"clerk or agent of any stati6n" of·i. railroad company is good service on the company. The receivers take the place of the l'ailroad company in the operation of the road.. .ThEj act of congress requires them to operate the road comformably to the laws of the state, and as. the railroad company was bound to operate it. The station agents become the receivers' agents, and service on them ought to be good service on the receivers; and under the net of congress and the statutes of this state, it probably is; but to remove any doubt the court will pass the following order: "The Oentral Tru8t Company. New York. vs. The St. Arkansas " Te:r;a8 Railway Oompany, in Arkansas and Mi8so'/!.ri. the court .that S. W. Fordyce and A. H. Swanson, the receivers in thi& cause, have established their office, and have their official domicile as such receivers, in St. Louis. Mo.· and that they cannot be personally issued against .them by the courts in this state, because they are found in the state, it is therefore ordered that the service of 8 copy ofaBysummons or writ, heretofore or hereafterIssued against said receiv,ers'in this state, upon the clerk or station agent of said receivers at any station or depot. of said railroad in the county where the same was or lDay be and;considered as a good and valid service of such sumplons or,writ on saidrece.i,vers. Of 'fhe recaivers are instructed, 'and desire, to settle all valid claims against them· without suit· ·r Ii; is proper to add that, When the receivers or their agents have settledand allowed a claim, it will be paid in due administration, and a suit and judgment on such not hasten its payment.
M; &T. R. Co. v.
(OircwUOourt, E.D. LO'ltIIriana. November i6,l889.)
Under Aot La. 1882. No. 96, § 8. reqlrlHngeach tax assessor to ascertain the taxable property in his district. both byexalDination of the records of conveyances and by inquirieS. etc., an assessmept in the.name of former owners, whose title has been divested'by bankru'ptcy sale, and who are not in possession. and an adjudicatioJl of , the ,to the state for non-payment of the taxes, are void.
,,' Xn· Equity. ,On motion for injunction. ' , &: Denegre,for complainant. J., B. BecT.:with" for defendant.
PAnDEll:, J ·.. 0n July ,31, 1866, the city of New Orleans, by proper act, sold and conveyed to Messrs. Kennedy & McKeon, a commercial fifID tioing business and residingrin ,the city of New Orleans,two'certain batture Jotsinithe square' No. 17 A, bounded by Notre Dame, Julia, J,Jelta, and Water ,streets. January 3, 1868, Charles McKeon individu': ally, and as a member of firm of Kennedy & McKeon, Siurenderin bankruptcy, and on the 4th day.of January, 1868,
NEW ORLEANS, M. &: T. R. CO. t1. NEGROTTO.
was duly adjudicated a bankrupt individually, and as a member of said firm. ')n his schedules, the said bankrupt surrendered the property aforesaid, and thereafter it was taken possession of by the assignee under the orders of the bankrupt court, and held as a part of the estate of said bankrupt. Thereafter, as a part of the said estate, it was ordered sold, and was sold at auction, and one W. S. Williams became the purchaser on the 17th day of March, 1871. The assignee in bankruptcy, by proper conveyance, conveyed the said property, in pursuance of said sale, to said W. S. Williams. Afterwards, on the 22d day of August, 1883, the said W. S. Williams, in an act reciting the aforesaid sale and purchase in bankruptcy, declared that said lots were purchased by him for the New Orleans, Mobile & Texas Railroad Company, and he therein assigned and conveyecisaid property, with all rights and claims, to the New Orleans, Mobile & Texas Railroad Company. Both of the two lasfrmentioned acts were duly registered in the conveyance office in the city of New Orleans on February 11, 1885. Immediately after the sale, as aforesaid, by the assignee in bankruptcy, to said Williams, complainant entered into the possession of said property, and built thereon sectionhouses, and ever since has been in the open, notorious, and public pog;. session thereof. In the years 1882 and 1883 the said property was listed and assessed for taxes to the state of Louisiana in the name of Daniel Kennedy and Charles W. McKeon. The said taxes, so listed and assessed, not being paid, on November 24,1884, the state tax collector of the first district of the city of New Orleans, by his deputy, claiming to act under authority of and in compliance with act No. 96 of 1882 of the Laws of Louisiana, offered the said property for sale for such delinquent taxes, and at such sale adjudicated the same to the state of Louisiana. Afterwards, on the 4th day of February, 1885, the said state tax collector executed a conveyance of said