author: Walker, J.:

text:
    St. Louis, I. M. & S. Railway vs. Loftin, Collector.
    1. Corporation: Exemption from taxation, repeal of, etc.

    An exemption from taxation, conferred by the Legislature on a corporation subsequent to its creation, may be repealed. The right of taxation cannot be parted with by one Legislature so as to bind future Legislatures, unless under peculiar and exceptional circumstances, and upon an adequate consideration, and no presumption in favor of exemption from taxation can be indulged.
    2. --, Constitutional Law, exemption from taxation, etc.

    An exemption from taxation, contained in the charter of a corporation, cannot be repealed without the consent of the corporation.
    :>. -------, Same, construction of charter.

    The 11th section of the charter of the Cairo and Fulton Railroad Company provides: That the capital stock and dividend of the company shall be forever exempt from taxation; the road, fixtures and appurtenances shall be exempt from taxation until after it pays an interest of not less than ten per cent, per annum. By the capital stock is meant the capital to be raised by stock subscriptions; the lands granted by Congress to aid in the construction of the road are not embraced, nor exempt from taxation. Money arising from the sale of the lands might be applied to the building of the road and thus become exempt from taxation. The road and appurtenances are under the second clause of the section exempt, until it yields a net profit of ten per cent, per annum on the cost of building and equipping it.
    APPEAL from Jackson Circuit Court in Chancery.
    Hon. William Byers, Circuit Judge.

      Rose, and Loughborough & Moore, for appellant.

      Mayor of Baltimore v. Baltimore & Ohio R. R., 6 Gill, 288. Rome R. R. v. Mayor of Rome, 14 Ga., 375, to show property part of capital stock.
    Legislation establishing a certain rate of taxation excludes a different rule. Lands cannot be taxed when stock is exempt. Augusta v. Ga. R. R. & B. Co., 26 Ga., 661. Capital stock includes all property, real and personal. New Haven v. CMy Bank, 31 Conn., 106. The courts incline against double taxes. Osburne v. New York R. R. Co., 48 Conn., 491.

      Capital stock represents and covers all the property, and when a period is fixed for taxation to commence the property is exempt till then. Hannibal R. R. v. Shacklett, 30 Mo., 550.
    Exemption of all the works exempts lands. Richmond v. Richmond & Danville R. R., 21 Gratt., 606 ; Baily v. Clark, 21 Wall., 284.
    One mode of taxation excludes all others, and capital stock includes lands. State Bank v. Brackenridge, 7 Blackf., 595; State v. Hood, 15 Rich. Law, 184.
    Contemporaneous construction against the power to tax. It has never before been exercised. Packard v. Richardson, 17 Mass., 121; Stuart v. Laird, 1 Cranch., 299 ; Rogers v. Goodwin, 2 Mass., 477-8. Grant operated in presenti. Fletcher v. Pool, 20 Ark., 100; Schuanberg v. Harriman, 21 Wall., 44.

      Benjamin & Barnes, for appellee.
    Section 11, of Cairo and Fulton charter, complete in itself, and inconsistent with sec. 25, of Miss. Valley E. E. charter. Sedgwick on Stat. & Const. Law, 124.
    The company accepted the changes in their charter made by acts of 1855 and 1856, and are 'bound by the amendments. N. Missouri R. R. Co. v. McGuire, 20 Wall., 46; Tomlinson v. Jessup, 15 Wall., 454; Gordon v. Tax Appeal cases, 3 How., 133; Comm’rs. of Washingtons. Franklin R. R. Co., 34 Wall., 134; Hannibal & St. Jo. R. R. Co. s. Shaeklett, 3 Mo., 550.
    Section 13, act of 1856, does not make the two and a half per cent, in lieu of all other taxes. Surrender óf right to tax by State never implied; when expressed it refers only to State tax, and not to counties and towns. St. Jo. s. St. Jo. & H. R. R. Co., 39 Mo., 476; Pacific R. R. Co. s. Dalle, 48 Mo., 282; Orange & A. R. R.s. Alexandria, 17 Gratt., 176. Exemption of “capital stock” does not .apply to lands. State s. Newark, 1 Dutcher, 315; Iowa Homestead Co. s. Webster Co., 21 la., 221; Dubuque A Pacific R. R. Co. v. Webster Co., 21 Iowa, 235; • W. T. R. R. Co. s.

      Lincoln Co., 1 Dillon, 314; McShane v. JR. R. Co., I. Cent. L. P., 104; Thompsdn v. R, R., 9 Wall.; N. Orleans v. Com. Bank, 5 Eob., 151; New Orleans v. N. 0: & C. R. R. Co., 10 Eob., 187; Railroad v. Berks Co., 6 Penn., ch. 701'; Louisville Railway v. Louisville, 4 Eush., 479; Delaware Railroad Tax case, 18 Wall., 206; JEh'ie R. R. v. Pennsylvania, 21 Wall., 492.
    The company failed in its part of the contract and can claim nothing by it. The extension of time did not extend the relincpiishment of power to tax. Gordon v. The Appeal Tax cases, 3 How., 133. A fortiori as to the effect of the. Congressional extension on the State’s power.

      S. R. Hughes, Attorney General, for appellee,
    Throughout all the legislation it is obvious that the legislature contemplated a distinction between capital, stock and the property of the company. The former means the amounts contributed by the stockholders. State v. Norristown Fair Association, 3 Zabr., (N. J.) 195 ; State v. Newark, 2 Dutch. N. J., 519. Does not apply to property, not used or occupied for the necessary purposes of the company; (supra.) 213; Vermont Central R. R. Co. v. Town of Burlington, 28 Yt., 193.
    When the charter was enacted the company had no lands to which the term capital stock could apply.
    All rights, privileges, and immunities not expressly granted are reserved.

      "Bailey v. McGuire, 22 Wall., 215; Tucker v. Ferguson, 22 Wall., 527.
    The two and one-half per cent, in section 13 of act of 1856 is not in lieu of other taxes. Louisville R. R. v. Louisville, 4 Bush. 479; Del. E. E. Tax case, 18 Wall., 206; Erie tax case, 21 Wall., 492. Still counties, cities, and towns may tax. St. Jo. v. St. Jo. R. R. Co., 39 Mo., 476 ; Pacific R. R. Co. v. Dadle, 48 Mo., 282; Orange. & A. R. R. v. Alexandria, 17 Gratt., 176.
   Walker, J.:

The plaintiff, a corporation, organized and chartered under an act of incorporation passed by the General Assembly of the State of Arkansas, brought suit in the Jackson Circuit Court against John R. Loftin, to enjoin him as collector of taxes in said county, from the collection of the taxes assessed and levied upon the lands of plaintiff, which were granted by the United States to the.State of Arkansas, to aid in making the Cairo and Fulton railroad, and by the State granted to said company, and which by acts of consolidation became, and are now the property of plaintiff.

It is alleged in the complaint that under the charter, and subsequent acts of the Legislature, the lands were exempt from taxation. That defendant, as collector of taxes, threatens to sell the land for the payment of the taxes so assessed, and unless restrained by injunction will proceed to do so.

The defendant entered his appearance, and filed a demurrer to the bill, which was by the court sustained, and the bill dismissed for want of equity. From which judgment plaintiff has appealed to this court.

The sufficiency of the bill to entitle the plaintiff to the relief prayed is presented for consideration.

Plaintiff states that by an act of the General Assembly of the State of Arkansas, approved January 12th, 1853, the Cairo and Fulton railroad was duly incorporated, and that among other things, it was in said act provided: That the rights, privileges, immunities and franchises, contained in a charter of the same date granted to the Mississippi Valley Railroad Company, not restricting, or inconsistent with the charter of the Cairo and Fulton railroad, were extended to, and form a part of the Cairo and Fulton charter as fully as if inserted therein.

That said acts were declared public acts, and were to be liberally construed.

That the Cairo and Eulton Railroad Company was duly organized in accordance with the charter and franchises given, and under consolidation with other railroad companies still continues to exist with its franchises still unimpaired.

That, subsequently, on the 9th of February, 1853, the Congress of the United States granted to the corporation the right of way through the public lands, through which the contemplated road was to pass; and also granted to the State of Arkansas for the purpose of aiding in making said road, every alternate section of land, distinguished by even numbers, for six section^ in width on each side of said road, and giving to the road other lands in lieu of those sold, or held by pre-emption, on even sections, to be selected on either side of the grant, within fifteen miles from the road bed, with a proviso that the lands so granted should be applied in the construction of the road, and should be disposed of only as the road progressed, and then to be applied to no other purpose whatever. That these lands were granted by the Congress of the United States to the State of Arkansas, subject to the disposal of the Legislature thereof, but only a quantity not exceeding 120 sections, included in a continuous length of twenty miles of said road, might be sold. And that, if the road should not be completed within ten years, no further sale should be made, and the lands should revert to the United States.

That, by a subsequent act of Congress, approved July 28th, 1866, the land grant was renewed, and made subject to the same use and trust as provided in the original grant.

That the State of Arkansas, by an act of the General Assembly, approved January 16th, 1855, granted these lands to the Cairo and Eulton Railroad Company, to aid the. company in the construction of the road, and that the grant was accepted by the company.

That said company completed and equipped the road within the time prescribed by law, and made the same a first class road.

That the conditions of the grant have been complied with, and the title to the lands absolutely vested in the company.

That it was on the security and value of said grant of lands, in the exemptions made to the same, that the means were acquired for building and equipping the same ; that the total cost of said railroad and equipments was about $11,157,000.

That the amount raised by subscription and applied to that purpose, and all amounts received from every source, except that of -the lands, did not exceed the sum of $300,000 ; that the available assets of the company consisted of said lands; that it was only through these land grants that the company was enabled to build and equip the road, having no credit except such as was based upon the lands, and no other property out of which money could be raised for that purpose.

That long before the road was built, the Legislature of Arkansas passed several acts to exempt the property of the company from taxation.

