ment debtor is the owner of the equitable, and said Agostini "was the owner of the and beneficial title, is within the scope of equitable and beneficial title of the same.” the Porto Rico mortgage law, art. 42, which, And it was ordered that, to pay the inin order to protect innocent purchasers debtedness to Todd, the property, with the pendente lite, provides for the giving of a improvements thereon, be sold at public cautionary notice in suits for the ownership of real property or for the creation, sale by a commissioner appointed for that declaration, modification, or extinction of purpose. Whilst this suit was pending, beany property right. fore decree, the piece of real estate emLis pendens—in Porto Rico-cautionary no-braced by the decree was sold by Merle to tice. Higinio Romeu, the plaintiff in error. The 2. The local statutory law of real prop- present bill was filed on behalf of Romeu erty requiring the giving and recording of against Todd to enjoin the sale of this piece cautionary notice of a pending suit in order of property. The bill alleged the bringing to affect innocent third parties dealing with of the Todd suit, the purchase by Romeu the recorded owner is applicable to a suit brought on the equity side of the United pending such suit, the decree rendered thereStates district court of Porto Rico, in view in as above stated, and the fact that the of the provision of the act of April 12, decree was about to be executed. It was 1900 (31 Stat. at L. 79, chap. 191), $ 8, con- averred that the purchase by Romeu had tinuing in force the local laws not incon- been made for an adequate consideration, sistent with the laws of the United States, with the utmost good faith and without although, by $ 34, the district court of the knowledge of the pendency of the Todd United States for Porto Rico is given, in suit; that the property, since it was bought addition to the ordinary jurisdiction of Federal district courts, jurisdiction of all cases by Romeu, had been largely improved by cognizant in the Federal circuit courts, with him, and that, as no cautionary notice conpower to proceed therein in the same man- cerning the Todd suit, as authorized and ner as a circuit court. required by the law of Porto Rico, had been put upon the records, the property acquired [No. 269.] by Romeu under the circumstances alleged Submitted April 19, 1907. Decided May 27, Todd decree. A temporary restraining or was not subject, in Romeu's hands, to the 1907. der was allowed. The bill was demurred PPEAL from the District Court of the to on two grounds,-first, that it stated A United States for the District of Porto no cause of action, and second, that, adRico to review a decree dismissing, on de- / mitting all its averments to be true, as the murrer, a bill to enjoin a judicial sale of property was bought whilst the equity real property. Reversed and remanded for cause was pending, the purchaser took subfurther proceedings. ject to the lis pendens. The demurrer was The facts are stated in the opinion. sustained, and, Romeu electing not to plead Mr. Frederick L. Cornwell for appellant. further, a final decree was made dismissing Mr. N. B.' K. Pettingill for appellee. the bill. The court below, in its opinion, assumed Mr. Justice White delivered the opinion that, under the local law, a third party in of the court: good faith purchasing from or dealing with Robert H. Todd obtained a judgment in the registered owner of real estate, without the United States provisional court of Porto notice in fact of the existence of a pending Rico, in the year 1900, for the sum of $2,- suit concerning the title to property, was 946.05, against Pedro and Juan Agostini, not to be treated by operation of law as and execution to enforce the same was re constructively notified of the pendency of returned nulla bona. Thereupon Todd, in the suit unless the cautionary notice which 1901, filed a bill in equity in the United the law of Porto Rico required to be put States court for the district of Porto Rico upon the record was given. But, whilst so against the judgment debtors (the two declaring, it was nevertheless decided that Agostinis) and one Ana Merle for the pur- | the local rule of real property referred to pose of enforcing the judgment upon cer- was not controlling in this case. This rultain real property of which Ana Merle ing was based upon the conception that the stood upon the public records as the owner. constructive notice resulting from a suit in The ground was that the property had been equity in the United States court for Porto paid for with the money of the Agostinis Rico was to be imputed, irrespective of and was hence liable to be applied to their the positive requirements of the local law. debts. Without further detail it is only | The court said: necessary to say that the court decreed “As this is a proceeding on the equity that a certain parcel of land described in side of the court it is governed by the the bill had been purchased by Ana Merle principles of equity followed by the Federal with funds belonging to Pedro Agostini, I