving her interest in the property to Frederick R. Wilson, and that this interest subsequently passed to Snow by purchase from the assignee, Jenkins.

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 30, 1878), and Robert E. Jenkins was appointed his assignee. The property was subsequently ordered to be sold, and in 1889 was purchased from the assignee by one Taylor E. Snow for the sum of $250. Both Jenkins, the assignee, and Snow, the purchaser, were made parties defendant to the bill, and subsequently filed answers and a cross bill.

This decree was reversed by the supreme court (152 Ill. 387, 38 N. E. 888), which held that there was no evidence of a title in fee in complainants, derived from the gov It 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 upon the other.

Upon the first hearing, the court entered a decree of partition denying Wilson's claim of title, and holding that his interest passed to Snow by the assignee's sale. This decree was reversed by the supreme court of Illinois upon the ground that the plaintiff had not proved her title from the government to the property. Leave was given the parties to amend, and subsequently an amended bill was filed and answered. Upon the second hearing, the court held that the premises were the property of Frederick R. Wilson, and had been his from 1864 until 1877, when he conveyed them to his sister; that at the time of bankruptcy proceedings, in 1878, the title was in Julia Wilson, and that upon the death of Julia Wilson, in 1887, the title again vested in Frederick R. Wilson; that at the time Frederick R. Wilson was adjudged a bankrupt Julia Wilson was alive and vested with the title to this property, and that the defendant Snow acquired no title when he purchased all of the estate, real and personal, of the bankrupt, Frederick R. Wilson.

This decree was affirmed by the Illinois supreme court (202 Ill. 83, 66 N. E. 869), and it is to reverse that decree that plaintiffs have taken a writ of error from this

about a year thereafter he went into bankruptcy, and that at the assignee's sale nothing passed to the purchaser, Snow, but the interest of the bankrupt on August 30, 1878. "But," said the court, "the evidence shows that at that time he had no interest, having, more than a year prior to that date, July 6, 1877, conveyed it to Julia Wilson; and the evidence is undisputed as to the fact that she took possession under that deed, and retained it by her tenants to the date of her death, and that her tenants remained in such possession when this suit was begun." The court found that there was nothing to show that Julia Wilson had not died seised of the property, and that it was not until her death, in 1887, that defendant became repossessed of it. The case was reversed, and remanded with leave to amend the pleadings and put in additional testimony.

Upon a rehearing in the superior court, a decree was entered in favor of the defendant, Wilson, establishing his title to the premises, subject to the repayment of certain taxes paid by Gage. Upon the second appeal to the supreme court that court held that, it having been shown that defendant and his sister had been in possession of the property for more than twenty years prior to the bringing of that suit, defendant had a good title by limitation, unless it was cut off and defeated by the assignee's sale to Snow; but that, as he had sold to his sister, Julia Wilson, in July, 1877, thirteen months before the bankruptcy, and she had taken 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.

court.

Messrs. Frederick W. Becker, Robert A. Childs, and Charles Hudson for plaintiff 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:

Upon the first hearing, the superior court entered a decree of partition, finding that the Dresser sisters were the owners of the property at the beginning of the suit, through a title derived from the government; that after the suit began Lilly B.

and was constructively a mortgage, and that an equity of redemption remained in Frederick R. Wilson, which would pass to Snow as purchaser at the time of the assignee's sale. But the court held that, under the arrangement between the parties, the deed became absolute long before the defendant

was adjudged a bankrupt. That, under the law of Illinois, when land has been conveyed by deed, absolute in form, though intended as security for the payment of a debt, the payment of the debt may be abandoned, and the deed treated as an absolute conveyance, although originally intended as a mortgage, and that such arrangement may be made by parol, and be binding. 202 Ill. 83, 66 N. E. 869.

assignee. Of course, this involved a construction of the bankrupt act.

If there be any Federal question, it arises from the denial of the petition of the appellee, filed in the bankruptcy court September 17, 1889, about two months after the sale was confirmed, to set aside and vacate such sale for inadequacy of price and want of notice that the sale would take place. It is 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 as a conveyance of the property of the bankrupt was not attacked in any way. He was a mere conduit through which the interest of Frederick R. Wilson, if he had any for himself or his creditors, passed to Snow. We have repeatedly held that, when the question in a state court is not whether, if the bankrupt had title, it would pass to his assignee, but whether he had title at all, and the state court decided that he had not, no Federal question is presented. Scott v. Kelly, 22 Wall. 57, 22 L. ed. 729; McKenna v. Simpson, 129 U. S. 506, 32 L. ed. 771, 9 Sup. Ct. Rep. 365. The same principle was applied to a different class of cases in Blackburn v. Portland Gold Min. Co. 175 U. S. 571, 44 L. ed. 276, 20 Sup. Ct. Rep. 222; De Lamar's Nevada Gold Min. Co. v. Nesbitt, 177 U. S. 523, 44 L. ed. 872, 20 Sup. Ct. Rep. 715. In Williams v. Heard, 140 U. S. 529, 35 L. ed. 550, 11 Sup. Ct. Rep. 885, relied upon by the plaintiff in error, the property in dispute belonged admittedly to the bankrupts, and the question was whether it was of such a character as to pass to their

The circumstance that, nine years after his adjudication in bankruptcy, he took title to the property as the devisee of his sister, does not lend any significance to the fact that, at the date of his bankruptcy, his sister was the owner, in possession by tenants, and that the supreme court found her title to be absolute.

The decree of that court is, therefore, affirmed.

(195 U. S. 395) JOHN F. HILL, Piff. in Err.,

v.

WARREN E. McCORD. Courts-conclusiveness of findings of factpublic lands-confirmation of premature commutation entry.

1.

The conclusiveness on the courts of a find

ing of the Land Department, made in allowing a homestead entry, of the sufficiency of settlement, residence, and improvements, is not affected by a later decision, in a second contest between the same parties, that the alienation of the land was a bar to supple

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

2. A finding of a state court that, when a commutation entry under the homestead laws was allowed, neither the entryman nor the land officers had actual knowledge of the amendment of U. S. Rev. Stat. § 2301, by the act of March 3, 1891 (26 Stat. at L. 1098, chap. 561,

U. S. Comp. Stat. 1901, p. 1406), which made such commutation premature, is a finding of fact, and, therefore, conclusive on the Federal Supreme Court, on a writ of error to the state court.