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Under such conditions the tenant in putting in the machinery was acting but as the agent of the owner in compliance with the obligations resting upon him, and the immobilization of the machinery which resulted arose in legal effect from the act of the owner in giving by contract a permanent destination to the machinery. It is true, says Aubry and Rau, vol. 2, § 164, par. 2, p. 12, that "The immobilization with which the article is concerned can only arise from an act of the owner himself or his representative. Hence the objects which are dedicated to the use of a piece of land or a building by a lessee cannot be considered as having become immovable by destination except in the case where they have been applied for account of the proprietor or in execution of an obligation imposed by the lease.” It follows that the machinery placed by the corporation in the plant, by the fact of its being so placed lost its character as a movable and became united with and a part of the plant as an immovable by destination. It also follows that as to Valdes, who claimed under the lease, and who had expressly assumed the obligations of the lease, the machinery for all the purposes of the exercise of his rights, was but a part of the real estate, a conclusion which cannot be avoided without saying that Valdes could at one and the same time assert the existence in himself of rights and yet repudiate the obligations resulting from the rights thus asserted.

Nevers and Callaghan were creditors of the corporation. They were not parties to nor had they legal notice of the lease and its conditions from which alone it arose that machinery put in the premises by the Altagracia became immovable property. The want of notice arose from the failure to record the transfer from Castello to the Altagracia or from the Altagracia to Valdes, and from Valdes apparently conditionally back to the corporation, a clear result of $ 613 of the Civil Code of Porto Rico, providing, "The titles of ownership or of other real rights relating

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to immovables which are not properly inscribed or annotated in the registry of property, shall not be prejudicial to third persons.” It is not disputable that the duty to inscribe the lease by necessary implication resulted from the general provisions of article 2 of the mortgage law of Porto Rico, as stated in paragraphs 1, 2 and 3 thereof, and explicitly also arose from the express requirement of paragraph 6 relating to the registry of “contracts for the lease of real property for a period exceeding six years It is true that in a strict sense the contracts between Castello and the Altagracia Company and with Valdes were not contracts of lease but for the transfer of a contract of that character. But such a transfer was clearly a contract concerning real rights to immovable property within the purview of art. 613 of the Civil Code just previously quoted. Especially is this the case in view of the stipulations of the lease as to the immobilization of movable property placed in the plant and the other obligations imposed upon the lessee. “The sale which a lessee makes to a third person to whom he transfers his right of lease is the sale of an immovable right and not simply a sale of a movable one." See numerous decisions of the courts of France, beginning with the decision on February 2, 1842, of the Court of Cassation (Journal du Palais (1842), vol. 1, 171). See also numerous authorities collected under the heading above stated in paragraph 21, under articles 516, 517 and 518 of the Code Napoleon. FuzierHerman ed. of that Code, p. 643.

The machinery levied upon by Nevers & Callaghan, that is, that which was placed in the plant by the Altagracia Company, being, as regards Nevers & Callaghan, movable property, it follows that they had the right to levy on it under the execution upon the judgment in their favor, and the exercise of that right did not in a legal sense conflict with the claim of Valdes, since as to him the property was a part of the realty which, as the result

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of his obligations under the lease, he could not, for the purpose of collecting his debt, proceed separately against.

As a matter of precaution we say that nothing we have said affects the rights whatever they may be of the heirs of Sanchez, the original lessor.

Affirmed.

CHASE v. WETZLAR, EXECUTOR.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES

FOR THE SOUTHERN DISTRICT OF NEW YORK.

No. 1045. Submitted April 22, 1912.-Decided May 27, 1912.

Where the jurisdiction of the Circuit Court is dependent, under $ 8 of

the act of 1875, upon property affected being within the jurisdiction, the defendants not being therein, the fact that the bill was dismissed because complainants failed to prove the existence of any property within the jurisdiction does not affect the right of a direct appeal

to this court under 5 of the act of 1891. The burden of proof as to the existence of property to be affected by the decree within the jurisdiction of the Circuit Court in order to give it jurisdiction under $ 8 of the act of March 3, 1875, c. 137, 18 Stat.

