Opinion of the Court.

the proposed buyer deposited $1752 with the sheriff, as well as left with him the horses which he had attempted to purchase. If that transaction was beyond the power of the attorney, and the mortgagees were intending to repudiate it, they were bound to repudiate it in toto. They could not accept that which was beneficial, and avoid that which was burdensome. 1 Parsons on Contracts, (7th ed.,) 49 to 52, and cases cited in notes. It is urged, however, that it was the sheriff's duty to pay over the entire amount of the notes, and that the mere receiving from him of a part of that which it was his duty to pay did not work a ratification of any unauthorized proceedings by which he obtained that sum. This argument rests upon the assumption that a different rule obtains where the deposit by the proposed buyer is money, from that which would obtain if it were some other personal property. But can the question of ratification depend on the character of the deposits? If Kier had deposited a gold watch as security for the completion of his purchase, and the plaintiffs had received that from the sheriff, there would be no doubt that they had ratified the act of their attorney. Suppose that the deposit was a package whose contents were unknown, and that deposit was accepted by the plaintiffs; would it prove a ratification if, when opened, the contents turned out to be watches, and not a ratification if only money? It may be that this case turns somewhat on whether the sheriff and plaintiffs understood and intended that the payment of this money was in fact a transfer by him to them of the deposit, or merely a payment on account; but even if this be so, the question was one of fact to be settled by the jury, and should not have been disposed of by striking out all the testimony, and withdrawing the case from the jury. Kier parted with his property on the faith of this agreement between Smith and himself; and if it was unauthorized, and gave him no rights, he was entitled to a return of his deposit, whether that was a watch or money; and if the plaintiffs have taken from the sheriff this deposit, they have deprived him of the power to return it. It is unnecessary to hold that the horses became the property of plaintiffs. It is enough that they, by receiv

Statement of the Case.

ing this deposit, have ratified the arrangement made by their attorney as to the sale which the sheriff was making, and if they desired a resale of the property they should have directed it. They cannot repudiate the action of their agent and attorney and treat the sheriff as having made a complete sale, when in fact he had not. When the money and horses were tendered to their attorney, he declined both. But they took the money, while declining to receive the horses, and failed to give any instructions to the sheriff as to further sale or otherwise. They assume to treat this as a completed sale to Kier, when in fact it was not, and when they have ratified what the sheriff did in respect thereto in obedience to the instructions. of their agent and attorney by taking the deposit made by Kier.

The judgment must be reversed, and the case remanded for a new trial. As since it was brought to this court the Territory of Montana has been admitted as a State, and as no question of a Federal nature is presented, the case will be remanded to the Supreme Court of the State.

Reversed.

The CHIEF JUSTICE did not hear the argument or take part in the decision of this case.

MILLER'S EXECUTORS v. SWANN.

ERROR TO THE SUPREME COURT OF THE STATE OF ALABAMA.

No. 362. Submitted October 23, 1893. - Decided November 6, 1893.

In this case the writ of error was dismissed because the judgment below rested upon a construction by the state court of a statute of the State, which was sufficiently broad to sustain the judgment.

THIS case came to this court on error from the Supreme Court of the State of Alabama. On the 3d of June, 1856, Congress made a grant of public lands to the State of Ala

Statement of the Case.

bama to aid in the construction of certain railroads. 11 Stat. 17, c. 41. This grant was renewed and extended by an act of April 10, 1869. 16 Stat. 45, c. 24. By a joint resolution of the legislature of the State of Alabama, approved January 30, 1858, Acts 1857-1858, p. 430, certain railroad companies were made the beneficiaries of this grant. The Alabama and Chattanooga Railroad Company was formed by a consolidation, under the authority of the State, of two of these companies, and became thereby one of such beneficiaries. On February 11, 1870, an act was passed, Acts 1869-1870, No. 101, pp. 89 to 92, loaning two millions of dollars of the bonds of the State to this company, and providing for the execution of a mortgage by the company on all its property, including the land grant, to secure this loan. The bonds were delivered to the company, and on March 2, 1870, the mortgage called for by the last-named act was executed. Thereafter, the railroad company defaulting in the payment of its obligations to the State, was thrown into bankruptcy, and its property, including this land grant, was, on judicial sale, after proper proceedings in the District Court of the United States, purchased by the State in satisfaction of such obligations. The title thus acquired the defendants in error hold under a conveyance from the State made by virtue of what is called the "debt settlement” act of the general assembly, Acts 1875-1876, No. 38, pp. 130, 149, and they were proceeding to enforce their right to the lands in controversy in this suit by an action of ejectment.