property to the state by two distinct acts of sale,-one on the adjudication for taxes due in 1882, and the other upon the adjudication for taxes due in 1883. On the 13th day of June, 1889, Mr. Harrison Parker, state tax collector of the first district of the city of New Orleans, claiming to act under act No. 80, (approved July 12,1888,) of the Laws of the State of Louisiana for 1888, and claiming to have complied with all the requirements and formalities of said law, proceeded H> offer for sale, and did sell, the aforesaid property to D. Negrotto, Jr;; and afterwards, on the 15th day of August, 1889, by public acts before a notary, in pursuance of said sale, did execute to said Negrotto deeds of sale of the property aforesaid, ,therein reciting a compliance with requirements of the said act of 1888 in all particulars. The complainant brings a bill to quiet his title as against the said Negrotto, and to cancel and annul the aforesaid conveyahces as clouds upon his title. The defendant has filed an answer demurring to the jurisdiction of the court, exhibiting his deeds under the act of 1888, and claiming thereunder a perfect title. The case has been submitted upon a motion for an injunction pendente lite. It seems clear that under the sale in bankruptcy, and the title in pursuance thereof, Williams became and was possessed of the· legal
title to the property in question; and that by his subsequent conveyance to thedcomplainant, and the complaina.nt's open, notorious, and adverse possession for over 15 years, the complainant acquired a.nd has a full and complete legal title. by deed, /lnd prescription; at all events, complainant has sufficient and adeqJlate legal title to. maintain the suit to remove a. cloud from his title.. It also appears certain that, in 1882 and 1883, Daniel Kennedy and Charle!:l McKeon were not the owners nor possessors of the said property, and that for those years' the said property was assessed in the name of a person not the oWDllr. It has long been well settled in Louisiana that an assessment of property not made in the naroeaf the owner, when the law requires that property shall be assessed in, .the name of the owner, is a, nullity, and, if assessed in any other name, the assessment is defective, and cannot be the basis for a legal tax-sale. In the case of ftJnspereau v. New Orleans, 38 La. Ann. 4UO, the supreme court of the state, in. speaking of an assesamont for the year 1882, where theplnintiff had purchased in July, 1881; and where the assessmlmt· of .1882 was in the name of her vendor, said: "It requires no argument to say that the assessment of 1882 was an nbsolute nullity, and thaHt could not be the basis far a.lawful tax-sale;" citing Lague v. Boagni, 32.La. Ann. 912; Guidryv. BrO'U88ard, Id.924; .Marin v. S'Mriff, 30 La. Ann. 293; and, to ,the same effect, cases may be cited from the. tenthA.nnual to the fortieth. The law in force at the time. the assessment,in 1882 was made; (Act 96 of 1882, § 8,) provided that "each tax assessor,on or nfterthe 1st dny of J nnuary, shall diligently examine the! reoords in the offices of mortgages and ()onveyances, and the abstract of InJ;ld-entries, and shall otherwise make faithful inquiry and inascertain what taxable property in his district or parish belongs to residents, and to absent owners, and to unknown owners," etc.; and section 7 of the Same act provided "that if the lands to be asaessed bell, tract. or n lot known by a name, or if the owner's name be known) :it shall be designawd by those particulars and by its boundaries." Under a law to the same purport, the supreme court of the state, in the case of Marin v. Sheriff, supra, said: "Reference.to the public archives is one of the means of ascertaining the title to and description of immovables SUbject to assessment; but it is not the (lDiy ODI1· . The law is imperative. The aesessor must, by diligent inqUiry, 'ascertain Iliames of aU the of their respective parishes, whether taxable for licenses or for property, or on both, and also all the taxable propedy , within the same." . .At the of the assessment in 'question, the records of the bankruptcy court in New Orleans were teeming with tranafers of titles to immovable property in the city of, New Orleans, and such records were .Q!lent() inq1.lil'Y by tax assessors. If the tax assessor in the first district (If New Orleans .hadexRmined tho/Je:records, or had examined the property itself, he would have been at once informed by inspection who was the true OWiIl!»' of' the property in,aontroversy. The complainant's bill, supported by shows many minor irregularities on the part of ,the officials ,of the state in .adverti$ing, selling, and conveying the prop-
NEW ORLEANS, M. &: T. R.
