Here the property in question is not in the possession of the defendants. The possession of the receiver has not been invaded. He has not been in possession, is not seeking possession ; and there is no question in the case relating to that subject. But the order of the court expressly requires the receiver to secure and protect It is to be presumed the receiver filed this "the assets, franchises and rights," and "the bill, as it is framed in accordance with the ad- land grant and reservation of said company.' vice of counsel. Bk. v. Dandridge, 12 Wheat. 70. He is seeking to perform that duty by enjoining The authority given by the decree is ample. the appellants from doing illegal acts, which Still the question arises whether it was compe- I the bill alleges, if done, would render the rights font for him to proceed in his own name instead and title of the company to the immense prop

state law, why may not a mandamus issue to him to compel him to sell it, or patent it in the case of land, which cannot be done even to an officer of the United States (McIntire v. Wood, 7 Cranch, 505); and how far would this stop short of transferring the entire state authority to the Federal judges?

courts of the several states, of all suits of a civil nature at common law or in equity," etc.

It is obvious that there may be a power to give remedy in the United States courts, which does not exist in those of the state.

The clear and able opinion of the court, in Payne v. Hook, 7 Wall. 429, 19 L. ed. 261, rules this point completely.

If the state officers are proceeding to sell land under a state law which violates the obligation Now, whether state statutes place a governor of a contract, that question cannot be tried un- beyond the jurisdiction of a state court, or juder an issue with him, but must come up be-dicial decisions founded on public policy do so, tween the private parties who lay claim to the property, as in the case of Cooper v. Roberts, 18 How. 173, 15 L. ed. 338.

makes no difference. If he is beyond reach of law in the courts of his own sovereignty, he is not in those of the superior sovereignty of the Union.

gally with some valuable right, as by giving an unlawful tax deed, could be stayed and reversed by certiorari. The common law is formally adopted in Texas, but not its system of pleading. See, Bennett v. Butterworth, 11 How. 674; Dallam (Dec.) 402, 403. If any means of remedy exist, Payne v. Hook completely applies. But if no such means exist, why is it? Only because the governor cannot be forced to obey the decree. But this is no reason for the nonexercise of jurisdiction. Non constat that compulsory action will be needed.

Messrs. Cortlandt Parker, B. R. Curtis, Gray and J. Alfred Davenport, for appellee: In this case, there must be some remedy by It is alleged that the real defendant is the the law of Texas. At common law, an act of a state of Texas. Not so; only these officers of the public officer, injurious to an individual, as by state. And they are disobeying its real com-laying a wrongful tax or investing another illemand, by the acts which we seek to enjoin. The record must show who is party to the suit. There can be no other party than apparent there, if persons, natural or artificial, are named as parties. That Texas bids its officers to do this wrong, is a fact which shows it is interested in the question, not in the suit. In the case cited against us of the Governor of Ga. v. Madrazo, no person was sued or named as defendant. The bill was filed against "the government" simply. See the observations of the court in Governor of Ga. v. African Slaves, 1 Pet. 123. The case, instead of being against us, seems to show that, had the individual who was governor, been named as defendant on the record, jurisdiction would have been held. In our case, we seek a personal decree. In that the decree sought was against no person, but against the state treasury.

The case of Osborn v. Bank, reported on appeal, in 9 Wheat. 738, is the pattern case for this. Almost every point, as to remedy taken here, is adjudged there, and among them is the one we now discuss. That suit was brought to restrain obedience to the law of the state, which was in derogation of the Constitution of the United States. The defendant was sued by his individual name, and by the addition of "Auditor of the state of Ohio." Here the defendants are prosecuted by their individual names, one as land commissioner, the other as governor, to restrain obedience to the laws of Texas, because passed in disobedience to the Constitution of the United States.

And so far from holding, as is argued here, that the fact that the state was principal in the wrong case it the real party to the causes. Ch. J. Marshall, in one of his illuminating opinions, made that, in view of the impossibility of suing a state, a strong if not a controlling reason, why the suit should be sustained. It was held in addition, that so long as the party on the record was a right one, the court would look no further, especially when other proper parties could not be joined. This was to avoid denial of justice.

