'DANIELS V. CASE.
843
parte Bnrford, 3 Cranch, 447, andis certainly required by Justice BRADLEY in Re Rule oj Court. 3 Woods, 503. 'fhe: district attorney thinks he
is sustained by the case of Stafford v. U. S., Ct. C1. No.'15,782. The present caSe seems to be taken out ofthat case because such a complaint is required by the laws of South Carolina. The disallowance of the district attorney is not followed, and this item is allowed. "Entering returns on warrants and subprenas." I have examined these. They include the return, the number of miles traveled, and all other expenses incurred bY, the deputy, and are necessary to ascertain what the deputy did and what he ought to get for doing it. The last acknowledgments on recognizances, 25 cents for each items are recognizance. A recognizance is not an ordinary bail-bond. It is a peculiar instrument, upon which execution can be issued when it is estreated. The act of the commissioner is needed to give it this character. It ,must be taken and acknowledged before him, and, if not taken and acknowledged in this way, it is not a recognizance, but an ordinary bond. Heywardv. U. 8., 87 Fed. 764. This item is allowed.
DANIELS 11. CASE
et al.
(Oircuit Court, W. D. Missouri., W. D. April., 1891.)
1.
TAXATION-SALE-RECITATION IN DEED-VALIDITY.
Under the charter of Kansas City, c. 6, S 64, presoribing that a tax-deed shall recite that the property was publicly exposed for sale on a certain day "at the sale begun and' publicly' held on the first Monday, * * * the first day on which said real property was advertised for sale, " and tax-deeds to comply substantially with the forms prescribed, a tax-deed IS void which omits the word "publicly" in the clause "at the sale begun and publicly held." Following Sullivan v. Donnell" 90 Mo. 278, 2 S. W. Rep. 264. In ejectment by the purchaser of the tax-deed, parol evidence to show that the sales were in fact begun on the first day advertised, and were "publicly" held, is incompetent.
2.
BAME......EJECTMENT-PAROI. EVIDENCE.
8. SA1IIE-l'RESUI\IPTIONS.
4. BAI\IE-LII\IITATIONS.
6.
BA1IIE.
At Law. Br(}'l1]'n, Clw.pman &: Brown, for plaintiff. Karnes, Holmes &: Kra'lJ1.hoff, for defendants. PHILIPS, J. This is an action of ejectment to reco\"er possession of lots 1, 2,8, and 4, block B, in resurvey of the City
844
FEDERAL REPORTER,
vol. 45.
of Kansas, Mo. The plaintiff claJms title by virtue of tax-deeds of date November 30, 1881, for the delinquent taxes of the year 1879, claimed to be then due'to the City of Kansas. The premises have been in the possession of the trustees of the First Baptist Church of Kansas City since the latter part of 1878, when they began the work of excavating for a foundation for a church edifice on said lots. Since the completion of the church, soon thereafter, it has been occupied by said denomination as a place of religious worship, under title from the owner prior to the alleged tax-sale. The validity of the tax-deeds is assailed by defendants on the ground that they are void on their face. By section 64, c. 6, of the city charter, the form of such tax-deed is given, and they are required to comply substantially therewith. Among the prescribed recitations is the following: ..And, whereas, the said collector of said City of Kansas did on the - day of-----..".., A. D. - , by virtue of authority in him vested by law at a\ljourne<I sale] the sale begun and publicly held on the first Monday of - - , the first dll-Y which said real property was advertised for 'sale; expose to public sale at the office of the said collector, in the City of Kansas aforesaid. " The corresponding portion of the deeds. in question is as follows: "And, whereas, the said collector of said City of Kansas did, on the 26th day of November, 1879, by virtue of the authority in him vested by law, at a - - sale begun and held on' the first Monday of November, 1879. the first day on which said real property was advprtised for sale. expose to public sale, at the ottice of the city collect,or. in the City of Kansas aforesaid." The discrepancy between the statute and the deed is in the omission from the latter of the word" publicly" in the clause. "the sale begUll and publicly held on the first Monday," etc. The question presented, therefore, is whether the employment of this term "publicly" in the statute is of substance, and, if so, is it substantially recited, or its equivalent used, in the deed? This precise question was before the state supreme court in the case of Sullivan v. Donnell, 90 Mo. 278, 2 S. W. Rep. 264. The opinion was delivered by BLACK, J., who is peculiarly qualified to construe said charter, as he had much to do in framing it, and has had frequent occasion, both in his practice as a lawyer alid while o'n. the circuit and supreme bench, to construe and apply the same. The tax-deed in the Sullivan Case was similar in every essential partieula.r to the one at bar, and it was held to be fatally defective because of the. omission of said word "publicly" from the context above recited. The reason of this holding is that by the charter such tax-sales are required to begin on the first day designated therefor in the notice, which in this case was the first Monday in November. Such sales are required to be conducted publicly at the designated place, and must be so conducted continuously from day, to day until completed, and, therefore, as such continuous antecedent sales are essential to the authority to sell at a day later than the first one, it is of substance that the deed, as prescribed in the statutory form, should recite the fact that antecedent sales were.sobegunanddpublicly held; and, as this is in the nature of a juris-
DANIELS V. CASE.
845
dictional fact, i.t should appear affirmatively on the face of the deed, and not be left to mere implication and inference. Tax-sales are essentially proceedings in invitum, by which it is sought to take with theetrong arm of the law and appropriate a citizen's property to public uses; and in such case the rule of law obtains rigorously in the state court that no intendment is to be indulged in favor of such proceedings outside of the positive prescriptions and limitations of the statute. The ruling in the Sullivan Case has again been approved by the supreme court in the recent case of Bingham v. Delougherty, 13 S. W. Rep. 208, so it is now to be regarded as the settled law of the state, and there was no contradictory holding by the court in force at the time plaintiff acquired his alleged title. Upon what tenable ground, therefore, is it that the learned counsel for plaintiff now ask this court to review and disregard this rule of construction placed by the highest judicial tril>unal of the state upon one of her local statutes? Even if the federal courts should be of opinion that the conclusion reauhedby the state court is unsound on ·principle, it would be contrary to the tradition ll,nd the federal courts to decline to follow the construction placed by the state supreme court on a state statute, when .and where such con..' struction affects and becomes a muniment of title to real property, and especially: so as to the validity of tax-sf!,les. In such cases, as said by Chief Justice MARSHALL 'in Williams v, :Peyton, 4 Wheat. 77-83, the decisions of the courts ofthe states, respectively, "unquestibn·ably giveth ! rule by which this court would be guided." To this rule the federal courts have adhered with unbroken C<lnsistency. Leffingwell v. Warren; 2 Black, 599-603; Lane 00. v. Oregon, '( Wall. 71-74; Bailey v. Magwire, 22 Walt 215-:-231; State Railroad Tax Cases, 92 U. S. 575-617; Barrett v. Holmes, 102 U. S. 651-655; Union Nat. Bank oj Ohicago v. Kansas Oity Bank, 136 U. S. 223-235, 10 Sup. Ct. Rep. 1013; Detroit City v. Osborne, 135 U. S. 10 Sup. Ct. Rep. 1012; York v. Texas, 137 U. S. 19, 11 Sup. Ct. Rep. 9. Were the rule otherwise, the greatest inequality of right would obtain, predicated alone upon the incident of diverse citizenship. This plaintiff,because of residing on the west side of Kaw river; with the right to .sue in the United States circuit court, would have a good tax-title, while a citizen of Missouri on the east side of the river would have no title. The public sense of justice would challenge to the death any such rule of inequality. To help out this invalidity of the deed, the plaintiffat the hearing offered to prove by the city sales· that as a matter offact the sales did begin on the first Monday in November. and were publicly held continuously to the day ofthe salA in question. This evidence isincompetent. The plaintiff has no standing in court to maintain the action ofejectment at law without a deed. It isthe deed alone which confetstitle 011 him, and that deed must, in the language of the charter, be''':exe6.utedsribstantially as provided." ··This we have shown has been done. '. Judge BLACK, in -Sulli"anv. Donnell, 8'Upra, said: ."There 'can be no doubt that the deed, to be any evidence at all, must be in substantial with the This is; the criterion established by the
we ,h,a'{8 ,DO power to vary it. II And the bill of exceptions in that case l put in evidence by defendants at tl)is trial, shows that similar evidence on thattrial,a,Ddreje<lted by the court as incompetent. 'l,'l1e of this Wl1S, urged before the sqpreme court in appell,ailt'sbrief. The affirP-lance of the judgment indicates that the supreme approved the jl.ctioll of the trial court; Until the deed is ma,de, the. title remains .ill the tax debtor. As said in Cartwright v. McFhdden, 24 Kan. 662-670, said evidence does "not tend to show that the tax-deed is invalid, but. only that the sale was valid, and that he might pbtained a vaiidtax-deed if he and the officer, had been more careful, ,and made the tax-deed speak the truth." Plaintiff's mereright to a deed can give him no standing in a court oflaw to Illaintain an action of ejeetlllent. .' The of plaintiff is upon sections 65 66 of said chapter 6. of the charter. . 