That the act of incorporation, approved January 12th, 1853, provided, That the capital stock and dividend of said company should be forever exempt from taxation, and that the road, fixtures and appurtenances should be exempt from taxation until after it paid an interest of not less than ten per cent, per annum, and that so much of the Mississippi Valley railroad charter as was consistent with, and did not- limit the charter of the Cairo- and Fulton company, should be taken as part of said charter.

That by the act of 16th January, 1855, it was provided “that after the expiration of twenty years from the completion of the Cairo and Fulton road, the company should pay into the State treasury an annual tax upon the road, fixtures, lands, tenements, and houses, equal to that paid upon other taxable property in this State for the time being; and for the purposes of taxation, the road, fixtures, lands, tenements and houses, shall be considered separate and distinct from the capital stock, whethér all of the capital be expended in building said road, fixtures, houses and tenements, or not, and the capital shall be exempt from taxation, as provided for in the eleventh section of the Cairo and Fulton railroad charter.

And that by a subsequent act of said Legislature, approved November 26th, 1856, it was provided: That after the road was completed, and shall have declared a divided of ten per cent, per annum upon the capital stock of said company, then, and in that event, said company shall pay to the State Treasurer, two and one-half per centum upon the net proceeds annually.

Plaintiff says that twenty years have not elapsed since the the completion of the road; that it was not completed, until January 15th, 1874. That the road never paid an interest of ten per cent, per annum on the investment wherewith it was built, nor has it declared or paid a dividend of ten per centum on its capital stock; nor has it declared or paid any interest or dividend whatever.

That for the purpose of raising money with which to' build and equip the road, the company has issued its bonds, for the sum of eight millions of dollars, payable first of January, 1891,with interest which remains unpaid.

That by an act of the General Assembly of Arkansas, April 8th, 1869, plaintiffs were required to list their lands, and did so, but by the provisions of this act the lands were not to be taxed.

That under the laws of Arkansas and Missouri, the Cairo and Fulton Railroad Company was consolidated with the St. Louis Iron Mountain Railroad Company, under the name of the St. Louis, Iron Mountain and Southern Railway Company, under which name plaintiff sues.

That defendant is about to sell the lands so granted, without •authority of law.

And prays that he be enjoined from doing so.

This is the state of case made by plaintiff, and which we have ■set forth at more than usual length, because the questions of law to be determined arise upon the sufficiency of the allegations in the bill, to entitle plaintiff to the relief sought.

It may, at the outset, be well to remark that the j>rovisions of the act of January 16th, 1855, to which plaintiff has made reference in his bill, was repealed by the 8th section of the act of November 26th, 1856, and that so much of the act of April 8th, 1869, as exempted all the lands, so granted, from taxation, was repealed by an act of the General Assembly of the State, approved November 30th, 1875.

The first section of this act provides, that the assessors in the different'counties of this State shall, at the time he assesses the personal property in his county, in the year 1875, assess and place on the tax book of his county, under the same rules and restrictions as are required in assessing land in this State, all the land in his county heretofore donated, granted or given to any railroad or railroad company, where the title to the land has passed from the United States government. And said land shall be thereafter assessed and taxed as other lands in this State.

Sec. 2. That all laws, and parts of laws, in conflict with this act be and the same are hereby repealed. And that this act take effect and be in force from and after its passage.

It is under this act that a tax was levied, and to restrain the ■collection of which this suit was brought.

All the acts by which these lands were exempted from taxation, except the 11th section of the act of 12th January, 1853, under which the charter was granted, were repealed. They were mere voluntary acts of exemption, which did not bind future legislatures.

The power of taxation is sovereign and inherent in the government, to be exercised by the legislative department, and extends over all property'not expressly exempted from taxation by positive legislative enactment. The existence of the government depends upon its existence.

The amount necessary to be levied for the support of government must depend upon contingencies not to be anticipated, and unless under peculiar and exceptional circumstances, and upon an adequate consideration, can never be made obligatory upon succeeding legislatures, upon whom the responsibility rests, to supply the necessary revenue for the support of the government.

“The General rule,” says Mr. Cooley, “is, that one legislative body cannot, by its own action, narrow the scope of legislative powers ; but with the amplitude that it conies to the one body, it must pass to the successor; pledges therefore or stipulations by one . legislature regarding the future levy of taxes,, though they may under some circumstances charge the conscience-of their successors, are not limitations on legislative power, but may be observed or disregarded, as it shall be thought the public necessity, or policy may require.” Goody on Taxation, page 52; 22nd Wallace, 375; 48 Mo., 287.

The eleventh section of the charter, which contains the exemption, stands upon different grounds. It was a public act, so declared, and the charter was, doubtlessly, granted upon a supposed benefit to the State, and, in the estimation of the legislature that granted the charter, the general benefit and advantage to the state, were taken as a sufficient consideration for the exemption.

The eleventh section of the charter provides that the “capital stock and dividends of said company shall be (forever) exempt from taxation; the road, fixtures and appurtenances-shall be-exempt from taxation until after it pays an interest of not less, than ten per cent, per annum.”

The question at issue is, was the land subsequently granted to aid in the construction of the road, part of the capital stock of the company, in the sense contemplated by the Legislature at time the charter was granted ? If it was, then the taxation of the land should be restrained, if not, the bill is demurrable, and the taxes should be collected.

Numerous adjudicated cases have been cited by counsel on both sides, tending to show what the courts have held to be “capital stock,” and exempted under the general terms “capital stock,” and after a most careful examination of all of them, we have found them but remotely bearing upon the question at issue'. Several of the cases referred to, were made under statutes which were passed after a land grant had been given, and in some instances, the grants were conferred under acts of Congress much like that passed to aid the Cairo and Fulton road.

And, it is worthy of observation, that in all, or nearly all of the cases where grants were made to the State to aid in the construction of roads, that either in the act of the Legislature accepting the grant, or in the act donating it by the State to the corporation there were contained exemptions of the lands so granted for a limited period, at the expiration of which, the lands were to be taxed. And the Legislature of Arkansas did, in the act of 16th January, 1855, in express terms, separate the road, fixtures, appurtenances and the lands from the capital stock, and the time of exemption after which the whole of the property should be taxed as other property in the State, and in contradistinction declared that the capital stock, exempted in the eleventh section of the charter should forever remain exempt from taxation. This act was repealed, but for which it would have settled the question at issue. It however leaves no doubt whatever as to what the legislature intended when the grant was made by the State to the corporation. .

The act of 1855 was fuller and more explicit than most of the legislative acts of the other states, where like grants have been disposed of.

In the first section, it was provided : “That after the expiration of twenty years from the completion of the said Cairo and Eulton road, said company shall pay into the State treasury an annual tax upon the road, fixtures, lands and tenements, and houses, equal to that paid upon other taxable property in this State, for the time being; and for the purpose of taxation, the road, fixtures, lands, tenements and houses, shall be considered separate and distinct from the capital stock, whether all the capital stock shall be expended in building said road, etc., or not.”

And the “capital stock” shall be exempt from taxation as provided for in the eleventh section of the charter.

Taking this act as an expression of legislative will it is evident, that the lands were not granted to the corporation as a part of its capital stock, but on the contrary, were in express terms, distinguished from it, but we have seen that this act is not in force, nor is there any act whatever in force exempting the lands so granted to the railroad company from taxation, for any period whatever.

It is alleged by plaintiffs in their bill that they accepted all of the several acts of the Legislature, including that which repealed the act of 1855.

There is a class of cases referred to, where questions growing out of the construction of charters, and the legislative acts, accepting the Congressional grant, and in disposing of it, to which we will refer.

In the case of State v. Duette, et al., 48 Mo., 282, the question arose upon the construction of the charter. ■ •

It was provided in the charter: That the capital stock, together with the machines, cars, works and other property,-should vest in the stockholders, be deemed personal property, and be exempt from all public charges or taxes whatever for five years. After this, an act accepting a land grant from the United States was passed to aid in the construction of the road, in which it was provided: That the Pacific railroad, and the Southwestern Branch railroad shall be exempt from taxation, respectively, until the same declare a dividend; when the road bed, buildings, machinery, engines and cars of such completed road, at the actual cash value thereof, shall be subject to taxation, at the rate assessed by the State, on other real and personal property.”

By the act of 1851, all property of the corporation was exempt for five'years. Under the act of 1852 the property of the road was exempt until it was opened, put in operation and declared a dividend.

Under this state of case, no question could arise as to what was included in the terms “ capital stock.”

In the case of City of St. Joseph v. Hannibal and St. Joseph Railroad Company, 39 Mo., 476, the question presented was, whether a charter of the company which exempted the stock of tl^e company from taxation for state and county purposes, was not a prohibition upon the legislature to pass an act to tax the property thus exempted. A tax was levied for corporation purposes. It was held that it did not, and, that the levy of such city tax was not double taxation.

In the case of Hannibal and St. Joseph Railroad Company v., Shackelford, 30 Mo., 580, the question was, whether property of the company, consisting of road-bed, depot, cars, locomotives,, and all the real and personal property necessary for the operation of the road, was liable to taxation under the general revenue laws of the State. The law provided that all property owned by incorporated companies, over and above their capital stock,, should be taxed. The charter, .granted in 1849, provided that, the stock of said company should be exempt from all state and county taxes.” On the -20th September, 1852, an act was passed to donate to the company the lands that year granted to the State, for the purpose of aiding the company to build the road. The third section of the act provided: That in consideration of the grants and privileges conferred on said company, it shall, in December of each year after said road is completed and declares a dividend, pay a tax * * * * on the road bed, cars, etc., and other property of the company.

By an act of 28th December, 1852, passed for the purpose of applying a portion of the donation of Congress to the Pacific road, it was provided: The said Pacific Eailroad and the Southwestern Branch Eailroad shall be exempt from taxation until the same shall be completed, opened and in operation.

Under the provisions of these several acts, the question arose as to whether the road bed, machinery, depots, and other property used by the company in operating the road, were to be considered part of the capital stock of the company.

No such question is presented in the case before us. No levy or attempt to levy upon the road bed, fixtures and appurtenances, ot the St. Louis, Iron Mountain and Southern Eailway, has been made, but only upon the lands granted to the company to aid it in the construction of the road. No such question was presented before Judge Naptan as that before us. He refers to the several acts of the State of Missouri in which it is declared that the road bed and machinery should be deemed part of the capital stock, and vested in the shareholders forever.

We have no such statute in Arkansas, and there is not a sentence in the opinion in that case, which would aid us in the determination of the question as to whether the subsequent land grants given to aid the company to build the road, were or not, part of the capital stock of the company, and held as such under' its charter. Indeed, the legislature, not only of Missouri, but of the other states in which land grants have been donated, negative the presumption that the grants were to be so considered; on the contrary, we find the legislature, in the acts accepting the grants or in conferring them upon the corporations, limiting and fixing the time when these grants shall be subject to taxation.

In the case of Trash v. McGuire, 18 Wallace, 391. The St. Louis and Iron Mountain Railroad Company was incorporated March 3d, 1851. The capital stock was $6,000,000. And it was provided in the act that the stock of said company should be exempt from all state and county taxes.

On the 17th February, 1853, it was enacted that the engines, cars, machinery, and other property belonging to said company, should be deemed a part of the capital stock of the company, and vest in them forever. The state, subsequently, gave aid to the company, issued bonds which were used by the company, and were, by contract, to operate as a mortgage upon the road of the company, in favor of the State.

The question at issue arose upon the effect of the sale by the State under its mortgage. But there is this pregnant inference to be drawn, that but for this act, declaring the road fixtures and property of the company capital stock,” it would not have been held as such.

Several cases have been cited by counsel to show that the exemption of capital stock from taxation exempted only the stock and property which were necessary to carry on the business of the corporation, and that lands, or other property not necessary for that purpose, was not exempt from taxation. Of these, in the case of Vermont Central Railroad v. Burlington, 28 Verm., 193, the charter of the l'oad exempted the stock, property and effects of the company from taxation. Lots of land outside of the road bed grant were assessed for taxation: Held, that the exemption was limited to such real estate as the company were authorized to take in invitum.

In 2d Municipality of New Orleans v. Commercial Bank, 5 Rob., 151, the capital stock of the bank was exempted from taxation during the continuance of the charter: Held, that nothing was exempt from taxation except the capital stock of the bank, $3,000,000, furnished by the stockholders for its operation.

In the Milwaukee and St. Paul Railroad Company v. The City of Milwaukee, 34 Wis., 271, the road trunk, right of way, depots, buildings, workshops, rolling stock, and all other property necessarily used in operating the road, were exempted: Held, that all the lots or parcels of land necessarily used by the company for its repair shops, yards or depot grounds, were exempt, but that dwelling houses, and lands occupied for other purposes, were not exempt.

In State New Jersey Railroad Company v. Collectors of Wards of Newark, 1 Dutcher, 315 : Held, that real estate owned by the railroad company, .not used or occupied for the necesáary purposes of the company, is liable to- taxation, notwithstanding the corporation pays a tax on its capital stock.

In Bailey, collector, v. Clark et al., 21 Wallace, 284: Held, that the term capital ” does not include money borrowed from time to time in the course of business, but it applies only to the property, or money of the banker, set apart and manifestly invested in banking.

In New Haven v. City Bank, 31 Conn., 106: The capital stock of the bank was, by its charter, exempt from taxation. A house was bought with .the capital of the bank. The court seem to attach importance to this fact, and held, that as it was used by the bank, it should be exempt.

Giving to these decisions (several of which were made by courts of the highest authority) due consideration, they will be found to lead to no very satisfactory solution of the question at. issue in the case under consideration, to determine which a reference to the charter, the purposes for which it was granted, the subsequent grant of lands to aid in building the road, and the-conditions attached to the grant, may lead to more satisfactory conclusions.

The act of January 12th, 1853, was passed to incorporate a joint stock company, which is defined by Angel and Ames, p.. 5-39, to be “a corporation which has for its object a dividend of' profits among its stockholders. A corporation of this sort is invariably empowered to raise a certain amount of capital by the mutual subscription of its members, and this capital is divided into shares, which vest in the subscribers, according to their respective contributions.”

“The stock of a railroad company,” says Mr. Justice Ingles,, in State v. Wood, 15 Richardson, 185, “is the aggregate of the property and effects of the company. In its original form.it is a sum of money contributed in fixed proportions of the adventure.”

All of the necessary requisites to create and organize a joint-corporation are found in the three first sections of the act of incorporation of the Cairo and Fulton company. The 4th section provides that the capital stock shall be $1,500,000, divided into shares of $25 each, which are declared to be personal propertyr which may be assigned and transferred in such manner as the board of directors may order, with power in the board, upon its requisition, to require payment of the sum subscribed, and requires the board of directors to open a book for the subscription of stock.

The 9th section provides, that the corporation may commence the construction of the road at any time after $100,000 of capital shall have been subscribed,, and five per cent thereon paid to' the board of directors.

The 11th section provides, that the capital stock and dividends of said company shall be (forever) exempt from taxation. The “ capital stock ” declared to be forever exempt from taxation was evidently the joint stock capital provided for in the preceding sections of the act, and that capital stock was a cash capital, to be raised by subscription (in the first instance), subscribed stock, to be paid in cash upon the call of the board of directors. That the money subscribed was not to be paid in at the time when it was subscribed was contemplated, but the subscribers bound themselves to pay, when called upon, in such sums as the necessities of the corporation required, and hence the terms of description, “subscribed stock,” and “paid in stock.”

This was the character of the stock intended to be exempted from taxation. There was no other capital stock, under the provisions of that charter; there could be no other stock. This stock was to be forever exempt from taxation. The road and appurtenances were also to be exempt until it yielded a certain per cent, upon the capital invested in making and equipping the road. The reason for this distinction is obvious. The capital was to be invested in building the road. It was subscribed and set apart for that purpose. And was intended to be absorbed, and taken up in the road. It was not an active continuing capital, such as is required for banking purposes, or for insurance corporations. Corporations of this kind are expected to keep a large amount of capital on hand.

It is the capital thus held and used which yields the dividend. Rut in railroad corporations the capital is raised to be expended .at once in building and equipping the road, and, when the road is completed and put in operation, it is the road under its fran■chises, which produces the dividend. It was evidently in contemplation of this fact that the “capital stock” raised to be so -expended, was exempted from taxation. And so with regard to the road, when put in operation with its equipments. The exemption of these, the proceeds of the. capital, was not to pay any tax until it yielded a profit of ten per cent, per annum on the amount invested in building and equipping it.

It is contended for plaintiff that the land granted by Congress to aid in the construction of the road, is also a part of its capital stock, and covered by this exemption. A construction which lets the land in as part of the capital stock, is altogether inconsistent with the theory that the capital is to survive the building of the road. The land is a realty, never to be exhausted or removed. The true intent of the grant was that the lands should be sold, should pass into other hands, and according to their real value, to remain like other lands, a perpetual source of revenue to the State. An express provision was made for the sale of the land as each twenty miles of the road were built. It was the money arising from the sale of the lands, not the lands, which was to be applied as part of the capital to be used in building the road, and thus become absorbed in it; such could not be the case with the land. It was perpetually to retain its identity, its ownership too was to remain, either the property of the corporation or of others. , At the time the charter was granted no land grant had been made, no reference to it is made in the charter, no place for it as capital stock or otherwise. It was a money capital provided for, to be raised by stock subscription. The money arising from the sale of the lands might be used as part of the capital appropriated for that purpose, and exempted from taxation, but not the land.

It could not have entered into the minds of the members of the Legislature, that when they were providng for the exemption of the cash capital of the corporation, to be used in building the road, and soon to be thus expended, that they were at the same time forever exempting several millions of acres of land extending north, south and west, through the heart of the State. No presumption can be raised from either declaration or purpose, to encourage the belief that such was their intention.

It is a settled rule that no presumption in favor of exemptions of property from taxation, can be indulged.

The exemption must be made upon a sufficient consideration and be clearly shown to exist, and no presumption can be indulged in its favor. Cooley on Taxation, p. 52.

In the case of Tucker v. Ferguson, 22 Wallace, 575, Mr. Justice Swayne, who delivered the opinion of the court, said: The taxing power is vital to the foundations of government; it helps to sustain the social compact and to give it efficacy. It is intended to promote the general welfare. It reaches the interest of every member of the community. It may be restrained by contract, in special cases, for the public good, when such contracts are not fordidden. But the contract must be shown to exist. There is no presumption in its favor; every reasonable doubt shall be resolved against it. Where it exists it is to be rigidly scrutinized, and never permitted to extend, either in scope or duration, beyond what the terms of the concession clearly require. It is in derogation of public right, and narrows a trust created for the good of all.”

The rule thus laid down by Mr. Justice Swayne is fully sustained by authority, indeed there is none to the contrary, and when applied to the case before us, is in effect decisive of the question at issue.

The manifest injustice of permitting so large an amount of real estate (for all time to come) to be exempt from taxation, and as a consequence, to impose the whole burden of taxation (from that source) upon the lands not so exempted, repels the presumption that such was the intention of the legislature, which, when considered in connection with the several provisions of the act of incorporation, and the language used, renders it improbable that the lands so granted were intended to be embraced in.

the terms “capital stock,” but if it should be a matter of doubt, whether such was the intention of the legislature, under the rule laid down above, we should be constrained to hold that the lands were not intended to be exempted from taxation.

And we think that this construction of the provisions of the charter is strengthened by the terms of the grant, its purpose, and the limitations imposed upon its use by congress.

This grant of land was made to the State of Arkansas in trust, to be disposed of by the legislature of the State, to aid the corporation of the Cairo and Fulton Railroad Company in the construction of its road.

There appears to have been no formal acceptance of the grant by an act of the legislature, as was the case in several of the states to which like grants of land were' given.

But on the 16th of January, 1855, the legislature, by legislative enactment, transferred the lands so granted, to the Cairo and Fulton Railroad Company, under all the limitations, and restrictions, imposed by the act of congress.