It is alleged that there is no jurisdiction over the suit, because it is against the governor of a state, and the commissioner of the land office, who, it is said, is only a hand of the executive. This point compels a brief consideration of the judiciary act. That act, sec. 11 (1 Bright. 126), reads thus: "The circuit courts shall have original cognizance, concurrent with the

The principle applicable was settled in Burr's Case, and has lately been applied after careful review in Thompson v. German Valley Co. 22 N. J. Eq. 111, decided in chancery of N. J., yet unreported. In Burr's Case, Ch. J. Marshall directed a subpoena duces tecum to the President, commanding him to appear in his circuit court at Richmond, on a certain day, and bring with him a certain letter. In the New Jersey case a like subpoena was issued to the governor, commanding him to appear before a master and produce a paper which one of the litigants said was a law, and the other denied to be so. In both cases the court admitted that if the executive, thus commanded to come, refused, or coming, refused to produce the document called for, they could not or would not compel him. But that was solemnly held to be no ground why the citizen was not entitled to the issue of the command.

Marbury v. Madison, 1 Cranch, 138, will be found to imply, if it does not express, the same doctrine.

And all the cases make a distinction between jurisdiction as to acts which are per se executive, and those which do not arise from the nature of the office, but are required by act of legislature or the executive, and the character of which is such that any person might perform them.

See, op. of Bartley, Ch. J., in Ohio v. Chase 5 Ohio St. 529, where it was held that mandamus might lawfully issue to the governor; and of Caton, Ch. J., in 11 III. 273, when an action against the governor was sustained.

There are cases in which mandamus actually issued against the governor.

See, Cotten v. Ellis, 7 Jones' Law, N. C. 545; R. Co. v. Governor, 23 Mo. 353; R. Co. v. Sibley, 2 Minn. 13; Chamberlain v. Sibley, 4 Minn. 309; see, also, 7 Ohio St. 372; Bonner v. Ga. 7 Ga. 480,

In Marbury v. Madison, 1 Cranch, 170, it is said: "It is not by the office of the person to whom the writ is directed, but the nature of the thing to be done, that the propriety or impropriety of issuing the mandamus is to be determined. Miss. v. Johnson, 4 Wall. 475, 18 L. ed. 437, was a political case. The object was to restrain the President from carrying out one of the reconstruction acts.

resent all in whose behalf he is about to do illegal acts. It is in this representative capacity that he is made respondent in a petition for a mandamus, and a fortiori in such a proceeding as is now in question.

Nor do the facts, that the particular subjectmatter now in question is public land of a state, and that the officer now in question is charged by the law of the state with its disposition, afNow, the United States courts have no diffi- ford any solid ground of distinction, so far as culty here in enforcing the remedy sought; nor respects the jurisdiction of the court. does the suit concern any act, per se, distinctive If the title of a complainant in equity deof gubernatorial office. An injunction now ex-pends upon the action of a private trustee who ists in this case. Does it provoke disobedience has a discretion to refuse to act, a court of or rebellion? Does it create conflict of author-equity will not compel him to exercise his disity? And if it is disobeyed even, cannot this court enforce it? Is the governor above the United States laws? If he breaks the least of the Criminal Code, is he not responsible? Is there any difference as to the Civil Code?

The case may be viewed as an independent and original suit by a trustee, who, by reason of the citizenship of the parties, has the constitutional right to invoke the judicial power of the United States to vindicate his equitable title. But this is not the aspect in which the bill is to be viewed. It is not consistent, either with its facts or its law.

It is not an independent and original suit by an ordinary trustee. It is a proceeding by a receiver, an officer of the circuit court of the United States which appointed him, to bring under the notice of that court a threatened irreparable injury to property confided to his care as the servant of the court, and to invoke its power to protect the exercise of its own doubted jurisdiction.

cretion in favor of the complainant, because the party which created the trust confided the discretion to the trustee and not to the court; and so in the case of a public officer. But the prineiples which restrain the court are principles of jurisprudence, which it applies in the exercise of its jurisdiction; so that, when we have a case of a public officer, having confided to him by law the disposition of public lands, we cannot stop short on that. Whether it is public lands or any other property, is not material. Whether he is a public officer or a private trustee, is not material.

