J'ORD II. DELTA & PINE LAND
(Circuit Oourt, S. D. Mislrissippf. August 18, 1890.)
An exemption from taxation of the capital stock and "all the property and effects" of a railroad company will not be extended by implioation to outlying awl detaohed lands whioh the oorporation had no power to acquire when the exemptiop. was granted, but whioh were acquired under a power granted by the subsequent oharter.
Aot. Miss. Feb. 18, 1867, (liquidating levee law,) levying a tax on the lands in the levee distriot for the payment of the levee bonds, and providing that, in case of default, the land should be Bold, oonstituted "oontract between the state and the bondhOlders that the taxes oollected, and the lands purohased by the levee commissionera for default in the tax, should be held for the payment of the bonds. Though the aot provided that all the land on which the tax was not paid before a certain day in eaoh year should on that day be sold for said taxes, suoh lands might thereafter be sold for such taxes, and the irregularity oured by act of the legislature. ' A return of process, defeotive on its faoe, In that it does not show the relation of the person served to the defendant oorporation, is cured br. a recital in the judgment that the defendant had been duly and legally served Wlth process. Code Miss.. 1880, § 1038, provides that the franchise of a railroad corporation may be sold to satisfy a judgment, the purchaller to have the rights and duties given and imposed br the charter. Section 1039 allows six months for redemption. Section 1041 prOVIdes that aU corporations, after their oharters have expired or been annulled, shall nevertheless be continued bodies cOi'porate for three years thereafter for the purpose of suing and being sued and olosing up their busfness. Held, that, where a railroad company franohise was sold with the rest of the property on a decree of foreclosure, and the purchasers organized a Dew corporation under an act of the legislature, the old corporation ceased to exist at the end of three year6 thereafter. Code Miss. 1880, § 2674, provides that all aotions on a judglI1ent or deoree ren" ' dered in the state must be brought within seven years thereafter. It further provides that no exeoution shall issue on such judgment or decree after sevenyilars from the date of the last preceding exeoution, but it makes no provision for the continuance of the lien of the first judgment. Held, the rendition of a judgment on a judgment did not continue the lien of the first judgment.
'" PROCESS-RETURN CURED BY JUDGMENT.
LIEN OF .JUDGMENT-CONTINUANCE.
In Equity. Corle Miss. 1880, § 1038, provides that the franchise of a railroad corporation may be sold to satisfy a judgment. Section 1039 allows six months for redemption. Section 1"041 provides that all corporations, after their, charters have expiredor been annulled, shall nevertheless be continued bodies corporate for three years thereafter for the purpose of tiuing and being sued and closing up their business. Whitfield &:SuUivan and Ed. Mayes, for complainant. Frank Johnson and James R. Yerger, for deflmdants.
HILI" J. This cause is submitted upon bill, answers, exhibits, and proofs, and argument ofthe counsel. The pleadings and proofs are exceedingly voluminous, but, after having been carefully examined and .cQnsidered, they show the follewing facts: On the 23dday of. November, 1859,an actWL\S passed. by the legisoftqiS;jitate "to iucotporate the HollySprings,&Mobils'
Railroad Company," by the first section of which the corporation proto: purchase, receive, hold, and posed to be cha,rteredwilS enjoy real and personal estate, and the same to retain to them, their successors and assigns, so far its it may M necessary for theit accommodation and convenience in the transaction of their business, and such as may in good faith be conveyed to them by way or satisfacand the Same to sell, grant,or otherwise tion pf debts', or by dispQseof, 'provided said company shall not be allowed to have in their· own name, or in any other manner, for their use and benefit, more land than is necessary for the convenience of their railroad therein provided for; therighL of way ,and grounds proper and necessary for depotiJ. tiitures, and buildings, pertaining to Raid road, for a longer period than fiveyearll after the completion dfsaid road, or. pairi<;>f forfeiture to, owners of sllphlands, all right and title thereto. The ninethis act enacts that:thecapitalstock and all the property and effects of-said company shall be exempt from taxation until said road is completed, provided it is commenced within twoyoors and com· pleted"Wl1h\n,:' 'years' after the passage of this act. Acts 1859"-60,pp·. 51:-60; ., Nothing more is shown to have been done until the 26th of February, ,1867, when the legislature passed "An act to revive Eu}d the Memphis; Holly Springs & Alabama Railroad Comvany/" by the. first section of which it is provi<ied that t1)e above-recited act is,;revived, ,and that the style ofthe railroad company shaH hereafter be kutlwn as the" Memphis, Holly Springs, Okolona, &' $eloi"J,Wib;oa<i Com pa.ny." .',I'he second section of this last act providesi1t'batithe· c()mpanyshallhatte,threeyears in which to comThe third section of the plete their road after the pa8sage of the actllutborized the corporaton5 torectiive' subscJ:iptions in land to the ca.pitrlsfQckoft1+e COtUI;lthy,ptovi:ded,thelaudshall ill five miles of the hrie. of roo.tl, and shall be estimated at its cash value by three disiriterestedpersonsj andah411.\li, takenpy the company at their valuation, unless objected to as excessive. in which event there shall be a re-estimate by three persons appointed by the judge of the probate court of the countyiu'whichthelandInay lie. 