Statement of the Case.

Construction Company. In that action, a verdict was returned against the Construction Company for $49,448.11, for which a judgment was rendered October 20, 1885, on which execution was allowed "to be levied on the property and effects attached, and other property of the defendant." Subsequently (a motion for a new trial having been made) the plaintiffs remitted $13,546.72 of the verdict. Thereupon the former judgment was set aside, and it was adjudged, February 1, 1886, that the plaintiffs recover of the Construction Company $35,901.39 and their costs, "and that they have thereof execution, and that the judgment and execution thereon hold not only the property attached heretofore in this case, but the other property of the defendant; but execution shall not issue, without special leave of court, until after final decree in chancery in case No. 401, in the case of Barthold Schlesinger et al. v. The Kansas City and Southern Railway Company et al."

The equity case thus referred to was the present suit which was brought, November 10, 1881, by Barthold Schlesinger and Sebastian B. Schlesinger, doing business as Naylor & Co., against the Kansas City and Southern Railway Company, the Kansas City and Southern Construction Company, the Farmers' Loan and Trust Company, and James I. Brooks. The Farmers' Loan and Trust Company was made a defendant because it was the trustee in a mortgage, given by the railway company, January 1, 1883, to secure $6,500,000 of its first mortgage bonds, which mortgage covered all of the property and income of the mortgagor, and warranted the title to the property. The relief sought was a decree adjudging the deeds of May 24, 1880, and September 18, 1880, to the Kansas City and Southern Railway Company, and the deed to the Farmers' Loan and Trust Company, to be voluntary, fraudulent, and void as against the demands of the plaintiffs, and that the property and rights of the Construction Company, attempted to be conveyed by said deeds, and levied upon and attached as aforesaid, be subjected, charged, and sold for those demands and the costs of the attachment proceedings; and that, in the meantime, a receiver be appointed to take charge of the prop

Opinion of the Court.

erty, receiving the profits thereof, and paying all taxes and assessments against it.

Some time after the institution of this suit, and before it was determined in the court below, the appellants sold their claim to one Sargent of Boston for $4000.

Mr. Frank Hagerman, (with whom were Mr. Jefferson Brumback and Mr. Wallace Pratt on the brief,) for appellants.

Mr. Charles O. Tichenor, for appellee, submitted on his brief.

MR. JUSTICE HARLAN, after stating the case, delivered the opinion of the court.

No question is made as to the validity of Bancroft's purchase of the property in dispute at the sale made under the order of the Circuit Court of the United States for the Western District of Missouri, sitting in bankruptcy. Indeed, all parties to the present controversy claim title under him.

We have seen that the title passed from him to Hanna, McLean, and himself, as trustees for those furnishing the money used in the purchase at the bankruptcy sale, and that those trustees conveyed to Brooks, January 13, 1880, upon certain express conditions. One of those conditions was that Brooks should build the railroad from Kansas City to Harrisonville or Bolton, on or before January 1, 1881, and also to the coal fields of Bates County, to a point south of Butler, on or before July 1, 1881. Another condition was that, if Brooks failed to build the railroad to the coal fields mentioned, as stipulated in the deed to him, then the property should revert to the trustees, and reinvest in them, "the same as they now hold the same." This condition of forfeiture was, by the terms of the conveyance to Brooks, to become void and extinguished only in the event Brooks expended $50,000 in the construction of a roadbed for said railroad, commencing at Kansas City and running southwardly.

The Kansas City and Southern Construction Company took the property under the two deeds to it from Brooks, dated, respectively, February 27, 1880, and April 1, 1880. But, of

Opinion of the Court.

course, it took subject to the conditions upon which he received the property from the trustees. Neither of those conditions was performed. The road was not built from Kansas City to Harrisonville by the 1st day of January, nor to the coal fields of Bates County by July 1, 1881. Nor was $50,000 or any sum expended by Brooks or by his grantee in the construction of a roadbed for the railroad. Indeed, as early as the 18th of May, 1880, the Construction Company gave formal notice to Naylor & Co. that they were unable to comply with their contract relating to steel rails; and, consequently, the enterprise was abandoned by it.

