I'EDERAL ',t,
vol. 49.
,
,.
(CiTCldt Court, D. KaNaB. . February 99, 1891.) 1. Bur,.BolmB-FoBI'BlTUBB-How
. . ll. ,
Proceedings in the federal courts in KansBS, to enforce a forfeited bail-bond given court.·against the sureties, must be by action after the end of the ali proVided by Gen. St. Kan. c. 82. §ISS, and a judgment entered during the merely. after entry of forfeiture the issuance of a 8cir6
'
RBVIVQB,O' AOTION&-r-MARBH,l,L'S DEED.
When. IIiJUdg'.,ment'debtordies after a.levyon lands, the action must be revived before a v I.ddeed oan be made.
In Equity. Bill by the United States against Martha Insley and others for an accounting and to redeem lands. Decree ,quieting title in defendant Ill$ley. , J. W. Ad:U,·U.S. Atty., for plaintiff. J. D. McOkperly, defendants. RINER, ):)istrict Judge., This is a bin for an accounting, and to redeem lot 1, block,.l,04,in the qity of Ft., Scott. In July or August, 1869, Joseph H. Roe and C. A. Ruther were arrested upon a complaint charging them. with yiqlating the internal revenue laws of the United States. On the 3d of August, 1869, they: were placed under bond for their appearance before the United States dililtrict court for the district of Kansas, with one M.McElroy and one Charles Bull as sureties. The bond or recognizance is in the following language: these presents, thdt we,Joseph H. Roe, C. A. Ruther. ' "Know 3,nd M,. McElroy aud Charles B\lll, are jointly and !leverally held and firmly bound unto the United Statesof.Americatn the penal sum of two thousand jlollars. lawful JAoney. for the of whil:h and truly to be made we bind ourselVes; our executors; and assigns, firmly by these presents. Witness our hand,S and seals this 'third day' of August. A.D. 1869. The conditions of the above 'obligation are that if the above bounden J08eptt.:H. Roe and C. A; Ruther shall each of them be and appear. in his own, the United State!ldistrict court, in and for the district of Kau!las. at next tetm thereof. and on the first day of said ,tll!;In, thertI to a charge' of wlUfuIly and knowingly Violating the iiiternal reyenue Il\Ws of the United States. arid shall not depart said court without leave, ailU shall abide the judgment of said court therein, then the above obligation to be void; otherWise to be and remain in fUll force and :effect. O. A., RUTHER. [Seal.] "J. H. ROE. [Sea!.] "M. McELROY. [Seal.] "CHAS. BULL. , : "Subscrlbedfn my presence and approved this Aug. 3. 1869, at Fort Scott. Kansas.' W. A. SHANNON, U. S. Com'r." On the 12th day of October, 1869, being the second day of the term, a forfeiture oftJ;lis recognizance ill, due form \Vas taken, and an order for a writ of scire facias was issued, returnable October 30th. On the 6th of November, 1869, and at the same term, !lo.motion was made
uNITED STATES V. INSLEY.