'Theselands were to be conveyed to the .cQmp$nywith CQvellantsof and the. persons making the to pay all the dds1lS of the valuation and conveyance, and 10 per cent. On the amount subscribed, in the same installrhents granted ,to who subscribed for,stoclUn, money, and for the' amount of said stock both in land and money he shall be entitled to receive certificates of stock as in other oases; The next section provides that nothing in the act shall be construed to. prevent'thestate from levying and collecting such income taxes or tax upon the travel on said road as might he provided frOlntime to time by law. Acts 1866-4>7.p. 854. On the 21st dtty, of Jpljy;'lJ87G,>there was passed an act changing the nameof ' thifl.lailroad,,:comp81uy'to that of the $elrna.,, Marion & Memphis,Rail.', road Company, and said com pan)' was,authOrized to receive,in the way ofaubscl'ipti.Oh ::to",itscapitahtl'lck. landslyihg any\vhere within the state ofMisstssipph:- ,Pn..the 11lth day of Mareh,cl872,there was passed an
FORbv. DELTA & PU,E LA!\I>
.a ctto facilitate the construction.of the Selma, Marioo& Memphis Ran· .road ,by thethird section of which it was that all lands which han before that time been purchased by or forfeited to the state ofMississippi for taxes due and unpaid thereon. and which have been sold to said Selma, Minion & Metnphis Railroad Company by' the originalowners of the same, shall be sold toeaid railroad company: by the auditor of public accounts at two cents .per acre,- upon 'the presentation of satisfactory evidence of titles to !:'aid land to said railroad com pany from original own.ers, and satisfactory proof that not less than twenty-five miles'of said road has .been constructed: provided, the title to the lands shall have been conveyed by said owners to said company prior to the passage of the act, and that in all cases where the said lands had been forfeited to or purchased. by any of the levee boards in the levee districts in this state in which any of the lands lie, and are now held or claimed by the leveeboa'rds for the of levee taxeS, and where the title is held by said railroad company, said levee boards are required to arrange for the.payment of said taxes by receiving, in payment ofthesame, any of the bonds of the levee board. Acts 1872,p. 313. 0ntbe 18th day Of MarCh, 1873, the So1ma, Marion & Memphis Railroad Company paid. to, the auditor of the state two cents per acre for the lands embraced inthis:sni:t, and took from him deeds of conveyance therefor. This railroad company was consolidated with the Selma, Marion '&Memphis Railr6adiCompany of Tennessee and Alabama, and this consolidation ,wa8ratifiedby an actofthe legislature passed on the 6th day of Mar(jh, "An act to amend the charter of the Selma, Maribn & -Memphis Railroad CompaIlY." No previous law was passed authorizing ,the conBOlidationrnordoesit appeanupon the face of the ratifying act under What charter theconsolidation.took effect, Of what were the rights, .privileges, and immunities. accorded, to the company by the act;of corisolidaticm.Acts 1873, ,· The lands involved in this:suit are those claimed to have ,been pur.· chased from the o:riginal owners under the actor July 2,1,1870,which . authorized the purchase of' lands situate in a.nypart of the state of Mississippitandunder thEi'provisions of the act of 16th of March,1872, authorizingothe sale by the auditor to the railroad company, at two cents The title to the other, lands held by the company need not, per, therefore" be considered. It is admitted that the title to these lands was \J:ested in the state of·Mississippi by patents from' the United States under what is known as the '!Swamp-Land Act" of congress" a.nd. that the same;have been entered under the act of the legislature of this state rapprovedMtirch 2, 1854, entitled" An act to provide for the further issue of swamp-Jand scrip, for the purpose of aiding in the completion of the,!eveesupon the Mississippi river," and that patents have been isBUed therefor to the enterells thereof. The title--deeds, filed as evidence in the:cause,show that the 'Parties or their assignees have conveyed to the)SoIma\ Mal'ion, & Memphis Railroad COmpany most of the lands.described in the oill. ,The.greater,part of these conveyances bear, date at differ.enttimes y.';1871. The'deeds tha.t
described in them were sold and conveyed in payment forcapifal stock in said railroad company. The deeds from the auditor of the state to the company f filed as evidence, show that these lands were forfeited to the state for non-payment of taxes, and were sold therefor, and purchased.by the state, and that they were sold by the said, auditor to the Selma, Marion & Memphis Railroad Company at two cents per acre, under the provisions of the act of March 16, 1872. On the 18th day of March, 1871, the Selma, Marion. & Memphis Railroad Company executed and delivered to Porter King, Abram S. Humphries, and J. M. Hill its mortgage or deed of trust, conveying to them as trustees all the property,real and personal, franchises, rights, and privileges then owned by said corporation. or to be.by it afterwards acquired, as security for the payment of certain bonds, with-interest coupons attached, issued by the authority of the said corporation, and which were transferred to bona fide holders. Said King never accepted said trust. and:said Humphries some time afterwards died. Their places were filled, as authorized by said mortgage or trust-deed, by the substitution of J. W. Fant and A. A. Coleman, who accepted the trust, and continued to act as trustees until said corpora>tion ceased to perform its functions. On the 18th day of December, 1874, Luke P. Blackburn, of the stateof:Xentucky, who was the owner. and holder of of said· bonds, being of the denomina, tion of $1,000 each, with matured' interest coupons attached, amounting to mor(lthan $500, filed his bill in the circuit court of the United .States for the western district of Tennessee against said corporation and trustees and a portion of. the. holders of like bonds and coupons, payment .oithe interest thereon not having been made, for the purpose of collecting the interest so due, and, if need be, the foreclosure of said mortgage .or. trusWeed. The bill in that case describes or sets out the lands designated in the -bill in this as being embraced in said mortgage. Such proceedings were had in said cause that on the 24th day of July, 1882, a decree .was entered by the court directing Bell W. Etheridge, clerk and inaster of said 'oourt and. commis>' ller thereof, to seU the lands described in .the mortgage and in the bill in that cause Upon six and twelve months' credit, taking notes with approved sureties, and retaining a lien thereon for the· purchase money. The record shows that the sale was ,made .in pursuance to said decree,and was duly reported to and confirmed by the court. The decree ordering the sale provides and directs that, when the sale shall have been made and confirmed by the court, the said Selma, Marion & Memphis Railroad Company'should be absalutelybarred frow'all right of redemption of said lands, and that the purchasers should he vested with,ss full right and title thereto as was ves.ted at any time in Said company.' The said sale VI'as reported to and eonfirmed by the court on the 15th of May. 1883. The decree confirmingthe report'provides and,directikthat Bell W. Ethoridge. the clerk .and commissioner, who made tlfesale, should, on the payment of the purchase money I' make to· tHe purchasers. respectively, a deed of· con· veyance to said lands so purchased. J:>y tharp, which should contain ll. have the effect of absolutely barring the said railroad
DELTA & PINE LAND 00.
company from all equity of redemption; and that the purchasers should thereby be invested with full right and title thereto, in as full and complete a manner as the same was vested at any time in said company. It is further directed that the trustees under the mortgage should unite in such conveyances. Deeds by Bell W. Etheridge as clerk and commissioner, in which J. W. Fant as trustee joined as directed, were executed and delivered to the purchasers of said lands, but the other two trustees, Hill and Coleman, failed to unite in such conveyances; the former being physically unable to do so, and having since died, and the latter being a non-resident of this state or the state of Tennessee. All the property conveyed in said mortgage other than the lands embraced in this suit was, by the decree of said court in that cause, sold, and the sale was confirmeJ, and the purchasers put in possession of the same on the 6th day of July, 1880. In the said cause of Luke P. Blackburn v. The Selma, Marion &- Holly Springs Railroad Company, said company and the trustees under said mortgage or trust-deed were made and became parties to said suit, either by service of process or voluntary appearance, and the orders, decrees, and proceedings had in said cause remain unappealed from, and are in full force so far as the court had jurisdiction thereof. On the 2d day of December, 1878, Timpson & Tappan, assignees in bankruptcy of Henry Clews·· & Co., obtained in the district court of the United States for the northern district of Mississippi judgment against the Selma, Marion & Holly Springs Railroad Company for $481,227.98. On the 13th of November, 1885, W. H. Timpson, as the trustee in bankruptcy of said Clews & Co., brought his action in the district court of the United States for the northern district of Mississippi, founded· upon the judgment recovered as aforesaid. The process was served upon R. A. Murdock, the return of the marshal being as fol· November 19, 1885, by handing to R. A. Murdock, lows: Esq., of Okolona, Miss., a true copy of this writ;" and on June 19, 1886, judgment nil dicit was rendered in favor of the plaintiff against said Selma, Marion & Memphis Railroad Company for the sum of 3737,. 904.65. Upon this judgment executions were issued to the marshals of the northern and southern districts of Mississippi, to be levied by them upon the lands situate in their respective districts. They were by them levied on the'lands herein involved, which were sold, and purchased by the complainants in this suit, to whom deeds were executed by the said marshals for those sold by each. These are aU the facts deemed necessary to be stated in connection with the complainant's title and the effect of the sale made under the decree of the United States circuit court for the western district of Tennessee. The defendants claim titJ.e under various conveyances made by county sheriffs and tax collectors and the auditor of public accounts, and under the decree of the chancery court of Hinds county, and sale and conveyance made in pursuance thereto. The facts upon which defendants rely to maintain their title, as shown by the proof, are briefly as follows: On December 2, 1858, a statute 'was passed by the Itgislature of this state for the construction of levees on the eastern bank of the Mississippi river,
to: prevenHhe lands 'in what is known as the" Delta" fr9rn being over:fl:owedJby the Mississippiriver; and,itwas provided th!lt,the levee commissi<;lners,created by the act, should issue bonds to be used in payment for thecolilstruction of said levees. To 'provide for the pa,yment of these bonds a tax was levied upon the lands within the levee district of a specified sum per acre, as a charge in rem ,to be pf1.id annually to the sheriff and tax collector of the county in which the lands lay, and upon default the land,subject to red,emption within two years, the sheriff and his deed 'was declared in advance to be prima facie evidencfil of the regularityoHhe sale. Under this act a large amount ofwork was done, and a large nmnber of- bonds were, issued. The war intervening, but a small amount of taxes were paid, and a very large indebtedness remained due. To, provide for the payment of this indebtedness, the legislature passed the act of the 13th of February, 1867, known as the "Liquidating L,eveeLaW:," at, the request and with ,the consent of the holders of these bonds, by'and under which a readjustment of said indebtedness was had, ·the bondholders remitted all interest, and new bonds were issued in: place aLthe old Qoes, and a: speci6.c of five cents per acre on a 'portion of said lands and three cents on the .remainder was levied in rem,and declAred to be a lien on the same, to be paid annually to the sheriff and tax collector qfthe county in which the land was situate, on or before the lSt day oiMay in each year, and, upon non-payment of the same, said sheriff and taxcollect0r. was directed to offer the lands, in default, for sale 'to the highest bidder for cash. This tax was to continue and be collected until the entire debt so due was paid off and discharged. This last-named act required that all lands upon which said tax was not paid' on or before the second Monday in May in each -year, without ther or notice, should on .that day be filold to the highest bidder for said tax and costs, and thatthe sale shopldYest in the purchaser llgood 'and sufficient title against any and eVlJry person having claim thereto. '.A: large nnmber of acres of these lands were sold, and, no other ·person bidding thm-efor, they were struck off to the levee commissioners by their corporate name:,8s thepurchasel's, in accordance with said act. An act of the legislatUre was subsequently passed constituting the auditor of public accounts and the treasurer of the state the commissioners td transactthebusiriessand perform the duties'l'equjred of the former Hquidating levee commissioners. - On the 26th dAY of February, 1877; Joshua. Green, on behnlfof himselfand all others holding said liquidating levee bonds who might see propel' to come in and make themselves parties 'complainant in said cause, filed his bill in the chancery court of Hinds count)·, in this I3tate, against the auditor and treasurer as such wmmissioners, praying a sale of the lands so sold to and held by, said 'Jiquidating:levee commissioners and by said auditor and treasurer as their, successors. Proceedings were had in said ca\l:se, by which a large portion of,said lands were sold to E. C. Gordon, who paid the purchase money therefor,and received deeds of conveyance for the same from said oommisSioners·in pursuance to the decree of said chancery court. This stand unreversed.
'D. DELTA &: PINE LAND
'Thelrtnda so sold and conveyed to E. C. Gordon embrace the lands in this sUit. which were afterwards sold and conveyed by said Gordon to B. H. Evers. They were forfeited for non-payment of the taxes of 1882,: and purchased by the state of Mississippi, and were afterwards purcnased from the state by James D. Stewart, in the suit of Watson v. Evers,! in the district court of the United States for the northern district; 'alldby its order and decree said lands were afterwards sold by James McKee, as special commissioner in said suit of Watson v. Evers and others, and purchased by said Thomas Watson, to whom deeds of conveyance were executed in pursuance of the order and decree of the court. " They were afterwards sold and conveyed by him to the Pine & Delta Land Company, the defendants in this suit. These lands, while held ·iIi the name of the levee commissioners, were not liable to taxation for any purpose, and were not assessed for taxation; but when conveyed to Gordon, as before stated, they were assessed for taxes as other lands, and, the taxes not being paid, they were sold by the respective sheriffs and tax collectors as other lands, and were struck oft' and listed to the state, no one else bidding for the same, as were other lands upon which the taxes had not been paid; and, as before stated, thf'y were sold by the state and conveyed to James D. Stewart as the receiver of this eourt in said cause. On March 1, 1875; the legislature passed a revenue statute, commonly called the "Abatement Act," which provided for the sale of all the lands held or claimed for taxes either by the state or anyone of the levee boards. All taxes, state, county, or levee, were abated, except the taxes for the year 1874; and the only condition imposed for the former delinquency was the payment of the taxes for 1874. The sale for the non-payment of this tax was to be made on the first Monday in May, 1875. These taxes not being 'paid, the lands in controversy were sold by the different sheriffs and tax collectors, and, there being no bids offered by other persons, they were struck oft' and listed to the state and' reported to the auditor. In accordance with the act of the legislature, this proceeding vested the title in the state, the land being taxable. These are all the facts that need be stated to facilitate an understanding of the numerous questions involved in this suit, and which have been ably and exhaustively presented by the counsel on both sides. The proof fails to show that anything was done by the said railroad company under the charter of 1859, or that the conditions therein prescribed Were complied with. Therefore, the effect of the charter of 1867 was substantially to create a new corporation under a new name, with the rights, powers, and privileges of the charter of 1859, and the additional provision extending the time. for commencing and completing the railroad. This corporation was confined to the state of Mississippi, but with the power to consolidate with other railroad corporations, as authorized in theMt of incorporation of 1859, which was not exercised until the 15th of April, 1881. It is provided in section 19 of the act of 1859, and
lBee 13 Fed. Rep. 194..
vol. 43. _
a 'part ofthetJ,ct of 1867, "that the capital stock and all the propertyand effec,ts of said company shall be exempt from taxation until said railroad is completed: provided, it is commenced within two and completed within ten years," which limitation was extended by the act of 1867 to three and sixteen years. This is the only provision for exemption from taxation provided in any of the acts of the legislature. The question, therefore, is as to what was the legislative intent in respect to the exemption claimed by the said company, and how far it extended. It is true that the act uses the word "all," but I am satisfied it was only intended to embrace the property waich the corporation was authorized to hold under .the acts of 1867 and 1859, and did not extend or apply to such after-acquired property as was detached from the railroad and not necessary for its operation or the necessary transactions of its business, and does not embrace the lands involved in this suit. This conclusion is strengthened by the fact that the sale of the lands by the state to the railroad company under the act of 1872 for only two cents an acre was evidently intended, in addition to aiding the railroad. to subject to taxation this large body of land, which had lor so long a timt} rendered no revenue to the state or county in which it is situated. These lands had yielded no revenue from, say, 1862 to 1871. The railroad company, by the conveyances made by the former ownE;lrs to it, only obtained the right of redemption. The land was not redeemed by it, but purchased at the nominal sum of two cents per acre. It is not to be presumed that the legislature intended that lands thus sold should raUl\lin for 13 years relieved from contributing their portion of the public burdens imposed on other lands. Besides, it is the well-established rule that exemptiun froUl taxation in favor of railroad companies only embraces the property connected with the constrllction and operation of their railroads, and not outlying lands, or other property not necessary for their construction. and operation; and I take it that. but for that word "all" used in theexerp.ption clause, this exemption would not be claimed. By the act of the)egislature authorizing the sale of said lands at two cents per acre it was upon condition that 25 miles of said railroad had been completed. This the prQof shows was not then done, and never.has been done, by said railroad companyin this state. This failure renders the validity of such sale doubtful; but, in addition to what has been 8tated on this question, the. proof shows the Selma, Marion & Memphis Railr<Jd Company had. some time prior to January, 1881, ceased to construct said railroad, and was hopelessly insolvent; and that on the 19th day of March, all its prQperty, franchise, and everything possessed by it except these lands, were sold under the de" cree of the circuit court of the United States for· the western district of Tennessee, which remains unreversed, and under the decree of said court were turned over to the purchasers, and the railroad company foreclosed title. and interest therein; 80 that practically the corpoof all its ration ceased to exist, after that time. The building, equipping, and operation of this road for the public convenience was the considera· tion for the exemption provided in the charter, and by the iailure of.the
FORD V. DELTA &: PINELAND CO.
corporation to build and operate the railroad the exemption has failed. It is difficult to maintain the exemption after that time. This is all that it is deemed necessary to say on the question of the exemption of the lands from taxation. The lands sold at two cents per acre were not intended to em brace lands claimed by the levee commissioners, and it may be well doubted whether the Selma, Marion & Memphis Railroad Company ()btained any title under this purchase. The next question for consideration is as to the legal effect of the sale of these lands under the decree of the cireuit court of the United States for the western district of Tennessee, and the foreclosure of the right, title, and interest of the Selma, Mllrion & Memphis Railroad Company in them. The only question is as to the jurisdiction ofthe court to make the decree for the sale, for the reason that the lands are situate within this state, and not in the <iistriet of West Tennessee, or within that state. The court had jurisdiction of the parties and of the debts secured by the mortgage or trust-deed, If the court had jurisdiction, then the sale, its confirmation, and the payment of the purchase money vested a complete, equitable title to the lands in the purchaser; and the court, if the legal title has not been vested in the purchasers, has the power to cause it to be done. The validity of the sale of the other property is not questioned. It is clear that a judgment had in a court of law in one state cannot in any way affect the title to land in another state. Reference is made to the case of Muller v. DOW8, 94 U. S. 444, to sustain this sale. That case is authority in point as to the property first sold in the Blackburn Case, as that property was an entirety; but I am of opinion it is 110t directly so with reference to the lands embraced in this suit. It is stated, however, in the MnUer-DO'w8 Case, as follows: "It is here undoubtedly a recognized doctrine that a court of equity sitting in It state and having of the person may decree·a conveyance by him of land in another'state. and may enforce the decree by process aga!nst thedefendaut. " The same doctrine is held by the supreme court of this state in the case of Richardson v. McLemore, 60 Miss. 315. If a court of equity has the power to compel a conveyance of land outside the state in which the court is held, it is illogical to say that when a bill is filed to foreclose a mortgage by a railroad company covering property in several states, and all the parties are before the court, the mortgagor and the trustees in the mortgage and the bondholders, the court has not the power to decree It sale of the lands, and order the same to be made by its own comn}issioner, or by the trustee or trustees, and the conveyance to be made by the mortgagor or by all of them. But, as there are some doubts on this point, and there are others upon which the right of the parties may be determined with less difficulty, it will be passed without a decision the one Wlj,y or the other. . The next question to be considered is as to the effect of the judgment, to the lands sale, and conveyance under which complainants assert in controversy. ,It is insisted upon the part of defendants that the judgment was. void for two reasons:. ,First, becap.se the return of the
1'EDERAI. REPORTER. vol.
Railroad Company; and, secondly, that corporation had, for years 'bef(Jre1 that time, ceased to have an existence for anY' purpose whatever. As: to the first ofthese objections the judgment entry recites that the court was satisfied the process had been properlyexe«mted, which must be un· derstood to mean that it was executed upon the proper person, and this would not have been the case ifMurdock was not at the time connected with the corporation inl:1uch way as that,service upon him :would bind the I do not believe this objection alone is maintainable if the corporation then, had an The more difficult question is, had the 'cOTpoi'ation itselfeeased to exist before that time? If it had, no valid judgment could be:rendered against it. At com:monlaw, a corporation created without !ifnit to its existence was presumed to exist until its wrought by a voluntary surrender of its charter, or by the judgment of a court havingju.risdicti6n upon a writcif quo warranto or otherwise. 'Incase a corporation ceased to carryon its, business, and owed debts and owned property, the retlledy ofthe creditors was by bill in equity. Section 1039 of the said Code provides thanhe original corporation, or the original parties in any charter, may within six months redeem the franchise which may have been sold under execution by paying or tendering to the purchaser the amount paid by him, with 10 per cent. added thereto, but shall not be entitled to the profits received by the purchaser in the mean time; and upon such payment the title shall vest in' the original owners. When such sale is made, and the franchise and property are notredeemed within the time limited, as in this case, it looks very much like the practical death of Lhe corporation with a inal existence for three years thereafter in order thati :any balance of its assets may be administered for the benefit ofi'creditors and stockholders, as provided in section 1041 of the Code. The road.bed,franchise, and all other property connected with and necessary for the keeping in repair and operation of theroall,'lvere purchased by J. J. Busby and his assa. ciates, and they were put in possession of the same, and the purchasers and their associates organized anew corporation under the provisions of an act of the legislature of this state .approved February 1, 1877, which organization took place on the 13th day of April, 1881. The Selma, Marion & Memphis Railroad Company had no existence after that date exceptfdr the purposes mentioned in section 1041 of the Code, and the existence limited and purely statutory continued for three years after that date, and: ended on the 14th day of April, 1884. It is difficult un· derthe statutes and these proceedings to come to any other conclusion thim that the Selma, Marion'&; Memphis Railroad Company ceased to exist for any purpose after that date. The judgment under which com· plainants claim title was rendered on the 19thdaybf June, 1886, the process having been executed 011 the day of November, 1885. The for(lClosure decree as to theselands was entered on the22d day of January, 1883. It is illsisted upon the patt of complainants that the judg. ment rendered on the 19th day ofJune J 1886 J was but a revivor and
served,' was in any way connectedwitn the Selma, Marion &
'show that R. A. 'Mlirdock, uponwhotri: the pri>cess :was
& PINE LAND CO.
continuation of the judgment upon which it is founded, and that, under it, the lien of the prior judgment is continued, and that, having this continuous lien, they had a right to have the lands sold for the satisfaction of their judgment, notwithstanding the death of the corporation. Seetion 2674 of the Code of 1880 provides that all actions founded on any judgment or rendered in this state shall be brought within seven years next after the rendition of such judgment or decree, and not after, and that no execution shall issue on such judgment or decree after seven years frop! the date of the issuance of the last preceding execution on sUdh or decreej but it does not provide for,the continuance of ,the lien created by the first judgment, and I know of no rule of law which gives Itthateffllct. The formerjudgment is treated as any other ascertained debt when suit is broughtllponit. The question as to the validity of the jUdgment of the 19th June, 1886, is not clear and satisfactory on the one side of the other; but the reasons weigh against its validity. The fir8t claim title, under the deeds tQ the levee commission,ers; the conveyance of the commissioners toE.C. Gordon; thirdly, up.fier the conveyance of Gordon to Eversjjourthly, under the conveyance of McKee, commissioner, to Watson; fifthly, under the conveyance of. the auditor to ,Stewart, receiver,; 8ixt'hly, under the conveyance of Watson to them. The first question, presented is as to the validity of the title acquired l>y the levee commissioners or levee board. The tax fOI which these lands were sold was a local and a special tax of five cents per acre on part, and three cents per acre on part, levied by the legislature, and declared by the statute to be a tax in rem on the lands. situate in the' levee district for the purpose of paying ,the indebtedness incurred by, the general levee board prior to the year 1862. This'statute has been held valid by the supreme :court of this state in the case of Gibbs v. Gree:n, 54 592, and Bunch v. WolerBtein, 62 Miss. 56, and in subsequent decisions. In the cases above referred to it is said that the act of 1867 constituted ,a contract between the state and the bondholders, and that the taxes ,arising under its, provisions, and the lands purchased and held by the levee -commissioners, constituted a fund for the payment of the liquidating levee bonds and interest, which the legislature had no power to divert to any other pur-. pose; that the legal title, vest,ed in the levee commissioners by a sale and conveyance of the land for the non-payment of the taxes, was ble at their pleasure for the purpose of paying said bonds. Numerousex ceptions are urged and taken to the validity of these sales. One of these to the lands in Sunflower county and portions of the lands in other counties, and is based on the fact that the lalJ.ds were entered with what is known as Scrip," issued to other counties. The. contention is that scrip iss,uedto one county could only be located on1ands situate inthat pounty, and that, when not so located, .the title to the lands,rE!mained in th,estate, and they were'not subject to tax· ation for anY·,Imrpose. After a careful consideration of this question I am satisfied objection i$, not well taken as to the lands in the
Yazoo MiSsissippi delta district. The purpose of the legislature was to furnish the scrip to the diffel'entcounties along the Mississippi river to enable them to build and maintain the levees. For this purpose it was issued to Tunica and one or two other counties in which there were no swamp lands upon which it could be located; and from some reason no scrip Was issued to Sunflo\\Ter county, because,perhaps, it had no river fl'ont:upon which to build'levees. The scrip was authorized to be located on the swamp lands in the levee district. The provision of the act creating the swamp-land district east of the base of the hills bordering upon the· Yazoo river and some of its tributaries is that the scrip shall be Ibcated on the swamp lands in the county to which it was issued. The purpose of the issuance of scrip to these counties was the improvement of the streams and swamp lands along them; but in the other act the object, as declai'ed, was the building and maint,aining of the levees along the Mississippi river, and thereby benefiting the whole district by preventing overflows from that river. But, if the position claimed were maihtained;' it would not inure to the benefit of complainants, as in such exigency notitIe has passed tathem or the defendant railway company, and the Illndsare still' the property of the state. Objections are also taken to the time and of the sales and conveyances, which need not be considered in detail. A number of these objections wQuldbe maintainable but for the effect of the statutes of the state enacted before and since these sales were made, as determined by the suprefriecourt of the'state. It must be admitted that there is, at least,a seeming conflict in some of the decisions on these questions; but in the' more recent adjudications this real or seeming conflict does not arise or exist. These are entitled to the greater weight; and, being'l,lo construction ,of these statutes by the court of last resort of the state, they are bindingtipon this cOUrt; arid especially so when, after careful examination of the purposes of the8tatute imposing the levee tax, and the condition of the lands and the great conflict of the titles to them, I am satisfied that the recent decisions are sustained by the better reason. Owners land are vested with certain constitutional rights of which they cannot be'!lepri'ved by either legislative enactments or judicial decisions, one of which is that they cannot be deprived of their titles to their lands except by due'process of law.. It was held by this court on the demurrer in this cause that to deprive the owner of land of his title by reason of the non-payment of taxes thereon these things must concur: Ji'ir8t. There must have been a lawful tax imposed by some body of men, or some one having authority to levy it. Second. If the tax was based upon the value of the land, it must have been ascertained by some one authorized by law to assess such value. Third. There must have been a default in the payment of the tax within the time prescribed by law. Fourthly. There must have been a 'sale and conveyance made by some one authorized to make the same.. 'These are conditions which the legislature can neither dispense with nor cure by subsequent legislation, nor can the want of them be dispensed with or cured by judicial de<'ision. But, under well"recognized rules) any irregularities in'these proceedings)
FORD ,. DELTA &; PINE LAND CO.
