erect or cause to be erected one certain building on the lots," conveyed them to Lawton by an instrument which, but for its lack of a seal, would have been a deed with the usual covenants of warranty and perfect in all its parts. Within five months from the date of this imperfect instrument, Lawton, by a similar instrument, with the exception that it was in all respects a complete deed, conveyed the same lots to one Kersey Coates, The consideration expressed in the last named instrument to have been received was $250, together with the further consideration recited in terms almost identical with those employed as above mentioned and absolutely the same in effect. Hubbard signed his name by an attesting witness to this deed. In 1861 Hubbard died. In the following year Coates conveyed the undivided one half of the lots to Mordicia Lawrence, and the residue to John Simmons, who, subsequently dying, Coates, as the executor of his last will, conveyed the portion of his testator in the lots to the plaintiff in June, 1868, for the sum of $3.800, and on the same day Lawrence conveyed his share of the premises to the plaintiff for $1,500. Hubbard left at his death two heirs, one of whom, a minor, is a defendant in this suit. The other heir, J. Reuben Hubbard, in 1870 conveyed to defendant (Halley) the undivided one-half of the lots in suit. Possession of the premises was never taken by Lawton, nor by those claiming under him, nor did he or they erect a building of any description on the lots. "A small temporary shanty was put up in the year 1872, but by whom does not appear,

This proceeding was instituted in 1871 for the purpose of divesting the legal title out of the defendants and vesting it in plaintiff, on the ground of mistake made by Hubbard in failing to affix a seal to the conveyance to Lawton, and that Haley bought with full notice of the mistake, and with the desire to cheat and defraud plaintiff, with whose rights he was well acquainted at the time of his purchase. The chief allegations of the petition as to notice, etc., were denied in the answer of the defendant (Halley), and the usual answer made by the guardian ad litem of the minor heir.

1. As it was shown at the trial that Halley was a purchaser for a valuable consideration, it is needless to disclose the sufficiency of the certificate of acknowledgement appended to the instrument executed by Hubbard to Lawton, for only those standing in the attitude of purchasers for value can take advantage of defects of the nature alluded to. Bishop v. Schneider, 46 Mo. 472, and cases cited.

2. The doctrine that courts of equity will interpose for the relief of a vendee who has taken a defective conveyance, and will compel the vendor and his heirs, and all other persons claiming under him by the act of the law, although without notice, and even persons claiming as purchasers for valuable consideration, if with notice, to make good the conveyance, is one which has found in those courts frequent recognition and been illustrated by a long line of decisions far too numerous for citation. 2 Sugden on Ven. p. 1022; Wadsworth v. Wendell, 5 Johnson's Ch. 224, and cases cited.

In the case last cited the defective conveyance was imperfect in the precise particular that the one before us is, i. e., it only lacked a seal, and Chancellor Kent held that as the instrument was in form a deed with the single exception that it lacked a seal, and that it | concluded with the words In witness whereof I have hereunto set my hand and seal," that the intention to affix the seal was apparent, and the omission to do so a mere mistake, concerning which redress could be afforded. And it was accordingly decreed in that case that the subsequent purchasers, with notice, should convey the legal title to the first purchaser. And were the matter of mistake and its correction by any appropriate decree which would accomplish the desired object and procure the relief sought, the single element in the case at bar no hesitation could be felt while complying with the plaintiff's prayer, since it will be readily seen that the defendants are not in position to resist successfully a

decree based alone upon the above stated grounds. There are, however, other ingredients in this case which must exert a controlling influence in the endeavor to arrive at a correct conclusion, and we will briefly advert to discuss them.

3. It is obvious from previous statements that the plaintiff, as his title at best is but an equitable one, in effect, although not praying for it in direct terms, seeks a decree for specific performance; this being the case he will be held answerable to those rules which govern when relief of that character is asked. Among those rules

are:

That the contract whose specific enforcement is sought should be certain, mutual and capable of being performed, Sto. Eq. Jur., Sec's. 723, 736, 751; Fry Spef. Perf., p. 133.

