Mr. Blaine to Mr. Abbott.

No. 67.]

Sir: I have to acknowledge the receipt of your No. 77 of the 24th ultimo, in which, referring to your No. 48 of the 12th of December last, you inform the Department of the postponement of the proposed sale of the houses belonging to the estate of Mrs. Smith at Colon, and of the understanding you have reached with the minister for foreign affairs that the case shall be discussed between you before anything further is done. The Department has received this information with satisfaction, since it is of opinion that the consul at Colon, Mr. Vifquain, was acting within his right in selling the houses and that his action should not be disturbed.

The tenth paragraph of the third article of the consular convention between the United States and New Granada of 1850 contains, in reference to the powers of consular officers, the following provisions:

They may take possession, make inventories, appoint appraisers to estimate the value of articles, and proceed to the sale of the movable property of individuals of their nation who may die in the country where the consul resides without leaving executors appointed by their will or heirs at law. In all such proceedings the consul shall act in conjunction with two merchants chosen by himself for drawing up the said papers or delivering the property or the produce of its sales, observing the laws of his country and the orders which he may receive from his own Government; but consuls shall not discharge these functions in those states whose peculiar legislation may not allow it. Wheresoever there is no consul in the place where the death occurs, the local authority shall take all the precautions in their power to secure the property of the deceased.

The first question that arises in the present case under this paragraph is whether the United States consul at Colon had, in 1888 or 1889, when he sold the houses, the right to take possession of and sell the movable property of his countrymen in that place. The Department is of opinion that he had. In 1850, when the consular convention was concluded, New Granada was a centralized Republic. There were then no states in that country, and there was no general law defining or limiting the powers of consuls with respect to the settlement of the estates of their deceased countrymen. Later, when the United States of Colombia were created, the separate States of which the Republic was composed adopted legislation of their own on the subject, under which [Page 256] it was claimed that the consuls were precluded from acting, since the treaty provided that they should not discharge such functions “in those states whose peculiar legislation may not allow it.” It seems that this Department in 1871 claimed for our consuls the right to act under the treaty in the settlement of estates, notwithstanding the adverse local legislation; but into the merits of this controversy it is not material now to enter. In 1885 the United States of Colombia became the Republic of Colombia; the States were reduced to departments, and the most of their prior legislation became inoperative. In 1887, however, a national law was adopted, which, as you inform the Department, 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 custody and administration of the property. You state that you have consulted two lawyers, high in their profession, who are of opinion that a curador is substantially what we call an administrator; that the estates of all foreigners are outside of treaty stipulations, to be settled in the manner indicated in the above law; and that under it foreign consuls have no other right than that of nominating the curador. Whether or no this construction of the law be correct is, in the opinion of the Department, immaterial to the determination of the question now under consideration. It is the opinion of the Department that there is in the present case a pertinent and comprehensive treaty stipulation, and this stipulation, it is needless to argue, is of paramount obligation upon the contracting parties.

As already stated, the tenth paragraph of the third article of the consular convention of 1850 provides that the consuls of the contracting parties “may take possession, make inventories, appoint appraisers to estimate the value of articles, and proceed to the sale of the movable property of individuals of their nation who may die in the country where the consul resides without leaving executors appointed by their wills or heirs at law.”

The only exception to the exercise of this power is found in the provision that “consuls shall not discharge these functions in those states whose peculiar legislation may not allow it.” The reason and effect of this provision are clear. In the United States, just as was formerly the case in Colombia, legislative power in respect to the settlement of estates is vested in the several States. It has always been controverted whether the exercise of this power could constitutionally be controlled by the Government of the United States, either by law or treaty. In order to meet this difficulty, it was provided by the present treaty that consuls should not exercise the function of settling estates in states whose “peculiar legislation” might not allow it. The term “peculiar legislation” means simply legislation of particular political divisions of the country, possessing legislative power with respect to the subject-matter. The term “those states” was also obviously employed in reference to the same political divisions, and could not have been used in reference to the contracting governments. So far as those governments were concerned, they bound themselves, in all places where they possessed the necessary jurisdiction, to permit consuls to exercise the function in question. So clear does this appear to be that the Department does not perceive how any other construction can be placed upon the treaty. It is therefore the opinion of the Department that the consul at Colon had authority, under the treaty, to take possession of, inventory, appraise, and sell the movable property of Mrs. Smith.

It now remains to determine the question whether the houses which [Page 257] he sold, built upon land leased from the Panama Railroad Company, were movable property within the meaning of the treaty. If they were, the consul had, under the construction herein maintained, the right to take possesion of and sell them.

Among the methods by which it is held that property in goods and chattels may be acquired is that of accession. This right existed under the Roman law, from which it found its way into the jurisprudence of England and of the United States. “The right of accession,” says Kent, “is defined in the French and Louisianian codes to be the right to all which one’s own property produces, whether that property be movable or immovable, and the right to that which is united to it by accession, either naturally or artificially” (2 Kent’s Com., 360). This definition, it is believed, correctly defines the right wherever it is recognized, and it is understood to be recognized in the law of Colombia.

Under the doctrine of accession, it was held that, if one built with his own materials a house on the land of another, the owner of the land acquired, by the right of accession, the property in the building. Such is the general principle, but it is by no means without exceptions. There are many cases in which a man may own, as personal property, a building erected upon the land of another. This has been held to be so, even in the absence of an express agreement between the owner of the land and the builder of the house. But it appears to be as unquestionable as it is just and reasonable that, where it is understood and agreed that the title to the building shall not be merged in the title to the land, the property in the two things remains distinct and the building is treated as personalty. In this case the owner of the land waives his right of accession, and, having waived it, he can not in turn claim the benefit of it. Such a waiver appears to have been made in the case of Mrs. Smith’s houses.

With his dispatch No. 158 of the 30th of December last Mr. Vifquain transmitted to the Department a blank form of the lease which was made by the Panama Railroad Company to Mrs. Smith. The sixth article of the lease, translated, reads as follows:

It is also a condition of this contract that on its expiration, whether by the ending of the term of 5 years above fixed or by its having been terminated or rescinded before that term, —— the lessee ——— binds himself to return to the company the leased land, clearing it entirely, the expense of the operation of pulling down the house and removing the materials being upon the lessee.

This seems to contain a clear renunciation of the right of accession. It is also observed that in the fourth article of the contract it is provided that, if the lease shall be determined by reason of the failure of the lessee to pay the stipulated rent, any building which may have been erected shall remain at the disposal of the competent judge in order that it may be subjected to the sentence which he may pronounce. And the fifth article provides expressly that the lessor shall in no case have a right to the improvements made on the land leased.

These various provisions appear completely to have destroyed the right of accession and to have placed the houses erected by Mrs. Smith in the category of movable property which the consul had the right to take posession of and sell.

You are therefore instructed to maintain the validity of the sale of the houses in question by Mr. Vifquain.

I am, etc.,

James G. Blaine.