authority of the person so appearing to bind the corporation must bo conclusive in all other proceedings where the same judgment is drawn in question. What the force and effect of such a confession shall be in any regular proceeding to vacate it, and in any court of review to which it may be carried, is not for us to say. We think that the judgment of the county court, entered upon Mr. Henslee's confession, must be taken to be valid and binding upon the company. It is in evidence that the claim was a valid one; the amount for which judgment was given was due from the company to Henslee; he assigned upon good consideration to Crow. His right to assign cannot be denied; and if there be any infirmity in the matter in respect to his right and authority to appear for the company and confess judgment in its behalf, that is a matter which can only be inquired of upon some proceeding to vacate and set aside the judgment.

In respect to the particular circumstances of this case, it is in evidence that some of the officers-certainly the vice-president, in particular-knew of the entry of this judgment very soon after it was entered, and long before any sale was made under it. Mr. White, the purchaser of the property, and the plaintiff in this suit, knew something of it long before he became a purchaser of the property, and no step was taken by the company itself to attack the judgment and set it aside in the court in which it was rendered, or to remove the record into the supreme court of the state, with a view to make inquiry there concerning it. So that we are prepared to say that in this proceeding, and so far as the right of Mr. White to redeem from it is concerned, that no question can be raised in respect to its validity. And the failure of Mr. White to redeem from it within the time prescribed by statute was one which probably may affect his interest very materially in respect to this property. We do not see that he offers any valid excuse for failure to do so. Mr. Smith was informed of the existence of this judgment, and of the time the sale was made, 10 days before the expiration of the time for redemption. it was in his discretion to act, or decline to act, as he thought best. It is to be said further, relative to this matter, that this bill was filed against the judgment creditors and the sheriff of the county to enjoin further proceedings under that judgment.

Of course,

In so far as it is proposed by the bill to restrain the sheriff of the county in the execution of process of a court of Lake county, it caunot be maintained in this court. In that respect, it is a bill to restrain proceedings in a court of co-ordinate jurisdiction, and as such we have no greater authority in respect to the execution of a deed in pursuance of the sale than we have in respect to the sale under the execution in the first instance; and so, by the express language of the statute of the United States,-I do not recall the number of the section, we are forbidden to interfere with the conduct of the sheriff in respect to that matter. But having the parties before us to whom the deed would go, we conceive we have a right to deal with them and to

dismiss the bill as to the sheriff. The parties, whose ultimate right it is to have this property, are before the court. It appears that these purchasers of the various judgment claims from the execution creditors, Crow and Evans, and more of them, are before the court. They came in voluntarily. The members of the Western Pool made defense in their own name, becoming parties to this bill. Having them before the court, we have a right to deal with them directly in respect to this matter, and without reference to the sheriff, and to proceed against them as we would proceed against the sheriff, if it were competent for us to entertain jurisdiction as to him. This, I suppose, determines everything that can be said in reference to this matter except one. As already stated, these parties, constituting the - Western Pool, bought up all these claims against the company. The amount in all is something over $5,000-between five and six thousand. They had also a claim for annual work done in the year 1882, and they allowed Mr. White, plaintiff in this suit, upon the theory and proposal to redeem from all these demands, and acquire the property for himself, to pay a good part of these demands,-something over $3,000,-four of the judgments, and for the annual work.

In our view, and we think it should so be regarded in any court of equity, these demands, held by one party and for one purpose, should be regarded substantially as one thing, and one accepting payment of any part of them cannot deny Mr. White's right to pay the remainder without refunding what he had received from him. It is not competent for them to say, we will take part of the money in payment of these demands and keep it, because you have failed in respect to one, under some mistake of fact or law. We will hold on to this and deny your right to redeem, and keep the property also. We think that would be most inequitable and unjust, and therefore we propose to say to these defendants that they must refund the money, or admit the plaintiff's right to redeem this property. The decree will be that, within 30 days from the date of entering the decree, the defendants refund the money received in partial payment of the several demands against this property, with interest; or, failing in that, that the plaintiff be allowed to pay the remainder, and to have a deed from these parties of such interest as they may have acquired or may acquire under these several sales. As to the sheriff the bill will be dismissed.