777
to make the forfeiture final, and for judgment, which was entered for the sum of 82,000. the penalty of the bond. No suit was brought upon this bail-bond nor other proceedings had except as above stated. Before the rendition of the judgment, McElroy, one of the sureties, had bought from one Bryant (the purchase being made August 5, 1869) lots 1 and 3, in block 104, in Ft. Scott, the purchase price being $6,000. At the time of,tbis purchase, and to pay for this property, McElroy borrowed from one Palmer $3.500, and gave a mortgage dated August 7, 1869 i upon these lots in Ft. Scott to secure the loan. April 27, 1871, a pluries execution was ordered out on the judgment of November 6, 1869, in fM'or of the United States, and on May 2, 1871, the execution was levied upon these lots 1 and 3, in block 10/!, in Ft. Scott. May 30, 1871; Palmer brought suHto foreclose his mortgage, but did not make the United States a party defimdant. Service of summons was made on McElroy and wife, May 31, 1871. June 6, 1871, at a sale under said pluries execution, the United States bought said lot in satisfaction of ,its debt. October 4, 1871, Palmer obtained judgment of foreclosure in the sum of $3,764.16 and costs. October 16,1871, the sale to the United States was confirmed and deed ordered made. The deed was subsequently made. October 25, 1871, Palmer ordered out execution against McElroy. December 4, 1871, the property was sold under the Palmer execution, and bid in for the debt by Palmer. The sale was confirmed; and 011 January 4, 1872, a sheriff's deed was made to Palmer. Here occurs an interregnum of over 12 years. This suit was brought November 28, 1884. The United States has never been in possession of said property. The attitude of the title on January 4, 1872, was-First, the property had been sold to the United States by sale confirmed tober 16, 1871, on a second lien i seccmd, the property had been sold to Palmer by sale confirmed December 26, 1871, on a first lien, the United States not being a party detimdant. Between January 4, 1872, and the filing of this bill, on November 28, 1884, McElroy and wife remained in possession of said lot, with the consent of Palmer, under an agreement to purchase, until the death of Palmer, November 13, 1872, after which the agreement lapsed. Afterwards the Palmer heirs desired to sell, and they made another agreement with McElroy, who acted as agent for his. wife, that they would sell the iota to Mrs. McElroy, defendant herein. Payments on the property began and slowly progressed through a series of years. The property had an earning capacity, and the rents and profits went to Moses McElroy. He died August 24, 1881, leaving the property partly unpaid for. In the agreed statement of facts it is admitted that the said agreement with the Palmer heirs vested the title and ownership of said lot "in the said defendant, Elizabeth McElroy, except as affected by the claim or interest of the complainant in this action, if it shall be deternlined any such claim or interest exists. The payments to Polly Palmer and her estate of the purchase price were made by Moses McElroy from his own funds while living, and from the same sources the taxes were paid until the bringing of this action. After the agreement of purchase had been made by Elizabeth McElroYt
!lbe imPr.9Ved 'IQts, by erectingc8rutin at an expenditure thousllnd dollars, an§! ,has ever sipce.p.i<i.all taxes and asSessments levied upon ,said prqwrty, and has also ilollectedthe rents and epjoye:d the use and 1:lenefit oCthe:property; and) the rents and profits so ':received and enjoyed by. tbe., ,ssidEliZilbeth. MqElroy since her purchaseof.,.,id lots.' eJli.Qeed by a slllall.amount Pf\opipal and interestthatwould now be under 7, 1869, byway, of,redemption,and also eXce,ed' in, the total amount by the. said Elizabeth McElroy since her said purchase forimprovementIJ made and taxes paid upon said property. with interest. to. date." The property was fi\lally deeded by ,the Palmer heirs .. McElroy about five husband's death, and after the filing of this bill. 411 of the de(endallts,except McElroY, have disclaimed any interest in the property in dispute. Upon these facta two submitte!i to the court for·determination: F'I3'Bt, was the judgment of May 2, 1871, a valid judgment? Second, WlJ,S it ne9essary, to revive the original action before: the "marshal could make a valid deed; Mcimlroy, the original defendant, having died between the date of the levy and sale and the date of the deed? Section 1014 of the United StateS! Revised Statutes provides that for any crime or offense against the United States the offender may, by any justice or judge, commissioner, etc., in any state where he may be found, Bnd agreeably to the usual mode of process offenders in such states, be arrested, imprisoned, or bailed, as may be, etc. While the instrument upon w:hich the judgment in favor 9f the United States was rendered is called a "reqogpizance," yet technically it is not, but is a bail-bond or contr4Ct. A recognizance is an obligation of record. This security, ; call: it what we may, was a recognizanGe or bail-bond taken agreeably to the JIl,()de of proceas against offenders in the state of Kansas at 'tJlat time, and, waS a vali<i obligation under the laws of the state. The partieB failed to appear the proper court at the time specified in the bqn9i and the bond was ,prqperly forfeited. The security having to tl;le usual mode of process in the state of Kansas, rights the parties became fixed thereby, and the liability of these sureties upon this bond mUl'lt be determined under the statutes of the state oJ Kansas in force at that time. Section 153, c. 82, Gen. St. Kan., Which it is conceded .was in the time this bond was taken, provides a remedy by action ·after the adjournment of the court Rg!linst the ,bail and upon the recognizance, and that the action shall be governed. by the, rules of so far as applicable. Section 149 of the same chapter provides that ,the baU, (that is the surety,) atanyt,tme before judgment against him, JIlay surrender his principal eith",:r, to the court or the sher.iff, (or marsQal in this case,) and, upon payme[),t, the cOllts, may thereupon be discharged from further liability it will be seen that. by the laws of Kansas in !fQTceat the time ,this bond was talten, the only remedy npon a forfeitl'l4r:l'ecognizance was 1:;>y action in the· nature of a civil action, andthatJbis {lction co\lId be Qommenced ()nly the adjourn-
oj.