The title of the plaintiffs in error arose in this way: Joab Bagley claimed to have purchased the lands in controversy from the Alabama and Chattanooga Railroad Company under two contracts, of date respectively September 13, 1870, and January 24, 1871, with one Daniel J. Duffy, its agent. There was some dispute in the testimony as to whether Duffy was duly authorized to act as the agent of the company, and also whether the company ever in fact received the money paid by Bagley; but for the purposes of this suit it may be assumed that Duffy was authorized to sell, and that the company received the moneys. No conveyance, however, was made by

Opinion of the Court.

the company to Bagley. This suit was commenced in July, 1884, by D. B. Miller, who claimed under sundry mesne conveyances from Bagley, in the Chancery Court of Jefferson County, Alabama, against John Swann and John A. Billups, trustees, and others, the object of which was to enforce the specific performance of the two contracts of September 13, 1870, and January 24, 1871, and to enjoin the further prosecution of the action of ejectment. On the 20th of June, 1885, the chancellor entered a decree in favor of the complainant, which decree was reversed by the Supreme Court of the State. 82 Alabama, 530. An amended bill having been filed, the case was again submitted to the chancellor, who, on November 12, 1888, entered a decree dismissing the complainants' bill, which decree was affirmed by the Supreme Court on the 2d of May, 1890. 88 Alabama. Subsequently to the commencement of this suit, Miller died, and the suit was revived in the names of his executor and heirs. The two original trustees have also died, and Frank Y. Anderson and W. J. Cameron have been substituted as their successors.

Mr. Ellis Phelan for plaintiffs in error.

Mr.

J. A. W. Smith for defendants in error.

MR. JUSTICE BREWER delivered the opinion of the court.

It is contended by defendants in error that, whatever questions may be found in the case, the decision of the Supreme Court of Alabama was upon a question not of a Federal character, and one broad enough to sustain the judgment, and, therefore, that this court has no jurisdiction, and should dismiss the case. Hale v. Akers, 132 U. S. 554; Hopkins v. Me Lure, 133 U. S. 380; Blount v. Walker, 134 U. S. 607; Wood Mowing & Reaping Co. v. Skinner, 139 U. S. 293; Henderson Bridge Co. v. Henderson City, 141 U. S. 679; The Delaware City &c. Navigation Co. v. Reybold, 142 U. S. 636.

As the mortgage to the State was executed some months before the contracts with Bagley, the title held by the State of Alabama under the bankruptcy proceedings would prima

Opinion of the Court.

Wilson v.

facie be paramount to that acquired by Bagley. Boyce, 92 U. S. 320. To avoid this, it was contended that, under the act of February 11, 1870, and the mortgage of March 2, 1870, the railroad company, the mortgagor, was given the right to sell these lands; and the question which was considered and determined by the Supreme Court of the State, and the vital question, was whether the act and mortgage gave such authority? The act of February, 1870, provided that "the said Alabama and Chattanooga Railroad Company shall have the privilege and right of selling said lands or any part thereof in accordance with the acts of Congress granting the same." The mortgage contained the same. provision. In respect to this, the Supreme Court of the State thus expressed itself: "This reservation was incorporated in the mortgage, and its construction, as applied to the facts of the case, is the controlling question for us to decide. The power retained by the mortgagor was not an unlimited power to sell. It was a power to sell only in accordance with the terms and conditions of the act of Congress making the grant, which, we have said in a former decision, was a law as well as a grant.' If these terms and conditions were followed, then the lien of the mortgage was by agreement to be released. If they were not followed as to the mode or time prescribed or otherwise, then the contract of the parties is that the lien of the mortgage is to remain unaffected. Compliance with the essential requirements of the act of Congress became thus a condition precedent to the divestiture of title out of the State as mortgagee. This, we repeat, was the express contract between the parties. It is sufficiently shown in the former opinion in this case that the attempt to sell to Bagley was in direct violation of the terms of the law of Congress, and, therefore, necessarily also in violation of the agreement of the parties to the mortgage, which was based on that law. Swann v. Miller, 82 Alabama, 530. The lien of the mortgage for this reason remained undischarged. This we understand to be the natural and just construction of the mortgage agreement and of the act of the Alabama General Assembly, approved February, 1870, above cited."