And the certainty requisite in a contract which is the subject of adjudication in a court of equity is necessarily greater than if in a suit at law damages were demanded for its breach; for in the latter forum it is in general sufficient to a recovery to establish the negative proposition of non-performance, while in a court of equity it is an indispensible requisite that the contract should possess terms of such reasonable certainty as to enable that court, by having regard to the subject-matter and attendant circumstances of the contract, to determine the force and effect of the terms employed, in order to decree their specific execution. Now, it is obviously impossible to comprehend the meaning of the agreement incorporated in the deed from Hubbard to Lawton, and in the deed of the latter to Coates. "A certain building" is to be erected upon the lots, but the dimensions, quality and material thereof are altogether conjectural. Nor is that contract mutual, namely, it is not such as might at the time of its formation have been enforced by either of the contracting parties against the others. And it is entirely immaterial what constitutes this lack of mutuality, whether resulting from personal incapacity, the nature of the contract, or any other cause; whenever the absence of this essential element is ascertained to exist on the part of one party, and for that reason is incapable of being enforced against him, that party is equally incapable of enforcing the contract against the other, although no difficulty should attend its execution in the latter way. And this is plainly the state of the case here. Though Lawton or Coates would have had no obstacle in their way as to the part Hubbard was to perform, yet he on his part could never have obtained against either of them the equitable relief of specific execution, by reason of the terms of agreement on their part. The doctrine here asserted is as thoroughly setteled as any in equity jurisprudence. Fry Spef. Perf. 133, and cases cited.

4. But the contract before us could not be enforced for another very sufficient reason: A court of equity will not enforce "build. ing contracts" because it is said, "If one will not build another may." And although in the earlier cases a different view obtained, yet in the lattér one this doctrine is expressly denied, Sto. Eq. Jur., Secs. 725, 726. And though Mr. Justice Story does not yield assent to what he admits is the current of modern adjudication, and offers much ingenious reasoning in support of his views, still even he insists that the contract to build should possess "sufficient definiteness and certainty." Ib., Sec. 728. And Lord Rosslyn, whose views meet Judge Story's cordial approbation, held that where "the contract to build or rebuild had a definite certainty as to size, material, etc., it ought to be decreed in equity to be specifically performed. But if it was loose, general or uncertain, then it ought to be left to a suit for damages at law." Mosley v. Virgin, 3 Ves. Jr., 185. But since, as already seen, the present contract is of such a vague and indefinite nature, it is a matter of no moment, so far as the case at bar is concerned, whether we adhere to the earlier or later authorities; in either event specific enforcement must be denied, and our refusal in this regard will, for the reasons stated, amply support both in the elder as well as in the more recent adjudications.

5. If, however, the agreement under consideration lacked none

"

of the essential requisitions we have mentioned, still an insuperable barrier to the relief sought is found in the fact that no compliance with the terms of the agreement, loose and general as they are, is urged or even alleged on the part of the plaintiff. And there is not a single palliating circumstance to extenuate the conduct of the plaintiff in thus entering a court of equity, and without showing the slightest performance on his part to entitle him to equitable relief, asking the active interference of that court in his behalf, while disregarding and trampling upon the maxim that he who seeks equity must do equity." And the argument which might be urged, that but for the mistake made the plaintiff would now be the possessor of the legal title to the premises in suit, is without force, as in consequence of that mistake he is in precisely the same situation as if the assignee of a title-bond, and must therefore come under the rigid application of that maxim whose teachings he, and those under whom he claims, have so persistently ignored.

6. The evidence in this case is extremely meager, but if we are to be guided by inference, it may perhaps be not unfairly assumed that the contract between Hubbard and Lawton was entered into by the former with the view of enhancing the value and attractiveness of his adjacent property, by causing the erection of a building on the lots sold. If this assumption be correct, owing to the great change in the circumstances attendant on the formation of the contract and the greatly enhanced value of the lots in question, the time has long since passed in which the benefits intended by Hubbard to be derived from a building on the lots can now be realized.

The judgment is reversed and the cause remanded.
Judge Hough not sitting; the other judges concur.

before a jury, and a verdict was rendered for the plaintiffs. At the same term the verdict was set aside and the cause was continued till the January term, 1875. On the 25th of January the cause was continued. At the same term, to-wit, April 25, 1875, the order of continuance was set aside, and on the same day a petition was filed by the defendants praying for a removal of the cause to the Circuit Court of the United States. under the provisions of the act of Congress of March, 3, 1875. Bond with proper security was also filed. The grounds of removal were that the defendants were citizens and residents of the state of Maryland, and that one of the plaintiffs was a resident of the state of Illinois, one a citizen and resident of Minnesota, and the other a citizen and resident of Ohio. This application was resisted upon the ground that the case did not come within the provision, of the act of March 3, 1875, because not filed with the court at or before the first term at which the cause could be tried, and before the trial thereof. Upon the hearing of this petition, the court, for the reason that the action was triable, and was actually tried in said court before the passage of the act of Congress, overruled said motion. Afterward, on the 12th day of May, 1874, the defendants filed in this court transcripts of the record and proceeding in said cause. And afterward, on the 6th day of October, a motion was filed to strike the case from the docket, on the ground of the want of the jurisdiction in this court.

Judge Granger, of Muskingum county, and E. F. Hunter, Esq., of Lancaster, argued by briefs in favor of the motion, and Senator Thurman replied orally.

Cause may be removed.

ANDREWS' EXECUTORS v. GARRETT.

"

of costs, the sum or value of $500, and arising under the constitution or law of the United States. * Or in which there shall

*

*

be a controversy between citizens of different states, etc., either

1875.

Before Hon. PHILLIP B. SWING, District Judge.

Under the third section of the act of 1875, a cause which was pending at the time of the passage of the act, is removable from a state court to the federal court, if the petition and bond are filed" at or before the first term at which said cause could be first tried," after the passage of the act. So held, when the cause had been tried, and a new trial awarded before the passage of the act.

States for the proper district. And when in any suit mentioned in this section, there shall be a controversy which is wholly between citizens of different states, and which can be fully determined as between them, then either one or more of the plaintiffs as defendants actually interested in such controversy may remove said suit into the Circuit Court of the United States for the proper district."

On the 18th day of May, 1867, the defendants filed the motion to remove the cause into the Circuit Court of the United States, on the grounds that the defendants were citizens and residents of the state of Maryland, and that the plaintiffs were citizens and residents of Ohio. Upon the hearing of the motion it appeared that one of the plaintiffs was a citizen and resident of Illinois, and one a citizen and resident of Minnesota. The motion was overruled. Thereupon the parties proceeded to make up the issues in said court of common pleas, and at the April term, 1873, a jury was waived and the case submitted to the court and judgment rendered in favor of the defendants. At the same term the plaintiffs were awarded a second trial under the statute, amendments were made to the pleadings, and the cause was continued from term to term, until the November term, 1874, when a trial was had

and before the trial thereof."

The remaining part of the section refers to the bond and proceedings on removal.

It is not denied that the amount involved in this case, and the citizenship of the parties, were within the requirements of the second section. The amount was over five hundred dollars. The controversy was between citizens of different states, and the suit was pending in a state court at the time of the passage of the act of Congress, possessing every element to authorize its removal to the Circuit Court of the United States.

The third section simply provided the time when and the mode in which the application shall be made for such removal, and the steps necessary to accomplish it. The mode is to be by petition to the state court, and the time is before or at the term at which said cause could be first tried, and before the trial thereof.

The facts found by the learned judge of the state court show that the petition was properly filed, and all the necessary steps taken in accordance with the provisions of the 3d section, and that the petition was filed before or at the term at which said cause could

be tried, after the passage of said act of Congress. And if the term referred to be the term after the passage of the act, there can be no controversy in the case. The jurisdiction must be admitted. That Congress had the power to authorize the removal of the cause in its then condition can not be doubted. Insurance Company v. Dunn, 19 Wallace, 214. Did they by the terms and the spirit of this statute, so authorize its removal? The language of the statute is, any suit now pending, in other words, all suits now pending of the requisites may be removed, and the length of time which the suit had been pending, or the condition it was in if no final judgment had been rendered, could make no possible difference in the reason which operated upon Congress to confer the jurisdiction, as is clearly shown in the reasoning of the court in the case of Insurance Company v. Dunn.

The term referred to is the term at which said cause-what cause? The cause referred to in the second section, to-wit: any cause pendding at the passage of the act could be first tried after the passage of the act, and not the terms, at which said cause could have been tried long before the passage of the act.

The motion will, therefore, be overruled.

gradual and imperceptible process of adding to land by the washings of the Missouri river, and the result of such process is termed alluvion or made land.

2d. The Missouri river is a public river, and all islands therein situate at the time the territory of this state was reclaimed by the United States, and not then or subsequently surveyed and numbered, and which have not been disposed of by the United States, still remain, with all accretions thereto, the property of the said United States Government, and if the jury believe from the evidence that the lands occupied by defendants are an unsurveyed and unnumbered and undisposed of island, with its accretions, by the United States Government, then the title of said island and its accretions, or alluvion, is in said United States, even if the said islands, accretions or alluvion has extended to No. 55 and connects with it—and said island and its accretions are not the plaintiffs', and the jury will find for the defendants.

3rd. If the jury believe that the lands occupied by the defendants were made by the violent action of the waters of the Missouri river in 1844 and 1845, suddenly and immediately, then the same is not the property of the owners of the west or upper end of island No. 55, but is the property of the United States, although

souri River.

2..