There is a point which I intended to advert to in the course of discussion, to which I may allude now. In respect to the sale of the property en masse, it is alleged in this bill, and not very well denied, that this property was sold in bulk-six or eight claims, whatever their number may be-as one claim, and upon that the plaintiff contended, as it is decided in some states, the sale was void, or, as held in others, it was voidable, and he would have the right to redeem. We do not think it can be regarded as a void sale, and if it be voidable the right can only be asserted in a court of the state. We have

not jurisdiction in this court to set aside a sale made in a court of the state, with a view of ordering another sale, the sale not having been made pursuant to the statute. That portion of the bill, therefore, should be dismissed, without prejudice to the right of the plaintiff to maintain another bill for the same cause in any court of competent jurisdiction.

I believe that covers the whole ground.

It is pretty clear to us that plaintiff has no other right than to have this money back, with interest. We are not disposed to maintain his possession by injunction.

If the defendants here get legal title from the sheriff they can assert that title in an action at law; we are not disposed to interfere in a suit of that kind.

MCCONVILLE v. HOWELL and others.

(Circuit Court, D. Colorado. June 27, 1883.)

1. NON-RESIDENT ALIENS.

Under the statute of Colorado non-resident aliens may own, inherit, and convey property, real or personal, the same as citizens and residents.

2. CONTRACT OF SALE-SPECIFIC PERFORMANCE.

A contract for the purchase and sale of an interest in mining property, at a price named therein, in which contract is the following clause: "Provided, always, in the event of such failure to complete such purchase, he, (the purchaser,) his heirs and assigns, upon the delivery of possession of said lands and mining premises as aforesaid to the parties of the first part, their heirs and assigns, shall in nowise be held responsible for the payment of said purchase money." Held, that upon refusal to redeliver the property to the sellers on demand, the latter had the right to treat the contract as a sale, and proceed to enforce its specific performance in equity.

In Equity.

N. F. Cleary and G. G. Symes, for plaintiffs.

George, Maxwell & Phelps and Markham, Patterson & Thomas, for defendants.

MCCRARY, J., (orally.) In the case of Edward McConville v. C. C. Howell et al. I have reached certain conclusions, which I am prepared now to state. It is a bill in equity, brought for the purpose of obtaining a decree for the specific performance of a written contract whereby these complainants agreed to sell to the defendant Howell, and the defendant Howell agreed to purchase, certain interests in mining property situated in Lake county, in this state. It is alleged that the complainants are the heirs at law of one John McConville, who died at Leadville some time in November, 1880. Some discussion has been had as to whether the proof in this case is sufficient to establish the heirship. Some of the statements given by the principal witness, Mr. Burne, are in the nature of family history, and, to some extent,

1 From the Colorado Law Reporter.

hearsay; but they probably fall within the very liberal rule which prevails upon that subject. Whether they do or not, I am prepared to say that, in this particular case, the court is satisfied with the proof. We should not apply a very strict rule in a case of this character, for it must be borne in mind that Howell, the defendant, who was the purchaser of this property, was the administrator of the estate of John McConville, deceased, and he dealt with these plaintiffs as the heirs of John McConville, and bought the property from them as such heirs. He must be presumed to know who the heirs were. It was his duty to ascertain that fact. He was the trustee for them, and if they had chosen to repudiate the contract upon the ground that he acted as their trustee, they could in all probability have done so, upon the doctrine that the executor has no right to purchase the property of the heir while he is acting in that capacity. They have not seen fit to do that, and I mention it merely to show that the court ought not to adopt a very strict rule in reference to proof of heirship. I hold, therefore, that the proof is sufficient to show the heirship of these complainants.

