idents thereof, all citizens of Iowa. As these facts appear on the record, the right of removal existed when the petition therefor was filed, and the state court rightfully granted the order of removal. '
et al· .".
«(JiMt,it Oourt, 8. D. Mi88UJ8ippi, E. D. .&lay 27, 1889.)
Its cash price at a forced sale is not the proper criterion for ascertaining the value of property in controversy. on the question of the jurisdiction of the federal courts. but the true rule is, what could it be sold for in the ordinary course of business?
.. TAXATION-REDEMPTION FROM: TAX-SALE.
Where. under a city charter. 18 months from the time the deed is filed with the mayor are allowed in which to redeem from a tax-sale, the period of redemption is to be computed frozp the time a deed, properly acknowledged, is tiled.
SAM:E-POWER TO LEVY
Where a city is authorized to levy "in each and every year" a tax not excee,ding 50 cents on the $100, a tax levied in 1886 for the year 1885 is invalid, and a sale therefor cannot be aided by an act curing irregularities in proceedthe enforcement of taxes. ings
In Equity. On final hearing. Bill by Berthold & Jennings against Isaac W. Hoskins and others, to set aside conveyances. NugMtJc Me Willie; for complainants. , Hiram 'Cassidy, for defendants. HILL.;J.This cause is submitted upon bill, answers, and proof, from which the following facts appear: On the 5th day of February, 1887, said,1. W.'iHoskins and wife executed a mortgage upon the real estate describEidinthe bill,which then belonged to said 1. W. Hoskins, to secure the payment of three nores executed by him to complainants. After the maturity of the notes, complainants, in the chancery court of Lincoln county, filed their bill against saiel Hoskins and wife to the mortgage, for the payment of the amount due on the mortgage notes, which resulted in their obtaining a decree from said chancery court of Lincoln county for foreclosure and a sale of saiel real estate. The property was purchased by complainants, and, by confirmation of the sale and deed of the commissioner on the 31st day of December, 1887, the title to the estate so sold and purchased was vested in complainants. At some time after the date of the mortgage, and hefore the sale of the real precise date does not real'estate was assessed for state and county taxes at the sum of $2,000, in the name of Mrs. EllaB. Hoskins, wife of I.' W. Hoskins. Ort the 4th day of January, 1886, the board of mayor and aldermen of the city of Brookhaven, in which the property is'situate, levied a tax upon the same of on
BERTHOLD V. HOS!CINSo
the $100 wortli for city purposes, and 3 mills for school purposes. This was levied for the year 1885. On the 3d day of May, 1886, the tax not being paid, the.property was offered for sale for the taxes due, and, no one bidding, the same was struck off to the board of mayor and aldermen of the city of Brookhaven, and a deed was executed by the tax collector to the board of mayor and aldermen, conveying the property to them; which deed, it is claimed, was left with the mayor, but waEl not acknowledged or marked "Filed" until the 10th day of June thereafter. The charter of the city required that· in making sales for taxes the same tice should be given as was required of the collectors of state and county taxes, which was three weeks' notice published in some newspaper published in the county. The proof shows that the notice of sale was pub.. lished in a newspaper published in the city of Brookhaven-First, on the 15th April; second, on the 22d April; and, lastly, on the 29th of April, 1886,-the first being only 18 days before the day of sale. On the 11th day of November, 1887, complainants. by their agent and attorney, offered to redeem the property so sold and purchased for the taxes due by paying the same, with interest and damages thereon, which was refused by the mayor, but who on the 26th day of December, 1887, sold and conveyed the same property to Mrs. Flizabeth Hoskins, the mother of I. W. Hoskins, for the sum of $41.85. This bill is filed for the purpose of having the deed by the tax collector to the board of mayor and aldermen of Brookhaven, and by the board of mayor and aldermen to Elizabeth or Mrs.' Lizzie A. Hoskins, declared void, and set aside as a cloud upon complainants' title to the town lots and real estate descrll>ed in the bill, and upon the following grounds: (1) That. under the charter of the city of Brookhaven, complainants were entitled to redeem said real estate at any time within 18 months a:ter the sale of said property, and the deposit of the deed with the mayor of said city, and that the offer was made to redeem within 18 months after the deed was properly acknowledged and filed with said mayor; (2) that the 18 allowed for redemption had not expired when the sale was made by the mayor to Mrs. ElizlJ,beth Hoskins; (3) that by the charter of said city the power of taxation by the mayor and aldermen was limited to 50 cents on the $100 of the value of said property, and that the tax levied was in excess of that sum; (4) that the mayor and aldermen had no power on the 4th day of January, 1886, to levy a tax for 1885; (5) that the notice given of said sale was insufficient; (6) that the lands were assessed in the name of Ella B. Hoskins, when they belonged to.her husband, 1. W. Hoskins; (7) that the assessment of the lands had not been approved by the board of mayor and aldermen; (8) that the city tax collector returned no list of the lands sold to the city on the 3d day of May, 1886, and acknowledged and executed no deeds to said lands until the 10th day of June, 1886; (9) that after the tax collector's sale, and before the expiration of the time allowed to redeem said land, the board of mayor and aldermen allowed said 1. W. Hoskins certain claims against said city greatly in eXCf1SS of said taxes, by means whereof the said pro.perty was redeemed; (10) that the whole proceedings, by rea..
