and therefore the question was and is wheth- of anyone else. But if a man owns property er the acts done by the appellant constitut- he has no election to transfer it to another. ed one as matter of law. If not, then it He cannot make the transfer unless the must be considered whether the sale was on other assents. And equally, if he owns propa condition precedent, and those are the two erty subject to be devested by the performquestions of law in the case.

ance of a condition, he has no election to de. The facts are simple. After the last con- vest it without performance. The other partract was made the Kona Company got into ty must assent. Transfer is very different trouble and a receiver was appointed. The from election, and requires acts of a differappellant 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 In the case at bar there is no pretense materials referred to being the property in that the appellant's conduct purported to question. On or about August 1, 1902, convey the property to the Kona Company it brought a suit to enforce this lien, and in advance of the performance of the stipuin November of the same year filed a peti lated conditions. The case stands on elec|

. tion in the Kona Company proceedings, tion alone, and the appellant had no right to asking that a decree already made for the elect in the sense of the argument. It could sale of all the Kona Company's property not obliterate the condition and leave the should be modified so as to except all liens contract in force. It may be that it had an from the operation of the sale. Only a part election to avoid the contract altogether, of the property was used in the construction but, if so, it did not attempt to do it. It of the road, and, under any circumstances, insisted on the contract as the ground of its the claim of a lien would have been bad. claim to a lien for the price of the goods. The lien suit was dismissed, before anything The election supposed and relied upon is an had been done in it, in January, 1903. On election to keep the contract in force, but February 13 the appellant, by leave of court, to leave out the reservation of title. It filed a petition in the Kona Company pro- must be kept in mind that the effect attribceedings for an order that the receiver either uted to the assertion of the lien is attributshould pay the amount due upon its note ored to it as a strictly unilateral act, not as an deliver the property, setting up the contract offer to which an assent might be presumed. and alleging that its title to the property As such an act the appellant could not give still remained. The abortive lien proceed it the supposed effect. It is quite true, as ings constitute the election that is supposed we have said, that the assertion of a lien to have brought the appellant's title to an is inconsistent with the assertion of a title end. We have not gone into further particu- (Van Winkle v. Crowell, 146 U. S. 42, 36 . lars because there can be no doubt that to L. ed. 880, 13 Sup. Ct. Rep. 18), and, thereclaim a lien upon anything is inconsistent fore, if a lien had been established by judgwith asserting a title to it, and may be as ment or decree, the title would be gone by sumed to be sufficient to manifest an elec- force of an adjudication inconsistent with tion if one is possible. The appellant's al- its continuance. But the assertion of a lien legations in its first petition could give no by one who has title, so long as it is only an additional strength to its choice.

assertion, and nothing more, is merely a Election is simply what its name imports; mistake. It does not purport to be a choice, a choice, shown by an overt act, between two and it cannot be one, because the party has. inconsistent rights, either of which may be no right to choose. The claim in the lien asserted at the will of the chooser alone. suit, as was said in a recent case, was not Thus, "if a man maketh a lease, rendering an election, but an hypothesis. Northern a rent or a robe, the lessee shall have the Assur. Co. v. Grand View Bldg. Asso. 203 election.” Co. Litt. 145a. So a man may

U. S. 106, 108, 51 L. ed. 109. 27 Sur. Ct. Rep. ratify or repudiate an unauthorized act done 27. The fact that a party, through mistake, in his name. Metcalf v. Williams, 144 Mass. attempts to exercise a right to which he is 452, 454, 11 N. E. 700. He may take the not entitled, does not prevent his afterwards goods or the price when he has been induced exercising one which he had and still has unby fraud to sell. Dickson v. Patterson, 160 less barred by the previous attempt. Snow U. S. 584, 40 L. ed. 543, 16 Sup. Ct. Rep. v. Alley, 156 Mass. 193, 195, 30 N. E. 691.

. 373. He may keep in force or may avoid a There remains the question whether the contract after the breach of a condition in sale was conditional. Such sales sometimes his favor. Oakes v. Manufacturers' F. & M. are regulated by statute and put more or Ins. Co. 135 Mass. 248, 249. In all such less on the footing of mortgages. With the cases the characteristic fact is that one par- development of its effects there has been ty has a choice independent of the assent some reaction against the Benthamite doc

V.