courts, as distinguished from suits at law, : where local statutes are adopted. As local, volved in a pending litigation was no longer laws have no binding force upon the United prohibited. And when the comprehensive States courts in matters of procedure in system known as the mortgage law came equity and maritime law, the laws of Porto to be adopted, the power of the record ownRico relating to filing of notice of lis pendens er of real property involved in litigation, to have therefore no application in this case, mortgage or contract concerning the same, and the sufficiency of this bill must be de- was not left to the implication resulting termined by the rules and principles fol. from the disappearance of the ancient prolowed in like proceedings in the courts of hibitions, but was expressly recognized by the United States. Stewart v. Wheeling & articles 71 and 107 of the mortgage laws. L. E. R. Co. 52 Ohio St. 151, 29 L.R.A. 438, D. Leon Galindo y De Vera, in his com41 N. E. 247." mentaries, considering the provisions of the Proceeding then to apply what is deemed mortgage law concerning the power of the to be the conclusive force of decisions of owner of real property to deal with it this court, it was held that the pendency pendente lite, and of the right of the plaintiff of an equity cause in a court of the United in a suit affecting such property to obtain States affecting real property constituted a cautionary notice, and his duty to record constructive notice as to third parties, and the same in order to affect third parties, was therefore operative against those deal- points out that these provisions were the ing with the owner as to such property, natural result of three considerations: rein good faith, any rule of state law to the spect for the rights of property, regard for contrary. the rights of one seeking redress in the In the argument at bar on behalf of the courts against such owner, and solicitude appellee the correctness of the ground upon for the public interest. Because of the which the court based its decision is in- first the owner was not deprived of his right sisted on as follows: to dispose of his real property merely be“The main contention of appellant, how- cause a suit relating to the same had been ever, seems to be that even courts of equity brought against him, but was left free to of the United States in a state are bound make contracts concerning the property, if by the statutory provisions for recording a anyone could be found willing to do so, lis pendens when such provision has been en and thus assume the risk of che pending acted in such state. But in this contention litigation. On account of the second concounsel fail to distinguish between cases sideration a means was provided for giving of law and cases in equity .. a notice by which one who brought suit Nevertheless, in substance, it is contended would be able to secure the results of an that, even if the court below was wrong in ultimate decision in his favor. Because of its reasoning, it was right in its conclusion. the third, those dealing in good faith, in This rests on the proposition that the court reliance on public records, were protected mistakenly assumed that the local law pro- from the risks of pending suits unless the vided for a notice of the pendency of suit cautionary notice was made and recorded of the character of the Todd case, and pro-according to the statute. tected an innocent purchaser where a notice That the essence of the statute was the was not given. protection of innocent third parties dealing That issue arises, therefore, and as it with the recorded owner when no cautionunderlies the question whether the court ary notice had been given is obvious. Anshould have applied the local law, we come swering the contrary contention, D. Leon first to ascertain the local law concerning Galindo y De Vera says (p. 192): notice and its effect. “That is not so; if the mortgagor has It appears certain that by the ancient on the record the ownership of the propSpanish law the sale or the dismember-erties in litigation and those who claim ment by mortgage of the ownership of the properties have not made the cautionreal property which was involved in a pendary notice on the register, and the writing ing litigation was forbidden. Law 13, title establishing the mortgage does not show 7, Part. 3; see also Resolution of November that the properties are in litigation, the 29, 1770, referred to in commentaries upon debtor can freely mortgage them, and the the Spanish mortgage legislation by D. mortgage will have effect, even when the Leon Galindo y De Vera, 1903 ed., vol. 2, decision of the case is in favor of the plain The result was that acts done in tiffs, declaring that the ownership of the violation of the prohibitory law were void, properties mortgaged belongs to them.” even as to innocent third parties. But, as See articles 71 and 107 of the "Mortpointed out by the author just referred to, gage Law for Cuba, Porto Rico, and the the prohibition in question was omitted Philippine Islands,” War Department transfrom