Mr. Abbott to Mr. Blaine.

No. 48.]

Sir: The consul at Colon, General Vifquain, has requested that the friendly offices of this legation may be employed in his behalf upon the following state of facts:

Mrs. S. H. Smith, who, I presume, was a citizen of the United States, and who died in Colon, left, inter alia, two tenement houses, situated in Colon upon land leased of the Panama Railroad Company. The consul, acting under section 10, article 3, of the consular convention of 1850, undertook to settle her estate. In pursuance thereof, he sold the two houses at auction in July, 1888, and applied the proceeds in settlement of debt.

On October 25, 1889, the local authorities intervened, and the local judge ordered all claims against the estate to be presented before his court and the houses to be sold in 180 days from that date. He, furthermore, put a receiver in possession of the houses and dispossessed the purchaser at auction sale, who was an American citizen. The details of the whole matter may be found in the letter of the consul to me, dated November 7, 1889, to which I refer, and a copy of which I inclose, excepting only the inclosures therein referred to, which are, I presume, on the files of the Department.

The request of the consul is that I apply to this Government to cause a committee to be appointed to examine the claims he has paid, and, on their report that they are correct, to legalize all his doings in the premises.

It seems plain that, if the consul has acted within the law, this Government should not be asked to legalize his doings, but rather a demand as of right should be made for the cessation of all interference by the local authorities.

But, if the consul acted contrary to law or exceeded his authority, then the good offices of this legation may well be employed in his behalf.

It becomes, then, important to decide, before acting in the matter: (1) Whether a consul of the United States has the right to take possession of, inventory, and sell the personal property of a citizen of his country dying in Colombia, under and by virtue of the provisions of section 10, article 3, of the consular convention; and (2) whether the houses in question are real or personal property.

I do not deem myself justified in asking this Government to legalize Mr. Vifquain’s acts, without instructions to that effect, as I should thereby admit that our consuls have no rights under the said section of the convention, an admission which might embarrass the Department in case it should hold that our consuls are entitled to settle [Page 232] estates in such cases. On the other hand, a remonstrance, on the ground of an infringement of treaty stipulations, would as seriously embarrass the Department in case it should hold that under the present laws of Colombia our consuls are not entitled to act in such cases.

I have therefore concluded to submit the matter to the Department for instructions, with as full an explanation of the attitude of this Government and the local laws as I have been able to procure; and I shall await a reply by cablegram, or by mail, as may be deemed necessary.

First. The question is as to a consul’s right to settle estates of his countrymen dying here.

This right depends upon the provisions of article 3, section 10, of the convention, which, after defining what a consul may do in such cases, provides as follows:

But consuls shall not discharge these functions in those states whose peculiar legislation may not allow it.

When the convention was made there were no states in Colombia. The country was a centralized Republic, and there was no general law defining the rights of consuls in such cases. The estates of deceased American citizens were settled as were those of Colombians until this convention came into force.

Some years later, about 1858, New Granada became the United States of Colombia, in which were erected a number of partially independent States, which from January 1, 1860, made their own laws upon these and many other matters.

Under date December 14, 1870, Mr. Fish, Secretary of State, in his No. 31 to Mr. Hurlburt, then minister here, directed him to remonstrate against the course of the local authorities in Panama in interfering with the administration by the then consul at that city upon the estate of one J. J. Landerer.

The minister’s remonstrance can not be found among the archives, but the long reply of the Government thereto, under date of April 28, 1871, after stating that information had been asked from the Panama authorities, goes on to claim that the whole matter must depend upon the law of that State; that the fact that that State was erected after the making of the convention does not imply, as “insinuated” by our minister in his remonstrance, that its laws can not deprive our consuls of the rights named therein; that Colombia recognizes the right of newly erected States in the United States to make prohibitory laws in this respect, as well as the right of the States existing in 1850, and claims reciprocity; that, “accepted this principle (of reciprocity), it is clear that the word ‘states,’ which is made use of in the convention, does not refer solely to those of North America, even although Colombia (then New Granada) was not publicly divided in sections of that name, and even although this part of legislation was not conceded to them.” Then follows an argument upon the tense of the word “permitir,” i. e., “allow,” and the conclusion that “it appears beyond doubt that it was sought to express the desire of the contracting parties to leave to the states or sections of both Republics complete liberty to permit consuls to exercise the powers referred to or to deprive them of such powers.” The note also states that the laws of Panama then existing conferred upon the courts alone the settlement of estates, be the deceased a foreigner or a native.

