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and therefore the question was and is wheth- | of anyone else. But if a man owns property er the acts done by the appellant constituted one as matter of law. If not, then it must be considered whether the sale was on a condition precedent, and those are the two questions of law in the case.

he has no election to transfer it to another. He cannot make the transfer unless the other assents. And equally, if he owns property subject to be devested by the performance of a condition, he has no election to devest it without performance. The other party must assent. Transfer is very different from election, and requires acts of a differ

In the case at bar there is no pretense that the appellant's conduct purported to convey the property to the Kona Company in advance of the performance of the stipu


The facts are simple. After the last contract was made the Kona Company got into trouble and a receiver was appointed. The appellant thereupon filed a claim of lien up-ent import on the part of the owner, and coron the railroad supposed to belong to the responding acts on the part of the transKona Company, for materials used in the feree. construction and equipment of the road, the materials referred to being the property in question. On or about August 1, 1902, it brought a suit to enforce this lien, and in November of the same year filed a petilated conditions. The case stands on election in the Kona Company proceedings, asking that a decree already made for the sale of all the Kona Company's property should be modified so as to except all liens from the operation of the sale. Only a part of the property was used in the construction of the road, and, under any circumstances, the claim of a lien would have been bad. The lien suit was dismissed, before anything had been done in it, in January, 1903. On February 13 the appellant, by leave of court, filed a petition in the Kona Company proceedings for an order that the receiver either should pay the amount due upon its note or deliver the property, setting up the contract and alleging that its title to the property still remained. The abortive lien proceedings constitute the election that is supposed to have brought the appellant's title to an end. We have not gone into further particulars because there can be no doubt that to claim a lien upon anything is inconsistent with asserting a title to it, and may be assumed to be sufficient to manifest an election if one is possible. The appellant's allegations in its first petition could give no additional strength to its choice.

Election is simply what its name imports; a choice, shown by an overt act, between two inconsistent rights, either of which may be asserted at the will of the chooser alone. Thus, "if a man maketh a lease, rendering a rent or a robe, the lessee shall have the election." Co. Litt. 145a. Co. Litt. 145a. So a man may ratify or repudiate an unauthorized act done in his name. Metcalf v. Williams, 144 Mass. 452, 454, 11 N. E. 700. He may take the goods or the price when he has been induced by fraud to sell. Dickson v. Patterson, 160 U. S. 584, 40 L. ed. 543, 16 Sup. Ct. Rep. 373. He may keep in force or may avoid a contract after the breach of a condition in his favor. Oakes v. Manufacturers' F. & M. Ins. Co. 135 Mass. 248, 249. In all such In all such cases the characteristic fact is that one party has a choice independent of the assent


tion alone, and the appellant had no right to
elect in the sense of the argument. It could
not obliterate the condition and leave the
contract in force. It may be that it had an
election to avoid the contract altogether,
but, if so, it did not attempt to do it.
insisted on the contract as the ground of its
claim to a lien for the price of the goods.
The election supposed and relied upon is an
election to keep the contract in force, but
to leave out the reservation of title.
must be kept in mind that the effect attrib-
uted to the assertion of the lien is attribut-
ed to it as a strictly unilateral act, not as an
offer to which an assent might be presumed.
As such an act the appellant could not give
it the supposed effect. It is quite true, as
we have said, that the assertion of a lien
is inconsistent with the assertion of a title
(Van Winkle v. Crowell, 146 U. S. 42, 36
L. ed. 880, 13 Sup. Ct. Rep. 18), and, there-
fore, if a lien had been established by judg
ment or decree, the title would be gone by
force of an adjudication inconsistent with
its continuance. But the assertion of a lien
by one who has title, so long as it is only an
assertion, and nothing more, is merely a
mistake. It does not purport to be a choice,
and it cannot be one, because the party has
no right to choose. The claim in the lien
suit, as was said in a recent case, was not
an election, but an hypothesis. Northern
Assur. Co. v. Grand View Bldg. Asso. 203
U. S. 106, 108, 51 L. ed. 109. 27 Sup. Ct. Rep.
27. The fact that a party, through mistake,
attempts to exercise a right to which he is
not entitled, does not prevent his afterwards.
exercising one which he had and still has un-
less barred by the previous attempt. Snow
v. Alley, 156 Mass. 193, 195, 30 N. E. 691.

There remains the question whether the sale was conditional. Such sales sometimes are regulated by statute and put more or less on the footing of mortgages. With the development of its effects there has been some reaction against the Benthamite doc

trine of absolute freedom of contract. But | but we have disposed of the only questions courts are not legislatures, and are not at that are open here. liberty to invent and apply specific regula- Judgment reversed. tions according to their notions of convenience. In the absence of a statute their only duty is to discover the meaning of the contract and to enforce it, without a leaning in either direction, when, as in the present case, the parties stood on an equal footing and were free to do what they chose.

DAVID KAWANANAKOA, Jonah Kalania. naole, Abigail W. Kawananakoa, and Elizabeth K. Kalanianaole, Appts.,


ELLEN ALBERTINA POLYBLANK, Otherwise Known as Sister Albertina, Trustee for Stella Keomailani Cockett, and Stella K. Cockett, Sole Beneficiary under Said Trust.

Mortgage-foreclosure-deficiency judgment -territory as defendant.

Jurisdiction to decree foreclosure and

The contract says in terms that it is conditional, and that the goods are to remain the property of the seller until payment of the note given for the price. This stipulation is perfectly lawful. Harkness v. Russell, 118 U. S. 663, 30 L. ed. 285, 7 Sup. Ct. Rep. 51. So that the only question is whether any other provision of the contract is inconsistent with this one, or qualifies and explains it as intended to do less than it purports to do when taken alone. Chicago R. Equipment Co. v. Merchants' Nat. Bank, 136 U. S. 268, 34 L. ed. 349, 10 Sup. Ct. Rep. 999. The fact that possession was to be and was delivered, and that it must have been contemplated that the rails would be put down upon a roadway no doubt assumed, it Argued and submitted March 21, 1907. Deseems, wrongly, to belong to the Kona Company, had no such effect, as between vendor

and vendee. Neither did the requirement of

additional security in the form of first-mortgage bonds of the company. It may have been expected that the mortgage would embrace a part or the whole of this property, but there is nothing more common than a provision in a mortgage that it shall apply to and embrace after-acquired property, with sufficient description to ascertain the same and bring it within the mortgage when acquired. And if the mortgage would have been operative at once by way of estoppel in favor of third persons, there was the more reason for exacting an interest under it to save the vendor's rights in that event. Of course, the absolute liability for the price, and putting that liability in the form of a note, are consistent with the retention of title until the note is paid. Parties can agree to pay the value of goods upon what consideration they please (White v. Solomon, 164 Mass. 516, 30 L.R.A. 537, 42 N. E. 104), and when a purchaser has possession and the right to gain the title by payment, he cannot complain of a bargain by which he binds himself to pay and is not to get the title until he does.

It was suggested that the ratification of the contract by the Kona Company did not mention the condition. But it got its rights from the contract, and, of course, got only such rights as the contract gave. Some other subordinate suggestions were made,

sale under a mortgage and to enter a deficiency judgment is not defeated because of the inability to join all the parties and to sell all the land, due to a conveyance of a part of the mortgaged property to the territory of Hawaii, which insists upon its immunity from suit.

[No. 273.]

cided April 8, 1907.

APPEAL from the Supreme Court of the

Territory of Hawaii to review a decree which affirmed a decree of foreclosure and sale under a mortgage rendered by the Circuit Court of the First Circuit in that territory. Affirmed.

See same case below, 17 Haw. 82.
The facts are stated in the opinion.
Mr. Sidney M. Ballou for appellants.
Messrs. Aldis B. Browne, Alexander Brit-
ton, and E. A. Douthitt for appellees.

Mr. Justice Holmes delivered the opinion of the court:

This is an appeal from a decree affirming a decree of foreclosure and sale under a

mortgage executed by the appellants to the appellee, Sister Albertina. 17 Haw. 82. The defendants (appellants) pleaded to the jurisdiction that after the execution of the mortgage a part of the mortgaged land had been conveyed by them to one Damon, and by Damon to the territory of Hawaii, and was now part of a public street. The bill originally made the territory a party, but the territory demurred and the plaintiffs dismissed their bill as to it before the above plea was argued. Then the plea was overruled, and after answer and hearing the decree of foreclosure was made, the appellants having saved their rights. The decree excepted from the sale the land conveyed to the territory, and directed a judgment for the sum remaining due in case the proceeds

of the sale were insufficient to pay the debt. | just as, in the case of a state, the ConstituEq. Rule 92.