The questions are:

1. Has the court obtained jurisdiction over the subject-matter in question-in this case the inchoate title to the lands?

2. Has the party applying to the court for the exercise of its jurisdiction to restrain the acts threatened, a complete and vested title, inun-dependent of all discretion of the public officer, so that he has no power confided to him by law to do the acts which he threatens to do, and which, if done, will inflict irremediable injury on the property which is under the custody of the court?

In this aspect of the case, it is entirely immaterial that the threatened injury is under color of state laws and by state officers. The courts of the United States would be in a help less condition, indeed, if their full and free exercise of jurisdiction could be in any way, or to any extent, interfered with by state officers, acting under color of state laws; and there does not seem to be the least doubt, either on principle or authority, that a state officer, even when acting under color of an express command from the state, cannot interfere either with property or persons under the custody or control of the courts of the United States; and it is equally clear that all known writs and processes, whether writs of mandamus to compel state officers to do acts, or writs of injunction restraining them from doing acts, which writs are issued in the exercise of the jurisdiction of the courts of the United States, are warranted by the Constitution and laws of the United States, and that whatever proceedings, whether by bill, petition or motion, which are proper to invoke such action of the court, are within its jurisdiction, and find no barrier in the fact that the person complained of is an officer of a state and acting under color of state authority.

The first of these questions, we suppose, must be answered, without hesitation, in the affirmative.

The inchoate title of the Railroad Corporation to its land reservation, if it existed, as stated in the bill, came under the jurisdiction of the court in the suit in which the receiver was appointed, and by his appointment and the decrees made in connection therewith, was subjected to the control of the court for all the purposes of that suit, to be managed and disposed of as the court might think equity required.

The second of these questions depends upon the merits of the case, which have heretofore been fully argued, and since that argument, the supreme court of Texas has pronounced an opinion in a parallel case of the R. Co. v. Comr. of the Land Office, 36 Tex. 382. As these questions arise under the Constitution and laws of the state of Texas, and have been decided in favor of such a title as is asserted by this bill, and the supreme court of Texas has issued its writ of mandamus, commanding the commisFreeman v. Howe, 24 How. 450, 16 L. ed. 749;sioner of the land office to issue patents in conAbleman v. Booth, 21 How. 506, 16 L. ed. 169; formity with what the court decides to be a Riggs v. Johnson Co. 6 Wall. 166, 18 L. ed. 768; valid and binding contract of the state, it is Mayor v. Lord, 9 Wall. 409, 19 L. ed. 704; Os-presumed there can be no further necessity for born v. Bank of United States, 9 Wheat. 738. argument on this part of the case.

And it is wholly immaterial who stands behind the officer, or in whose favor he is acting. So long as he is the actor, he is the person to be proceeded against, and must be taken to rep

Mr. Justice Swayne delivered the opinion of the court:

This is an appeal in equity from the decree of

zos river, within four years from the 1st of March, 1856.

(2) To run and designate the center line of the reservation from the Brazos to the Colorado, within fifteen months from the 10th of February, 1858.

(3) To survey the whole reserve within ten years from February 10, 1858.

(4) To have a connection with some road leading to the Mississippi or gulf of Mexico within ten years from February 10, 1858.

(5) That the company shall have finished and *229] in running order at least twenty-five miles of their road within one year after it is connected with certain other roads mentioned in the act, and at least fifty miles every two years thereafter until the road is completed.

(6) That the right to acquire lands from the state by donation shall cease at the expiration of fifteen years from February 10, 1858.

The first two conditions were performed within the time prescribed. These points are covered by the averments of the bill. The time limited for the performance of the third and fourth is extended from February 10, 1868, to June 10, 1873, by adding the time of the continuance of the war, according to the act of February 18, 1862, before referred to. When the bill was filed there were no such roads as those mentioned in the fifth condition with which a connection could be formed. The fifteen years limited, by the sixth condition expired February 10, 1873. The period that elapsed during the war is to be added. That extends the time so much further.

The title of the company is therefore unaffected by the breach of any condition annexed to the grant.

But suppose there had been such breaches, as is insisted by the counsel for the appellants, the result must still be the same.

