virtue of his office, but as a matter of
convenience, and because he represents
the rights of creditors (O'Grady v. Wil-
mot [1916] 2 A. C. 231, 248-257, 85 L.
J. Ch. N. S. 386, 114 L. T. N. S. 1097,
32 Times L. R. 456, 60 Sol. Jo. 456;
Smith v.
Garey, 22 N. C. (2 Dev. & B.
Eq.) 42, 49; Olney v. Balch, 154 Mass.
318, 322, 28 N. E. 258; Emmons v. Shaw,
171 Mass. 410, 411, 50 N. E. 1033; Hill
v. Treasurer, 229 Mass. 474, 477, L.R.A.
1918D, 337, 118 N. E. 891).

Where the power is executed, creditors of the donee can lay claim to the appointed estate only to the extent that the donee's own estate is insufficient to satisfy their demands. Patterson v. Lawrence, 83 Ga. 703, 708, 7 L.R.A. 143, 10 S. E. 355; [264] Walker v. Treasurer, 221 Mass. 600, 602, 603, 109 N. E. 647; Shattuck v. Burrage, 229 Mass. 448, 452, 118 N. E. 889.

such a purpose existed; and none was expressed in the act under consideration. In that of February 24, 1919, which took its place, the section providing how the value of the gross estate of the decedent shall be determined contains a clause precisely to the point (§ 402 (e), 40 Stat. at L. 1097, chap. 18, Comp. Stat. § 6336 e): "To the extent of any property passing under a general power of [265] appointment exercised by the decedent (1) by will, or (2) by deed executed in contemplation of, or intended to take effect in possession or enjoyment at or after, his death, except," etc. Its insertion indicates that Congress at least was doubtful whether the previous act included property passing by appointment. See Re Miller, 110 N. Y. 216, 222, 18 N. E. 139; Re Harbeck, 161 N. Y. 211, 217, 218, 55 N. E. 850; United States v. Bashaw, 1 C. C. A. 653, 4 U. S. App. 360, 50 Fed. 749, 754. The government contends that the amendment was made for the purpose of clarifying rather than extending the law as it stood, and cites a statement to that effect in the Report of the House Committee on Ways and Means (House Doc. No. 1267, p. 101, 65th Cong. 2d Sess.). It is evident, however, that this statement was based upon the interpretation of the Act of 1916, adopted by And, whether the power be or be not the Treasury Department; the same reexercised, the property that was subject port proceeded to declare (p. 102) that to appointment is not subject to distri- "the absence of a provision including bution as part of the estate of the donee. property transferred by power of apIf there be no appointment, it goes ac-pointment makes it possible, by resorting cording to the disposition of the donor. to the creation of such a power, to effect If there be an appointment to volun- two transfers of an estate with the payteers, then, subject to whatever charge | ment of only one tax; " and this, tocreditors may have against it, it goes not gether with the fact that the committee to the next of kin or the legatees of the proposed that the law be amended, shows donee, but to his appointees under the that the Treasury construction was not treated as a safe reliance.

It is settled that (in the absence of statute) creditors have no redress in case of a failure to execute the power. Holmes v. Coghill, 7 Ves. Jr. 499, 507, 32 Eng. Reprint, 201, 6 Revised Rep. 166, affirmed in 12 Ves. Jr. 206, 214, 215, 33 Eng. Reprint, 79, 8 Revised Rep. 323, 21 Eng. Rul. Cas. 577; Gilman v. Bell, 99 Ill. 144, 150; Duncanson v. Manson, 3 App. D. C. 260, 273.


It follows that the interest in question, not having been property of Mrs. Field at the time of her death, nor subject to distribution as part of her estate, was not taxable under clause (a).

We deem it equally clear that it was not within clause (b). That clause is

The tax in question being unsupported by the taxing act, the Court of Claims was right in awarding reimbursement. Judgment affirmed.

PANY, Appt.,



the complement of (a), and is aptly de- [266] NEW ORLEANS LAND COMscriptive of a transfer of an interest in decedent's own property in his lifetime, intended to take effect at or after his death. It cannot, without undue laxity of construction, be made to cover a transfer resulting from a testamentary execution by decedent of a power of appointment over property not his own.