arty under the requirements of acts of 1882l1,nd 1888; but it is not necessary to consider them at this time. For the purposes of this motion, it is sufficient to find that the complainant's title is a legal one,and that the title relied upon by the defendant is a nullity, under the act of 1882, under which the property was assessed, advertised, and adjudicated to the state, because the property was not assessed in the name of the owner. The effect of the act of 1888, and the defendant's deeds thereunder, remains' to be considered. The said act of 1888 in terms provides for the advertisement and sale of all immoyable property bid in for, and adjudicated to, the state for taxes for the year 1880 and subsequent years. It declares that all assessments on such property are legal and binding in every respect on parties interested in the property, and that the titles to the state, as acquired under adjudications for unpaid taxes, are good and perfect. Section 4 of said act is as follows: "Tl1at each tax collector shall, as soon as said adjudications to bidders are moo&and complied with, execute to each purchaser a deed of 8ale, In authentic form, of each specific piece of property, a duly.,certified deed shall be prima facie evidence of the following facts: (1) '.rhat the property conveyed in said deed was 8ubject to taxation at the time of the assess.ments thereof: (2) that none of the taxes for which said property was adjudicated to the state were paid: (3) that the property was not redl'emed at the time prescribed by law. And the said dIlly-certified copy of said deed shall be conclusive evidence of thEl fQllowing facts: (1) That the property was listed and assessed according" to law:' (2) that the were levied according to law: (3) that the property in said deed was adjudicated to the state according to law: (4) that the property Was advertised according to law: (5) that the property was adjudicated and sold to the purchaser as stated in said dee(l; (6)thata11 the prereqUisites of the law were complied with by all the froDl the listing and assessments of said property inclusive, up to, and including the execution and registry of the deed to the purchaser. And· dulycertified copies of said deeds shall be full proof of all contained therein.. The proof of payment of only a portion of the taxes for which the property, was adjudicated to the state shall not in any manner affect the validity of the sale to the and, in order to invalidate the sale to the purchaser; it shall 'be necessary for the party attacking it to prove that all. the taxes for all the year for which the property Was adjUdicated to the state had been paid before the adjJldication to the state, or that the property was redel'med, according to law, for. all the year for which it was adjudicated to the state, or that the same was exempt from taxation for all the year for which it was adjUdicated to the The effect of this act has never been passed uponhy the supreme court of the state; .but one similar in many respects, and, as I think, different in material matters, has been recognized as valid, as to the Affeet of the ,deed· of sale,executed in accprdance with its provisions. I'fI. 1'6 La,ke, 40 La. Ann. 142, 3 South. Rep. 479; In 1'6 DOugla88, 6 South, Rep., 675. The title to the act does not state one of its objects to be the validation of assessments, adjudications, or titles theretofore made. SeeCol\st. La. art. 29. Theaet seems to go beyond the oonstltution,for article' 210 of .the 'Louisiana constitution declares "that all deeds of sale made, 'or that made, by collecto1'8 of taxes shall be,received by oourtsin evi-
dence as prima facW valid sales." The same article of the constitution declares that, prior to the sale of property for taxes,the delinquent shall have notice which shall not be by publication, except in case of unknown owner, and that the property shall be advertised for sale in the manner provided for judicial sales. The act of 1888 presumes notice and advertisement, and, as a healing act, it dispenses with the constitutional requirements to a valid tax-sale. The act is retrospective with regard to assessments and adjudications prior to 1888. See article 8, Rev. Civil Code; article 155, Const. La. It purports, in terms, to cure defects that under the settled jurisprudence of the state are absolute nullities. It is a legislative declaration on the part of the state of title in itself. These objections are so serious that at present I am not prepared to give full effect.to said act in this case, nor, in fact, any more effect to defendant's deeds of sale as evidence than the constitution of the state declares deeds of sale made by collectors of taxes shall have. The case may be prepared for final hearing, and then submitted to a full bench. In the mean time, the injunction pendente may issue on complainant's 'giving bond, with security, in the sum of $2,000.
Wor.F et ale tI.
(OtrcuU Court, E. D. Wisconsin. November 25, 1889.)
Rev. St. Wis. §§ 2829, 2830, require the courts to disregard any errors not aft'ectiDgsubstantial right, and give power to amend any process by correcting mistakes. at any stage in the proceedings. Rev. St. U. S. §§ 948, 954, provide that the courts may allow amendment of any process when the defect is not prejudicial, and that. no writ shall be abated or quashed for want of form. Section 646 provides that on removal of a suit from the state court any attachment shall hold the goods, the same as under the state laws. that where a seal is omitted by mistake from a writ. of attachment issued in a suit begun in a Wisconsin court, but removed to the federal court, the latter court will regard the writ as amended in that particular, as it would have been 80 amendable under the state laws. 'I. SAME-W AlVER. " By mOVing to set aside the levy on other grounds, and failing to object to the defective writ before filing the statutory bond for the release of the property, defendants waive ail objection to.tbEl writ.
AMENDlllENTS-WRIT Oll', ATTAOHlllENT.
By giving bond and receiving restitution of the property seized, defendants waive . the objection that the property was not subject to attachment.
PLEADING-PENDENCY Oll' PRIOR SUIT.
Pendenc;y of a libel in admiralty aga.inst a vessel is no bar to an attachment suit at law agalDst the owners, for the same cause of action. Whether the levy of an attachment in an action in personam upon the r611 bonded In a proceeding in rem for the same debt Is abuse of process, quwre.
AB'l1SE Oll' PROCESS.
At Law. In 'May, 1889, the plaintiffs brought suit in the circuit court of Milwaukee county, to recover an alleged balance of account of $14,999.41, for servicr-s, materials, and moneys furnished the defendants between