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

DAVID KAWANANAKOA, Jonah Kalania.

naole, Abigail W. Kawananakoa, and either direction, when, as in the present case, Elizabeth K. Kalanianaole, Appts., the parties stood on an equal footing and were free to do what they chose.

ELLEN ALBERTINA POLYBLANK, OtherThe contract says in terms that it is con- wise Known as Sister Albertina, Trustee ditional, and that the goods are to remain for Stella Keomailani Cockett, and Stella the property of the seller until payment of K. Cockett, Sole Beneficiary under Said the note given for the price. This stipula

Trust. tion is perfectly lawful. Harkness v. Russell, 118 U. S. 663, 30 L. ed. 285, 7 Sup. Ct. Mortgage—foreclosure-deficiency judgment

-territory as defendant. Rep. 51. So that the only question is wheth

Jurisdiction to decree foreclosure and er any other provision of the contract is sale under a mortgage and to enter a deinconsistent with this one, or qualifies and ficiency judgment is not defeated because of explains it as intended to do less than it the inability to join all the parties and to purports to do when taken alone. Chicago sell all the land, due to a conveyance of a R. Equipment Co. v. Merchants’ Nat. Bank, part of the mortgaged property to the terri136 U. S. 268, 34 L. ed. 349, 10 Sup. Ct. Rep. tory of Hawaii, wnich insists upon its im999. The fact that possession was to be and munity from suit. was delivered, and that it must have been

[No. 273.] 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 Com

cided April 8, 1907. pany, had no such effect, as between vendor and vendee. Neither did the requirement of APPEAL from the Supreme Court of the additional security in the form of first-mort- Territory of Hawaii to review a decree gage bonds of the company. It may have which affirmed a decree of foreclosure and been expected that the mortgage would em sale under a mortgage rendered by the Cir. brace a part or the whole of this property, cuit Court of the First Circuit in that ter. but there is nothing more common than a ritory. Affirmed. provision in a mortgage that it shall apply See same case below, 17 Haw. 82. to and embrace after-acquired property, with

The facts are stated in the opinion. sufficient description to ascertain the same

Mr. Sidney M. Ballou for appellants. and bring it within the mortgage when ac

Messrs. Aldis B. Browne, Alexander Britquired. And if the mortgage would have ton, and E. A. Douthitt for appellees. been operative at once by way of estoppel in favor of third persons, there was the

Mr. Justice Holmes delivered the opinion more reason for exacting an interest under of the court:

This is an appeal from a decree affirming it to save the vendor's rights in that event.

a decree of foreclosure and sale under a Of course, the absolute liability for the price, and putting that liability in the form of a mortgage executed by the appellants to the note, are consistent with the retention of appellee, Sister Albertina. 17 Haw. 82. The

defendants (appellants) pleaded to the jutitle until the note is paid. Parties can

risdiction that after the execution of the agree to pay the value of goods upon what mortgage a part of the mortgaged land had consideration they please (White v. Solo- been conveyed by them to one Damon, and

. mon, 164 Mass. 516, 30 L.R.A. 537, 42 N. E. by Damon to the territory of Hawaii, and

, 104), and when a purchaser has possession was now part of a public street. The bill and the right to gain the title by payment, originally made the territory a party, but he cannot complain of a bargain by which he the territory demurred and the plaintiffs binds himself to pay and is not to get the dismissed their bill as to it before the above title until he does.

plea was argued. Then the plea was overIt was suggested that the ratification of ruled, and after answer and hearing the dethe contract by the Kona Company did not cree of foreclosure was made, the appellants mention the condition. But it got its rights having saved their rights. The decree exfrom the contract, and, of course, got only cepted from the sale the land conveyed to such rights as the contract gave. Some the territory, and directed a judgment for other subordinate suggestions were made, I 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.