The appellants contend that the owners of the equity of redemption in all parts of the mortgage land must be joined, and that no deficiency judgment should be entered until all the mortgaged premises have been sold. In aid of their contention they argue that the territory of Hawaii is liable to suit like a municipal corporation, irrespective of the permission given by its statutes, which does not extend to this case. They liken the territory to the District of Columbia (Metropolitan R. Co. v. District of Columbia, 132 U. S. 1, 33 L. ed. 231, 10 Sup. Ct. Rep. 19), and point out that it has been a party to suits that have been before this court (Damson v. Hawaii, 194 U. S. 154, 48 L. ed. 916, 24 Sup. Ct. Rep. 617;. Carter v. Hawaii, 200 U. S. 255, 50 L. ed. 470, 26 Sup. Ct. Rep. 248).

tion does, and the power that can alter the Constitution might. But the rights that exist are not created by Congress or the Constitution, except to the extent of certain limitations of power. The District of Columbia is different, because there the body of private rights is created and controlled by Congress, and not by a legislature of the District. But for the territory of Hawaii it is enough to refer to the organic act. Act of April 30, 1900, chap. 339, §§ 6, 55. 31 Stat. at L. 141, 142, 150. Coffield v. Territory, 13 Haw. 478. See, further, Territory v. Doty, 1 Pinney (Wis.) 396, 405; Langford v. King, 1 Mont. 33; Fisk v. Cuthbert, 2 Mont. 593, 598.

However it might be in a different case, when the inability to join all parties and to sell all the land is due to a conveyance by the mortgagor directly or indirectly to the territory, the court is not thereby deprived of ability to proceed.

Decree affirmed.

Mr. Justice Harlan concurs in the result.

G. BALLENTYNE and Honolulu Rapid
Transit & Land Company, Appts.,

WILLIAM O. SMITH, Trustee; The Pacific

The territory, of course, could waive its exemption (Smith v. Reeves, 178 U. S. 436, 44 L. ed. 1140, 20 Sup. Ct. Rep. 919), and it took no objection to the proceedings in the cases cited if it could have done so. See act of April 30, 1900, chap. 339, § 96. 31 Stat. at L. 141, 160. But in the case at bar C. it did object, and the question raised is whether the plaintiffs were bound to yield. Some doubts have been expressed as to the source of the immunity of a sovereign power from suit without its own permission, but the answer has been public property since before the days of Hobbes. Leviathan, chap. 26, 2. A sovereign is exempt from suit, not because of any formal conception of obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends. "Car on peut bien recevoir loy d'autruy, mais il est impossible par nature de se donner loy." Bodin, Republique, Argued March 21, 1907. Decided April 8, 1, chap. 8, ed. 1629, p. 132; Sir John Eliot, De Jure Maiestatis, chap. 3. Nemo suo statuto

Heights Electric Railway Company, Limited, and C. S. Desky. Mortgage-foreclosure sale-setting aside for inadequacy of price.

A foreclosure sale of mortgaged property may be set aside before confirmation upon the single ground of inadequacy of price if such price is grossly disproportionate to the value of the property. * [No. 216.]


PPEAL from the Supreme Court of the

ligatur necessitative. Baldus, De Leg. et A Territory of Hawaii to review a judg

Const. Digna Vox, 2. ed. 1496, fol. 516, ed. 1539, fol. 61.

As the ground is thus logical and practical, the doctrine is not confined to powers that are sovereign in the full sense of juridical theory, but naturally is extended to those that, in actual administration, originate and change at their will the law of contract and property, from which persons within the jurisdiction derive their rights. A suit presupposes that the defendants are subject to the law invoked. Of course it cannot be maintained unless they are so. But that is not the case with a territory of the United States, because the territory itself is the fountain from which rights ordinarily flow. It is true that Congress might intervene,

ment which affirmed an order of the Third Judge of the First Circuit, in that terri

tory, refusing, because of the inadequacy of the price, to confirm a foreclosure sale of mortgaged property. Affirmed.

See same case below, 17 Haw. 96.