son'bf the ,dflinquenby in the payment ofthe taxes; the sale to the hoard, and the sale tq Mrs. Elizabeth A. Hoskins, was a scheme devised by said I. W. Hoskins, and known and participated in by. the other parties to the transactio,nito hinder and delay the complainants in the collection of their . But, before these questions are· considered, it is necessary to consider the question of jurisdiction raised, not by the plea,but, as it is insisted, by statements made in the answer and by the proof, and that is as to the value of the property. It is alleged in the bill to be worth from $2,100 to $2,500. The answer and the testimony of the tax collector and mayor of the city place it at not more than $1,500. It is also testified that the property is assessed at $1,000 for state and county taxes. On the other hand,it was given in, it must be presumed, byI. W. Hoskins, after he executed the mortgage in which his wife joined, at $2,000, though for some reason it was assessed in his wife's name, whieh reason this assessment the taxes were levied. is not explained, and it is Mr. Thompson, the attorney for complainants, testifies that the improvements could;not be put on the land. for less than from '$2,500 to $3,000, and that the lots are conveniently situated, and these facts are not disput upon the property by the colproved. I take it that the lector and mayor is what it would bring in cash at a forced sale. This is ,not the proper criterion for finding the value of property on the question of the jurisdiction of the court,but the true rule is, what it would bring in the ordinary course of business. Tested by this rule, the estimate put upon it by I. W. Hoskins, when given in for taxes, and the estimate of Mr. Thompson, I believe more as men seldom give. in their property for the purpose of taxation for more than it is worth, but more frequently for not exceeding half its value, and sometimes much less. This is so general that the court might almost take judicial notice of it. Therefore this contention cannot prevail. The objeotions taken to the conveyances sought to be set aside will be considered in the order stated: First, that the offer to redeem was in time. I am satisfied that the collector's deed required to be filed with the mayor, iaa deed executed and acknowledged by the collector, so tbat nothing more is required to be done by the collector to vest the title in the city I and to have the same placed on the proper record; and that the deed soexecrited and acknowledged should be constantly on file in the mayor's office for the full term of 18 months, to cut off the right of re. demption, and to give the deed the prima facie evidence of title, and to cure irregularities in the assessment, sale, etc., and, if correct in this, the first and second objections to the deed sought to be set aside, are well taken. I am not satisfied that the third grouJld is maintainable, and do not believe these conveyances should be set aside on that ground. The fourth objection is that the taxes were not levied within the year for which the levy was made. The act under which the levy was made provides that the board shall have power in each and every year to levy a tax not exceeding 50 cents on each and every $100 of value. This provision does not fix any particular time in the year, but does .provide that
MISSOURI PAC. RY. CO. 'V. TEXAS &P.,RY. CO.
it shall be done within the year. I am therefore of the opinion that the board had no power to levy the tax for which the property in controversy was sold, after the expiration of the year 1885; that the sale for this reason, if for no other, was void. The fifth reason is' that the notice of the time of sale was insufficient. I am satisfied that the notice required by law to have authorized the sale was for three weeks from the first publication, and not for three weekly insertiohs, as counsel insist; but this is an irregularity that would have been cured, had the time for redemption elapsed before a tender to redeem was made. The other objections to these conveyances, if there were no other, are not sufficient, under the proof, to set aside these conveyances 'as prayed for, as they would have been cured by the act of 1878. The ,proof shows that complainants had a. valid title to the estate in controversy, unless that title was lost by the tax-sale made on the 3d day of May, 1886. To rendel" that sale valid, the tax for the payment of which the property was sold must have been legally levied, and the taxes must, at the time the sale was made, have' remained unpaid. These irregularities in the of the tax would have been cured by the operation of the act of 1878, had the limitation of the tim.e for redemption expired, but this act cannot cure the want of a levy required by law to be made, and, if I am correct in holding that the board of mayor and aldermen had no power or authority to make the levy after the expiration of 1885, then no levy was made authorizing the sale; and no valid sale has been made, and both the legal and equitable title to the real estate described in the bill remain in com.plainant, and the title claimed by Mrs. Elizabeth A. Hoskins, through the conveyances from the tax collector to the city, or its board of mayor and aldermen; and the deed from the mayor to her, are null and void, and a cloud upon the title of complainants, and which they have a right ,jo have declared void and set aside as clouds upon the title by the decree of this court, as provided by the statute of the state. A decree to that effect will be entered, but the defendant or Mrs. Hoskins will be entitled to have refunded to her by complainants such sums as sbe may have paid for taxes on the property, unless she has been in possession of the property t or has received the rents and profits thereof.
& P. Ry. Co.,
(Circuit Oourt, E. D. Louilliana. May 25,1889.)
RIGHT TO COSTS.