In the second place, it is established that the said John McConville was, at the time of his death, the owner of an undivided interest in the several mining claims mentioned in the bill. Precisely what his interest was, it is not material here to consider, but that he had an undivided interest is well established.

In the third place, the complainants, though non-resident aliens, were capable of inheriting property in this state by virtue of the statute of the state upon this subject. The complainants, it appears, are non-resident aliens, and it is insisted that for that reason they were incapable of inheriting any interest in this property from John McConville, and, consequently, had nothing which they could sell. It is said that the result is that there is no consideration for this contract. But the statute of this state upon that subject is very explicit. Chapter 4, p. 90, Gen. Laws Colo. § 15, provides:

"All aliens may take, by deed, will, or otherwise, lands and tenements, and any interest therein, and alienate, sell, and transmit the same to their heirs, or any other persons, whether such heirs or other persons be citizens of the United States or not; and upon the decease of any alien having title to or interest in any lands or tenements, such lands and tenements shall pass and descend in the same manner as if such alien were a citizen of the United States; and it shall be no objection to any person having an interest in such estate that they are not citizens of the United States; but all such persons shall have the same rights and remedies, and in all things be placed upon the same footing, as natural-born citizens of the United States. The personal estate of an alien, dying intestate, who, at the time of his death, shall reside in this state, shall be distributed in the same manner as the estate of natural-born citizens; and all persons shall be entitled to their proper distributive shares of such estate under the laws of this state, whether they are aliens or not."

It is conceded, as of course it could not be questioned, that the statute is broad enough to include this case; but it is suggested that

it is not constitutional. The provision of the constitution referred to is section 27 of article 2, which reads as follows:

"Aliens, who are or who may hereafter become bona fide residents of this state, may acquire, inherit, possess, enjoy, and dispose of property, real and personal, as native-born citizens."

And the argument is that the necessary purport of this provision of the constitution is to limit the right to possess, inherit, or enjoy property to aliens who are or may hereafter become citizens; in other words, that it prohibits the legislature from extending the right to non-resident aliens. I do not agree to that construction of the constitution. The very same question was decided by the supreme court of California, and I think upon very sound reasoning, in the case of State v. Rogers, 13 Cal. 159. The constitutional provision, and also the statutory provision, in California, were substantially like those in Colorado, and the points decided in this case were these:

"The constitution is not a grant of power, or an enabling act, to the legislature. It is a limitation on the general powers of a legislative character, and restrains only so far as the restriction appears, either by express terms or by necessary inference.

"The act of April 19, 1856, permitting non-resident aliens to inherit real and personal estate, is constitutional. The constitution (article 1, § 17) [which corresponds to the section of the Colorado constitution I have just read] gives the bona fide resident alien certain rights, which may be enlarged, but cannot be abridged, by the legislature."

That I understand to be a sound rule; the rights guarantied by the constitution cannot be taken away, but other rights may be given to the same or to other persons. The legislature may go further in the conferring of these rights upon aliens, but they cannot do less than that which the constitution requires.

It appears that the complainants, through their lawfully authorized agent, and the defendant C. C. Howell entered into the contract set out in the bill, whereby the defendant agreed to buy the interest in the said mining claims. In my opinion the said contract was not a mere option to buy on the part of Howell, from which he could withdraw at pleasure, without restoring to complainants the possession of the property and of all rights as they existed before the execution of the contract. Here arises a question of a good deal of importance in the case. It depends upon the construction of the contract between the parties; it is a very voluminous contract; I shall not undertake to read it. It is in substance a contract whereby these heirs agreed to sell this mining property to Howell. Howell agreed to spend $25,000 within a year in developing the mines, and agreed to pay $33,000 as a consideration for the conveyance at the end of the year. There were other provisions, which need not be referred to. The one relied upon by the defendant. as constituting this contract a mere option, is as follows: