266
FEDER,ALRJi;PORTER,
vol. 48.
There is another, and no less fatal, objection. to thel1ffi.davit. The writcahnot issue uhder subdivision 9, unless an affidavit ofthe creditor, his agent or attorney, shows, otherwise than by mere averment, that the debt was contracted by means of written frauuulent representations or staf;eQ}eptsbearing. tile defendq,nt'/3 signat).lreattached .by himself, or his or attorney. The defendant'ssignat:ure, is not attached to the ,made 1:>Y: agents. Kimbel, Crosby, and Welli. The other alleged it were made by the defendant's agent John M. Secriat, whoattaphed 1;ler:signature to them. But a copy of them is not made part of the affidavit, nor is the of .thememhod,ied, ill it. ThE! .creditor is not permitted to determine for himself that "liften statemElnts, if there ;1;>e any, are such as entitle him to the'Writ.' Tne proviso 6fsubdivision 9 was doubtless to debto.r ,abuse, of'process in 8 pro,arid' 'statutory. ..It is. under the eqn13tmctlOn .wQlGb.;;the suprerpe callrto! the state has,glven to the preceding. claUSes..of iHs!sufficient,: in proceedings under thetn: t 'th8tth6 l.,mdnvit follows tbeidangulige. , But subdivision 9 has not'been by tMtcourt,'upd', in vieW: of its clear and explicit ".0'" ,.Iiliii;1J(,the amda:vit , . vee Motion sustained. · .'. ' ",. ,,' r'o I 'I
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'. ,Code prQvidirig that no sutt fol' the lands sold for taxes 'lihitin, bEl'ooibtJ1en:eed mol'll 'than three years ,after the recording; of .the tax.deed,is a complete defense to aauit.:brought after, th$t tiPle.when t.ne dlled is valid land tb,at dlled..¥,: void of irregu. . ' larities in the prior proceediugs. STATUTES-ADOPTION PROM ANOTHER STATE-CONSTRUOTION.
, .. , ' . ,
,
A lltat,ewh!.Qh l,IWlPts .from Wlother state a,statute whiCh has beenoonstrued by the 'hlgl:iest court there'of is'conclusively presumed to 'adopt ltwtth the construction thus placed upon it. .
At AotioD Coulter against John£.; the recovery Of land, 80ll1- for, taxes. Jury: waived, and trial by the court. Judgment for defendant. i; , Pustin"llep/rin &Orews, fQr plaintiff. ,Ba.tJk&: Shiple!JJ,. for4efendant.·
Law. ! '
."
This. is an real in the plaintiff claims, to J:>e the ow:ner in' fee-simple,defrom a patentee ·Qf the United PQssesaic>,n,ihaving the year 1886, ,to sheriff pursuant to PMle :pf,thEl land:lill188.3 :l:l.J'.. J fOJ: of raigning S14tes,.n'Xhe, ,r'
OOULTER tl.STAI'FORD.
267
for the year 1882. The plaintiff disputes the validUyortheassessment and saJe of the property for said tax, and denies that the sheriff had any authority to make the deed. The case has been, by stipulation of the parties, tried withontajury. and submitted to the cOiJrt for its decision of all questions involved. On the trial objections were made to certain deeds offered in evidence by the plaintiff, and my decision of the questions so raised as to the validity of said deeds was reserved. I now overrule said objections, and give the plaintiff the full benefit of all the evidence offered in his behalf; and I hold that the plaintiff is the owner of the land, and entitled' to a judgment as prayed in his complaint, unless the defendant a('quired a valid title by the tax-sale and sheriff's deed, or unless the action is bam'd by the statute of limitations. In 1882 the land in controversy, as part of a larger tract owned by Albert Carr, was liested for taxation in the name of said Carr upon the assessment roll of King county. Said assessment roll was made in the form prescribed by statute, being ruled in columns so as to admit of descriptions of property in the most convenient and concise way. The tract referred to, of which the property in controvel'sy formed a part, was described in the assessment roll following the owner's name thus; N. E. of S. W. of N. W.
8. E.
120 126141:2.110 181
The figures in columns indicate, as shown by expianatory head-lines, section No. "20," township No. "2.?;" range No. "4;" .number of acres in thetrnet, "2.50j" and road-district No. "31." rrhis description is accurate so far as it goes. Objection is made to it, however, on the groul1dthat it is incomplete, in this: that it does not specify township 25 north and range 4 east of the Wi1lamette meridian; and this supposed imperfection in the description is the basis of the only point made against the regularity and vaHdity of the assessment and sale of the property; In connection with this objection it is proper to note, as it is a matter of common knowledge, that King county is wholly north of the parallel and.east of. the merirlian·.which are the initials of the government surveys of all the land therein. ' One.objection to the tax-dped is ()n the ground that the original certificateof sale iSlsued toJM<Jbs was not produced to prove the assignment thereof to the defendant. The fact of the assignment was testified to on the trial by both parties to it, Mr. Jacobs and the defendant. Thelaw in force at the time oftbe sale secured totbe delinquent tax-payera'right to redeem his land at any time within a period of three years from the date of the sale, and providE-d that, in case of his failure to redeem within that time, the holder of the certificate ofsale should 'be entitled to have a deedexecuted.by the sheriff of the county, which should have the: effect· to convey to him absolutely the title to the property... This land was not redel:lmed, and on:the 14th aayof July, 1886. than three years after the sale. adeedw88 made by the sheriff to de- ' fendant"purpo'rting to· bea tax-deed pursuant to the' above-mentioned sale to Mr. Jacobs.. Before the right of the hoJderof the certificate to; have a deed; had matured 'by lapse of the time allowed {or redemption,·' section 2984 or-the Codej which 90ntaina the-provisions Of law confer- .
ring upon the'sheriff'all theanthority which he had to axecute the deed, the holder of the was amended by the addition of a proviso certificate toilerve a notice upon the person in whose name the land was assessed, personally, or by publication, if. he be not found within the county, not less than 60 days prior to the expiration of the time for redeD;l.ption, and to make proof of the giving of such notice in a prescribed manner before he should be entitled to receive a deed. This amendatory act is.general in its terms, making no exceptions of cases in which the redemption period was about to expire. It repeals all conflicting statutesjand'contains no saving ,clauses. '. 'I'he act was :approved February 3",1886, and went into effect the same day. The 6th day of May, 188u,. wl1sthe last day of the three years allowed for redemption of this propE1rty from the tax-sale.· The time intervening between the approval of said:act and the 6th 'Of May wasohly 9Ldays. This time was not sufficient,oonsidering the usual delay in publication of the laws after their passage.;;to afford a reaSonable .opportunity for compliance with the exatltions lof the new lawlfAlthough it was,:for' the reason just given, impracticable to:complywith the requirements of this statute, the plaintiff now insists that, without compliance, no right to a deed could !inature, because the law so declares in plain and mandatory.:1anguage. The defendant,: :arguing to maintainr. that, if the aet be construed literally, it would deprive him of all rights under his .cOntract of purchase, .and therefore itnlPll.ir the obligation ·of a contract, and therefore rend er said act unconstitutional :and. voi<K.' ,The . also relies upon the; statllte of limitations as a 11ar to this aotion, :8ection2939 of the Code provides that "any suit or proceeding {ot, the recovery of lands sold for. taxes, except. in cases where the;·ta.x.ee hav.e been paid or the land redeemed, as provided by law, shall be commenced within three years from the time of recording the tax'leed .0fsaIe, and not thereafter, except by, the purchaserat:thetax-sale." Thedllfendant's deed was recorded more.than three years before this suit was commenced. The land was sold for a tax, which hasnot been paid, andit hns not been redeemed. If the deed is held to be valid, there can be nO question but what the case is fully within the statute, and .' barred1:lY it. The only argument in behalf (jf the plaintiff on this point is that the deed: is void, and entirely impotent to either as a conveyance of the title, or as a starter to. set time n1nningj.and bring the caae within the protection of the statute.·., If the 'bar exists only in cases where valid have been recorded" then it must be necessary, in whether a case is barred or not, to try it on its merits. order To 80 holdifl,equivalent to holding that the statute. isMtabar in any ctuje,for, Jif th,edeed COnforms to the requirements Of the law in all respects, Jt,wi;lliC()Ilvey the title, and a defendant claiming under such a cttitJ.e,-:-that is to say, deed mqstiPxevail by reaSOn of having a pert its merits; and, if the tax-deed be invalid by reason of any essential provisions of the lawt.the plaintiff not be any period of time. Such'doctrine is contrary design of this specie$ oJ legislation; The purpose. of a to
COULTER V. STAFFORn.