That part of the act of the legislature which conferred upon the Cairo and Fulton Railroad Company the grant of land, is as follows:

Section 1. That the lands within this State along the entire length of the Cairo and Fulton railroad * * * with the

rights conferred by the act of Congress of selecting other'lands in lieu of such as may have been sold or otherwise appropriated by the United States, * * * approved February 9th, 1853, are hereby granted to the Cairo and Fulton Railroad Company, so that they may be legally applied in aid of the construction of said main trunk line of said road, separately from either of said branches thereof.

And by an amendment to the act of January 16th, 1855, approved November 26th, 1856, it was expressly provided that the lands granted, were to be taken and held subject to all the conditions, limitations and restrictions contained in the act of Congress granting said lands in trust to the State.

By the 1st section of the Act of Congress, a right of way one hundred feet wide, on each side of the survey, along its whole length was granted over the public land of the United States.

The second section granted to the State of Arkansas, for the purpose of aiding in making the railroad and branches, within their respective limits, every alternate section of land designated by even numbers, for six sections in width, on each side of said road and branches, or if such even numbers or parts thereof have been appropriated by the United States, then there is to be selected by agents appointed for that purpose by the Governor of the State, from the lands of the United States most contiguous to the tier of sections above specified, so much land in alternate .sections or parts of'sections, as shall be equal to the amount of land disposed of by the United States, which lay within the grant. The State of Arkansas shall have and hold to and for the use and purpose aforesaid; provided, That the land hereby granted shall be applied, in the construction of said road, and shall be disposed of, only as the work progesses, and shall be applied to no other purpose whatsoever,

The 4th section provides, that the said lands, hereby granted to said State shall be subject to the disposal of the Legislature thereof, for the purpose aforesaid and no other.

Section 5. That the lands hereby granted to said State, shall be disposed of by said State, only in the manner following: That is to say, a quantity of land, not exceeding one hundred and twenty sections and included within a continuous length of twenty miles of said road, may be sold; and when the Governor of said State shall certify to the Secretary of the Interior, that twenty continuous miles of said road is completed, then another like quantity of land hereby granted, may be sold ; and so from time to time until the road is completed, and if said road is not completed within ten years, no further sales shall be made, and the lands unsold shall revert to the United States.

Such was the grant, and such the restrictions placed upon its use. It was a delegated- trust conferred upon the State to be exercised under the limitations imposed, and for a particular purpose. The State, by its Legislature, was vested with power to dispose of this trust, and the grant was turned over to the corporation to be executed under all the limitations and restrictions imposed by the act of Congress.

After the most careful consideration of this grant, the limitations upon it, and the time and circumstances under which sales, from time to time, were to be made, we are unable to find anything in it Avhich, even remotely, tends to show that the lands were intended to be taken and held as capital stock, or that they were to be held up and reserved to the corporation from sale.

With regard to the proper construction to be given to the act of Congress, and of the rights and duties of the State, and of the corporation for whose benefit the grant was made, we are aided in our investigation by a recent decision of the Supreme Court of the United States. Tucker v. Furgerson, 22 Wallace, 527.

The act of Congress which granted land to the State of Michigan, to aid in the construction of Flint and Pere Marquette Eailway Company, is almost a literal copy of the act granting aid to the Cairo and Fulton company, and the questions presented for the consideration of the Supreme Court of the United States were, in many respects, like the one we are considering. The object of the suit in that case, as in this, was to enjoin the imposition of a tax upon the land granted to aid in the construction ‘of that road. The opinion of the court was delivered by Mr. Justice Swayne, and is so clearly in point that we cannot. but indulge in quoting from it, so far as it relates to tbe grant of land, and the proper construction to be placed upon it. He says: The United States granted the lands to the State for a specific purpose. That purpose was to aid in the construction of railroads upon the ^routes designated. The land was made subject to the disposal of the Legislature, for the purpose aforesaid, and no other. Congress prescribed certain safeguards to secure their application to the construction of the roads, and to prevent failure or diversion. The precautions were few and simple. Except as to the first 120 sections, the power of sale was to attach only as the road was completed in successive sections of twenty miles each.

It is a conclusive answer to the proposition we are considering, that the United States has no more claim, legal or equitable, touching the land here in question, than it has to lands which they have patented and sold to others, in the regular course of-the administration of the land department of the government; and that, .as Congress has not seen fit, either expressly or by implication, to impose any -restrictions upon the taxing power of the State, that subject was remitted, as under the circumstances it might well be, wholly to her wisdom and discretion. * * Upon general principles, the State could not tax the land while the title remained in the United States, nor while she held them as trustee of the United States. But when the State, proceeding in the execution of her trust, had transferred her entire title to-the company, and they had perfected their title and acquired the right to sell, the case assumed a very different aspect.”

What was that different aspect ? Most clearly it was that the-title to the land had vested in the corporation. It was from that day that the right of taxation was to commence, and in no wise depended upon the sale of the land. The corporation had from that day an indisputable right to sell. It was contemplated by the terms of the grant that it .should sell the lands,- and vest the proceeds of the sale in building the road. And at the same instant that the United States was divested of her title, the exemption of the lands belonging to the United States within the limits of the State, reserved to the United States from taxation as a condition upon which the State was admitted into the union, and the corporation took the title, the lands became (unless specially exempted) liable, as all other lands of the State were, to taxation. “The company,” says Mr. Justice Swayne, “so far as the matter or right is concerned, were upon a footing with all other aliencies of the United States. The imposition of taxes can in no just sense be said to be a diminution of the value of land. If Congress had thought so, they would have forbidden it. Liability to taxation is an incident to all real estate. Exemption is an exception; when claimed, to be effectual, it must be made out.”

Yielding our assent to the correctness of this decision, we must hold that the right of taxation of the lands does not depend upon the fact as to whether the corporation had, or not, parted with the title. It is a matter of no moment to the State who the owner of the land may be, that it is land, the title to which has been parted with by the United States, is all that is material to be seen. The tax is upon the land, and the right of taxation accrued to the State, from the time the United States parted with it, unless exempted under the act of 1869, until it was repealed by the act of 1875.

The question as to whether plaintiff has, or not, parted with the land, is not before us, there is no allegation showing such sale. If such had been the case a different question might arise, but it is alleged that one million four hundred thousand acres of the land remain unsold.

It is true that there is an allegation that it was the security and credit given the company as the own ers of the grant of land, with the exemptions claimed, that enabled it to raise the means to build and equip the road. And, that in order to raise money for that purpose, the company issued its bonds for the sum of eight millions of dollars, dated on the 10th December, 1870, and payable 1st of January, 1891, at the office of the Union Trust Company, in the city of New York, with interest, and that the debts remain unpaid. But this is no averment of a sale of land, or even an incumbrance upon it. The title must be considered as remaining in the company.

More than twenty years have elapsed since this grant was made, by force of which these lands have been exempted from taxation, and, until within a feAV years, also from sale or settlement, because the company had failed to build the road and put themselves in a position to receive the title, and by reason of Avhich a wealth of revenue and population has been lost to the State.

Counsel for plaintiff assume that since the road has been completed, the lands will soon be sold, from Avhich time they will be subject to taxation.

Whether this will be the case or not, is foreign to the question at issue, the right now to tax the land&.

If exempt now, they are, according to the terms of exemption, forever exempt.

The company will, or not, at their pleasure, dispose of the land. In a financial point of view, if the money for which the land is sold is worth more at interest than the increased value of the land will be if held up from sale, they will likely be sold. The company will sell or not, as may seem best, and the exemption, if allowed, will enter largely into the consideration, whether the lands are to be sold or reserved from sale. If held for milling purposes, or for purposes of cultivation, the exemption of the land will carry with it an exemption of all fixtures and improvements placed upon them.

A question of more importance to the future prosperity of the State, or one in which the burden of the support of the State government could be more inequitably distributed, has rarely, if ever before, been presented for the consideration of any court. But whatever the decision of the court may be, or however detrimental to the interests of the State, if the legislature has made a valid exemption of the lands, one which is to bind future legislation, and which fixes a perpetual exemption from taxation, the court,, without reference to the consequence which may result from so holding, should sustain the exemption and declare it valid.

The plaintiff has expended a large amount of capital in building and equipping the road, and it will require energy, and close attention to make so large an investment remunerative. The amount claimed to have been expended exceeds $11,100,000, but it has been seen that this large investment is, by the second clause of the exemption act, to be exempt from the payment of taxes until the road yields ten per centum per annnm on the amount expended in building the road and equipping it. Unless this per cent, is realized, there is unquestionably no tax to be collected from this source, and if, in addition to this, we should sustain the claim of plaintiff to an exemption 'of one million four hundred thousand acres of land, as capital, it would amount to a double exemption. The one, capital remaining after the road has been for more than two years completed; the other, the products of the capital stock, or, aS contended by plaintiff, of money loaned upon the credit that the corporation was the owner bf the lands, and that they were not liable to taxation.

After a careful consideration of the case in all its bearings, we have been led to the following conclusions:

That the several statutes passed by the Legislature, which exempted, or claimed to have exempted, the lands granted by Congress to aid in the construction of the road, from taxation (except the 11th section of the charter) were voluntary enactments, ■which the Legislature had a right at any time to repeal, and that they have been repealed.

That the capital stock exempted from taxation by the 11th section of the charter was the cash capital provided for in the 4th section of the charter, and not land.

That the land granted by Congress to aid' in the construction of the road was not part of the capital stock of the road, nor exempt from taxation.

That when the United States parted with its title to the land, and the same became the property of the corporation, the right of the State, in her sovereign capacity, to tax the land accrued, irrespective of sale or transfer by the corporation. That the State of Arkansas, when she repealed the act of 1869, which exempted these lands from taxation, resumed her right of taxation, and had, under the provisions of the act of 1875, and the act of the general laws in reference to the levying and collecting taxes on land in this State, a right to levy and collect such taxes and was in the proper exercise of this power through her officers, and should not be- restrained in its exercise. And that the demurrer to the bill was properly sustained.

Let the judgment and decision of the Circuit Court of Jackson county' be in all things affirmed.


source: Caselaw Access Project

author: Harrison, J.:

license: Public Domain

text:
    Lawrence vs. State, use School Fund.
    Wabning Obdjsb: Affidavit of publication, etc.