the Spanish Civil Code, and therefore lation, 1899, and see also title 2 of the the right to deal with real property in- same law, concerning the method of re a p. 594. he Mark the constructive power of the pro cording instruments and the effect of such The second (art. 23) reads as follows: record, and title 3, relating to cautionary “The instruments mentioned in articles 2 notices. and 5, which are not duly recorded or enGranting that the general result of the tered in the registry, cannot prejudice third local law is as we have just stated it, the persons.” contention yet is that the character of the Todd suit and the nature of the relief vision of the second paragraph of article 2, sought therein caused it to be not within requiring the registry, in order that they the scope of the mortgage law and the pro- may affect third parties, of all acts "by visions thereof for giving a cautionary no- which estates are created, acknowledged, tice. This is based upon article 42 of the modified, or extinguished” when applied to mortgage law, reading : the words of article 42, providing for the "Art. 42. Cautionary notices of their re- registry of a cautionary notice, not only of spective interests in the corresponding pub- all suits for the "ownership of the real lic registries may be demanded by: property," but likewise of suits brought "1. The person who enters suit for the “for the creation, declaration, modification, ownership of the real property, or for the or extinction of any property right.” creation, declaration, modification, or ex- Besides, when the purpose of the morttinction of any property right. » gage law is borne in mind, it is apparent And article 91 of the general regulations that the interpretation relied upon would for the execution of the mortgage law, War frustrate the very ends which the adopDepartment translation, 1899, as follows: tion of the law was intended to subserve. “The person who brings the action for But, passing this view, it is, we think, ownership, referred to in case No. 1 of ar- clear, that the proposition rests upon a misticle 42 of the law, may, at the same time conception of the true import of the bill or subsequently, request that a cautionary in the Todd case. The property stood upnotice thereof be made, offering to indem- on the records, not in the name of the nify any damages which may be caused the Agostinis, but in the name of Merle. The defendant thereby, should he win the suit.” bill alleged that the Agostinis, and not Now, it is said when the issues in the Merle, owned the property, because it had Todd suit are clearly apprehended, they been bought and paid for by the former. were not within the purview of the articles The purpose, therefore, of the suit was to in question, since that suit did not seek change the recorded title by in effect obto devest Ana Merle of the ownership of taining a decree placing the property in the property standing in her name on the the name of the real owner. In the very public records, but simply to subject such nature of things, under the civil law, the property to the payment of the indebted- cause of action thus asserted was not mereness due by the Agostinis to Todd. This, ly revocatory (the Actio Pauliana of the however, assumes that article 42 embraces Roman law), but was an action to unonly suits having for their object the en- mask a simulation. It was therefore es. tire divestiture of ownership,—that is, the sentially revendicatory. Bonnafon v. Wiltz, divestiture of perfect ownership,—whilst 10 La. Ann. 657; and see the copious list the text of the article relied upon not only of authorities illustrating the subject, comrelates to suits so operating, but also to piled in Hennen's La. Dig. vol. 2, p. 1031, those which seek the modification "or ex. No. 1. The decree rendered conforms to tinction of any property right.” But even this conclusion. It held Pedro Agostini to if the proposition relied upon might find be the "owner of the equitable and benefisome color of support in a narrow and tech-cial title” to the property. It therefore nical construction of the provisions of the devested the registered owner, Merle, of mortgage law referred to, its unsoundness is, every essential element of ownership. This we think, demonstrated by a consideration is clearly the case, since the fructus, the of other provisions of the law, especially usus, and the abusus could not be in one articles 2 and 23 of that law, the first read who was stripped of all beneficial interest. ing as follows: This becomes more clearly manifest when "In the registries mentioned in the pre- it is borne in mind that the civil law preceding article shall be recorded: vailing in Porto Rico is oblivious concerning “1. Instruments transferring or declaring a technical or formal distinction between ownership of realty, or of property rights legal and equitable title. As beyond peradthereto. venture, then, the suit and the decree took “2. Instruments by which rights of use from the recorded owner the ownership upand occupancy, emphyteusis, mortgage, an- on which