Statement by Mr. Justice Brewer: This is an appeal from a judgment of the supreme court of the territory of Hawaii (17 Haw. 96), affirming an order of the third judge of the first circuit court in the territory of Hawaii, which refused to confirm a sale of property made by a commissioner under order of court in a foreclosure suit brought by William O. Smith, as trustee, against the Pacific Heights Electric

*Ed. Note.-For cases in point, see vol. 35, Cent. Dig. Mortgages, § 1540.

Railway Company, Limited, a Hawaiian corporation, and directed that the property be again offered for sale. The suit was brought to foreclose a trust deed of $50,000 executed by the railway company to Smith, as trustee, on April 1, 1902, and purporting to convey an electric railway 21⁄2 miles in length and running up to Pacific Heights, with its equipment of every kind, and also all land and other property conveyed to it by deed from one Charles S. Desky, dated January 25, 1902.

The sale was made on February 4, 1905, for the sum of $1,100. It was in bulk of the entire property covered by the mortgage, except a cable and condenser, which were of comparatively little value, and which, for reasons not at all affecting the merits of this controversy, were not sold with the balance of the property. The commissioner who made the sale reported that the amount realized was disproportionate to the value of the property sold, and recommended that it should not be confirmed, but that such further order should be made as to the court should seem meet in the premises. On the hearing of a motion to confirm the sale, and objections thereto, the trial court found that the evidence was overwhelming that the actual value of the property was at least seven times the amount at which the property was struck off, that being the highest

and best bid therefor.

of the question; on the one, that a court of equity owes a duty to the creditors seeking its assistance in subjecting property to the payment of debts, to see that the property brings something like its true value in order that, to the extent of that value, the debts secured upon the property may be paid; that it owes them something more than to merely take care that the forms of law are complied with, and that the purchaser is guilty of no fraudulent act; on the other, that it is the right of one bidding in good faith at an open and public sale to have the property for which he bids struck off to him if he be the highest and best bidder; that if he be free from wrong he should not be deprived of the benefit of his bid simply because others do not bid, or because parties interested have done nothing to secure the attendance of those who would likely give for the property something nearer its value; that if the creditors make no effort, and are willing to take the chances of a general attendance, they have no right to complain on the ground that the property did not bring what

it should have brought.

In England the old rule was that in chancery sales, until confirmation of the master's report, the bidding would be opened upon a mere offer to advance the price 10 per cent; but this rule has been rejected, and now both in England and this country a sale will not be set aside for mere inadequacy of price un

Messrs. David L. Withington and William less that inadequacy be so gross as to shock R. Castle for appellants.

Messrs. Francis M. Hatch, William O. Smith, A. Lewis, Jr., and L. J. Warren for appellees.

the conscience, or unless there be additional circumstances against its fairness. But if there be great inadequacy, slight circumstances of unfairness in the conduct of the party benefited by the sale will be sufficient

Mr. Justice Brewer delivered the opinion to justify setting it aside. Graffam v. Burof the court:

The question presented is whether a court of equity may, prior to any order of confirmation, set aside a foreclosure sale of mortgaged property upon the single ground of inadequacy in price; and further, whether, if it has that power, the inadequacy here shown is so gross as to justify such action. It does not appear that there was any fraudu

lent conduct on the part of the purchaser or any combination to restrict bidding. The sale was duly advertised. It was, so far as disclosed, open and public, and the bid reported was the highest. Nothing in time or place or lack of attendance of buyers is shown. Many of the considerations, therefore, which have influenced courts of equity to set aside judicial sales are not to be found in the present case. Indeed, the only substantial objection is that the amount of the bid is largely below the value of the property. Something may be said on each side

gess, 117 U. S. 180, 191, 192, 29 L. ed. 839, 812, 843, 6 Sup. Ct. Rep. 686. It is difficult to formulate any rule more definite than this, and each case must stand upon its own peculiar facts.