    In obtaining and publishing warning order, the statute must be substantially and strictly followed, the order must contain all the recitals required by law, and the affidavit of publication must be made by the editor or publisher, and show publication for four successive weeks.
    APPEAL from Pulaski Chancery Court.
    Hon. W. I. Warwick, Chancellor.

      Rose for appellant.
    The proceedings do not follow the requirements of th$ statute,. July 16, 1868, p. 76 of acts, see secs. 6, 5. This act was not changed by the Code'.
    No affidavit here for warning order. Gantt’s Digest, sec. 4527. No proper proof of publication. Gantt’s Digest, sec. 4033. Constructive service must be strict. Brodie v. Skelton, 11 Ark., 121. Personal decree erroneous.

      Attorney General Hughes for appellee:
    Cited Gantt’s Digest, secs. 3994, 3996. Insufficiency of proof of publication acknowledged, but see sec. 4033 as^to affidavit of the editor.
    Personal decree may be taken for deficiency. Sec. 4007.
    Question submitted for settlement, with concession of errors.
   Harrison, J.:

This was a suit by the State for the use of the school fund to enforce its reserved lien on section 16 in township 5 north, of' range 8 east, in Crittenden county, for a balance due on the land given for the purchase money.

S. Lawrence, the purchaser, and maker of the bond; and the unknown heirs of W. C. Lowder, who, the complaint alleged,, claims an interest in the land, were made defendants.

The complaint was filed on the 3rd day of February, 1874,. and a summons directed to the sheriff of Crittenden county for-S. Lawrence, and the other defendants, by the description of the unknown heirs of "VV. C. Lowder, issued. The summons being returned not served a warning order seems to have been published, but no entry that such was made appears in the record.

The warning order, as appears by the copy filed in proof of' publication, was as follows:

'Warning Order — State of Arkansas, for use of School Fund,. 1981, v. S. Lawrence and unknown heirs of W. C. Lowder, in, Pulaski Chancery Court.

"The defendants, S. Lawrence and the unknown heirs of W. O. Lowder, are warned to appear in this court, within thirty days and answer the complaint of the plaintiff, the State of Arkansas for use of School Fund. D. P. Upham, Clerk.

And the affidavit of its' publication appended thereto, was as follows:

“State of Arkansas, County of Pulaski. I hereby certify, that the annexed advertisement was published four times in thé Arkansas Republican, the first of which was on the 28th day of February, and the last on the 18th day of March, 1874. John W. McDaniels, Secretary.
“Sworn to and subscribed before me this 18th day of March, 1874. D. P. Upham, Clerk.”

At the April term, 1874, the defendants not appearing, the complaint was taken as confessed, and a decree rendered against all of them for the debt, and condemning the land to be sold for the payment thereof.

The defendant, S. Lawrence, brought the case to this court by an appeal obtained from its clerk.

The Legislature has provided specially for suits, like the present, by the State for enforcement of its lien on land for purchase money, and prescribed the particular manner in which notice shall be given to non-resident and other defendants upon whom process cannot be served. Section 3994 Gantt’s Digest, relating to such notice, is as follows: “Section 3994. If the return upon a process, directed to the county in which, such land is located, shows that the defendant is not found in such county, or upon an affidavit of some credible person that the defendant is a non-resident of the State, the clerk of the Chancery Court, upon the application of the Attorney General, shall make and enter on the record an order which shall contain the title of the suit, the date and amount of the note or bond proceeded upon, and á description of the land upon which the lien is sought tó be enforced, and warn the defendant to appear and make defense thereto on the first day of the next term of such court that commences more than sixty days from the date of such order.”

By section 3995, such warning order is required to designate the month and day of the month on which the term of the court will commence, and to be published once in each week for four successive weeks.

Section 3996, says: “If the return of the officer upon the process mentioned in the preceding sections, shows that the defendant is dead, or upon other proof thereof before such clerk, said clerk shall make and enter the order mentioned in the preceding sections, except that it shall warn generally ‘the heirs- and personal representatives’ of the defendant to appear and make defense thereto as provided in the preceding sections.”

Section 3997 declares “that the publication of such order as provided in the preceding sections, shall be equivalent to a personal service, and then proceeds thus: Provided, That upon a return of the officer on the process, showing that the defendant is not found in the county in which such land is situated, the Attorney General shall file before said clerk an affidavit to the effect that he has used due diligence, and has not been able to ascertain whether the defendant is dead or alive, the clerk shall make and enter on record such order, except that the defendant, if living, or his heirs and legal representatives, if he is dead, are warned to appear as provided in the preceding sections; and, when published as required by said sections, shall be equivalent to a personal service.”

The proof which the statute requires of the publication of the warning order is the filing with the clerk of a printed copy, and an affidavit of the editor or publisher of the newspaper, stating the number of times and dates of the paper in which it appeared. Section 4031.

It is thus seen that with the exception of the issuing of the summons and the return of the same, none of the provisions of the statute providing for a notice to defendants upon whom process cannot be served was complied with.

The only evidence in the record of a warning order is the copy of what purports to be such on file, in which neither the date, nor the amount of the bond, nor a description of the land' is given; and by which the defendants were required to appear within thirty days.

■ The affidavit of its publication was not made by either the editor or publisher of the paper, but by one who designated himself as secretary, and it does not show that it was published once in each week for four successive weeks.

The rule is well established, and it rests upon the soundest principle, that when constructive notice only is given, the requirements of the statute must be, if not literally, substantially and strictly complied with. Newm. Plead and Prac., 56; Brodie v. Shelton, 11 Ark., 120; Clark v. Strong, 13 Ark., 491; Saffold v. Saffold, 14 Ark., 408; Turnage v. Fisk, 22 Ark., 286.

The decree against the appellants must be reversed and the cause remanded to the court below to be proceeded in according to law.


text:
    Halliburton vs. Johnson, adm'r., etc.
    1. New Tbiai.: Evidence.

    A motion for a new trial on the ground of newly discovered evidence, which does not show that due diligence has been used to obtain it, and is not supported by the affidavit of the witness or any other person, should be overruled.
    2. ---, Exclusion of Evidence.

    Where the court, after having received competent evidence, excludes it, a new trial should be granted.

      APPEAL from Arkansas Circuit Court.
    Hon. P. C. Dooley, Circuit Judge.
    Cockrell, for, appellant.
    Court erred in excluding Halliburton's testimony even if inadmissible. Johnson v. Ashley, 7 Ark., 470; Phelan v. Ben-ham, 9 ib., 389; 15 ib., 345; 18 ib., 392; 23 ib., 131. But it was admissible. Gantt's Digest, 90. The authority of the administrator could not be questioned after the judgment of the Probate Court, and this judgment shocks the sense of justice.
   Harrison, J.:

This was a suit brought by Catherine M. Price as administratrix de bonis non of John J. Johnson, deceased, against William H. Plalliburton, on a sealed note or bond executed to her intestate by the defendant for $1,141.21, dated November 4th, 1858, and payable January 1st, 1860.

Catherine M. Price dying, administration de bonis non upon John J. Johnson's estate was granted to Joseph G. Johnson, and the suit was revived in his name as plaintiff.

In his answer the defendant claimed to have satisfied and discharged the note in the following manner. On the 121 h day of December, 1859, Johnson and himself entered into the following written agreement:

“Memorandum of contract this day entered into between W. PI. Plalliburton and John J. Johnson, witnesseth: The said W. PI. Halliburton has agreed to sell to the said John J. Johnson his interest, being one undivided half of the following described tract of land, to-wit: East half of the southeast quarter of section four, and the east half of the southwest quarter of section three, both in township five, south of range three west, for the sum of $1,500, payable as follows, to-wit: The said John J. Johnson is to discount whatever may be due him from the said W. H. Halliburton on note now in the hands of the said John ■J. J olinson, and let the said W. H. Halliburton have such horses, •mules, oxen and other cattle as the parties may agree to, out of the partnership^ stock belonging to said parties, and the balance, if any, is to be paid in. one and two years from the closing of this contract, the deferred notes to draw interest at six per cent, from maturity.
In witness whereof the said parties have subscribed two contracts of equal date and tenor. Given under our hands this 12th day of December, A. D. 1859. .
W. H. Halliburton,
J. J. Johnson.”

On the 17th day of January, 1861, after the death of Johnson, Catherine M. Johnson, his administratrix, and the defendanthad an accounting or settlement of all outstanding claims and demands between her intestate and the defendant, including the note sued on, and there was found due from the estate to defendant the sum of $800, and for which sum he exhibited a claim against'the estate, which the administratrix allowed.

The cause was submitted to the court sitting as a jury.

The contract between Johnson and the defendant was read in evidence, and the defendant, who was a witness in his own behalf, testified that the note sued on was the one referred to in the contract; that the settlement alleged in the answer was made, and at the time stated; that the note was embraced therein, but he could not tell why it was not taken up ; that $800 was found due him from the estate for which he exhibited a claim against the estate, and which the administratrix allowed, and that he was afterwards paid the amount; that after he gave the note, he made advances to and on account of Johnson, which also were accounted for in the settlement; that Johnson was the owner of the other half of the land mentioned in the agreement, and was at the time of his death in possession of the land; but that he had never made a deed for the undivided half he contracted to sell. And he proved by the record that the claim for $800 was presented to and classed by the Probate Court, and, in like manner, that the note was not in the inventory of the estate.

After the trial was closed, and the case had been under consideratiomfrom the 27th of February until the 14th of March, the court excluded that part of the evidence of the defendant that related to the settlement between him and the administratrix, and found for the plaintiff, the amount of principal and interest of the note.

The defendant filed a motion for a new trial which was overruled, and he appealed.

The exclusion of the evidence just referred to, and the discovery of new evidence after the trial, though there were others, are the only grounds of the motion for a new trial we need notice.

If, possibly, a case might arise where evidence already admitted might,, after the case has been closed, be withdrawn from the jury or rejected by the court, without prejudice or injury, this clearly was not such — the evidence excluded plainly supporting the answer, and directly relative to the issue.