I can find no further correspondence in this case, and so do not know the result, and this is the only case of which I have found any trace. I mention it as possibly throwing some light upon the probable attitude of Colombia now.

[Page 233]

In 1885 the United States of Colombia became the Republic of Colombia, the States being degraded to departments, and deprived of the power to legislate, except upon minor matters. The national law in force in the whole Republic since July 22, 1887, provides that, if a deceased person shall leave foreign heirs, the consul of the nation of these heirs shall have the right to name the “curador,” who shall have the custody and administration of the property.

I inclose a copy and translation of a written statement of a Bogota lawyer, in which this law appears, together with its effect, leaving out the question of public treaties.

I have consulted two lawyers who stand high in the profession, and they inform me that a “curador” is more or less what we call an administrator; that the estates of all foreigners are, outside of treaty stipulations, to be settled in the manner indicated in said law; and that foreign consuls have no other rights than that of nominating the “curador.”

Second. The second question is as to the character of the houses, whether they are real or personal estate. If they are real estate, then the consul has exceeded his authority.

On this point I inclose a copy and translation of the opinion of Messrs. Escobar & Gutierrez, lawyers, in relation to the same, in which the law in relation to the matter appears.

I have written Consul Vifquain to forward to the Department at once a statement of the terms of the lease under which the houses are permitted to stand upon the land of the railroad company.

I will add that the first law in New Granada upon the rights of consuls in such cases was passed, substantially, in the form in which it exists in the civil code of Cundinamarca, as noted in inclosure No. 2, on May 29, 1850, 25 days after the signing of the consular convention, and continued to be the law of the Republic up to January 1, 1860. So that the statement in said inclosure, that the Spanish law was that in force up to that date, must be somewhat modified.

The question as to the houses has never been raised in these courts, so far as my lawyers know, and, if it had been, it would throw no light upon the matter, as the courts are not bound by precedent.

I trust that the suggestions herein made may be useful in the consideration of the case presented by the consul.

I have, etc.,

John T. Abbott.
[Inclosure 1 in No. 48.]

Mr. Vifquain to Mr. Abbott.

Sir: I respectfully submit the following to your consideration:

In July, 1888, I ordered sold at public auction by licensed auctioneers, after duly advertising, the houses belonging to the estate of the late Mrs. S. H. Smith. I had some doubt as to my right to selling [sic] those houses, yet, as claims were coming in at the consulate thick and fast, and there being no ready cash on hand, I wrote to the Department of State my dispatch No. 36 (inclosure No. 1), and I received in answer dispatch No. 30 (inclosure No. 2).

This dispatch from the State Department means that, if, in my judgment, I deemed it best for the estate to sell, that I should sell, and vice versa. Owing to the impending, collapse of the canal, which was visible enough then, I deemed it best to sell, and so notified the Department of State in my dispatch No. 42 (inclosure No. 3).

[Page 234]

Evidently, nothing in the dispatch No. 30 of the Department of State intimated to me that I had not the right to sell; so I sold for $6,500 (Colombia a silver) to Mr. Potevin, an American citizen.

There was no will left, and, to my knowledge then, no heirs, and my belief was that the United States became the heir.

Now, then, the prefect, the judge, and everybody knew that I was going to sell the houses through the instrumentality of “licensed Colombian auctioneers.” This was notorious, and yet not the slightest word to me by them that I had not the right to sell. On the contrary, when I took possession of the houses, Tasked the judge to protect me in my rights in case they were disputed, and be told me he would. The prefect told me that the tenants of the houses were compelled to pay the rent to Mr. Potevin. Taxes were assessed against Mr. Potevin, and he paid them. We even paid the 6 per cent. mil. required by law to be paid for transfers of property. All this was received; not a word said by anybody. Can I not, then, claim the tacit consent of the authorities to sell, even though I had not the legal right to do so?

Thus great was my surprise when last February, nearly 8 months after Mr. Potevin bad been in peaceable possession, collecting rents and paying taxes, the prefect of this place, one J. M. Pasos, “denounces” the property as vacant and demanding possession. Property by this time had become depreciated full 100 per cent. [sic].

Well, all of a sudden I received news, last May, that there were heirs, and I at once notified the judge, one E. Morales, to that effect. The judge told me “all right,” and at once all proceedings were stopped until the heirs put in an appearance. I wrote to the United States to secure proper identification or presence of the heirs, but to this date I have bad, as yet, no reply, yet I have some evidence that there are heirs. They live in Sacramento, Cal., and I have before me an informal copy of a power of attorney given by them to one James M. Pugh, a banker in Osceola, Mo., to guard the interest of the heirs in the real estate left by Mrs. S. H. Smith and lying in that part of the State of Missouri.

However, the judge got tired of waiting, and, without consulting me or advising me, he issued a decree on October 25 last, ordering all the creditors of the estate to present their claims to his examination, giving them 180 days to do so, at the expiration of which time the houses would be sold by the court, and he at once put a receiver in charge, thus fully dispossessing Mr. Potevin.

As soon as I learned of this, I called upon the judge in relation to his decree. I told him I had paid the creditors after a most rigid scrutiny of their claims; that I understood this to be one of my prerogatives as consul; that he was aware I had fought some bogus claims in his own court, and that I had won my case; and that I had paid the creditors with the moneys received by me through the sale of the houses to Mr. Potevin; that I bad paid off a $4,000 (Colombian silver) mortgage on the houses and sent to the Treasury of the United States the 5 per cent, [sic] proceeds of the sales, in accordance with law; and that I had duplicate receipts for every payment made; that there were no more legal claims to my knowledge, and that I had acted in good faith all the way through.

He answered that he knew it, but that the only way to legalize all that I had done was for every creditor to put in a petition into his court praying that I might be deemed the legal claimant for each credit; that at the end of 6 months he would sell the houses; and that then I would be paid the moneys I had disbursed.

This, indeed, was a doubtful way for me to get the moneys I had paid, since the houses would not sell for one-half of what I had sold them for, besides placing in jeopardy the title of Mr. Potevin to the property. And I told him so; told him also that it was the most extraordinary thing on the part of the court and of the authorities “to be so kind” as to allow me to pay off the mortgage on the property and the creditors of the estate, and when I had done with all, and nearly 1 year afterwards, he and the authorities come in to claim the clear title to everything.

I further informed him that I would at once write to my ambassador at Bogota, that the case might be placed by him before the proper cabinet officer, or even before the President, with the request that a committee be appointed to examine the claims I had paid, and, after examination, provided they were found correct, as they will be, to have an order from his court legalizing my sale and all.

I suggest to you for that committee Mr. E. Morales, the judge himself, and Mr. Trapy Robinson, an American citizen here, the two to select another among the foreign consuls here.

This is about the only way I see out of this without having recourse to serious diplomatic proceedings.

To my mind, this seems to be a great wrong on the part of the authorities here. I believe I have acted legally. Surely, I have acted in accordance with instructions from the Department; but, even though my action had not been just exactly in accordance with law, why is it that no notice of my action is taken until I am through with it all and nearly 1 year afterwards? Can I not, from their silence, claim tacit consent?

[Page 235]

I respectfully refer you to article xii of the treaty of 1846: * * * “and their representatives, being citizens of the other party, shall succeed to their said personal goods or real estate, whether by testament or ab intestado, and they may take possession thereof.” I also respectfully refer you to Wharton’s International Law Digest, vol. 1, p. 782, Marcy to Aspinwall; and also p. 785, same volume, Cadwalader to Hopkins.

I very much regret to give you this trouble, but I can see no way to an agreeable solution of this question without your intervention, and I hope you will at your early convenience take steps to satisfactorily arrange this, otherwise it will be a virtual confiscation of this property, as well as a very great loss to me.

The settlements of estates are [sic] of no profit to a consul; they are very vexatious. I have done what the Colombian law requires shall be done—paid debts; the whole affair has been as open as daylight. I did not attempt to evade the laws. Moreover, there are the heirs in California, who are not even recognized by the court here. The claims I paid were looked into with much greater care than if the money had been my own, and the creditors were paid in full, what is seldom the case when courts take part in the proceedings.

I hope soon to hear that the proper cabinet officer in Bogota will order Judge E. Morales to look into my accounts and to legalize my sale after finding things, as they should be, correct. My plan satisfies the judge.

I am, etc.,

Victor Vifquain.
[Inclosure No. 1.]

Mr. Vifquain to Mr. Rives.

No. 36.]

Sir: Heavy claims are presented to me against the estate of the late Mrs. S. H. Smith, and no money on hand to meet them. The actual property left here consists of three houses worth some $10,000. These houses are built on lots leased from the Panama Railroad. There is no character of real estate attached to the lands on which the houses are built, so far as the late Mrs. Smith is concerned, since the land can not be sold by the railroad company; it is leased yearly at a rental of $750 American gold. Yet these houses are tenements. They are of a perishable nature and have been so pronounced by the most respectable of merchants here. Moreover, property here is depreciating, and it costs money to keep houses in good repair.

I respectfully ask whether, under the circumstances, I can proceed to sell these houses, it being certainly the best thing that can be done with them?

I am, etc.,

Victor Vifquain.
[Inclosure No. 2.]

Mr. Rives to Mr. Vifquain.

No. 30.]

Sir: I have to acknowledge the receipt of your dispatch No. 36, dated June 12, 1888, relating to the estate of the late Mrs. S. H. Smith.

You must use your best judgment in the case, as the facts are much more completely know to you than they can be to the Department.

It may, however, be suggested that perhaps it might be well to delay action for awhile until it be ascertained definitely whether Mrs. Smith did not leave a will. The fact that none was found at Colon does not establish that she made none, for one may yet be found in the United States. Should such a will be produced and proved, and the executor qualify, it would relieve you from considerable embarrassment and responsibility.

Again, it is understood here that houses at Colon are usually frail and inexpensive structures, costing little in the first instance, but producing in rent a large annual percentage. These facts would seem to lead to the conclusion that it would be well to postpone the sale of the houses as long as practicable.

With regard to claims against the estate, it will be well to scrutinize them with the utmost care, as all the circumstances point to the suspicion, at least, that dishonest demands are likely to be trumped up, and that Mrs. Smith was not likely to leave large debts unpaid.

[Page 236]

All these, you will understand, are but suggestions for your guidance; and while the Department strongly recommends a policy of great caution and deliberation in this case, it can not undertake to give you definite instructions.

I am, etc.,

G. L. Rives,
Assistant Secretary.
[Inclosure No. 3.]

Mr. Vifquain to Mr. Rives.

No. 42.]

Sir: Your dispatch No. 30, dated June 28, relating to the estate of Mrs. S. H. Smith, was duly received; and, inasmuch as you leave everything discretionary with me, I will sell the houses, and for the following reasons:

The tenure of the lots by the Panama Railroad Company is uncertain. They may at any day pass into the hands of the Government. What the value of those lots will then be is a matter of conjecture; the rent, ground rent, being liable to enhance, while that of the houses decreases.

Then, also, there is a $4,000 mortgage, with big interest, on the houses. Then, again, it is quite an expensive affair to keep the houses in good repair, to pay the taxes and ground rent, not speaking of the trouble to collect rents, all of which the consul is responsible for without the least compensation.

You are rightly informed as to the high rents here, yet they are declining rapidly; but you are not rightly informed as to the character of the houses, nor as to that of the deceased. The former cost nearly $20,000; the latter was a most careless person in the management of her business. There is no will; the deceased herself admitted this before her death.

Your obedient servant,

Victor Vifquain.
United States Consul.
[Inclosure 2 in No. 48.—Translation.]

Messrs. Gutierrez & Escobar to Mr. Abbott.

Sir: We are about to comply with the desire you were pleased to express to us verbally, that we should explain to you what there may be relative to the rights which foreign consuls formerly had, and now have, in this country as to the estates of their fellow-citizens, according to the ordinary laws solely, that is, laying aside the respective public treaties. We will refer especially to the former States, now departments, of Cundinamarca and Tolima.

Up to December 31, 1859, the Spanish legislation as it existed at the time of the independence was in force in those States in civil matters.