269
statute of limitations'is to put an end to strife, by cutting off the right to dispute the validity" pf to divest the owner of his title after the lapse of a definite period. of time. The decisions of the supreme court of the United States so maintain. In the opinion of that court, written by Mr.' Justice GRIER, in the case of PillCfWV. Roberts, 13 How. 477, this language is used: "Statutes of limitation would be of little use if they protected those only who could otherwise show an indefeasible title to the land. Hence color of title, even under a void and worthless deed, has always been received as evidence that the person in possession claims for himself, and of course adversely to all the world. If< If< If< In order to entitle the defendant to set up the bar of this statute, after five years' adverse possession,he had only toshow.that he, and t40seunder whom he claimed, held under a4eed from a collector of the,revenueof lands sold for the non-payment of. taxes. He was ,not bQund to show that all the requisitions of the law had been complied with in order to make the deed a valid' and indefeasible' con of the title. If the court sMuldrequire such proofbel'ore a defendant could have the benefit 'of this law, it would require him to shoW. that he had no need of the protection of the statpte before he could be entitled to it. Such a construction would annul the act.altogether, which wasevjdently Intended to save the from the !lifficulty, after such a length of time, of showing the validity of his "'," In the case of Wright v.' Mattison, 18 How. 50, the court in its opin. ion quotes8ind approves the extract from the opinion, in Pilloto v. Roberts., Section 2939 of the Code, so far as it affects this case, is in words and effect the sl1me as a statute of Wisconsin, (the only important difference being that the last seven words .of section 2939 ,are not found in the Wisconsin act,). and was judicially .construedby the highest court of that and by the supreme court .of the United States, many' years before its adoption here. In the <lase of Leffingwell, v. Warrlm, 2 Black, 599, the supreme court cites a line of decisions by the supreme court of Wisconsin, holding that the grantee in a tax-deed: is not reqUired to establish the validity of his deed in order to maintain a plea.of the statute in bar of an action. to recover the land. In the opinion of the. court Mr. Justice SWAYNE says: "In Bprecker v. Wakeley, 11 Wis. 432, the SUbject came again under Consideration. The court reaffirmed the principles of the former decil'ion. In answer to the objection that it should be shown the land had been :regUlarly sold, aud that the officer who executed the, deed, had authority to give it,they say: 'But if this is a correct view,ot the statute, we fail to perceive any object in passing it; for, when the public authorities have proceeded strictly according to law in1isting the lands, RBsessing the taJ!:.' ma.king demand for the same at the proper time and place. advertising for'non-paymeht of tax, etc., and have observed all the requirements of the statutes up to the execution of the deed, surely the tax-deed in. ,that cal'e must convey a good title, or our revenue laws are illusory, and the. ,power Of tbegovernment to raise means ,by,taxation upon the, propel'tyof)j;s citizens necessary.. fQl" it6 own support is entirely we think party cannot betequlted to show that hiS tax-deed hag been regularly obtained before he can claim the protection of this statute, since such a cOllstructiourenders
FEDERAL
law 'unnecessary and useJesi!.' :. "'.".,TlIe the limited by it the right. and vests a perfeCt tttllHn the adverse holdet. " It tolls the entry of the person having the rIght, and"consequently, though the very right be in the defendant, yet he cannot his ejecting the plaintiff.' Bull. N; ;P. 103; Stocker v. Berny, 1 Ld. Raym. 741; ']/f,lylorv. Hot'de, :lBurrows, 60; .Barwiek v. Thompson, 7 Tt'rm R. 492; Beckford v. Wade,,17Ves. 87; Moore v. Luce, 29 Pa. St. 260: Thompson v. Green, 4 Ohio St. 233: Newcombe, v. Leavitt, 22 Ala. 631; Wynn 5 Ga. 217:' Ohiles v.Jones, 4 DaDa;, 483. " These.decisions are be'carise this court cannot disregard a. rule establililied by; the solemn judgmellts of the highest court of the na·tionj andior· the further reason that, inlldopting a statute of WisconBin, after it had 'been cOnstrued by decisions of the highest court of that state, beconelusively presumed that the legis.lature intended .to adoptthEl'decisions it well as the letter of the law· .l'he grounds of the objectiq# to it ,donQ:t appear on the face of the defendant's ta,x-de!!p. to be distinguished from the case of HOOf'S v. Brown, 1l,How.414, 'in which it was held, by a majority of the jl1$tices of' the- sl1premecol1rt, that a, statute of Illinois, of a providint that li,ctionsto recover l'ealestate, of which any person maY' be by actual residence thereon, having a title deducible of record from the state or the United States, or any officer authorized,to the BlilIle.for'lion-paymentof taxes or upon execution, ahallbe brought within 't1evtm ne:x:t':after possession being taken, was not meant to give protection to a person in possession under a deed ivoidupon thefaeeof it 'Another 'caaecited by"counsel for the plaintiff is Slufieldv. 'Baryl.'tJIIn,iOowa,) 32N. W. Rep. 270; That was it suit to redeemlland"froIll aaMe for taiXes. . The purchaser had obtained a deed withuut, having complied, with a statute similar to ours prescri bing a. notice tobe'gi.ven,asa prerequisite to a rightto have a deed, and the statute of:limitations' of"thatstate was pleaded as adelEmse. The court held ,that,as the; required notice'iw8s not given, the officer who executed th,e'deed, was without authority to do so;. that, notwithstanding such lack 'of ftuthority, was not: void; thil.titoperated to transfer·the title to the ,property , but not' tcnmt off the right of redemption, and while that right continued the statute of limjtationscould not begin to rup. If, degisipn.and.fqU9wjtin this case, I (would be Qpt1A«IW render, judgment ugBinst the, plaintiff on the gl'ound thlltanactioD atr:lawtotecmverreal:propertyis n:otmaintainable in a of the legal title, (lir(Juit alild leavehimi tbJapp1)' Ofchilricmr for' as he might . SliJ/i,iliJ. 'v. Rep. 2, was als?' tljis case. u:plf,ble' ,tQ fln<;Un. any ofAhe cited .'by:counsel for. the 'plain.tiff supp'O!td'or hisJoontention. It is 'my 6pinion that this case is barred bytlbeatattlte'(}f limitations of ithis oState,R'bove quoted. .On that
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DANFOBTH .,,;
STATE BANK OF ELIZABETII.271
DANP'ORTHetal.'l1. NATIONA.L
BAm: ,OF ELIZAlmTH.