Though under the rules of the common law, that a covenant under seal not broken, cannot be discharged by a parol agreement, the contract between Johnson and the defendant of the 12th of December, 1859, twenty days before the maturity of the note, may not have had the effect to discharge the note, but there can be no question that it was discharged and extinguished by the satisfaction the administratrix received in the settlement with the defendant, which was approved and sanctioned by the Probate Court when it acted on and classed the claim based on the settlement.

An administrator de bonis non can claim only such goods, chattels and credits of his intestate as are unadministered and remain in specie and capable of being designated and distinguished as the property of his intestate. Neale v. Hagthrop, 3 Bland., 551; 2 Black. Com., 506.

No diligence whatever to procure evidence was shown by the defendant on his application for a new trial, nor was it accompanied by the affidavit of the newly discovered witness, or any other person. He was not therefore, on the ground of newly discovered evidence, entitled to a new trial. Gantt’s Digest, secs. 4688, 4691.

But for the error above indicated, the motion for a new trial should have been sustained; the judgment of the court below is therefore reversed, and the cause remanded to it with instructions to grant the defendant a new trial, and to proceed according to law.


author: English, Ch. J.:

text:
    Trieber and Wife vs. Stover & Co.
    1. Married Women: Enlarged rights and liabilities under the statute. Under the statute a married woman may carry on a separate trade or business. And she may make contracts and sue and be sued in reference to it as if sole.
    2. Husband: Liability omoife’s contract.

    The husband is not liable on contracts made by the wife in reference to her separate business.
    APPEAL from Phillips Circuit Court.
    Hon. W. H. H. Clayton, Circuit Judge.

      Rose, for the appellant.
    Section 8, of the act of April 28th, 1873, Pamphlet Acts, page 384, only provides that a married woman may be sued in “ the courts of this state,” and not that she may be sued at law. Therefore the principle that the contracts of a married woman, made during coverture, are void at law, is not affected by the statute.

      The word “judgment used in the statute, would, under former rules, be strictly appropriate to common law proceedings; but under the Code decrees are also called judgments. This is ndt the ordinary case of mistaken remedy, where an equitable cause may be tried at law by consent of parties, either express or implied ; because at law the contract is void, and cannot be the subject of action. Dobbin v. Hubbard, 17 Ark., 189; Fletcher v. ' Stillwell, MSS. Ops. On this subject, Mr. Bishop says: “ The
    practitioner should inquire, in the first place, whether, in express terms, or by implication, the. statute authorizes the femme covert to make a contract binding at law; and if it does, then to bring his suit against her at law; if it does not, then the proceeding must be to charge her separate estate in equity. 2 Bishoq> on Married Women, sec. 240. See also, 1 id., sec. 39.
   English, Ch. J.:

On the 8th August, 1873, Stover sued David Trieber and Carrie Trieber his'"wife, in the Phillips Circuit Court, on an open account contracted by the wife.

The complaint alleged:

That the defendant, Carrie Trieber, is the wife of defendant, David Trieber, and is engaged in the business of merchandising in her own name.

That defendant Carrie Trieber, is indebted to the plaintiff in the sum of $1,012.93, for goods and merchandise sold and delivered by plaintiff to the defendant, Carrie Trieber, and for interest upon money due from said defendant, Carrie, to plaintiff, -particulars of which are set out in an account herewith filed, together with the credits, etc., leaving balance, etc., prayer for judgment, etc.

Defendants filed an answer, in which they admit that they are husband and wife, and that the wife, defendant, was engaged in the business of merchandising in-her own name; and they controvert items in plaintifffs account, set up a counter claim, etc.

There was a reply, trial by jury, verdict and judgment for plaintiff.

The defendant moved in arrest of judgment on the grounds :

First — That the suit was at law against husband 'and wife, upon a contract made with the wife alone during coverture.

Second — That the complaint shows no legal cause of action against defendants.

Third — No - action at'law lies upon the facts set out in the' complaint, etc.

The court overruled the motion and defendants appealed:

First — The first question presented on the appeal is whether the wife can be sued in a court of law on her’ separate contract as a trader. It is insisted that she can be sued in equity only upon sucha contract.

At common law, as a general rule, a married woman could not make contracts, or sue or be sued upon them, though she might by contract bind her separate property in equity. Dobbins and wife v. Hubbard, 17 Ark., 189; Countz v. Marklin, MSS. Op.; Wood and wife v. Terry et al., MSS. Op.

But by act of April 28th, 1873: “A married woman may bargain, sell, assign and transfer her separate personal property, and carry on any separate trade or business, and perform any labor or services on her sole and separate account, and the earnings of any married woman, from her trade, business, labor or services shall be her sole and separate property, and may be used or invested by her in her, own name; and she may alone sue and be sued in the courts of this State, oh account of the said property, business or services.” Gantt’s Digest, sec. 4194.

And by sec. 4199, ib.: “Whenever a judgment shall have been recovered against a married woman, thé same may be enforced by execution against her sole' and separate estate or property, to the same extent and in the same manner as if she were sole.” •

And-by sec. 4487,'ib.: “A married woman may be sued upon contracts made by her in respect to her sole and separate property, or in respect to any trade or business carried on by her under any statute of this State.”

The effect of these provisions of the statute was, no doubt, so far to remove the common law disabilities of a married woman as to enable her to carry on, in her, own name, and for her own benefit, a separate trade or business, t#* make contracts in such trade or business, and to sue and be sued upon them in the courts as if sole — except that she cannot sue her husband in the law courts.

But must she be sued in a court of equity upon every contract made by her in carrying on such separate trade or business, regardless of the ordinary rules which distinguish matters of equitable, from matters of legal cognizance ?

Such construction of the statute is not plausible.

If she employ a carpenter to fit her up a cofinter and shelves in her business house at a charge of fifty dollars, and is delinquent in paying the bill, must he sue her in chancery upon it ? If a merchant sell her a bill of goods, no matter how small or large, in her separate line of trade or business, and she fails to pay the bill, must he resort to a suit in chancery to collect it? If she sell a femme covert a bonnet, and fits her up a dress, and her husband refuses to pay the bill when presented to him, must she resort to chancery to have it decided that the bonnet and dress were necessaries for the wife, suitable to her condition and rank in society, and that the husband is bound to pay for them ?

Such a construction of the statute would defeat its manifest policy, whether it may be deemed wise or unwise.

If a merchant sell a married woman, engaged in carrying on a separate trade or business, goods, and take a mortgage upon her stock to secure the payment of the price of the goods, chancery is the appropriate court to foreclose the mortgage; but why a creditor,, upon an ordinary sale of goods to a married- woman thus doing business, should be required to sue her in. a. court of equity to collect the bill, under the statute in question, we are unable to percieve.

Under similar statutes in other states, the wife may sue or be sued alone in the courts of law, where the subject matter of the suit is cognizable in the law courts. Going v. Sarah A. Orns, 5 Kansas, 85; Presnell s. Herbert (replevin suit by wife), 34 Iowa, 539; Logan v. Hall, 19 Iowa, 496; Boos v. Gomber (suit by wife alone for trespass on her separate property), 24 Wis., 499; Pickens et al. v. Oliver, 29 Ala., 529; Spears, adm’r, v. Lumkin, 39 Ala., 600; Haynes v. Stoveall, 23 Texas, 625; Stull v. Howard (suit by wife for her trunk), 26 Indiana, 456; Puterbaugh’s Plead, and Pr., 64; Madden v. Gilmer, 4 Ala., 637; Zachary v. Cadenhead, 40 Ala., 236; McKune v. McGarvey et al., 6 California, 497 (this was a suit against two married women, acting as sole traders, on a note made by them); Emerson v. Clayton (replevin by wife), 32 Ill., 495 ; Davis v. Herrick (trespass by wife against sheriff for attaching her sleigh), 37 Maine, 394; Mininger v. Commissioners, 10 Minnesota, 134; Bracket s. Drew, 20 New H. 442; James, ex’r, s. Taylor, 43 Barb., 530.

But the husband is not liable with the wife upon a contract made by her in her outside adventures as a separate trader.

A section of the statute which we have been considering declares, “ That no bargain or contract entered into by any married woman in or about the carrying on of any trade or business, under any statute of this State, shall be binding upon her husband, or render him or his property in any way liable therefor.”' Gantt’s Digest, sec. 4195.

There was no allegation in the complaint to charge-the husband; no cause of action shown as against him, and -yet a joint judgment was rendered against the husband and wifefor $1036.60.

Had he demurred to the complaint, on' the ground that no cause of áetion was shown by it against him, the demurrer should have been sustained. Newman Plead, and • Prac., 667. The judgment against him should have been arrested for the same cause.

The judgment must be affirmed as to the wife and reversed as to the husband. Gantt’s Digest, sec. 1103.


text:
    Thweatt et al. vs. Black, ex’r, etc.
    1. Evidence: Recitals of tax deed, etc.

    The recitals of a tax deed will be'taken as true, unless disproved by competent evidence. "When the deed is attacked the original record of the sale is a higher grade of evidence than the dejrosition of the auditor as to the contents of a certified copy filed in his office by the county clerk.
    '2. Tax Sale: Advertisement prerequisite, etc.

    An advertisement is essential to the authority of the collector to sell delinquent land, but mere informalities or unimportant variances Irom the law will not vitiate.
    3. Same: An erroneous advertisement of land for the taxes of three years,
    where only the taxes for one year were due, will not vitiate if the mistake was discovered and the land was sold for only the taxes that were due.
    4. --: Redemption. Tender, etc.

    Where the certificate of a tax sale is assigned, a tender of the redemption money to the assignee is good; but after the expiration of the time prescribed by the statute for redeeming, no waiver, or anything short of an acceptance of the redemption money, will make it good. ’
    APPEAL from Monroe Circuit Court in Chancery.'
    Hon. W: H. H. Clayton, Circuit Judge.

