An act of Congress entitled "An act to enable the City of Denver
to purchase certain lands for a cemetery" authorized the mayor to
enter the lands at a minimum price "to be held and used for a
burial place for said city and vicinity." A patent was issued
conveying the land to the "mayor in trust for said city and to his
successors," which was confirmed by a later act. The Catholic
Bishop of Denver petitioned the common council for a conveyance of
a part of the land to him and his successors on the ground that it
had been bought by him and used as a burial place. The petition was
granted, and the mayor made a deed in the name of the city, the
grantee being described as Bishop of Colorado,
habendum to
him and his heirs. Subsequently the bishop conveyed a part of the
land so conveyed to him which had not been used for burial purposes
to defendant's predecessor in title. A later mayor brought
ejectment for this part.
Held that the title was not in the plaintiff.
Semble, that the title was in the city, that it had
power to convey the land, and that the deed executed was sufficient
so far as the question was open.
The case is stated in the opinion of the Court.
Page 191 U. S. 56
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is an action of ejectment brought in the Colorado state
court and removed to the circuit court of the United States. The
case was tried in the latter court, and a verdict and judgment were
ordered for the plaintiff on the undisputed facts. On exceptions, a
judgment was ordered for the defendants by the circuit court of
appeals, 106 F. 452,
see 79 F. 577, and the case was
brought here by writ of error. The defendants claim title under a
sale by the City of Denver and a deed executed by the mayor of the
city. The plaintiff contends that the act of Congress under which
the original patent was granted made the land inalienable, that the
patent did not give the city a legal title, that the city had no
power to convey, that the alleged authority of the city to the
mayor to execute the deed was insufficient, and that the deed did
not follow the resolution upon which the defendants rely.
The Act of Congress approved May 21, 1872, c. 187, 17 Stat. 140,
was entitled "An Act to Enable the City of Denver to Purchase
Certain Lands in Colorado for a Cemetery," and it authorized the
mayor of the city to enter at the minimum price certain lands
including the land in question, "to be held and used for a burial
place for said city and vicinity." The price was paid, and a patent
was issued purporting to convey to the "mayor, in trust for said
city, and to his successors," the said land, not referring to the
above act otherwise than by the words "in conformity with the
several acts of Congress in such case made and provided." This
patent was confirmed by an Act of Congress approved January 25,
1890, c. 3, 26 Stat. 2, and the City of Denver was authorized
"to vacate the use of the said land, or any portion thereof, as
a cemetery, and to appropriate and use the same or any part thereof
for a public park or grounds. "
Page 191 U. S. 57
After the passage of the first act, Joseph P. Macheboeuf, the
Roman Catholic bishop of Denver, made a petition to the Mayor and
Common Council of Denver representing that, in 1863, he had
purchased a part of the said lands, and that the same had been, and
was, used as a burial place, and asking for a conveyance to him and
his successors in office. A committee recommended that the petition
be granted, and the council voted to adopt the report. On February
6, 1874, for a stipulated price which was received, a deed was
executed by the mayor in the name of the city to Macheboeuf,
described as bishop of Colorado,
habendum to him, his
heirs and assigns, "for the purposes aforesaid." The land in
controversy is a part of the land embraced in this deed, and, never
having been used for burial, was conveyed by Macheboeuf to the
defendants' predecessor in title.
On the foregoing facts, it is sufficiently evident that the
plaintiff has no title, and that would be enough to show that the
judgment must be affirmed. The action is brought by the present
mayor in his own name, not by the city. Furthermore, it also is
plain enough that the city did get a title by the patent. The first
act of Congress contemplated a purchase by the city, and the patent
was to the mayor in trust for the city. This trust was executed by
the statute of uses. The second act recites that the city has
received and paid for a patent. It is argued that the words in the
first act, "to be held and used for a burial place for said city
and vicinity," show a trust more extensive than the city, and
therefore prevent the execution of the use. But these words are not
in the patent, and, if they had any effect, only would impose a
trust upon the city; they would not prevent the operation of the
habendum in the deed. It is suggested that the answer
admits that the title was in the mayor until the conveyance by the
city. But this is a mere conclusion of law. The answer sets up the
facts in full, and it is apparent that no point was made on the
pleadings below. On the contrary, it is said, and is not denied,
that after a decision to that effect on demurrer,
Page 191 U. S. 58
79 F. 577, it was admitted by the plaintiff that the legal title
vested in the city by virtue of the patent of the United
States.
If the legal title was in the city, it was an absolute title. In
view of the extreme unwillingness of courts to admit the existence
of a common law condition, even when the word "condition" is used,
it needs no argument to show that there was no condition or
limitation here.
Stuart v. Easton, 170 U.
S. 383. Little more needs to be said to show that the
act of Congress did not make the land inalienable at common law. We
need not consider whether the act could have that effect upon land
within a state, when the conveyance was absolute, and was made to a
citizen or instrumentality of the state; we express no opinion upon
the point. It is enough that it did not purport so to restrict the
ordinary incidents of title. We should require the clearest
expression of such an unusual restriction before we should admit
that it was imposed, especially in an ordinary sale for cash. Here,
the act probably meant no more than to explain the motive for a
sale at a minimum price.
Mahoning County v. Young, 59 F.
96. The ratified patent said nothing of any restriction, or even
any trust beyond the one executed in the city. Of course, however,
no question of trust is before us. If the city had found it more
convenient to convey the land to a cemetery corporation, there is
nothing in the statutes or patent which would have prevented it.
The conveyance to the bishop was essentially similar to the case
supposed, except in technical form, and probably was made on
grounds of justice that very possibly were considered by Congress.
The Catholics had spent money on the land, and had used it for a
burial ground long before Congress passed the act.
If the city got a fee simple absolute, as in our opinion it did,
we are not called upon to spend time on the question of its power
under the laws of the state, or of its action in the premises.
These questions were not much argued here. The city had a general
power of alienation by charter, and we are not
Page 191 U. S. 59
prepared to say that the power did not extend to burying
grounds. The vote to adopt the report was a sufficient vote to
sell, and the question is not open whether there was any
informality in the execution of the sale by the mayor, rather than
by a special commissioner. The supposed error would be corrected by
equity if necessary. After the price had been received by the city,
and the land had been occupied by purchasers for nearly twenty
years, the city would not now be allowed to profit by a merely
technical mistake.
The objection that the deed did not follow the authority is
unfounded. Giving Macheboeuf a wrong title had no effect on the
grant, and the
habendum properly was to him and his heirs,
notwithstanding the petition, and the intent that the title should
follow the office and not the blood of the grantee. Apart from
statute, the law does not recognize the bishop as a corporation
sole, and therefore the land could not be limited to him and his
successors. At all events, it was sufficient to give the bishop a
fee by the proper words, and to leave the official succession to
the title to be effected by other means than the limitation in the
deed. The petition of Macheboeuf no doubt contemplated that he
would take the land for the benefit of his church, and no doubt he
did so in fact. But there was nothing which required this intention
to be expressed in the deed. The plaintiff is not concerned with
the extent of Macheboeuf's power to convey to secular uses.
Judgment of the circuit court of appeals affirmed.