necessarily the innocent third nuity (censo), servitudes, and any others party must have relied, we think it clearly by which estates are created, acknowledged, follows that the cautionary notice required modified, or extinguished.” by the provisions of the mortgage law was essential to affect the innocent third per- , statutory laws of the United States” shall son. remain in force "until altered, amended, or The remaining question, then, is, Was the repealed by the legislative authority herelocal statutory rule of real property, re- inafter provided for Porto Rico or by act of quiring the giving and recording of a cau-Congress of the United States," it must foltionary notice of the pending suit in order low that the local law of real property preto affect innocent third parties dealing with vailing in the island is controlling until the recorded owner, applicable to a suit changed, as provided by Congress. This brought on the equity side of the United being true, we cannot assent to the conStates district court for Porto Rico? Let clusion that the court of the United States us assume, for the sake of argument, that created by Congress had the authority to the lower court correctly reasoned that an disregard the local law which Congress, by innocent third party would be affected by express legislation, directed to be continued the constructive notice resulting from the in force. But it is said that the act ($ 34) pendency of an equity cause in a circuit in providing for the district court of the court of the United States sitting within a United States for Porto Rico declared, state. Again, let us further assume, for among other things, that the court shall the sake of argument, that it was correctly have, “in addition to the ordinary jurisdicheld that the rule just stated would govern, tion of district courts of the United States, although there had been no compliance jurisdiction of all cases cognizant in the with a statutory rule of property prevailing circuit courts of the United States, and in such state, requiring the recording of a shall proceed therein in the same manner as notice of the pendency of suits affecting a circuit court.” From this it is argued real property, in order to make the same that the constructive notice resulting from operative against innocent third parties. the equity cause in the district court for . Neither of these concessions, we think, is Porto Rico must, in the nature of things, here controlling. The district court of the bė operative against innocent purchasers . United States for Porto Rico is in no sense without reference to the local law prevaila constitutional court of the United States, ing for cautionary notices and registry, if and its authority emanates wholly from such result would flow from an equity cause Congress under the sanction of the power pending in a constitutional court of the possessed by that body to govern territory United States sitting within one of the occupying the relation to the United States states. But the proposition begs the queswhich Porto Rico does. Now by $ 8 of the tion, since it puts out of review the express 8 act commonly known as the Foraker act (31 provision of the act of Congress sanctioning Stat. at L. 79, chap. 191) it is provided as and enforcing the local law, except in so follows: far as Congress had deemed fit to abrogate "Sec. 8. That the laws and ordinances of the same. Considering the manifest intent Porto Rico now in force shall continue in of Congress, we cannot close our eyes to full force and effect, except as altered, the fact that that body, in providing a amended, or modified hereinafter, or as al government for Porto Rico, evidently intered or modified by military orders and tended to preserve to the people of that decrees in force when this act shall take island the system of local law to which they effect, and so far as the same are not in- ) had been accustomed; nor can we, consistconsistent or in conflict with the statutory ently with this enlightened purpose, assent laws of the United States not locally in to the conclusion that the mere provision of applicable, or the provisions hereof, until the act by which a court was created to enaltered, amended, or repealed by the legis- force the local law empowered the court lative authority hereinafter provided for so created to set at naught the local law Porto Rico or by act of Congress of the by disregarding fundamental rules of real United States. .. property governing in the island, thereby The provision just quoted, it may be add creating confusion and uncertainty, and ed, is qualified by a proviso repealing enu- hence tending to the destruction of the merated provisions of the local laws con- rights of innocent third parties. Especially cerning marriage, divorce, and other sub- is this conclusion rendered necessary when jects. a consideration, previously adverted to, is Now, as a general proposition, it is clear again called to mind; that is, that all the that, as a result of the relation which Porto local law of Porto Rico is within the legisRico occupies to the