      Wassell & Moore, Horner, and P. O. Thweat for appellants.
    ■ No deed was tendered before the announcement of the suit. This was fatal. Lewis v. Davis, 21 Ark., 239. ' ’

      The tax deed is proof of its recitals, and of the regularity and legality of the sale. Gould’s Digest, ch. 148, sec. 130; 24 Ark., 460. This,, with the sales-book, shows the land sold for taxes of ’67 alone.
    An answer must be taken as true, not contradicted by-two witnesses, or one with corroborating circumstances. Cummins v. Harrell, 6 Ark., 308; Menifee v. Menifee, 8 ib., 10.
    As against the occupants, the action should have been by ejectment. Their tax deed at least was a cloud. Miller v. Heiman and wife, 27 Ark., 234; Chaplin v. Holmes, ib., 414.

      Hughes, for appellee.
    Insisted that the land was erroneously sold for taxes for three years. Bl. on Tax T., 3d ed., ch. 26; 21 Ark., 154-55. Payment- may be proved by oral evidence. Bl. on T. T., *417 ; Peterson v. Gresham, 25 Ark., 381; Conway v. State Bank, 13 ib., 48.
    A tax deed is not conclusive. Pillow v. Roberts, 13 How.,, 472 ; Avermun v. Parker, 18 ib.; 20 Ark., 284 and 114; 15 ib., 363.
    The record of the sale -is the best evidence. Blight v. Banks,, 6 Mon., 206.
    All the proceedings in a tax sale must correspond and agree, each with the one preceding, or it is invalid. Bl. on Tax T., *392, 231; Pitkin v. Yaiu, 13 111., 251. The sale, if for ’67 alone, did not conform to the assessment and advertisement. Gould’s Digest, ch. 148, secs. 115-16; Alexander v. Pitts, 7 Cush., 503; Corp. of Washington v. Pratt, 8 Wheat., 681; Bettison v. Buddr 21 Ark., 578. Ministerial officers have no right to correct the record. Bl. on T. T., ch. 21, passim.

    Reasonable grounds to presume errors in the proceedings shift the onus of proof on to the holder of the tax deed. Dalton v. Fenn, 40 Mo., 109.

      An offer to produce money, if dispensed with, is a tender. Wicks v. Breton, 4 Ark., 285; 2 Gr. Ev., sec. 603.
    Redemption laws liberally construed. Bl. on T. T., * 425, 429, 430. Tax sales strictly. Burnell v. Roane, 20 Ark., 114; Hagin v. Brashear, 13 ib., 250; Hunt v. McFadgin, 20 ib., 284; Oossett v. Kent, 19 ib., 611; Budd v. Bettison, 21 ib., 584.
    Recitals defective. Do not show the sheriff filed affidavit as collector (Gould, ch. 148, sec. 8); or his bond (sec. 52), or the year for which the lands were assessed; or that the assessment list was filed in time (secs. 34, 35, 36, 37); or that it was adjusted by the County Court (secs. 37, 38); or that the tax book came to collector’s hands (secs. 46 and 50)., So there was neither judgment nor execution. 19 Ark., 609; 21 ib., 581. -
    This is not an action for recovery or possession of land. Chaplin v. Holmes, 27 Ark., 217.
   English, Ch. J.:

Bill filed in Monroe Circuit Court, 5th January, 1870, to enforce vendor’s lien and set aside tax deed.

The bill was filed by Ezekiel Black, executor of "Wm. Walker, deceased, against Wm. E. Brannon, Peter O. Thweatt, Charner T. Scaife, James R. Graham, Thomas J. G. Goode, and Parker C. Ewan, assignee of Wm. F. Brannon in bankruptcy.

The substance of the bill is, that on the 31st day of October, 1866, plaintiff Black, as executor of Walker, under directions of the will of his testator, sold to defendant Brannon, for $2800, the southwest quarter of section 9, township 1, south range 2 west, in Monroe county, of which $700 were paid in cash, and for the balance three writings obligatory, taken for $700 cash, first due 1st January, 1868, second due 1st January, 1869, and third 1st January, 1870, bearing ten per cent interest, and bond given to make a deed on payment of the obligations. That Brannon had paid nothing on the obligations, had been adjudged a bankrupt, and defendant Ewan appointed his assignee.

That on the 9th of March, 1868, the land was sold by the collector of Monroe county for the taxes of 1865, 1866 and 1867, when the taxes for the first two years named had been paid; that the defendant Thweatt purchased the land at the tax sale, took a certificate of purchase from the collector, afterwards assigned it to defendants Scaife and Graham, who obtained a deed from the collector, etc., and that defendant Goode was an occupant of the land.

The bill also alleged an offer to redeem, and tender of the redemption money, etc.

The cause was heard upon the original and amended bill, the answers of Thweatt, Scaife and Graham, exhibits, depositions, etc., and the court decreed that the tax sale was irregular and void, and condemned the land to be sold to satisfy the balance of purchase money ascertained to be due to plaintiff from Brannon.

Thweatt, Scaife and Graham appealed.

The only questions properly arising upon this appeal are, first, was the tax sale shown by the appellee to be invalid ? and, second, did he prove a tender of the redemption money as alleged?

First(a) — The bill specifically attacks the tax sale oh no other ground than that the land was sold for the taxes of 1865, 1866, and 1867, when the taxes for the last year only were unpaid.

The answers deny and--put in issue the allegation of the bill that the land was sold for the taxes of the three years, or any other than the year 1867. The burden of proof was on the appellee.

The land was assessed and sold under the provisions of Gould’s Digest, chapter 148.

The certificate of purchase made to Thweatt, by the Collector, bearing date of 9th of March, 1868, the day of sale, recites that the land was sold for the sum of $8.42, being the aggregate amount of the State, county and special taxes, penalty and charges due thereon for the year 1867.

The certificate was assigned by Thweatt to Scaife and Graham 18th of .December, 1868. The sale was made b.y Carlton, Collector, and on the 15th day of May, 1869, Wilson, his successor in the office, executed a tax ^deed to Scaife and Graham, which recites that the land was sold for the. taxes, penalty and charges-due thereon for the year 1867, amounting to $8.42. A deed was also afterwards made to them by the County Clerk,, containing similar recitals.

The tax deed .appearing to be regular and valid upon its face, its recital that the land was sold for the taxes, etc., due thereon for the year 1867, must be.taken as true unless disproved by competent evidence on the part of the appellee, who attacked and sought to overturn the deed. Hunt v. McFadger, 20 Ark.,. 284, and cases cited. Gould’s Digest, sec. 130, ch. 148.

The appellee took the deposition of Carlton, the collector, who-made the sale. Pie -deposed that the taxes were paid upon the land for 1865 and 1866, but were not paid for 1867. That the land was advertised to be sold for the taxes of 1865, 1866 and 1867, but he could not state positively whether he offered it for sale for the taxes of the three years, or for the taxes of 1867 only.

The appellee propounded special interrogatories to be answered •by Thweatt to the fourth of which (relating to the sale) he responded : “My recollection is that I purchased the land for the taxof 1867 alone, and paid $8.42 and received no other certificate than the one upon which the deed was executed.”

The appellee took the deposition of Jas. R. Berry, Auditor of' the State, (10th May, 1870), who deposed that he' had in his-office, and had examined a certified copy of the record of the sales of lands for taxes made in Monroe county on the' second Monday of .March, 1868, from which it appeared that the tract-in question -was sold for the taxes, etc., of 1865, 1866 and 1867,. and purchased by Thweatt.

The appellees produced the original record (sale book) kept by the clerk who attended the sale (Gould’s Digest ch. 148, section 123,) from which it appears that the land in question was credited with the taxes for 1865 and 1866, and noted as sold to Thweatt for the taxes, etc., of 1867.

The original record of the sale, was of a higher grade of evidence than the deposition of the Auditor who testified as to the contents of a certified copy, sent to his office by the county clerk.

The weight of the evidence produced at the hearing, taking it altogether, is against the truth of the allegation of the bill (denied by the answers), that the land was sold for the taxes of 1865, 1866 and 1867.

(6) It was insisted here for the appellee, however, that the sale was void, because the land was advertised to be sold for the taxes, etc., of 1865, 1866 and 1867, though sold for the year 1867 only, which remained unpaid to the time of the sale.

It appears from the assessment rolls and tax book produced at the hearing, that the land was assessed and taxed for 1865, in the name of William Walker, deceased, upon a valuation of $480 and the taxes paid.

That for the year 1866, it, with another tract, was assessed and taxed in the same name, both tracts being valued at $700, and the taxes paid.

That in the year 1867, the tract in controversy was assessed in the name of Malcome McNeil, a non-resident, for that and the two preceding years, at a valuation of $320 and charged upon the tax book, for the three years with $8 dollars State tax, $4.80 county tax, and $4.36 special tax, and advertised for sale by the collector, for the taxes of the three' years, as charged upon the tax book in his hands, with a penalty of $4.26 added.

It is to be inferred from facts in evidence, that before the sale by some means, it was brought to the notice of the collector, that the taxes had been paid upon the land for the years 1865 and 1866, and that he sold the land for the taxes, penalty, etc., properly charged upon it for the year 1867 only.

The land was doubtless put upon the assessment list in 1867 for the three years under section 32, chapter 148, Gould’s Digest, the assessor overlooking the fact, it may be supposed, (as it was not shown that he acted corruptly) that the land had been listed and the taxes paid for the two previous years.

Such mistakes have no doubt frequently occurred in the listing of lands, and the error has gone on to the tax book and into the advertisement of the collector, as in this case, and when the mistake has been carried into the sale (as in Kinsworthy et al. v. Mitchell and Wife, 21 Ark., 154,) it has been held to be fatal.

But here the error stopped short of the sale, though it went into the advertisement.

No wrong was done the appellee in the sale. Can it be imagined that he was deprived of any substantial right, or suffered any material injury by such an error in the advertisement?

His counsel insist that when the error was discovered the sale should have been postponed, and the land readvertised at some future time.

If this be so, the sale would have to be postponed in every case where lands are advertised for the taxes of several years, and it is made known to the collector before the sale that the tax has been paid for any one of the years,'though the land owner neglect or refuse to pay, for an unpaid year, which might result in public inconvenience.

Sectiop 131, chapter 148, Gould’s Digest, provided that: “No exception shall be taken to any deed made by a collector for lands sold for the payment of taxes, but such as shall apply to the real merits of the case, and are consistent with a liberal and fair interpretation of the intention of the General Assembly.”