KARMON
v.
ment of the counat.which the forfeiture was taken, for the surety had the entire term at which the forfeiture was taken to surrender his prinoipal, pay the costs,and be discharl(ed. This right the sureties were deprived of by the proceedings had in the district court upon the forfeiture of this recognizance. The proceedings there had were not authorized by the statutes of Kansas, nor by any law of the United States to which my attention has been called, and the judgment there entered, for the reasons above stated, had no validity. McElroy, the original defendant. having died between the date of the levy and the date of the deed, it was necessary to revive the action before a valid deed could be executed. A decree will go for the defendant, quieting the title to the property in dispute in her, but not at the cos, of the complainant.
HARMON
et aI.
'l1. STEED
et at
(CfrcuU Court, D. West Vtrg!nta. February 18,1899.)
1.
TAXATlO1lf-DELINQUENT LrsTS-RBOORl>ING.
The mere failure of the county clerk to record the deltnqueut list filed In his of. 11ce, as required by Code W. Va. c. 30. § 21, does not affect the validity of a subsequent sale for taxes, since a compliance with the prior requirements of the statute fully answers the purpose of giving notice to the state and the land-owner, and the record is only intended for the purpose of preserving the list. In order to redeem land sold for taxes, It is necessary, under the Code of West Virginia, to pay (1) the taxes of the year for which the land. was sold, and (2) for the year in whioh it was sold; and a payment of the former without the latter ef. feota no redemption. The certificate of the auditor that the lands have been redeemed does not bind the state, when it fails to show that the taxes for both years have been pald. It is the duty of a person seeking to redeem land from taxes to investigate the matter fully, and tender the full amount demanded by the law. if in faot it is llOt demanded by the officer. . .. CBRTmcATE.
2.
SAMEI-REIDEMPTION.
8.
4. SAMB-DcTY OF REDEMPTION.
In Equity. Bill by Charles A. Harmon and William W. Flanagan, partners trading as C. H. Harmon & Co., against Thomns Steed, Alexander F. Matthews, Will,iam M. Tyree, and Homer A. Holt, to cancel a tax-deed and also a deed executed by the grantee therein. Bill dismissed. The cnse was submitted on an agreed statement of facts, in substance as follows: It is hl'reby stipulated and agreed bf'tween the plaintiffs and defendants in the above·entitltu cause, by thl'it' respective COllUsel. that the folluwing facts shall be considered and treated .lIpon the hearing of this cause as proven therein in pruper form, that isto Ray. that on the 1st day of April.l&l4. llnd for more than one year priur 1hereto·. James T. and T. B. Marshall were and had been the owners in fee of the tract of 1.264 acres of land in the bill men· tionell; tha.t.fur lIa.IU year said land was duly assPs:led for taxes amounting to $ - - ; t1lat. said tax !;lot bdng paid within the time required by law, it was