From January 1, 1860, until July 22, 1887, the civil code of Cundinamarca was in force in said departments, which contained these provisions:

“Article 595. If the heirs of the deceased upon whose estate it is necessary to appoint an administrator (curador) may be foreginers not residing in the State of Cundinamarca, the consul or vice-consul of the nation of these heirs, if there is one in the place of opening of the succession, may name the administrator or administrators (curador or curadors), who shall have the custody and administration of the property.

“Article 596. The judge shall grant the administration (curadoria) to the administrator or administrators proposed by the consul or vice-consul if they be fit persons, and on the petition of the creditors or other persons interested in the estates another or others to [act with] the administrator or administrators, according to the amounts and situation of the property which may compose the inheritance.

“Article 1067. When a foreigner dies in the territory of the State without leaving a will nor heirs, the property of the estate shall be delivered to the consul or vice-consul of the nation to which the deceased belonged; but, that this may be done, it shall be necessary:

  • “(1) That 1 year shall have passed after giving notice of the death of the foreigners by means of three consecutive printed publications, and no person having presented himself who could, according to the laws of Cundinamarca, succeed to the estate of the deceased person or take possession of the property as executor under the will. But, whenever such person shall present himself, he shall have the right, if [Page 237] there be no legal objection, to take possession of the estate, although the same may have passed into the hands of the respective consul or vice-consul, or may be subject to the disposition of the competent court, or under the care of an administrator of the unoccupied inheritance (herencia yacente).
  • “(2) That the judge having jurisdiction in the manner provided for in this code, and with the assistance of the consul or vice-consul, if there be one in the place, shall make a judicial inventory of the property of the deceased and see that the legal fees and taxes are paid and that the debts due from the deceased to citizens of Cundinamarca or of any other of the States of the Confederation are satisfied.

“There shall be made two certified copies of the judicial proceedings, which shall be sent to the minister of foreign affairs of the Government of the Confederation through the government of the State.

“Article 1068. The consuls and vice-consuls authorized to act as such in the territory of the State by the Government of the Confederation, to whom this code alone refers, in respect to the estates of their deceased fellow-citizens dying intestate in the State of Cundinamarca without leaving heirs in said State, may exercise the following functions:

  • “(1) To place their seals upon such documents and effects as the judge, by virtue of his office or at the solicitation of interested parties, may have previously sealed.
  • “(2) To assist in appraisals, inventories, and other judicial acts in the settlement of the estate which the succession may require.
  • “(3) To nominate an administrator or administrators, who shall have the custody and administration of the property of the deceased, as provided in articles 595 and 596.

“The administrator or administrators to whom the judge may have granted the administration shall take charge of the same, and, in consequence thereof, shall have the care and administration of the estate, including books and papers, and thereafter the consul or vice-consul shall not have the power to demand the delivery to himself of the property of the estate, nor to intervene in the matter of the administration of such property, except that he shall have the right to demand that the administrator or administrators shall be held responsible, conformably to the laws of the State, for the abuse or the mal-performance of their trust.

“Article 1069. In all cases of which the preceding article treats, and especially in the making of the inventory, and in what relates to the security of the estate of the deceased, and to the rights of the Confederation or the State as to such property, * * * there shall be observed the laws of the State, so far as the same are not opposed to public treaties celebrated by the Government of the Confederation which now are, or which may hereafter be, in force in the territory of the State.”

The national civil code (codigo civil national) went into effect July 22, 1887.

This code contains nothing analogous to articles 1067, 1068, and 1069 of the civil code of Cundinamarca above quoted.

Article 570 of the national civil code says:

“If the deceased upon whose estate it is necessary to appoint an administrator shall have foreign heirs, the consul of the nation of such heirs shall have the right to nominate the administrator or administrators, who may have the custody and administration of the property.”

Article 571 of the national code is the same as article 596 of that of Cundinamarca, with the difference that the former mentions only the consul and not the vice-consul.

According to articles 600, 601, 602, and 603 of the code of Cundinamarca, which are exactly the same as articles 575, 576, 577, and 578 of the national code, the curadores of property had no further powers than those of mere custody and preservation, those for the collection of the credits and the payment of the debts of those they represent, the alienation of perishable personal property, the alienation of personal property pertaining to the ordinary course of the business of the deceased, and the carrying on of actions at law and defenses of the same. Administrators of property can do no other acts without previous judicial authorization granted on account of proved necessity or utility.