It was said by Mr. Chief Justice Waite, in Mayhew v. West Virginia Oil & Oil Land Co. 24 Fed. 205, 215, "that in chancery a bidder at a sale by a master, under a decree of court, is not considered a purchaser until the report of sale is confirmed." See also Magann v. Segal, 34 C. C. A. 323, 92 Fed. 252, 255; Jennings v. Dunphy, 174 Ill. 86, 50 N. E. 1045; Vanbussum v. Maloney, 2 Met. (Ky.) 550, 552; Sumner v. Sessoms, 94 N. C. 371; Branch v. Griffin, 99 N. C. 173, 5 S. E. 393, 398. The power of a court of equity in reference to a resale was affirmed by this court in Pewabic Min. Co. v. Mason, 145 U. S. 349, 36 L. ed. 732, 12 Sup. Ct. Rep. 887, in which case we said

(p. 356, L. ed. p. 734, Sup. Ct. Rep. p. 888):

"The question in this case is whether the master's sale shall stand. It may be stated generally that there is a measure of discretion in a court of equity, both as to the manner and the conditions of such a sale, as well as to ordering or refusing a resale. The chancellor will always make such provisions for notice and other conditions as will in his judgment best protect the rights of all interested, and make the sale most profitable to all; and after a sale has once been made, he will, certainly before confirmation, see that no wrong has been accomplished in and by the manner in which it was conduct


See also Schroeder v. Young, 161 U. S. 334, 40 L. ed. 721, 16 Sup. Ct. Rep. 512.




Courts-jurisdictional amount.

1. The jurisdictional amount involved in a suit brought by the New York Cotton Exchange to enjoin the defendant from receiving and using quotations of sales on such exchange until he shall have acquired the right to receive them from the exchange, or, with its consent and approval, from one distribute them, is to be measured by the of the telegraph companies authorized to value to the exchange of the right to control the quotations, and not by the rate paid by the defendant under his contract with the telegraph company furnishing him with such quotations. Evidence




the New York Cotton Exchange to enjoin 2. The effect of testimony in a suit by the defendant from receiving and using quotations of sales on such exchange, that the value of the right to control these quotations is much greater than $2,000, is not impaired by evidence that the value of quotations of sales varies with the volume of


Courts- enjoining proceedings in



3. Enjoining, at the suit of the New York Cotton Exchange, the receipt and use by the defendant of quotations of sales on such exchange, is not forbidden to a Federal circuit court by U. S. Rev. Stat. § 720, U. S. Comp. Stat. 1901, p. 581, as enjoining proceedings in a state court, because an injunction has been granted by a state court in a pending suit between defendant and a telegraph company, restraining the latter from refusing to furnish him with such quotations. [No. 314.]

Now, in the case before us, the commissioner who made the sale reported against its confirmation. It was not confirmed, but set aside by the trial court, which found that the evidence was overwhelming that the actual value of the property was at least seven times the amount of the bid. While the testimony is not preserved, it is stated by the supreme court of the territory that it was claimed that only four years before the sale the property cost $78,000, exclusive of the right of way. It was, in fact, bonded less than three years before for $50,000. Speaking in general terms, it consisted of an electric railway 21⁄2 miles in length, two freight cars, two passenger cars, and other appliances for running the railway. All this was sold for $1,100. The action of the trial court in setting aside the sale was approved by the supreme court of the territory. Under the circumstances, we think the order of the supreme court should be sus- Submitted March 4, 1907. Decided April 8, tained. While we are disinclined to any action which will impair confidence in the stability of judicial sales, yet, with the concurrence of judicial opinion adverse to this sale, considering the amount of property sold, the meager sum bid by the purchaser, the express finding that the overwhelming testimony was to the effect that the property was worth at least seven times more than the sum bid, and also recognizing that the courts which have passed upon this question are much more familiar with the condition of things in Hawaii, and therefore more competent to appreciate the significance of the transactions attending the sale, we have come to the conclusion that it would not be right to reverse the ruling below and con



PPEAL from the Circuit Court of the

United States for the Western District of Tennessee to review a decree enjoining defendant from receiving and using quotations of sales made upon the New York Cotton Exchange. Affirmed.

See same case below, on motion for proliminary injunction, 144 Fed. 511.

Statement by Mr. Justice McKenna:

This is a bill in equity brought by the New York Cotton Exchange, a New York corporation, against appellant, a citizen of Tennessee, in the circuit court of the United States for the western district of Tennessee, to enjoin him from receiving and using the quotations of sales made upon the exchange. firm the sale. The case is here on questions of jurisdiction, The judgment of the Supreme Court of the and only a synopsis of the principal facts Territory of Hawaii is affirmed.

alleged is necessary.

27 S. C.-34.

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