(CircUit Oourt a/AppeaZs, Third Oiflcidt. November 18,1891.) 1. NA.TIOIUL
The purchase of accepted dmfts by a national bank from the holder without hill indorsement at a greater reduction than lawful interestoD their face value is a discounting of those drafts, within the meaning of Rev. St. U. S. § 5197, which prohibits'such bank from taking interest on any loon or discouut made by it at a greater rate than is allowed by the laws of the whel'e it Is aituated. r
WHA.T,:tll DIBOO,UNTING-USUBY.
2. SA.MB-FoBl"ElTURE PJ"
The acceptor of the t'ira,fts so purchased may 'defend against the, recovery of interest thereon by the bank, uuder section 5198. which provides that the taking of an unlaWfUl rate of fn4ierest ilhall be deemed a.forfeillure of tbeentlre iuterest , wbich the '+blll or other of debt cal'ries witb, it;" for this provision d&st.roystheintllrest.beariugpower of the,instrument. , , , 'Where the acceptor of tbll dl'aftll makes a payment to' the bank Without any , rection aa'toits applicatiOD, Ui cannot be applied to the' forfeited interest, but must be 'Credited on the facevaltte of the drafts. " ' " , ' ,
3.
JerSe
Error
the Circuit Court 'bf the'United States fur the Dl&'trict of Ne'w ' j l" ; ·· : : · " ::"
'AclioribY the Nationll.l 'Stilte ;BankMEIiZ'abiltl1 s;gains,t Waldo fo;rth and B. Ryder. verdict for the tift' for ,the whole .amount pilts claiIQ, and from the judgment thexeQO defendants bring error.' Judgmerit:rev811sed. ' ,A; S.: BfO'UJlnarid Ja'1lte8 H. English, for plaintiffs in error." 1l.V: Lindabu,.y; foi-defendant in error. "
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:ACHESoN,J. This action was brought by the, National State Bank of Elizabeth, a national banlt located t4estate of New Jersey, against Waldo Danforth andSethB>Ryder;e:x.eeutors;of the last wiIlof -G. Brown, deceased, to recover the amount of certain dra.fts' and mtereSt there,on. Qisclosed by tbe r£l4or4 are these: Bt:tl:ipard Bros. drew nine drafts, payable to the order of themselves, upon Ed.. "Ward r, G. 'Brown, 'whoacceptiedthe same. Afterwards, and, before the fuaturitY'ofthedrtdts,Braibiird'Bros.'iridorsed, ,and placed them in'the hands of W. Rayno.r,',IJ,'broker ipconimercial paper,. for sale,l:l,nd froW a ,of 15 per centum per annum for the length of time theY hlldto,run, ,PI\Y:- . iI;lg to Rayp.or the face of drafts, less the said . The 'b l1 nk did nOt know that Raynbr was acting for Brainard "Bros., ol'tbat 'the latter then'owried the dmfts. Thelegal rate"of intereiltin the state of New Jersey was 6 ·one of Bh>W'n, 'paid- to the bank $2,500. Shortly be'fore,tbe cashier of the bank had'milde ,a. demand on Ryder for the inter,est on the drafts. RyclercoDsulted Who advised him' rtot to pay the interest,but to uheckfor even whieh 'W'as -soniet:bingmorethantI1e interest would' be,aOd"give; itt6the llalb!k'. "rhisB.)"Berdid,handiilg tlle' check.'to thecRshierWithoutsayingafty,. C