We are, sir, etc.,

Gutierrez & Escobar.
[Inclosure 3 in No. 48.—Translation.]

Messrs. Gutierrez & Escobar to Mr. Abbott.

Sir: We have studied with care the interesting legal question about which you have been pleased to consult us, and proceed to express briefly our opinion upon it.

The question is, whether a building constructed by a lessee upon leased land should be considered, as to the said lessee, personal or real estate.

[Page 238]

According to the general rule contained in article 656 of our civil code, things are real estate (inmuebles) which can not be transported from one place to another, as lands and mines, and “those things which adhere permanently to them, as buildings, trees.”

Buildings are, then, according to that, real estate (inmuebles) by their nature.

But it is a principle of jurisprudence that property by its nature immovable ceases to be real estate and is converted into personal property when it is considered, not in its actual state of union with the ground, but in the future state of distinct individuality which separation will give it, as when, for example, it is considered “as having to be demolished” (como habiendo de ser demolido), and therefore it is looked upon, not as a house, but as stones, wood, iron, etc.

So is regarded, as to the lessee, the building constructed by him upon leased land; and the reason for this is that the constructor does not in this case have a right to the building itself, as such, but rather the right to separate and carry away the materials which compose it in case the lessor may not be disposed to allow him what the materials may be worth, considering them as having been separated.

The cardinal point which has just been expressed, once noted, the question is transformed into this other: Does the right of the lessee constructor in the building pertain to personal or real estate?

According to article 667 of the civil code, rights and choses in action are considered personal property or real estate, according to the nature of the thing with which they are or are not to be used. So the right of usufruct upon real estate is real; so the right of the buyer to a delivery to him of a farm which he has purchased is real; and the right of a lender of money to its repayment is personal.

In our system (derecho) there is positive law outlined in the ancient maxim of Roman jurisprudence: “Actio quae tendit ad mobile, mobilis est, actio quæ tandit ad immobile est immobilis.”

In order to apply this rule, or rather in order to understand what is the object to which the right pertains, the proceeding is very simple, it being sufficient to inquire what it is that the owner or creditor can demand, or the object whose delivery or granting (prestation) the “demandee” can be compelled to make. If the demandant can compel the delivery of real estate, his right is real; if he can only demand the delivery of personal property, his right is personal.

Applying this rule, it will be asked, then, in the present case, what can the lessee constructor require of the lessor, and what can the latter be compelled to deliver to the former?

The materials of the building, or their value, considering them as having been separated, and as both things are personal property, it is manifest that the right of the lessee has also this character.

That the lessee has no other right than that of carrying away the materials of the building, if the lessor does not wish to allow him what they would be worth after separation, is a thing about which there is no doubt, because the building which is not necessary to the preservation of the thing leased, but which increases its market value is evidently an improvement, and that is the rule given for “improvements” in article 1994 of the civil code.

In confirmation of the above doctrine, we quote below the opinion of Demolombe, who is, perhaps, the most profound of the commentators upon the French civil code, from which ours is taken.

[Note.—I omit the translation of the quotation from Demolombe.—J. T. A.]

As a logical consequence of this doctrine, Demolombe concludes that when the constructor assigns his lease to a third person, with a right to the buildings which he has constructed, the object of the assignment is necessarily personal. But he notes that the court of cassation of France has decided to the contrary in numerous judgments.

Notwithstanding, Fuzier-Herman, in a later work than that of Demolombe above cited, entitled “Codes Annotés,” after referring to the decisions of the Court of cassation upon this subject, establishes clearly that in order that the right of the lessee to the buildings constructed by him upon leased ground, and therefore the assignment of the right, may have the character of real estate, it is necessary that the lessor shall have renounced his right of “accession,” that is, the right to acquire the property in said buildings at the expiration of the lease (a circumstance which does not probably exist in the case which interests you), and that, lacking that renunciation, the buildings constructed by the lessee upon the leased land have, so far as relates to him (the lessee), the character of personal property, and can not, therefore, be hypothecated by the builder. (Vol. 1, p. 643.)

Your obedient servants,

Gutierrez & Escobar.