tion does, and the power that can alter the The appellants contend that the owners of Constitution might. But the rights that ex. the equity of redemption in all parts of the ist are not created by Congress or the Conmortgage land must be joined, and that no stitution, except to the extent of certain deficiency judgment should be entered un limitations of power. The District of Cotil all the mortgaged premises have been lumbia is different, because there the body sold. In aid of their contention they argue of private rights is created and controlled by that the territory of Hawaii is liable to suit Congress, and not by a legislature of the like a municipal corporation, irrespective of District. But for the territory of Hawaii it the permission given by its statutes, which is enough to refer to the organic act. Act does not extend to this case. They liken the of April 30, 1900, chap. 339, $$ 6, 55. 31 territory to the District of Columbia (Met- Stat. at L. 141, 142, 150. Coffield v. Terriropolitan R. Co. v. District of Columbia, tory, 13 Haw. 478. See, further, Territory 132 U. S. l, 33 L. ed. 231, 10 Sup. Ct. Rep. v. Doty, 1 Pinney (Wis.) 396, 405; Lang19), and point out that it has been a party ford v. King, 1 Mont. 33; Fisk v. Cuthbert, to suits that have been before this court 2 Mont. 593, 598. (Damson v. Hawaii, 194 U. S. 154, 48 L. ed.

However it might be in a different case, 916, 24 Sup. Ct. Rep. 617;, Carter v. Hawaii, when the inability to join all parties 200 U. S. 255, 50 L. ed. 470, 26 Sup. Ct. and to sell all the land is due to a conveyRep. 248).

ance by the mortgagor directly or indirectly The territory, of course, could waive its to the territory, the court is not thereby deexemption (Smith v. Reeves, 178 U. S. 436, prived of ability to proceed. 44 L. ed. 1140, 20 Sup. Ct. Rep. 919), and it Decree affirmed. took no objection to the proceedings in the cases cited if it could have done so. See

Mr. Justice Harlan concurs in the result. act of April 30, 1900, chap. 339, § 96. 31 Stat. at L. 141, 160. But in the case at bar c. G. BALLENTYNE and Honolulu Rapid it did object, and the question raised is Transit & Land Company, Appts., whether the plaintiffs were bound to yield. Some doubts have been expressed as to the WILLIAM O. SMITH, Trustee; The Pacific source of the immunity of a sovereign power

Heights Electric Railway Company, Linfrom suit without its own permission, but ited, and C. S. Desky. the answer has been public property since be

Mortgage-foreclosure sale-setting aside fore the days of Hobbes. Leviathan, chap. 26,

for inadequacy of price. 2. A sovereign is exempt from suit, not because A foreclosure sale of mortgaged propof any formal conception of obsolete theory, erty may be set aside before confirmation but on the logical and practical ground that upon the single ground of inadequacy of there can be no legal right as against the price if such price is grossly disproportionauthority that makes the law on which the ate to the value of the property. * right depends. "Car on peut bien recevoir

[No. 216.] loy d'autruy, mais il est impossible par nature de se donner loy.” Bodin, Republique, Argued March 21, 1907. Decided April 8,

1907. 1, chap. 8, ed. 1629, p. 132; Sir John Eliot, De Jure , chap ligatur necessitative. Baldus, De Leg

. et A Territory of Hawaii to review a judgConst. Digna Vox, 2. ed. 1496, fol. 516, ed. ment which affirmed an order of the Third 1539, fol. 61.

Judge of the First Circuit, in that terriAs the ground is thus logical and practical, tory, refusing, because of the inadequacy of the doctrine is not confined to powers that the price, to confirm a foreclosure sale of are sovereign in the full sense of juridical mortgaged property. Affirmed. theory, but naturally is extended to those

See same case below, 17 Haw. 96. that, in actual administration, originate and change at their will the law of contract and Statement by Mr. Justice Brewer: property, from which persons within the ju- This is an appeal from a judgment of the risdiction derive their rights. A suit pre- supreme court of the territory of Hawaii supposes that the defendants are subject to (17 Haw. 96), affirming an order of the the law invoked. Of course it cannot be third judge of the first circuit court in the maintained unless they are so. But that is territory of Hawaii, which refused to connot the case with a territory of the United firm a sale of property made by a commisStates, because the territory itself is the sioner under order of court in a foreclosure fountain from which rights ordinarily flow. suit brought by William 0. Smith, as trusIt is true that Congress might intervene,] tee, against the Pacific Heights Electric