It would have been easy for Congress to express a purpose to tax property passing under a general power of appointment exercised by a decedent had

(See S. C. Reporter's ed. 266-268.) Judicial sale ties.

conclusiveness par

[ocr errors]

1. A sale of real estate under judicial in some form a party to such proceedings. proceedings concludes no one who was not

[For other cases, see Judicial Sale, II. in Digest Sup. Ct. 1908.]

· conclusiveness

2. A suit seeking the sale of land which
a municipality holds as trustee to secure
drainage warrants is not a proceeding in
rem, to which all persons having an inter-
est in the land are deemed parties, with the
right to intervene. Its only purpose was to
secure the sale and transfer of such right
and title as the municipality held. Rights
of third parties were not subject to adjudi-
cation therein.

[For other cases, see Judgment, III. k, 1, in

Digest Sup. Ct. 1908.] Federal courts

ancillary jurisdiction. 3. A bill filed by the grantee of the purchaser of real property at a sale under a Federal court decree, which seeks to restrain the enforcement of a judgment of a state court establishing a superior title in another, or any interference with complainant's possession, is not ancillary (so as to be justiciable in the Federal courts without diversity of citizenship) to the original suit in the Federal court, which was one for the sale of land which a municipal corporation held as trustee to secure the payment of certain drainage warrants, *to which suit neither defendant nor any predecessor in interest was a party. [For other cases, see Courts, V. c, 9, in Digest

Sup. Ct. 1908.]

[No. 152.]

Stewart) 22 Wall. 250, 22 L. ed. 857; Dietsch v. Huidekoper (Kern v. Huidekoper) 103 U. S. 494, 26 L. ed. 497; Grignon v. Astor, 2 How. 340, 11 L. ed. 291; Voorhees v. Jackson, 10 Pet. 475, 9 L. ed. 500.

Good faith and the correct administration of justice require that the court having jurisdiction should protect the purpurchase, parties to the suit. chasers, who are, by the fact of their

Calvert, Parties in Eq. 61, note; Milwaukee & M. R. Co. v. Milwaukee & St. P. R. Co. (Milwaukee & M. R. Co. v. Soutter) 2 Wall. 634, 17 L. ed. 895; Delaplaine v. Lawrence, 10 Paige, 602.

An ancillary bill is one which has reference to a previous proceeding, and is So connected with it that it seeks to obtain some action to protect the decree previously rendered and make it effectiva. Lang v. Choctaw, O. & G. R. Co. 87 C. C. A. 307, 160 Fed. 360.

As long as the decree under which the sale has been made remains in force, the purchaser is protected.

Werlein v. New Orleans, 177 U. S. 403, 44 L. ed. 822, 20 Sup. Ct. Rep. 682; Thompson v. Tolmie, 2 Pet. 157, 7 L. ed. 381; National Nickel Co. v. Nevada Nickel

Argued and submitted January 18, 1921. Syndicate, 50 C. C. A. 113, 112 Fed. 48, Decided February 28, 1921.

106 Fed. 115; Robertson v. Howard, 229 U. S. 259, 57 L. ed. 1177, 33 Sup. Ct.

APPEAL from the District Court of Rep. 854.

the United States for the Eastern District of Louisiana to review a decree which dismissed, for want of jurisdiction, a bill asserted to be ancillary to a prior suit in such court.. Affirmed.

The facts are stated in the opinion. Mr. Charles Louque argued the cause, and, with Mr. W. O. Hart, filed a brief for appellant:

The United States court which orders the foreclosure of a trust by the sale of the trust property, receives and orders the purchase price, in its registry, and has not yet distributed the same, may, in the exercise of its jurisdiction, protect the funds on deposit by enjoining the state courts and the parties from interfering with the purchasers of the trust property. Smith v. Missouri P. R. Co. 266 Fed. 655; Julian v. Central Trust Co. 193 U. S. 93, 112, 48 L. ed. 629, 639, 24 Sup. Ct. Rep. 399; Barber Asphalt Paving Co. v. Morris, 67 L.R.A. 761, 66 C. C. A. 55, 132 Fed. 945; Brun v. Mann, 12 L.R.A. (N.S.) 154, 80 C. C. A. 513, 151 Fed. 145; Lang v. Choctaw, O. & G. R. Co. 87 C. C. A. 307, 160 Fed. 360; Sharon v. Terry, 1 L.R.A. 572, 13 Sawy. 387, 36 Fed. 337; French v. Hay (French v.

Messrs. William Winans Wall and Gustave Lemle submitted the cause for appellee. Mr. Johnston Armstrong was on the brief:

The district court of the United States has no jurisdiction to review the judgment of the supreme court of Louisiana, rendered in Leader Realty Co. v. Lakeview Land Co. 142 La. 169, 76 So. 599, or to enjoin the execution thereof.

The purchaser of real estate under an order of the United States court only acquires such a title as the defendant in execution possesses, and that court has no jurisdiction to enjoin the execution of the judgment of the supreme court of a state, holding the title of a third person, derived from an entirely different source from that of defendant in execution, the better title.

Chicago & A. R. Co. v. Wiggins Ferry Co. 108 U. S. 22, 37 L. ed. 637, 1 Sup. Ct. Rep. 614, 617; High, Receivers, 4th ed. § 199, p. 322.

The receiver in the case of Peake v. City of New Orleans, in the United States circuit court for the eastern district of Louisiana, sold such title as the city of New Orleans had, and that sale did not

preclude one, not a party to that suit, from setting up against the purchaser a superior title derived from an entirely different source from that of the city of New Orleans.

Dupasseur v. Rochereau, 21 Wall. 130, 22 L. ed. 588; Pittsburgh, C. C. & St. L. R. Co. v. Long Island Loan & T. Co. 172 U. S. 510, 43 L. ed. 533, 19 Sup. Ct. Rep. 238.

The gist of the bill of complaint is that the supreme court of the state of Louisiana erred in the construction of several statutes of the state of Louisiana, which construction the district courts of the United States are asked to correct. The Federal courts will follow the decisions of the supreme court of a state relative to the laws on real estate and the construction placed on the state Constitution and


Burgess v. Seligman, 107 U. S. 20, 27 L. ed. 359, 2 Sup. Ct. Rep. 10; Archer v. Greensville Sand & Gravel Co. 233 U. S. 60, 58 L. ed. 850, 34 Sup. Ct. Rep. 564.

The question as to which of two suitors, whose titles are derived from entirely different sources, has the better title to real estate situated in the state of Louisiana, necessarily depends upon the laws of the state of Louisiana, and the decision of the highest court of that state must be final and determinative of the matter.

Halsted v. Buster, 140 U. S. 273, 35 L. ed. 484, 11 Sup. Ct. Rep. 782; Burgess v. Seligman, 107 U. S. 20, 27 L. ed. 359, 2 Sup. Ct. Rep. 10.

[267] Mr. Justice McReynolds delivered the opinion of the court:

Having recovered a judgment upon certain drainage warrants issued under Act 30, 1871, James W. Peake, of New York, instituted a second suit in the United States circuit court, eastern district of Louisiana,-May 30, 1891, against New Orleans, seeking sale of land which that city held as trustee to secure all such warrants. See Peake v. New Orleans (1891) 139 U. S. 342, 35 L. ed. 131, 11 Sup. Ct. Rep. 541. Neither the appellee nor any of its predecessors in interest was party to the proceeding. By direction of the court a duly appointed receiver sold the land-January 15, 1892 to Dr. Gaudet, who shortly thereafter transferred it to appellant, a Louisiana corporation, which took immediate possession.

Setting up superior title to some of the land under patent from the state, issued June 3, 1874, appellee, also a Louisiana corporation, brought suit

against appellant in the state court, December 8, 1909, and obtained a favorable judgment, afterwards affirmed by the supreme court. Leader Realty Co. v. New Orleans Land Co. 142 La. 169, 76 So. 599. Thereupon, appellant began this proceeding to restrain enforcement of the judgment of the state court, or interference with its possession, and alleged that the district court's jurisdiction was invoked solely in aid of the decree for sale in Peake v. New Orleans. No diversity of citizenship existed, and deeming the bill not ancillary, but original, the court below dismissed it for want of jurisdiction.

