Bondurant vs. Apperson. tion depends, have led us to examine the subject, in this case, more fully than might otherwise have seemed necessary. It has been said that a decree "which decides upon and settles the rights of the parties to any particular matter, is so far final." (Banton & Co. vs. Campbell's heirs, 2 Dana, 421.) That is no doubt true, provided the thing settled is of a final as distinguished from an interlocutory character; but that does not solve the chief difficulty presented in such cases, which is to ascertain whether or not the judgment does "decide upon and settle" any particular matter. In the case before us, the judgment decides upon the appellee's right to contribution, but does it settle that matter? The character of a judgment, as to finality, appears sometimes to have been regarded as depending upon the question, whether an execution or other process could issue upon it. That, clearly, is not a true test. A judgment may take effect by its own force and be final, though no process can issue upon it. For example, a judgment confirming a commissioner's deed, and a judgment dismissing a suit, even without costs. It It has been frequently said, that a judgment is not final, unless it can be enforced without further action by the court. is clear, however, that a judgment, ordering the defendant to execute a conveyance to the plaintiff, is final. (Larue vs. Larue, 2 Litt., 258; Watson vs. Thomas, Litt. Sel. Cases, 248.) Yet such a judgment cannot be enforced except by process for contempt, which cannot issue without further action by the court. It is certain, however, that a judgment cannot be final merely because it decides some question of law or fact relating even to final relief, nor merely because it decides what are the rights of the parties as to such relief. (Jameson vs. Mosely, 4 Mon., 414; Phillips & Co. vs. Alcorn, 4 J. J. Mar., 38; Craig vs. McBride's heirs, 9 B. Mon., 9; Portwood vs. Outon, 1 B. Mon., 149; Mitchell vs. Cloyd, Mss. Opin., February 1854.) Those cases furnish various illustrations, proving that a judgment may decide every question of law and fact, and what are the rights of the parties to everything involved in a suit, without Bondurant vs. Apperson being final to any extent. In each of them the judgment was held to be not final, because it could not be enforced, to the extent of giving the final relief contemplated by it, without further action by the court. The rule adopted in those cases is forcibly illustrated by the decisions in New York, and in this State, as to nisi decrees in suits to foreclose mortgages. We understand that in New York the nisi decree directs a payment of the mortgage money to a commissioner, and directs him, if it should not be paid, to sell the property; no further action by the court is needed to effect a sale, and consequently such decrees in New York are held to be final. But in this State a nisi decree is interlocutory, because the relief contemplated by it-viz: a sale of the property-cannot be obtained without further action by the court; if the defendant should deny the execution of the mortgage and plead payment of the debt, and the court in its nisi decree should decide those questions against him, still the decree would be merely interlocutory. Judgments enforceable by process for contempt form the only exception we are aware of to the above mentioned rule. The following rule seems to be deducible from the authorities, viz: that a judgment, to be final, must not merely decide that one of the parties is entitled to relief of a final character, but must give that relief by its own force, or be enforceable for that purpose without further action by the court or by process for contempt. case of Banton & maintaining a dif We do not, how In a case recently considered by us the Co. vs. Campbell's heirs, supra, was cited as ferent doctrine from the one here stated. ever, so regard it. That was a suit between heirs for partition and distribution of an estate. The court rendered a decree, that eight of the heirs were entitled to the land left by the decedent, and appointed commissioners to allot it to them; and another decree, that all the heirs were entitled to distribution of the personalty, and appointed commissioners to ascertain how much each had received, and then to make just and equal distribution among them all. We presume that this court, in pronouncing those decrees final, regarded them as Yeaker's heirs vs. Yeaker's heirs. authorizing the commissioners not merely to report to the court a proposed allotment and distribution, but to make the allotment and distribution without further action by the court. Thus viewed, those decrees were clearly final. If viewed otherwise, the decision, that they were final, is inconsistent with the other cases previously cited, and also with that of Thompson vs. Peebles, 6 Dana, 389, which was a suit for land, to which the complainant asserted an equitable title; and a decree sustaining his claim, and ordering the defendants to convey the legal title to him, was held to be not final, because, from its peculiar phraseology, it was regarded as merely contemplating that the defendants should prepare and produce the deed for the action of the court at its next term. The judgment appealed from in this case is not final, because it contains nothing more than a decision as to the right of the parties. It gave no relief to the appellee, nor can he get any relief upon it by any sort of process. Wherefore the appeal is dismissed. CASE 9-PETITION EQUITY-JUNE 23. Yeaker's heirs vs. Yeaker's heirs. APPEAL FROM THE WOODFORD. CLECULT COURT.. 