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

Railway Company, Limited, a Hawaiian cor- of the question; on the one, that a court of poration, and directed that the property be equity owes a duty to the creditors seeking again offered for sale. The suit was brought its assistance in subjecting property to the to foreclose a trust deed of $50,000 exe- payment of debts, to see that the property cuted by the railway company to Smith, as brings something like its true value in order trustee, on April 1, 1902, and purporting to that, to the extent of that value, the debts. convey an electric railway 29/2 miles in secured upon the property may be paid; that length and running up to Pacific Heights, it owes them something more than to merely with its equipment of every kind, and also take care that the forms of law are comall land and other property conveyed to it plied with, and that the purchaser is guilty by deed from one Charles S. Desky, dated of no fraudulent act; on the other, that it is January 25, 1902.

the right of one bidding in good faith at The sale was made on February 4, 1905, an open and public sale to have the property for the sum of $1,100. It was in bulk of the for which he bids struck off to him if he be entire property covered by the mortgage, ex- the highest and best bidder; that if he be cept a cable and condenser, which were of free from wrong he should not be deprived of comparatively little value, and which, for the benefit of his bid simply because others reasons not at all affecting the merits of this do not bid, or because parties interested controversy, were not sold with the balance have done nothing to secure the attendance of the property. The commissioner who of those who would likely give for the propmade the sale reported that the amount erty something nearer its value; that if the realized was disproportionate to the value creditors make no effort, and are willing to of the property sold, and recommended that take the chances of a general attendance, it should not be confirmed, but that such they have no right to complain on the further order should be made as to the court should seem meet in the premises. On the ground that the property did not bring what

it should have brought. hearing of a motion to confirm the sale, and objections thereto, the trial court found

In England the old rule was that in chanthat the evidence was overwhelming that the cery sales, until confirmation of the master's actual value of the property was at least report, the bidding would be opened upon a seven times the amount at which the prop- mere offer to advance the price 10 per cent; erty was struck off, that being the highest but this rule has been rejected, and now both and best bid therefor.

in England and this country a sale will not

be set aside for mere inadequacy of price unMessrs. David L. Withington and William less that inadequacy be so gross as to shock R. Castle for appellants.

the conscience, or unless there be additional Messrs. Francis M. Hatch, William 0. circumstances against its fairness. But if Smith, A. Lewis, Jr., and L. J. Warren for there be great inadequacy, slight circumappellees.

stances 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:

gess, 117 U. S. 180, 191, 192, 29 L. ed. 839, The question presented is whether a court 812, 813, 6 Sup. Ct. Rep. 686. It is difficult of equity may, prior to any order of confir- to formulate any rule more definite than mation, set aside a foreclosure sale of mort- this, and each case must stand upon its own gaged property upon the single ground of in

peculiar facts. adequacy in price; and further, whether, if

It was said by Mr. Chief Justice Waite, in it has that power, the inadequacy here Mayhew v. West Virginia Oil & Oil Land Co. shown is so gross as to justify such action. It 24 Fed. 205, 215, “that in chancery a bidder does not appear that there was any fraudulent conduct on the part of the purchaserror court, is not considered a purchaser until

at a sale by a master, under a decree of any combination to restrict bidding. The sale was duly advertised. It was, so far as

the report of sale is confirmed.” See disclosed, open and public, and the bid re- also Magann v. Segal, 34 C. C. A. 323, 92 ported. was the highest. Nothing in time or

Fed. 252, 255; Jennings v. Dunphy, 174 place or lack of attendance of buyers is Ill. 86, 50 N. E. 1015; Vanbussum v. Mashown. Many of the considerations, there- loney, 2 Met. (Ky.) 550, 552; Sumner v. fore, which have influenced courts of equity Sessoms, 94 N. C. 371; Branch v. Griffin, to set aside judicial sales are not to be found 99 N. C. 173, 5 S. E. 393, 398. The power in the present case. Indeed, the only sub- of a court of equity in reference to a resale stantial objection is that the amount of the was affirmed by this court in Pewabic Min. bid is largely below the value of the prop- Co. v. Mason, 145 U. S. 349, 36 L. ed. 732, erty. Something may be said on each side | 12 Sup. Ct. Rep. 887, in which case we said

(p. 356, L. ed. p. 734, Sup. Ct. Rep. p.

CLARENCE P. HUNT, Appt., 868):

V. “The question in this case is whether the

NEW YORK COTTON EXCHANGE. master's sale shall stand. It may be stated

Courts-jurisdictional amount. generally that there is a measure of discretion in a court of equity, both as to the in a suit brought by the New York Cotton

1. The jurisdictional amount involved manner and the conditions of such a sale, as Exchange to enjoin the defendant from rewell as to ordering or refusing a resale. The ì ceiving and using quotations of sales on chancellor will always make such provi- such exchange until he shall have acquired sions for notice and other conditions as will the right to receive them from the exchange, in his judgment best protect the rights of all or, with its consent and approval, from one interested, and make the sale most profit-distribute then, is to ve measured by the

of the telegraph companies authorized to able to all; and after a sale has once been value to the exchange of the right to conmade, he will, certainly before confirmation, trol the quotations, and not by the rate see that no wrong has been accomplished in paid by the defendant under his contract and by the manner in which it was conduct with the telegraph company furnishing him ed."

with such quotations. See also Schroeder v. Young, 161 U. s. Evidence sufficiency jurisdictional

amount. 334, 40 L, ed. 721, 16 Sup. Ct. Rep. 512. Now, in the case before us, the commis- the New York Cotton Exchange to enjoin

2. The effect of testimony in a suit by sioner who made the sale reported against the defendant from receiving and using quoits confirmation. It was not confirmed, but tations of sales on such exchange, that the set aside by the trial court, which found value of the right to control these quotathat the evidence was overwhelming that the tions is much greater than $2,000, is not actual value of the property was at least impaired by evidence that the value of quoseven times the amount of the bid. While tations of sales varies with the volume of

business. the testimony is not preserved, it is stated by the supreme court of the territory that it courts - enjoining proceedings in

state

court. was claimed that only four years before the

3. Enjoining, at the suit of the New sale the property cost $78,000, exclusive of York Cotton Exchange, the receipt and use the right of way. It was, in fact, bonded

It was, in fact, bonded by the defendant of quotations of sales on less than three years before for $50,000. such exchange, is not forbidden to a FedSpeaking in general terms, it consisted of an eral circuit court by U. S. Rev. Stat. $ 720, electric railway 212 miles in length, two U. S. Comp. Stat. 1901, p. 581, as enjoining freight cars, two passenger cars, and other proceedings in a state court, because an in

junction has been granted by a state court appliances for running the railway. All in a pending suit between defendant and a this was sold for $1,100. The action of the telegraph company, restraining the latter trial court in setting aside the sale was ap- from refusing to furnish him with such quoproved by the supreme court of the territory.

tations. Under the circumstances, we think the

[No. 314.) order of the supreme court should be sus- Submitted March 4, 1907. Decided April 8, tained. While we are disinclined to any ac

1907. tion which will impair confidence in the sta- PPEAL from the Circuit Court of the bility of judicial sales, yet, with the concur

A

United States for the Western District rence of judicial opinion adverse to this sale, of Tennessee to review a decree enjoining deconsidering the amount of property sold, fendant from receiving and using quotations the meager sum bid by the purchaser, the ot sales made upon the New York Cotton express finding that the overwhelming testi- Exchange. Affirmed. mony was to the effect that the property was See same case below, on motion for preworth at least seven times more than the liminary injunction, 144 Fed. 511. sum bid, and also recognizing that the courts

Statement by Mr. Justice McKenna: which have passed upon this question are

This is a bill in equity brought by the New much more familiar with the condition of York Cotton Exchange, a New York corpothings in Hawaii, and therefore more compe- ration, against appellant, a citizen of Tentent to appreciate the significance of the

nessee,

in the circuit court of the United transactions attending the sale, we have States for the western district of Tennessee, come to the conclusion that it would not to enjoin him from receiving and using the be right to reverse the ruling below and con- 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.