It results that when the 1st of July, 1881, came, the property had reverted to the trustees under their agreement with Brooks, subject to which agreement the Construction Company took the title. But, on that day, the Kansas City and Southern Railway Company were in possession under the agreement between it and the trustees of December 15, 1880, to say nothing of the deed of the Construction Company to the railway company of September 18, 1880. If it be said that the trustees had no right, under their agreement with Brooks, to treat the property as having reverted to them until after the expiration of the time limited for the building of the railroad to the coal fields, namely, until after July 1, 1881, the answer is: 1, that the Construction Company had by its formal notice to Naylor & Co. of May 18, 1880, indicated that it had no purpose, as the grantee of Brooks, to meet the conditions upon which he was to hold the property; 2, if the provision in the agreement of December 15, 1880, between the trustees and. the railway company, annulling and rescinding the conditions imposed by the deed to Brooks, and prescribing other conditions as between the trustees and the railway company, was, at that time, of no effect, in law, as against Brooks or the Construction Company, it became valid and binding after July 1, 1881, when, beyond all question, the trustees were entitled to treat the property as having reverted to them, to do with it as to them seemed best. So that if we disregard altogether the deed of May 24, 1880, from the Construction Company to the Kansas City and Southern Railroad Com

Opinion of the Court.

pany as a nullity, no such corporation or company being in existence, and if we disregard, also, the deed of September 15, 1881, to the railway company, because it was not executed by any officer of the Construction Company, the fact appears that on and after July 1, 1881, the railway company were in actual possession of the property, under their contract with the trustees Hanna, McLean, and Bancroft, who had elected, as they had the clear right to do, to treat it as having reverted to them. This was before Naylor & Co. had instituted their action at law and sued out their attachments against the Construction Company. When that attachment issued the Construction Company had no interest whatever in the property attached. The interest it originally had was acquired subject to certain conditions, upon the non-performance of which the property, at the election of Hanna, McLean, and Bancroft, trustees, reinvested in them.

It was not necessary to the reacquisition of title by the trustees that they should invoke the aid of the courts. In the case of a public grant, the right of the government to repossess itself of the estate granted may be asserted through judicial proceedings, or by some legislative act showing an assertion of ownership on account of the breach of the condition upon which the original grant was made. But judicial proceedings to that end are not absolutely necessary, unless they are prescribed by the grant itself; for where land and franchises are held upon conditions to be subsequently performed, "any public assertion by legislative act of the ownership of the estate after default of the grantee-such as an act resuming control of them and appropriating them to particular uses or granting them to others to carry out the original object will be equally effectual and operative." Farnsworth v. Minnesota & Pacific Railroad, 92 U. S. 49, 66, 67; Pacific Railroad v. United States, 124 U. S. 124, 130. In the case of a private grant, an entry by the grantor, or any act equivalent thereto, showing a purpose to take advantage of the breach of condition subsequent, and to reclaim the estate forfeited by such breach, is all that is required. What was done by the trustees Hanna, McLean, and Bancroft evinced, in the clearest possible manner, their

Statement of the Case.

purpose to reclaim the property and rights granted to Brooks, because of the failure to perform the condition upon which he, or any one claiming under him, was entitled to hold the property.

Under the view we have expressed, it becomes unnecessary to consider other questions discussed by counsel; and it results, and we so adjudge, that the plaintiffs are not entitled to have the property in question or any part thereof sold in satisfaction of their judgment for $35,901.30 against the Kansas City and Southern Construction Company.

The decree below is affirmed.

TENNESSEE v. UNION AND PLANTERS' BANK.

TENNESSEE v. BANK OF COMMERCE.

TENNESSEE v. BANK OF COMMERCE.

APPEALS FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF TENNESSEE.

Nos. 1020, 1021, 761. Argued January 12, 15, 1894. — - Decided March 19, 1894.

Under the act of August 13, 1888, c. 866, the Circuit Court of the United States has no jurisdiction, either original, or by removal from a state court, of a suit as one arising under the Constitution, laws or treaties of the United States, unless that appears by the plaintiff's statement of his own claim.

THE first case was a bill in equity, filed January 26, 1893, in the Circuit Court of the United States for the Western District of Tennessee, by the State of Tennessee, and the county of Shelby in that State, against the Union and Planters' Bank of Memphis, a corporation organized under the laws of Tennessee, and having its place of business at Memphis in Shelby county, and against S. P. Read and W. A. Williamson, citizens of the State of Tennessee, to recover taxes alleged to be due to