An intervenor who :flIes his claim in a snit involving the operation of a railroad by a J;'(lceiver, and receives plI<yment for injuries snstainedby ,snchoperation, is not entitled to a docket fee or fees for depositions tak'en'in support of pis claim. . . ..' Rev. St. U. S. § 824, allowl1Ig a tee for eaCh deposItion taKen in '4 does not apply to oral testimony taken by a special master on a r.eference of an action to him. . .,' . ' '
FEDERAL REPORTER, vol. 38. On application to tax costs.
Hornor &; Lee, for intervenor. Howe &; for receiver.
PARDEE, J. The intervenor, Morris, presented a petition to this court, alleging that in the operation of the trust property in this cause by the receiver he had been damaged by the killing of two mules, of the value of $ - - - , and he prayed an order that the receiver should pay his damages out of the trust funds arising from operation of property. The petition was referred to the special master, to take evidence and report. The special master heard the oral testimony of 15 witnesses, which was taken down in writing, and, considering the same, reported to the court in favor of the payment of the intervenor's claim._ No opposition being made thereto, the report was confirmed, and an order entered directing the receiver to pay the amount awarded by the master, and the costs incurred in the case. The now presents another application to the court, averring that in the matter of the above petition final judgment has been rendered in his favor, and that he is entitled in law to $20 for his solicitor's docket fee, and to $37.50 fees for 15 depositions taken in this intervention, under section 824, Rev. St. U. S.; and that the defendant declines paying the same; and he prays for an order directing the defendant to pay the amount as claimed. Petitions by strangers to the suit to be paid sums of money on account of the operationsI.-: the officers of the court growing out of the management of the property in the custody of the court are ll1ereinterlocutory applications therein, (see 2 Daniel, Ch. Pro *1567 j).and the orders thereon, whether granting or' refusing the prayer of the application, are not final hearings or decrees within the meaning of section 824 of the Revised Statutes; and no docket fee for final hearing should be taxed thereon. In this case alone there have been hundreds of such applications and orders, and the practice has been invariable not to tax such docket fees. The practice in the circuit, in which there have been many such cases, is the same. "The word! deposition,' as used in said section 824, does not include oral testimony taken in court or before a. master." See Factory v. Corning, 7 Blatchf. 16; also equity rules 76, 77. The application in this case is denied.
MORRIS v. MORRIS & CUMMINGS DREDGING Co. et ale
rc,zrc'Uit (lourt, 8. D. New York. May 13,1889.)
W)leJ;e, in a suit for an infringement of a pateut; one of defendants, a part owner with plaiutiff iu the pateut, shows in his auswer that he had admitted that his co-defendants used the patent under his license. evidence of admissions by hin:l; to the same effect is cumulative, and shouldb!l stricken out.
Motion to strike out testimony.
ANDRI!:WS V. BACON.
The complaint averred invention by. and issue of letters patent to, defendant Collins, subsequent assignment by him to complainant of onehalf interest therein, and infringement by defendant the Morris & Cummings Dredging Company without consent of either complainant or Collins. It further set forth that Collins was made a defendant because he refused to join as plaintiff. The answer of the dredging company attacked the validity of the patent, and set up license by Collins. Collins, who appeared by the same attorney, also answered that the dredging company was acting under his license. The case for complainant being closed, the defendant (against objection) proved the admission referred to in the opinion. Motion was duly made to strike out the testimony. Francia Forbes, for complainant. A. G. N. Vermilya, for defendants.
LACOMBE, J. It appears by the answer of defendant William Collins that subsequent to the beginning of this suit, and on December:22, 1888, at the city of New York, he admitted in the hearing of one 1. T. Brown' that the buckets made and used by his co-defendant were made and used by his consent. The evidence which plaintiff moves to strike out only shows that Collins, some time in February, 1889, admitted in the hearing of one Dudley W. Bain that the buckets so made and used were made Mid used by his consent. In the present state of the case one admission by the defendant Collins is as good as fifty. The evidence, therefore, is cumulative, and should be stricken out. It may be urged that theevidence is not cumulative, on the ground that the answer'of Collins cannot be used as evidence in favor of his co-defendant. Whether or not it may be so used need not now be decided. The same arguments which might be presented against the use of the answer would apply with equal force to the evidence submitted; both are merely the admissioll8 of a third party not subjected to cross-examination.
COirettit (Jourt, IJ. Maaaachu86tta. April 26,1889.) 1.
CO:KPOlU.TioNs-LIABILITY OF STOCKHOLDERS FOR DEBTS-FORM OF ACTION.
The proper form of action to enforce a statutory liability of stockholders for corporate debts is by bnI in equity. Suits in the federal courts to enforce the stockholders' liability, under a state statute. are governed by the state statute of limitations, and the, interpretationput upon the statutes by the state courts.
SAME-FEDERAL COURTS-STATE STATUTES.
Such liability being entirely statutory, and not contractual, the cause of ac· tion is not a1fected by Revision N. J. 1>94, requiring all actions "founded upon any lending or contract without specialty» to be commenced within six years.