❘ must have been a re-entry, or something equivalent to it, or the suit must fail. The right to sue at law for the breach is not alienable. The action must be brought by the grantor or some one in privity of blood with him. Nicoll v. R. Co. 12 N. Y. 121; Ludlow v. R. Co. 12 Barb. 440; Webster v. Cooper, 14 How. 488. In Dumpors' Case, 4 Co. 119, it was decided that a condition not to aliene without license is finally determined by the first license given.

Here the controlling consideration is, that the performance of all the conditions not performed was prevented by the state herself. By plunging into the war, and prosecuting it, she confessedly rendered it impossible for the company to fulfill during its continuance. This is alleged in the bill, and admitted by the demurrer.

The rule at law is, that if a condition subsequent be possible at the time of making it, and becomes afterwards impossible to be complied with, by the act of God, or the law, or the grantor, the estate having once vested, is not thereby devested, but becomes absolute. Co. Litt. 206 a, 208 b; 2 Bl. Com. 156; 4 Kent, Com. 130. The analogy of that rule applied here would blot out these conditions. But this would be harsh and work injustice. Equity will, therefore, not apply the principle to that [*231 extent. It will regard the conditions as if no particular time for performance were specified. In such cases the rule is that the performance must be within a reasonable time. Hayden v. Stoughton, 5 Pick. 528; 4 Kent, Com. 125, 126; Com's. Dig. Condition, G, 5. We are clear in our conviction that, under the circumstances, a reasonable time for performance had not elapsed when this bill was filed. As the state, by the act of July 27, 1870, created the Southern Transcontinental Railroad Company, and authorized that company to "purchase the rights, franchises and property of the Memphis, El Paso, & Pacific Railroad Company," it will be but right to allow a reasonable time for that purchase to be made, if such an arrangement can be effected, and for the vendee thereafter to perform all that was incumbent upon the Memphis, El Paso, & Pacific Railroad Company by its charter and the supplementary and amendatory acts. If that arrangement cannot be made, the latter company will have the right to provide otherwise for the fulfillment of its obligations to the state within such time, and There is a wide distinction, between a condi- thus consummate its inchoate title to the lands tion precedent, where no title has vested and within the reservation. Either will be in acnone is to vest until the condition is performed, cordance with the principles of reason and jusand a condition subsequent operating by way of tice, and within the spirit of weil considered defeasance. In the former case equity can give adjudications. Walker v. Wheeler, 2 Conn. 299; 230*] *no relief. The failure to perform is an Beaty v. Harkey, 2 Sm. & M. 563; Moss v. Matinevitable bar. No right can ever vest. The re-thews, 3 Ves. 279; Barnardiston v. Fane, 2 sult is very different where the condition is sub- Vern. 366; Popham v. Bampfeild, 1 Vern. 83; sequent. There equity will interpose and relieve Wake v. Wake, 3 Bro. Ch. 255; Taylor v. Popagainst the forfeiture upon the principle of hain, 1 Bro. Ch. 168; 1 Bac. Abr. 642; 1 Madd. compensation, where that principle can be ap-Ch. Pr. 41, 42; Bank v. Smith, 3 Gill & J. 265. plied, giving damages, if damages should be given, and the proper amount can be ascertained. Wells v. Smith, 2 Edw. Ch. 78; Beaty v. Harkey, 2 Sm. & M. 563. By the common law a freehold estate could not be created without livery of seisin, and it could not be determined without some act in pais of equal notoriety. Conditions subsequent are not favored in the law, 4 Kent. Com. 129, and when they are sought to be enforced in an action at law, there

Except as to a small portion of the land in question the legal title is yet in the state. Whatever may be the right of the company it is wholly equitable in its character. With a few exceptions, which have no applicability in this case, the same rules apply in equity to equitable estates as are applied at law to legal estates. They are alike descendible, devisable, alienable and barable. Jickling, Analogy of Estates, etc. 17; Croxall v. Shererd, 5 Wall. 281, 18 L. ed. 577.

Both parties will thus be put in the same situation, as near as may be, as if the breaches had not occurred. Neither will be subjected to any serious hardship. The state, by her own acts, has lost the benefits of an earlier completion of the work. The company has lost the income which it might have enjoyed, and has doubtless been thrown into embarrassments it would have escaped. The circumstances do not