"The rule is well settled that a sale of real estate under judicial proceedings concludes no one who is not in some form a party to such proceedings." Pittsburgh, C. C. & St. L. R. Co. v. Long Island Loan & T. Co. 172 U. S. 493, 515, 43 L. ed. 528, 535, 19 Sup. Ct. Rep. 238. Clearly, Peake v. New Orleans (1891) was not a proceeding in rem to which all persons having an interest in the land [268] were deemed parties, with the right to intervene. Its only purpose was to secure sale and transfer of such right and title as the city held. Rights of third parties were not subject to adjudication therein. High, Receivers, 4th ed. § 199a. The subsequent action by the state court did not interfere with anything done by the Federal court,-Dupasseur v. Rochereau, 21 Wall. 130, 136, 137, 22 L. ed. 588, 591, 592,-and the relief now sought by appellant is not necessary to protect or render effectual any former decree. Julian v. Central Trust Co. 193 U. S. 93, 48 L. ed. 629, 24 Sup. Ct. Rep. 399, and similar cases are not pertinent. Their purpose was to protect or enforce some right theretofore duly adjudicated, while here the defendant's claim in no way conflicts with any right arising under the former adjudication, and nothing is required in order to render that effectual. The decree below is affirmed.

[blocks in formation]
[blocks in formation]

for Idaho to compel the appellants to hold certain lands, patented to the railway company, as trustee for him. The insistence is that patent should not have issued to the company, notwithstanding the attempt to make selection under the Act of March 2, 1899 (chap. 377, 30 Stat. at L. 993, Comp. Stat. § 5223, 8 Fed. Stat. Anno. 2d ed. p. 983), prior to initiation of any homestead right in the land, because (1) it was then unsurveyed and not designated with reasonable certainty, and (2) it was within a district survey of which had been applied for by the state of Idaho under Act of August 18, 1894 (chap. 301, 28 Stat. at L. 372, 394, Comp. Stat. § 4876, 8 Fed. Stat. Anno. 2d ed. p. 779).

The district court decided both points in favor of appellants and dismissed the bill; the circuit court of appeals held against them on the first, but did not consider the second point. 169 C. C. A. 229, 258 Fed. 161.

The facts pertinent to the first point are substantially the same as those pre

Argued January 21, 1921. Decided February sented by the record in West v. Edward

28, 1921.

[blocks in formation]

The facts are stated in the opinion. Mr. Stiles W. Burr argued the cause, and, with Messrs. Charles Donnelly and Charles W. Bunn, filed a brief for appellants.

Mr. S. M. Stockslager argued the cause, and, with Mr. E. O. Conner, filed a brief for appellee.

Mr. Justice McReynolds delivered the opinion of the court:

Claiming equitable title thereto under the Homestead Laws, appellee's predecessor, Delany, instituted this proceed ing in the United States district court

Note. As to land grants to railroads -see note to Kansas P. R. Co. v. Atchison, T. & S. F. R. Co. 28 L. ed. U. S. 794.


Rutledge Timber Co. 244 U. S. 90, 61

Led, 1010, 37 Sup. Ct. Rep. 587, except

that here the land [270] was 7 miles distance was 3 miles. The Land Departfrom any known survey, while there the reasonable certainty, and we see no adment found the description sufficient for equate ground for disregarding that con


for survey contained very much more As the district designated by Idaho land than the state was entitled to select, the Land Department refused to consider the application. No appeal was taken. Upon an analysis of pertinent statutes, opinions of the Land Department and of this court, the district court held that did not so far withdraw the land from the mere filing of application for survey the public domain as to make the railway's selection wholly ineffective; and further, that if valid for any purpose, the application merely gave an option to select, never exercised in respect of the land now in dispute. We agree with the conclusion reached; and, in view of the careful supporting opinion, further discussion seems unnecessary.

The decree of the Circuit Court of Appeals must be reversed, and the decree of the District Court affirmed.

255 U. S.

[271] MICHAEL MAGUIRE and C. S. find to have been erected in a municipality

Maguire, Plffs. in Err.,


TIMOTHY A. REARDON et al., as Commissioners, Constituting the Board of Public Works of the City and County of San Francisco, et al.

(See S. C. Reporter's ed. 271-273.)

Constitutional law due process of law- destruction of wooden buildings within fire limits.

1. The demolition and removal of a wooden building which the state courts

Note. As to what constitutes due process of law, generally-see notes to People v. O'Brien, 2 L.R.A. 255; Kuntz v. Sumption, 2 L.R.A. 655; Re Gannon, 5 L.R.A. 359; Ulman v. Baltimore, 11 L.R.A. 224; Gilman v. Tucker, 13 L.R.A. 304; Pearson v. Yewdall, 24 L. ed. U. S. 436, and Wilson v. North Carolina, 42 L. ed. U. S. 865.

On validity of regulations for fire protection other than building regulationssee note to State v. Wittles, 41 L.R.A. (N.S.) 456.

On liability for damages for destruction of building to prevent spread of fire -see note to Bowditch v. Boston, 25 L. ed. U. S. 980.

Power of municipality to destroy wooden building within fire limits.

The power of a municipality to destroy a wooden building erected in violation of an ordinance establishing fire limits seems to be well established. MAGUIRE V. REARDON, Supra; McKibbin v. Ft. Smith, 35 Ark. 352; Miller v. Valparaiso, 10 Ind. App. 22, 37 N. E. 418; Baumgartner v. Hasty, 100 Ind. 575, 50 Am. Rep. 830; Lemmon v. Guthrie Center, 113 Iowa, 36, 86 Am. St. Rep. 361, 84 N. W. 986; Monroe v. Hoffman, 29 La. Ann. 651, 29 Am. Rep. 345; Micks v. Mason, 145 Mich. 212, 11 L.R.A. (N.S.) 653, 108 N. W. 707, 9 Ann. Cas. 291; Eichenlaub v. St. Joseph, 113 Mo. 395, 18 L.R.A. 590, 21 S. W. 8; Griffin v. Gloversville, 67 App. Div. 403, 73 N. Y. Supp. 684; Elwood v. Mani, 16 Pa. Co. Ct. 474; Fields v. Stokley, 99 Pa. 306, 44 Am. Rep. 109; Klinger v. Bickel, 117 Pa. 326, .11 Atl. 555; Baxter v. Seattle, 3 Wash. 352, 28 Pac. 537; Davison v. Walla Walla, 52 Wash. 453, 21 L.R.A. (N.S.) 454, 132 Am. St. Rep. 983, 100 Pac. 981.

The authorities running back, as they do, into the early years of the common law, and extending in an unbroken line to the present time, prove that not only may a governmental corporation abate

within the fire limits theretofore prescribed, contrary to valid local regulations duly enacted under the municipal charter, may be ordered by the municipality without violation of the Federal Constitution.

[For other cases, see Constitutional Law, IV. b, 4, in Digest Sup. Ct. 1908.] Courts rules of decision

construction of municipal charter and ordi


2. The meaning and effect of a municipal charter and ordinances thereunder are questions of local law, the determination of which by the state courts the Federal Sua nuisance by the destruction of the thing constituting it, but so also may a private individual. It is therefore not the delegation of a new or extraordinary power to authorize municipal corporations to abate a nuisance by removing or destroying the thing which creates it. A man has no right to build a wooden house in a place prohibited by law, and thus endanger the safety of the person or property of others. He has neither a legal nor a moral right to do an illegal act on his own premises which puts in jeopardy the person or property of another. There can be no acquisition of a right by the performance of an illegal act. In removing a building erected in violation of law, and in a situation where it imperils person or property, no private right is invaded, because none could grow out of the illegal act. Baumgartner v. Hasty, 100 Ind. 575, 50 Am. Rep. 830.

The erection and maintenance of a wooden building in violation of an ordinance establishing fire limits is a nuisance per se. Miller v. Valparaiso, 10 Ind. App. 22, 37 N. E. 418; Baumgartner v. Hasty, supra.

The right to tear down or remove the prohibited building is analogous to the right which every individual has to abate Eichenlaub v. St. Joseph, a nuisance. 113 Mo. 395, 18 L.R.A. 590, 21 S. W. 8. This is upon the maxim that "private mischief is to be endured rather than a public inconvenience." paraiso, supra.

Miller v. Val

Municipal corporations, pursuant to the powers conferred upon them, may remove or compel the removal of wooden buildings erected in violation of a valid ordinance; not necessarily because the building thus erected is a nuisance, but

because its erection is a violation of the ordinance and in defiance of the law. First Nat. Bank v. Sarlls, 129 Ind. 201, 13 L.R.A. 481, 28 Am. St. Rep. 185, 28 N. E. 434.

The removal of a building erected in

« ForrigeFortsett »