United States, all the lative control of Congress. The consideralocal law of that island has its ultimate tions which we have thus expounded are sanction in the lawful exercise by Congress illustrated in various other aspects by preof its legislative authority. So also, as vious rulings concerning the construction Congress has provided that the local law and import of the Foraker act. Crowley v. "not inconsistent or in conflict with the United States, 194 U. S. 461, 48 L. ed. 1075, V. 24 Sup. Ct. Rep. 731; Rodriguez v. United | true that while “proceedings were pending States, 198 U. S. 156, 49 L. ed. 994, 25 Sup. in the Land Department, Love made a sale, , " Ct. Rep. 617; Serralles v. Esbri, 200 U. S. for there was nothing of record or on file 103, 50 L. ed. 391, 26 Sup. Ct. Rep. 176; in that Department until after the entry. , American R. Co. v. Castro, 204 U, S. 453, Now the plaintiff contends that, conced51 L. ed. 564, 27 Sup. Ct. Rep. 466. ing that there was a sale, and that thereby The decree of the District Court for Porto the plaintiff relinquished the right of entry Rico must be reversed, and the cause re- which he had acquired by his settlement, yet manded for further proceedings conformable thereafter, without having abandoned the to this opinion. possession, he filed his application in the land office; that that application must be considered as an entirely new proceeding, initiated by one in actual possession, desirEDWARD H. LOVE, Plff. in Err., ing to take the land as a homestead, and that it is error, and error of law, to adjudge ANNIE FLAHIVE and Andrew J. Lansing. it vitiated or affected by the prior sale. Public lands-homestead-effect of sale be Conceding that the effect of a sale prior fore entry. to the application projects into the case A party who, while in possession of a question of law, we are still of opinion a a tract of public land with intent to enter that the decision of the Secretary was right, it as a homestead, makes a sale, which the and that the award of the patent to Mrs. Land Department treats as an abandonment Flahive must be sustained. Flahive must be sustained. A sale made of his right of entry, cannot, by merely con- by a party who is in possession of a tract tinuing in possession, create a new right of of public sand with an intent thereafter to entry as against the party in whose favor enter it as a homestead is equivalent to he has relinquished his right. a relinquishment of his right to enter, and the Department may properly [No. 236.] treat him as having no further claims upon Submitted April 29, 1907. Decided May 27, the land. He may not sell, and still have 1907. the rights of one who has not sold. He does not, by merely continuing in possesN ERROR to the Supreme Court of the sion, create a new right of entry as against I State of Montana to review a judgment judgment the party in whose favor he has relinquished which affirmed a judgment of the District his right. Court of Missoula County, in that state, We are of opinion, therefore, that the sustaining a demurrer to the complaint in sale in 1883 was rightfully held by the Dea suit to have the holders of the legal title partment to estop the plaintiff from subseto real property adjudged to hold it in trust. quent entry of the land; at least, as against ; Petition for rehearing denied. one who was a purchaser from his vendee. For former opinion see p. 486. The petition for rehearing is denied. Messrs. C. B. Nolan and C. E. Pew in support of petition. Mr. Justice Brewer delivered the opinion RE JAMES POLLITZ, Petitioner. of the court: A petition for rehearing calls our attention Mandamus—to control judicial action. to a misstatement in the opinion. We said Federal circuit court to remand to a state Mandamus will not lie to compel a that "it appears from the complaint and court a cause which the circuit court has exhibits that during the time that these refused to remand to the state court beproceedings were pending in the Land De cause of the opinion that the case prepartment, Love made a sale to James Run- sents a controversy between the removing dell,” etc. The facts are that in May, 1882, defendant and the plaintiff which can be Love settled upon and occupied the tract fully determined between them without the in controversy with the purpose of entering presence of the other defendants. it as a homestead; that the land was then [No. 16, Original.] unsurveyed public land; that it was not surveyed until 1888, and that on January Argued April 8, 1907. Decided May 27, 1907. 2, 1889, plaintiff for the first time filed in . further to Rundell pel the Circuit Court the United was made in September, 1883, after the States for the Southern District of New , original settlement by the plaintiff, while the York to remand to the Supreme Court of land was unsurveyed, and before the appli- that state a cause which the Circuit Court cation to enter. Hence it is not strictly Hence it is not strictly has refused to remand because of the opin the land office an application for an entry; PETITION for writ cofumanda mins to mioma |