The doctrine of Deerfield v. Arms, 17 Pick. 42, that the littoral proprietor on a non-navigable stream-that is, on a stream in which the tide does not ebb and flow, is prima facie the owner of the soil to the central thread of the river, subject to the right of the public to pass over in boats, etc., and hence, that if an island gradually forms in the stream, such proprietor is the owner of the soil of such island as far as what was formerly the central thread of the stream,-does not apply to our great public rivers, such as the Missouri. Here the littoral owner takes only to the margin of the stream. [Citing R. R. v. Schurmeir,7 Wall. 272; The Schools v. Risley, 10 Wall. 110; Yates v. Milwaukee, 10 Wall. 504.] Islands springing up in such streams belong to the United States, and do not belong to the owners of other islands to which they may gradually become annexed; and so of accretions to an unnumbered and unsurveyed island belonging to the United States. But accretions formed upon an island belonging to a private person, are the property of such whether formed gradually or suddenly. person,

flood, is not the property of the owner of such island, but of the United States, is error. NAPTON, J., delivered the opinion of the court.

The plaintiffs in this ejectment suit were owners of three islands in the Missouri river, numbered 53, 54 and 55, and sued to recover possession of certain lands which were alleged to be accretions to one or two of said islands by alluvion.

The facts are not stated, nor the evidence-but it is stated that evidence was offered in support of the theories maintained by each side in the instructions offered.

The three islands belonging to plaintiffs were located in the the river in the order of their numbers, No. 53 being the uppermost, and No. 55 being the lowest down stream. The plaintiffs claimed that the land occupied by defendant was an accretion to island No. 55 or 54. The defendants contended that the lands they occupied were accessions to an unnumbered and unsurveyed island belonging to the United States.

island No. 55.

4th. The question submitted to the jury is, whether the lands occupied by defendants are islands No. 53, 54 and 55 described in plaintiffs' petition-or are an island with its accretions, other than, and different from said islands 53, 54 and 55.

5th. It devolves upon the plaintiffs to show by evidence that defendants are occupying the identical islands and accretions described in plaintiffs' petition, or some part thereof.

The court gave these instructions and two others, of its own motion, to wit:

Ist. The court instructs the jury that the lands described in the petition as the S. E. fr. quarter of section 17 T. 45, R. 8 west, and all those lands described in section 16, at the time of their entry at the land office, was bounded by the Missouri river, and the same are admitted by the pleadings to belong to plaintiffs; and if the jury find from the evidence that the defendants occupied the same or any part thereof, at the commencement of this action, or any lands that are the products of gradual accretion to the same, they will find for plaintiffs.

2nd. The court also instructs the jury that the lands described as fractional sections 19 and 20 on islands 53 and 54, were also, when entered, bounded by the waters of the same river and are admitted to belong to the plaintiffs; and if the jury shall find from the evidence that, at the time of the commencement of the action, the defendants occupied the said land or any part thereof, or any lands that are the products of gradual accretions to the same, they will find for plaintiffs.

There was a verdict and judgment for defendants.

After the acquisition of the northwest territory from Virginia, and before the purchase of Louisiana in 1804, the United States established, perhaps in '98 or thereabouts, a system of surveys for their public lands, and passed laws in regard to the Mississippi and Missouri and other navigable streams, which materially modify the application of the common law and civil law doctrines in regard to riparian ownership. The title to nearly all the lands in Missouri depends on the laws of Congress and the system of surveys adopted by Congress.

I have heard it stated by an eminent lawyer who practiced in this state long before it was admitted into the Union, that there are only one or two complete Spanish grants in this state. Our public surveys terminate on the Missouri River, and it is the same with regard to the Osage as high up as Osceola, and the Gascon

the common law principle applicable to non-navigable streams, of each going to the thread of the channel; as it was before it was deserted by the water. In the event supposed, the river might be regarded as ceasing to be a navigable one, pro hac vice, or rather as being converted at the slough between the island and the shore, into a non-navigable one. In any event, the owner of the shore could not claim both the alluvion and the island, nor, vice versa. could the owner of the island claim the tract on the bank, with its accessions by alluvion.

Florida, Mississippi, Louisiana and Texas, was a recognition of a war waged, and conclusive evidence that a state of war existed between the people inhabiting those states and the United States.

If the alluvion was formed to island No. 55 or island 54, and not to the nameless island spoken of, the plaintiffs were entitled to recover, otherwise not, and that depended on facts not fully disclosed in the record or fairly passed on by the jury.

that in a state of war, all the members of each belligerent are respectively enemies of all the members of the other belligerent, and, were commercial intercourse allowed, it would tend to strengthen the enemy and afford facilities for conveying intelligence, and even for tratorious correspondence. Hence, it has become an established doctrine, that war puts an end to all commer

absent.

powers at war, and "places every individual of the respective governments, as well as the governments themselves, in a state of

the Late War.

