608

FEDERAL REPOR'fER,

vol. 42.

THE BURCHARD. 1

, DAVIS et al. v. THE 'BURCHARD.

(Di8trict Oourt, S. D. AZabama. June 18, 1890.)
So long as the ·"elation pt t<>a German vessel is not terminated, the courts 'of the United States eannot entertain a libel for and construe the contract of Ahipment, but under the .treaty of December 11, 1871, with the German Empire, mUlJtremit the whole to the German consul for adjudication.
GER1IUNY.

II} Qn libel for seamen's wages. . ThliJ'Burchard is a. German vesSel, and the crew were shipped at Bull.nos Ayres before the German consul. Upon the filing of the libel at Mobile, the. German consul . entered a protest, claiming jurisdiction of the matter. under the treaty of December 11, 1871, now in force between the United States and Germariy. Public Treaties, etc., 258. W, D.McKinstry, for libelants. Thea. H.Smith. for.. TOUf'llUN, J. Under the allegations of the libel in this case, it apIlear.e"d that libelants were AmE;lrican seamen, and had been discharged by the ;master 8,t this port; and that, therefore, their relations to the vessel as a' part of its crew had been severed. If this was true, I was inclined to the opinion that the court had jurisdiction to bear and adjudicate the question of wages. The testimony, however, fails to show that they were discharged by the master. On the contrary, it shows that libelants claimed their discharge at this port on the ground that, by the terms of their contract, they were entitled to their discharge. The master denied their claim, whereupon a dispute arose between them as to what was the contract. The master told them to go ashore if they wished, and go to see the consul. For this court 00 undertake to settle the dispute between the parties, and to determine the question of libelants' right to. their discharge under the contract, and hence of their right to wal/;es, would require a consideration and construction of the contract by the court, which, under the treaty, the court has not the jurisdiction to do. And while I may be of opinion, as I construe the shipping articles produced, that under them libelants are entitled to be discharged at this port, still the court has, as I have said, no jurisdiction so to adjudicate, but must remit the matter to the consul. The Elwine Kreplin, 9 Blatchf. 439. It is therefore ordered that the libel be dismissed.
J

Reported by Peter J. Hamilton, Esq., of the Mobile bar.

:r.s'CLASKEY

v.

BARR.

609

et al.

MCCLASKEY

et al.

i1. BARR

(Circuit Court, S. D. Ohio, W. D. April 26,1800.)

1.

ADVERSE POSSESSION-LIFE-EsTATE-PARTITION.

2.

A tenant for life under a will made a deed purporting to con\Tey the fee to the defendantR' grantors, who during her life some of the interests in tJle remainder. At her death, in 1860, this had vested in the testator's brothers and sisters and their heirs, and since then the defendants and their grantors have been in exclusive possession. and made permanent and costly improvements, which the answer alleges to have been "in good faith, and without notice of the claims of the complainants or their ancestors." In 1858 the grantors of the defendants filed a petition stating that the tenant for life had conveyed to them all her interest, "being a lifeestate, "and that it was necessary to perpetuate testimony to prove the names of the brothers and sister!!-and their heirs. ]n an ejectment by one of these, soon after the death of the life-tenant, the defendants' grantors joined in an agreed statement of facts, setting out that proceeding, and the names of the brothers and sisters and some of the children. After tinal judgment for the plainti:t! in that action, they authorized trustees to buy in for them the outstanding title of three children of one of the brothers, which was done, and afterwards the interests of other heirs were also bought in. This is stated by the defendants to have been by way of compromise and buying the peace. In one of the deeds taken by the trustees, the number of the brothers and sisters, and their having the estate in remainder at the death of the life-tenant, are recited. Ildd, on a bill for partition by the complainants as heirs of one of the sisters, that it does not follow, as a matter of law from theso facts, that the defendants have title by adverse possession, and a motion to stay proceedings until the complainants establish their right of possession at law is overruled. While, in such case, it may be that a jury would be authorized to infer an actual ouster, this is cognizable in eqUity also. Under the head of laches, and there is no reason Why on that issue the case should be sent to a jury.

SAME-LACHES.

8.

SAME-PLEADING.

An answer to a bill fOr partition, admitting the interest of one under whom the complainants .claim by descent, but denying that they are the raises an issue ofidentity, rather than of title; and a suspension of proceedings .mtil'their right to possession is established at law is neither necessary nor proper. In a suit for partition, removed to a federal court, it will follow the state decisions holding that a right of entry in the plainti:t!, without actual seisin, is sufficient.

'- BAME-REMOVAL OF CAUSES.

In Equity. Bill for partition. On motion to stay proceedings until complainants establish their title at law" This is a bill for the partition of 161.4 acres of land situate on Price hill, within the corporate limits of the city of Cincinnati. There are between two and three hundred defendants, but, the contested questions being COIl.mon to all. they are to be heard upon the answers of William Henry Elder. archbishop of Cincinnati and trustee of Mt. St. Marys' Seminary, and of John Keeshan. The cause is now before the court upon the defendants' motion to suspend further proceedings until the complainants shall establish their title at law. The bill and its amendments contain the following averments of fact: On the - - - day of May, 1816, William Barr, Sr., died, testate. and seised oithe real estate above referred to, which he devised to his executors for the use of his son John M. Barr during his natural life. and after his death for the use of his wife, Maria Barr, (in the event of her survival,) during her natural life, with remainder in fee to his child or children and their heirs forever. John Y. Barr died in August, 1820, leaving his wife. Maria, and one child, Mary Jane Barr, surviving him. In November, 1821, the daughter, Mary Jane Barr, died, leaving her mother, Maria Barr, (who afterwards intermarried with v.42F.no.12-39