472, is on the complainant. While averments of some jurisdictional facts may prima facie be taken as true where the questions do not address themselves to want of all foundation of jurisdiction, and in such cases the burden is on the one assailing sufficiency or verity, the burden of proving an averment of a fact absolutely necessary to the exertion of the power of

the court to render a binding decree is on the party pleading. The jurisdiction conferred by $ 8 of the act of 1875 rests upon a real

and not an imaginary or constructive basis. The Circuit Court does not have jurisdiction of a suit against an ab

sent executor in the State where the will was probated, unless the property to be affected by the decree is actually within the juris

diction of the court. The fact that the state court might by virtue of its authority in a

particular contingency exert jurisdiction over an absent executor

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of a will probated in the courts of that State as to the disposition of property beyond its territorial jurisdiction does not clothe a Circuit Court of the United States with jurisdiction under g 8 of the act of 1875.

The facts, which involve the jurisdiction of this court under $5 of the act of 1891 and of the Circuit Court under $ 8 of the act of 1875, are stated in the opinion.

Mr. Charles H. Burr and Mr. Frederic W. Frost for appellant.

Mr. Howard S. Gans, Mr. Paul M. Herzog and Mr. Julius Walerstein for appellee.

MR. CHIEF JUSTICE WHITE delivered the opinion of the court.

Suing as a citizen of Pennsylvania, Chase, who was complainant below, made defendants to the bill by which this cause was commenced, Emil Wetzlar and William P. Bonn, alleged to be “alien subjects of the Emperor of Germany, residing in Frankfort-on-the-Main, executors of the estate of Gustave J. Wetzlar, deceased.” It was averred that the testator, a naturalized citizen of the United States and a resident of the city of New York, died in 1898; that his will was probated on February 1, 1899, in the Surrogate's Court of the county of New York, and that letters testamentary were duly issued to the defendants. It was further averred that by virtue of the fourth paragraph of the will Julius G. Wetzlar, a son of the testator, was entitled on reaching the age of 25 years to receive a sixth part of the principal of the residuary estate; that such share was invested by the defendants, as executors, in railroad bonds, and they "held the said bonds in the city of New York, as executors, subject to the jurisdiction of your Honorable Court" (the Circuit Court). It was further averred that Julius G. Wetzlar

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reached the age of twenty-five years on August 23, 1908, at which time the one-sixth part of the entire residuary estate exceeded in value the sum of one hundred thousand dollars; and that about three years theretofore Julius had mortgaged an undivided one-third interest of such share, to secure the payment of a promissory note for five thousand dollars, bearing interest. On default in payment, it was alleged, the interest so mortgaged was sold in February, 1909, at public auction for the sum of three thousand dollars; and Chase, claiming through the purchaser at the sale, became vested on June 20, 1910, with and entitled to the immediate possession of the said one-third of one-sixth of such residuary estate. The defendants, as executors, it was charged, neglected and refused to pay to Chase the share of the estate in question. A copy of the will was attached to the bill as a part thereof. In the will the defendants were stated to be residents of the German Empire, and express power was conferred upon them to remove the trust estate at any time from the State of New York. The specific relief asked was that complainant might be declared entitled to the immediate possession of one-third of one-sixth of the residuary estate of Gustave J. Wetzlar, deceased, and also to payments of income of the said one-third interest from August 23, 1908, “and may pay your orator the said portion of the said share of Julius G. Wetzlar as may be found to have been unlawfully withheld or diverted from him.” There was also a prayer for general relief.

To obtain an order for service outside of the district, an affidavit was made in which it was averred that the bill had been filed to determine disputed claims to a fund which the defendants as executors and trustees held within the jurisdiction of the court, and that defendants were alien subjects of the Emperor of Germany and resided within that Empire, and that neither was within the district and neither had voluntarily appeared in the action.

VOL. CCXX-6

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