1. An alien cannot inherit land in this State. (Hardin 61; 2 Meta 187.) But an alien friend, residing in this State two years, is entitled to receive, hold and pass any right to land within the Commonwealth during the continuance of his residence after that period. (1 Statute Law, 112; 1 Revised Statutes, 239.) 2. Treaties take effect, as to the governments making them, from the date of their execution, unless they contain stipulations to the contrary. But in regard to individual rights the rule is that the ratification of the treaty must be deemed its date. 3. By the constitution of the United States where a treaty, made under the authority of the United States, conflicts with a law of the State, the law must give way to the extent of its conflict with such treaty. 4. It is a well settled rule that where a State law is deemed unconstitutional, be Yeaker's heirs vs. Yeaker's heirs. cause opposed to the constitution, laws and treaties of the federal government, it is only void so far as it contravenes the constitution, laws or treaties. 5. Where, by a treaty with a foreign nation, foreigners are allowed three years within which to claim real estate coming to them in this State by devise or descent, and to make disposition thereof, they must assert their right within that period, because there is nothing forbidding the State legislation which denies the right to that class of persons after that time-the State law being so far affected by the treaty as to become inoperative for that period but no further. 6. See the opinion as to the scope, construction and effect of certain treaty stipulations between the United States and the Swiss Confederation in relation to the question of the right of citizens of Switzerland to acquire or hold by devise or descent an interest in real estate or its proceeds in Kentucky. GEO. B. KINKEAD, for appellants. M. C. JOHNSON, for appellees. CHIEF JUSTICE STITES DELIVERED THE OPINION OF THE COURT: Peter Yeaker, a native of Switzerland, many years ago removed to, and became a naturalized citizen of, the United States. He died in Woodford county in this State, in July 1853, the owner of a considerable estate in said county, consisting of land, slaves and personalty. He left a widow, a native of this country, but no children, and all of his kindred, at the time of his death, were, and so far as the record shows, continue to be foreigners and citizens of Switzerland. In 1859 proceedings were commenced for a sale and distribution of the estate between the widow and kindred of the intestate, and the circuit judge, having decided that the latter were not entitled to any part of the realty, they have prosecuted this appeal. At common law an alien could not inherit land, and such has been and is still the law in Kentucky, except so far as it has been modified by statute. It was determined at an early day by this court that aliens could not inherit land in this State. (Hunt vs. Warnick, Hardin, 61; White vs. White, 2 Mct. 187.) By an act of 1800 (Morchead & Brown's Digest, 1 vol. 112)—an alien friend, residing in this State two years, was entitled to receive, hold and pass any right to land within the commonwealth, during the continuance of his residence after that period; and this provision was substantially embodied in the Revised Statutes. (1 vol Stanton, 239.). But as neither of ap Yeaker's heirs vs. Yeaker's heirs. pellants were residents of Kentucky at the time of Yeaker's death, no benefit accrued to them under this statute. Indeed it is admitted that, unless they can claim under certain treaty regulations between the foreign State, of which they are citizens, and the United States, the judgment of the circuit court, declaring the widow entitled to the land, cannot be disturbed. And it therefore becomes necessary to consider and determine the scope and effect of the treaties relied on. The first treaty between the United States and the Swiss Confederation, to which we have been referred, was ratified on the 3d May, 1848, and is found in the United States Statutes at large for that year. Among other stipulations it contains the following: "ARTICLE 2.-If, by the death of a person owning real property in the Territory of one of the high contracting parties, such property should descend either by the laws of the country, or by testamentary disposition to a citizen of the other party, who, on account of his being an alien, could not be permitted to retain the actual posse sion of such property, a term of not less than three years shall be allowed to him to dispose of such property, and to collect and withdraw the proceeds thereof, without paying to the government any other charges than those, which in a similar case, would be paid by an inhabitant of the country in which such real property may be situated." By the 3d article it is provided that said treaty shall remain in force for twelve years from its date, and further, until the end of twelve months after either government shall have given notice of its intention to terminate the same. The second treaty seems to have been signed in November 1850, but was not ratified until November, 1855. (U. S. Statutes at large 1855.) The official proclamation of the President, making it public, as a law, speaks thus of the treaty, the period of its execution and the amendments to the same: "Whereas, a general convention of friendship, reciprocal establishments, commerce and for the surrender of fugitive criminals, between the United States of America and the Swiss Confederation, was concluded and signed by their re spective plenipotentiaries in the city of Berne on the 25th day |