In Scott et al. v. Watkins, 22 Ark., 561, the items of the State and county taxes were transposed in the advertisement, and the court said: “To hold the forfeiture of the land to the State void for an error in the advertisement so immaterial and harmless in its character, as the one in question, would be a departure from the rule of interpretation funished by the statute (copied above) and which the court has repeatedly approved and followed.”

The object of the advertisement is two-fold : First — To notify the owners of the land, or persons having an interest in it, or charged with the duty of paying the taxes upon it, that the taxes are unpaid, and that the land will be sold for the taxes unless paid before the sale; and, second, to bring -together competing bidders at the sale, etc. The advertisement is a prerequisite to the authority of the officer to sell, and must be made in accordance with the requirements of the law, but “ mere informalities or unimportant variances in an attempt to comply with the law may not be fatal, but variances in substance cannot be overlooked.” Cooley on Taxation, 335.

When the land in this case was advertised, had the appellee, who, as executor, was charged with the duty of seeing that the taxes were paid, and his lien for purchase money preserved, gone to the collector and paid or tendered the taxes, etc., charged upon the land for the year 1867, no valid sale could have been made. And he had the right to redeem after the sale, within the time prescribed by law, by paying or making a lawful tender to the purchaser, or his assignees, of the sum of redemption money prescribed by law.

But, according to his own showing, he paid the taxes for the years 1865 and 1866, but after he sold the land to Brannon, supposing that he would pay the future taxes, as it was his duty to do, appellee paid no attention to the matter until after he was informed that the land had been sold for taxes. But for this inattention-of appellee, the land would not have been sold for the small sum charged upon it for the year 1867,-and this litigation would have been prevented.

In Alexander v. Pitts, 7 Cushing (Mass.), 503, the tax assessed upon the land was $3.30, and the advertisement stated the tax to be $4.12, but the collector in fact sold (as he testified) to satisfy the tax of $3.30 and his fees, but the court held that the variance between the advertisement and the assessment was fatal under the statute regulating tax sales.

This is a very rigid case, more strict than our decisions have been under our statutes above indicated.

In that case, however, there was a variance between the assessment and the advertisement in the amount of the tax, while, in this, the advertisement followed and corresponded with the assessment. The advertisement was in accordance with the assessment- roll and tax book in the hands of the collector, but the taxes for two years having been paid (though this did not appear upon the tax book on which the advertisement was made), the collector sold for the taxes of the remaining year, which were unpaid.

Our opinion is that this was not fatal to the tax sale.

fíeeond — As to the offer to redeem, tender, etc.

The bill alleges that, on the 15th November, 1868, appellee, through his agents, applied to Thweatt to redeem the land, and tendered to him the amount of taxes and penalty paid thereon, costs of sale, and 100 per cent upon the whole amount, etc.,, which were refused.

These allegations are denied and put in issue by the answer.

Goode testified that, in January or February, 1869, appellee having furnished him the money to redeem the land, he gave it to W. W. Wilkins, his attorney, to redeem the land, and he was informed by his said attorney that he employed Oliver H. Oates; to tender the money to Thweatt, and it was refused; that Oates also informed witness that he had made a tender of the money to Thweatt, who declined to allow any redemption.

Wilkins testified that sometime between the 9th of March, 1868, and 9th of March, 1869, Goode, who was his client, and married a daughter of the testator of appellee, and was interested in the redemption of the land, handed him $16.85, to be used in the redemption of the land, and that he sent the money to Oates, of Helena, where Thweatt resided, and instructed him to tender it to Thweatt for the redemption of the land, and that witness was afterwards informed by Oates that he had actually tendered said sum of money to Thweatt prior to the 9th of Mrch, 1869, or had offered to tender the same, and that Thweatt had waived a formal tender thereof, and refused to allow the land to be redeemed.

Appellants filed exceptions to the depositions of Goode and Wilkins, on the grounds that the statements of Oates, proven by them, were hearsay, and incomptent.

It does not appear that the court took any action upon the exceptions, but of course the declarations of Oates, made to the witnesses, in the absence of appellees, were inadmissible as evidence, under familiar elementary rules.

These depositions cannot be treated as proving the alleged tender.

The appellee testified that after the sale of the land for taxes, and before the time for redemption expired, he gave Goode a draft for the money to be paid Oates, his attorney, with which to redeem the lands; that being sick at the time, he was unable to attend to it in person.

He deposes nothing further as to the tender.

In answer to a special interrogatory propounded by appellee to Thweatt, relating to the tender, he made the following statement: “During the month of February, 1869, O. H. Oatestold me in his office at Helena that- Judge Wilkins had requested him to redeem the Walker or Brannon land for Tom Goode. I told him that I had transferred my certificate of purchase to Graham and Scaife, who lived in Helena, and whom he knew, and that I had no interest in the land in controversy. He then remarked, 'well, I will send Wilkin’s money to him,’ or something to that amount. I perhaps said to him that Goode had no right to redeem as he had slipped into possession under Brannon, who I claimed held under me. That is’all the conversation I recollect having with Oates on the subject, and as I had gone to his office on other business, we changed the conversation. I did not waive the tender unless this amounted to a waiver. I do not recollect the exact day of the month, but it was previous to the 9th day of March, 1869., I had already assigned my certificate of purchase to my co-defendants Graham and Scaife.”

Wm. A. Wilburn deposed as follows: "I heard a conversation between Col. O. H. Oates and P. O. Thweatt, at my office in Clarendon, in which Col. Oates proposed to pay to Thweatt the redemption money for the Brannon land, and in which he told Thweatt if necessary he would count the money. This Thweatt said was not necessary as he would waive or acknowledge the tender. The precise date of this conversation I do not remember. There was no question as to time in the conversation, and I think Thweatt remarked that that question was not involved at all, and I understood that tender to be for the redemption of the land which had been purchased at tax sale by Thweatt, and which had been sold by Ezekial Black as executor of the will of William Walker, deceased, to Wm. F. Brannon. I understood it to be the land which I now understand to be in controversy in this suit. That conversation occurred, I think, at some time of the Circuit Court prior to the institution of this suit.”

The assignment of the certificate of purchase by Thweatt to Graham and Scaife bears date of 18th of December, 1868. The amended bill alleges that the tender was made to Thweatt before the assignment, and, if after, that Thweatt was the agent of the assignees. His agency for the assignees was denied and not> proven.

The proof does not show that Oates was furnished with money, or made an agent to redeem the land until after the assignment. Goode testified that in January or February, 1869, appellee having furnished him the money, he gave it to Wilkins, his attorney, to redeem.

Wilkins testified that he sent the money to Oates and instructed him to redeem sometime between the 9th of March, 1868, and 9th of March, 1869. This was a long gap.

Thweatt stated that Oates mentioned the matter to him in February, 1869, and he referred him to Graham and Scaife to whom he had previously assigned the certificate.

Wilburn does not fix the time of the conversation which he heard between Oates and Thweatt at Clarendon. It was after the tax sale, and at some term of the Circuit Court prior to the institution of this suit.

This suit was commenced 5th January, 1870.

The conversation must have occurred after Oates was intrusted with the matter of redeeming the land, and the proof fails to show that he was requested to redeem earlier than January, 1869, which was after Thweatt had sold the land to Graham and Scaife and assigned to them the tax certificate of purchase.

The proof therefore fails to sustain the allegations of the bill that the tender was made before the assignment, or that if made after the assignment, Thweatt was the agent of the assignees.

But if a tender to Thweatt after he had made the assignment would be good, it was not well proven. He stated that when Oates said to him that he had been requested by Wilkins to redeem the land, he told Oates that he had transferred the certificate to Graham and Scaife, etc., whereupon Oates remarked: “Well, I will send Wilkins’ money to him.” It does not appear that Oates offered him the money, which he should have done if Thweatt was bound to accept it notwithstanding he had assigned the certificate.

Wilburn does not state that the conversation which he heard between Oates and Thweatt occurred before the 9th of March, 1869, when the time for redemption expired. If the offer to redeem or tender was made after the expiration of the time allowed by law to redeem, no matter what Thweatt said about the time, or a waiver of time, or the presence or counting of the money, nothing short of the acceptance of the redemption money by him would have waived a compliance with the statute limiting the’ time for redemption. Cooley on Taxation, 368; Cox v. Wolcott, et al., 27 Pen., 154.

Thweatt being a non-resident of Monroe county, it was his duty,- after he purchased the land, to appoint an agent in that county, with power to receive the redemption money, and failing in this the appellee had the right to pay the money to the collector of the county, which, if done within the year, would have been a valid redemption. Gould’s Digest, ch. 148, sec. 146. But there was no allegation in the bill, or proof, that the money was paid to the collector.

In the amended bill, after averring the tender of the redemption money to Thweatt, and a refusal by him to accept it, the appellee alleged that he deposited the money with the state treasurer.

This allegation was no doubt made with the view of bringing the case within the provisions of sec. 144, ch. 148, Gould’s Digest, but no evidence of such deposit was produced by the appellee.

The statute made the certificate of purchase assignable, and the assignment vested in the assignees all the right and title of the original purchaser. Gould’s Digest, ch. 148, sec. 127.

They were entitled to the deed from the collector, on failure of redemption within the time prescribed by law, which was one year from the sale. Ib., sec. 129.

If redeemed they were certainly entitled to the redemption money, and the value of the improvements, if any had been made on the land. Ib., sec. 143.

Why the appellee, or his agent, on being informed that the certificate of purchase had been assigned to Graham and Scaife, did not tender the redemption money to them, does not satisfactorily appear. A payment, or tender, to them in apt time would certainly have been good. Bright v. Boyd, 1 Story Rep., 478.

Possibly a payment or tender to Thweatt, after he had assigned the certificate, might have been valid, if appellee or his agent had received no notice of the assignment. Faxon v. Wallace, et al., 101 Mass. R., 144. But as to this we need express no positive opinion in this case.

The decree of the court below must be reversed, and a decree entered here dismissing the bill.