Under Equity Rule 92, where a part of the mortgage premises has
been sold to the sovereign power which refuses to waive its
exemption from suit, the court can, all other parties being joined,
except the land so conveyed and decree sale of the balance and
enter deficiency judgment for sum remaining due if proceeds of sale
are insufficient to pay the debt.
A sovereign is exempt from suit not because of any formal
conception or obsolete theory, but on the logical and practical
ground that there can be no legal right as against the authority
that makes the law on which the right depends, and as this doctrine
is not confined to full sovereign powers, it extends to those, such
as the territories of the United States, which in actual
administration originate and change the law of contract and
A territory of the United States differs from the District of
Columbia in that the former is itself the fountain from which
rights ordinarily flow, although Congress may intervene, while, in
the latter, the body of private rights is created and controlled by
Congress, and not by a legislature of the District.
17 Haw. 82 affirmed.
The facts are stated in the opinion.
Page 205 U. S. 352
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is an appeal from a decree affirming a decree of
foreclosure and sale under a mortgage executed by the appellants to
the appellee, Sister Albertina. 17 Haw. 82. The defendants
(appellants) pleaded to the jurisdiction that, after the execution
of the mortgage, a part of the mortgaged land had been conveyed by
them to one Damon, and by Damon to the Territory of Hawaii, and was
now part of a public street. The bill originally made the territory
a party, but the territory demurred and the plaintiffs dismissed
their bill as to it before the above plea was argued. Then the plea
was overruled, and after answer and hearing, the decree of
foreclosure was made, the appellants having saved their rights. The
decree excepted from the sale the land conveyed to the territory,
and directed a judgment for the sum remaining due in case the
proceeds of the sale were insufficient to pay the debt. Eq.Rule
The appellants contend that the owners of the equity of
redemption in all parts of the mortgage land must be joined, and
that no deficiency judgment should be entered until all the
mortgaged premises have been sold. In aid of their contention, they
argue that the Territory of Hawaii is liable to suit like a
municipal corporation, irrespective of the permission given by its
statutes, which does not extend to this case. They liken the
territory to the District of Columbia, Metropolitan
Page 205 U. S. 353
R. Co. v. District of Columbia, 132 U. S.
, and point out that it has been a party to suits that
have been before this Court. Damson v. Hawaii,
194 U. S. 154
Carter v. Hawaii, 200 U. S. 255
The territory, of course, could waive its exemption, Smith
v. Reeves, 178 U. S. 436
it took no objection to the proceedings in the cases cited if it
could have done so. See
Act of April 30, 1900, c. 339, §
96. 31 Stat. 141, 160. But, in the case at bar, it did object, and
the question raised is whether the plaintiffs were bound to yield.
Some doubts have been expressed as to the source of the immunity of
a sovereign power from suit without its own permission, but the
answer has been public property since before the days of Hobbes.
Leviathan, c. 26, 2. A sovereign is exempt from suit not because of
any formal conception or obsolete theory, but on the logical and
practical ground that there can be no legal right as against the
authority that makes the law on which the right depends. "Car
on peut bien recevoir loy d'autruy, mais il est impossible par
nature de se donner loy.
" Bodin, Republique, 1, c. 8, ed.
1629, p. 132; Sir John Eliot, De Jure Maiestatis, c. 3. Nemo suo
statuto ligatur necessitative. Baldus, De Leg. et Const. Digna
(2d ed. 1496, fol. 51b, ed. 1539, fol. 61).
As the ground is thus logical and practical, the doctrine is not
confined to powers that are sovereign in the full sense of
juridical theory, but naturally is extended to those that, in
actual administration, originate and change at their will the law
of contract and property, from which persons within the
jurisdiction derive their rights. A suit presupposes that the
defendants are subject to the law invoked. Of course, it cannot be
maintained unless they are so. But that is not the case with a
territory of the United States, because the territory itself is the
fountain from which rights ordinarily flow. It is true that
Congress might intervene, just as, in the case of a state, the
Constitution does, and the power that can alter the Constitution
might. But the rights that exist are not created by
Page 205 U. S. 354
Congress or the Constitution, except to the extent of certain
limitations of power. The District of Columbia is different,
because there the body of private rights is created and controlled
by Congress, and not by a legislature of the District. But, for the
Territory of Hawaii, it is enough to refer to the organic act. Act
of April 30, 1900, c. 339, §§ 6, 55. 31 Stat. 141, 142, 150.
Coffield v. Territory,
13 Haw. 478. See further,
Territory v. Doty,
1 Pinney 396, 405; Langford v.
1 Mont. 33; Fisk v. Cuttabert,
2 Mont. 593,
However it might be in a different case, when the inability to
join all parties and to sell all the land is due to a conveyance by
the mortgagor directly or indirectly to the territory, the court is
not thereby deprived of ability to proceed.
MR. JUSTICE HARLAN concurs in the result.