MATTHEWS v. McSTEA.

Supreme Court of the United States, October Term, 1875. Although the breaking out of a war, as a general rule, suspends commercial intercourse and dissolves partnerships existing between subjects or adherents of the opposing powers and although this doctrine applies to a civil war, particularly where it is sectional in its

character; yet it is a rule which admits of exceptions; and in a civil, more than in a foreign war, or war declared, it is important that unequivocal notice should be given of the illegality of such intercourse; since in a civil war the government alone can know when the insurrection has assumed the character of war. In accordance with these

views, it is held that the President's proclamation of April 15, 1861, was not a distinct recognition of a state of war, and that the proclamation of April 19 of the same year, establishing the blockade,did not suspend intercourse with the inhabitants of the insurrectionary states, except through the blockaded ports. Therefore it was not a good defence, in an action on a bill of exchange, drawn on the 23d day of April, 1861, on a house in New Orleans, one of whose members was a resident of the state of New York, and accepted by them, tha the firm was at that date dissolved by the intervention of the

war.

tween the subjects or citizens of the two contending parties prior to the war, for their continued existence would involve community of interest and mutual dealing between enemies.

Still further, it is undeniable that civil war brings with it all the consequences in this regard which attend upon and follow a state of foreign war. Certainly this is so when civil war is sectional. Equally with foreign war, it renders commercial intercourse unlawful between the contending parties, and it dissolves commercial partnerships.

But while all this is true, as a general rule, it is not without exceptions. A state of war may exist, and yet commercial intercourse be lawful. They are not necessarily inconsistent with each other. Trading with a public enemy may be authorized by the sovereign, and even to a limited extent, by a military commander. Such permissions, or licenses, are partial suspensions of the laws of war, but not of the war itself. In modern times they are very common. Bynkershoek, in his Quæst. Jur. Pub., lib. 1, ch. 3. while

of New York.

Mr. Justice STRONG delivered the opinion of the court.

The judgment which this writ of error brings before us for review was given by the court of appeals in affirmance of a judgment against the plaintiff in error in the Court of Common Pleas of the City and County of New York.

The original cause of action was (inter alia) an acceptance of a bill of exchange by the firm of Brander, Chambliss & Co., of New Orleans, it being alleged that Matthews was, at the time of the acceptance, a member of that firm. The bill of exchange was dated April 23d, 1861, made payable in one year, to the order of McStea, Value & Co., and it was accepted by Brander, Chambliss & Co. on the day of its date. The principal defence, and the only one which presents a federal question, was that at the time when the acceptance was made, the defendant, Matthews, was a resident of the state of New York, that the other members of the firm (also made defendants in the suit) were residents of Louisiana, and that before the acceptance the co-partnership was dissolved by the war of the rebellion. This defence was not sustained in the common pleas, and the judgment of that court was affirmed by the court of appeals. The single question, therefore, for our consideration, is whether the partnership was dissolved by the war before April 23d, 1861.

sequence of the commencement of war is the interdiction of all commercial intercourse between the subjects of the states at war, remarks, "the utility, however, of merchants, and the mutual wants of nations, have almost got the better of the laws of war as to commerce. Hence, it is alternatively permitted and forbidden in time of war, as princes think it most for the interests of their subjects. A commercial nation is anxious to trade, and accommodates the laws of war to the greater or lesser want that it may be in of the goods of others. Thus, sometimes a mutual commerce is permitted generally; sometimes, as to certain merchandise only, while others are prohibited; and, sometimes it is prohibited altogether." Halleck, in his Treatise on the Laws of War, p. 676, et seq., discusses this subject at considerable length, and remarks: That branch of the government to which, from the form of its constitution, the power of declaring or making war is entrusted, has an undoubted right to regulate and modify, in its discretion, the hostilities which it sanctions. In England, licenses are granted directly by the crown or by some subordinate officer to whom the authority of the crown has been delegated, either by special instructions, or under an act of Parliament. In the United States, as a general rule, licenses are issued under the authority of an act of Congress, but in special cases, and for purposes immediately connected with the prosecution of the war, they may be granted by the authority of the President as commander

* *

It being, then, settled that a war may exist, and yet that trading with the enemy, or commercial intercourse may be allowable, we are brought to enquire whether such intercourse, was allowed between the loyal citizens of the United States and the citizens of