65 undertakes to make the tax-deed conclusive tlS, to t,he regularity.of the proceedings anteriortothe sale, and limits the grounds on which the validity of the. deed may be assailed. ;It is,·sufficient to say in answer to this thl\t protection declared in said: s,ection applies only to tax-deed ,executed substantiallyas prescribed in the preceding section;" that section 64, hereinbefore discussed. Secti<m 65 does not and could not. impart vitality ton vQid instrument,"71lo which in legal contemplation never existed. It apply only deed legal in form. Section 66 declares that",Any suit Qr. proceeding again$t the purchaser at atax-aale. his heirs or assigns, of, ,:eal, property, or any interest,therein sold for taxps, or to defeator3\-oid a sale or conveyance ofrelll property sold for taxes under the pr()\isions of this act, shall be rommenced within three years from the time of of the, tax-deed, and not thereafter. "
toa
It is the rule of law in this state that such special statute 'of limitation has ,no application"to a tax-deed void on i,ts face. Milson v. Crowder, 85 Mo. Skinner v. Williams, Id.. 489-493; Hopkins 86 Mo. 140-148; Pearce v. Tit/worth. 87 Mo. 63.5-641 ; Callrlhan v.Davis, 90MQ.. 78, 2 8. W. REJp. 216j Duff v. . 1{eil8Qn, 90 Mo. 9397,28. W. 222; Bartlettv.KalLder. Mo. 356-'359,11 8. W. Rep. Redfield v. Pq1'lcs, 132 U. S. 239-2.51,,108up. Ct. Rep. 83. Especially cannot such limitation apply where, as intbEfcasel,lt bllT, the defendants hll,yea1 all times been in, .the actualpossellsion of the property. SpurDougherty, 81 Ma8Q'nv.,'Crowder, supra; Callahan v. JJP:viB, supra; Barmon ,v. BU1'!(1e8, 899; Cogles, Tax'n (2d. E4.)p.559. It moreover,Jo»e observed that this charonly to'a. again8t the tax-sale pUI:cl1aser, an(j where the of 111e property is defending again/it a. ,tl\X purchaser.! ,The .statuteis U a shield to the not a sword the McReynold8 v. ¥T!-uenbrrger. fj7Pa. 81.13-:-29; B,iglerv,,,J(q,r'(l8, 4 Watts & S. 137-14Q. , ,As 9!,tbia action, it is unnecessary: W ppontheque&tj<m·r,ai$e.d, by defendants' counsd
-,
UNITED STATES
v.
rWENTy.;mNEGALLONS OF WHISKY.
847
not the GilY'of Kansas can 'proceed to enforce the collection of the taxes onthi!(property by sale after the title of the owner bad passed to the trustee!! of the cburch,and the property has been dedicated to a public charity, although the tax attached to the property prior to such dedication., ,Tlle issues are found for the defendants. Judgment accordingly._ :1 '
t·,':
UNiTED STATE$'V. " ,
al., Claimants.)
GAT,LONS OFWHTSKY, etc.,
, :,\,
(DlBtMctJOllUn,D. Montml.a; April 20,1891;) 1. INTOXIOATING LIQt:'ORS-TRANSPORTING 'rImOUGH'I1mIAN'CotrN'l'RT.
Tr",nsporting ardent sp.iritslloll an article of l;\Ommerce through an Indian , between plaees outside the same; is not a violatIon of S. S 21111l. wbich provides that "no ardent spirits shall be introduced, under any pretense, into the Indian It _ , ' _ , "
, , In a libel to forfeit alleged to Jnto an Indian country, a plea that claimant did not unlawfully introduce said whisky into any Indian - country,and that he did not introduce it'inUindlng to sell or dispose of it to any In4i81l-. is. pad, siOlle the ,first. allegatio!1 JIt a law, and the second Is irrelevant. A plea that,the'whisky when· seized was in the claimant's possession, and:that he was theJ;l on his road fraqi ,a town named to anO,tber town not named, neitller of suoh towns being within .y Indian country, is also bad, since it does not show tbat the ,Whisky was in transit sebed,or that the unnamed town was 01f the reservatj.on.
S. SAME.
At LaW.' Libel:for forfeiture on demurrer to answer. T1iO,8. '0. Bach, for clainiants. Elbert V.Weed, U. KNOWLEs,J. In this case 29 gallons of whisky and :other articles were, it is alleged in the libel of information, seized by George Steel, an Ipdian agent, upon Indian reservation, as not, perby Ill-won saidreservatiot;l, and forfeited to the United ,Eitates. ·It is alleged in said said whisky was introduced into and,f()und in the Indian country, with the enumerated as tpe sam6 1 t().wit, upon the Blackfoot Ind'ian reservation. It isproyided by the statutes of the United States St. § 2139}that" no ardent be introduced, under any pretense, into thelndian country." And' in section 2140: . ', '
,
sUl'erintendentQf !ndian affairs, Indian agent, or subagent, or officer of a military post, has reason to .Iluspect. or is, infQI'med. tlll\tauywhite person or Indian is about to. introduce. or; has SpJ'ritous liquor or wine into the Indian country, inviolatioit of Iaw,ljIuch agent"subagent, or commanding officermay'c3use the boats, .stores, paCkages, wagons, sleds,' places of (leposit of such person to be' seaiched;