which the legislature could have authorized to be done in the first instance, may be cured by subsequent legislation, but not so as to destroy vested rights. This rule is so generally acknowledged that reference to authority is unnecessary. For instance', if the sale was made on a day or at a place which the legislature might have authorized, or for delinquent taxes for several years madeat one time after default in each year, or other such irregularities, these may be cured by subsequent legislation. This brings us to the consideration of the cunitive acts, statutes of limitation, or rules of evidence, for they may be considered as possessing one or more or all of these elements which are relied upon by the defendants. The first of these acts was passed on the 10th day of February. 1860, and provides as follows: "-That all sales of lands hereafter made for non-payment of taxes, due un· der any law of this state, shall be valid to all intents and purposes.-said lands subject to redemption as provided by law,-and that no such sale shall be impeached or questioned in any manner or for any cause saving fraud or mistake in· the assessment, or sale of the same, or upon the proof that the tax for which the same was sold had been paid prior to such sale; and no suit to set aside any title acquired under such sale, hereafter to be maile, shall be brought unless within five years from the date of the sale." See Acts 185960, p. 216, The provisions of this act were held by the supreme court of this state in the case of Belcher v. Mhoon, 47 Miss. 613, to apply to sales for levee taxes; and this ruling stands unreversed. By section 5, Acts 1873, amendatory of the liquidating levee law, it is provided: "-That upon the expiration of five years from and after the sale of lands for levee taxes under the provisions of said actll no testimony or evidence to impeach or invalidate the deeds therefol' * * * shall be entertained by any court of law or eq uity in this stale except in cases of fraud." And by the fourth section of the samp- act of power to sell for back taxes or more than one year's taxes is given where the land is delinquent; and all prior sales of this character are validated, whatever might have been the irregularity or informality. Acts 1873, pp. 151-153. The fifth section of the act of 1888 to quiet and settle titles to certain lands in the Yazoo Mississippi delta provides that all sales· of lands in the levee district made for the non-payment of levee taxes due thereon shall bl:' and are declared to be valid, and not subject to impeachment for any cause except that the tax for which the land was sold had been paid, and except in cases where the defendant had been in continuous adverse possession of the land, claiming under title or color of title since the date of sale to the levee board, and had continuously paid the taxes thereon, or against anyone claiming the land under sales made by the sheriffs under the abatement act of 1878. Acts 1888, p. 42. The proof does not show that any of the lands embraced in this suit are now, or ever have been, in the actual occupancy of either party or anyone else, so that the question of actual possession is not involved . .1 am of opinion that, under the decisions of the supreme court of the state in the cases of Nevin v. Bailey, 62 Miss. 436; Sigman v. Lundy, v.43F.no.3-13
66' Miss. 529; () South. Rep. 24;5; Paxton v. Land 00.; ()·South. Rep. 628;; and Metcalfe v. Perry, 66 Miss. 68, 5 South. Rep. 232,-the irreg1;llarities in these sales to whicb objection is taken are cured, and that the complainants are estopPfld-from producing evidence to establish $uch irregularities so to ;defea.t defendant's title, and bamid from maintailling their suit to recover the lands or to remove defendant's tiUe as a cloud on their title. The,constitutional requirements seem to have by the legislature at five and been complied with. The three cents per acre.upon the land,.......not upon the owner,-and no valuationwas required. That there was a default in the payment of the tax is admitted, and that neither the original owners of the land, the Selma, Marion & Memphis Railroad Company, nor any person through whom. complainants claim. title, ever. paid one cent of taxes on these lands since 1861 or 1862 is ,conceded, though, allowing the exemption as claimed, they have been liable to taxation since the 21st of July, 1886. . This default has continued for nearly 30 years, so that there is no question as to the delinquency in the payment of the taxes. It is in proof that a sale was in fact made. by the sheriffs and tax collectors of most of these lands, and that deeds of ponveyancewere made by them to the liquidating levee commissi.oners with a few exceptions. There is no evidence that the complainants or those under whom they claim ever redeemed or offered to redeem theSe lands from the levee commissioners within the time limited by law. 1 am of opinion, therefore, that a good and sufficient title to the lands was vested in the levee commissioners, and, if so, no title passed to the state which could have been conveyedto the Selma, Marion & Memphis Railroad Company. The only title the state had before that ;time acquired to these lands was under sales for the non-payment of taxes, which included the war military tax, and this fact rendered the titles void, as held by repeated decisions of the supreme court of this state. If, therefore, the title was in the levee commissioners, the treasurer and auditor of the state were eX ojJicW commissioners and their successors, and the title to '. these lands was vested in E. C. Gordon under their sale, and the conveyance made and approved by the chancery court of Hinds county in the case of G1eenv. Gibbs and Hemingway. They were conveyed by Gordon to B. H. Evers. The lands were sold by McKee, commissioner, under the decree of this court in the suit of Watson v. Evers, and purchased by Thomas Watson, to whom the commissioner conveyed the title. This sale was confirmed by the decree of the court,andthe same lands were sold and conveyed by Watson to the defendants in this cause. The defendants, therefore, have a good title to the lands unless they have been forfeited by reason of the non-pay'ment of the taxes since they were conveyed to Gordon. The proof shows that a forfeiture did take place by reason of the nonpayment of the taxes for 1882, and that the lands were sold and con· veyed to the state in 1883, 'and.that the state sold and conveyed its titlEl to Stewart as received, who conveyed to Watson under the order and de· c'ree of the court. There are no irregularities shown in this sale, and, as the time for redemption had expired before the sale to Stewart as re-
ceh'er;aitd asallthetid:es due were paid to the state by Stewart;Wat. i36n?s title, obtained through this conveyance, was; paramount; Ifl'a. sale, as I believe it was, then it would be independent of all other but, if a redemption, it would remove all incumbrance upon the title derived through the sale and conveyance by McKee, commissioner, and this title was passed to the defendants by Watson's deed to them. This conveyance by the state included any title which was derived at the sale under the abatement act made in 1875. The conveyance by the state to the Selma, Marion & Railroad ComWny having occurred before the sale under the abatement act, the title derived under it did not pass by the said conveyance; but, if I am correct in my opinion; Jands were not exeDlpt fro)11 taxation, any title which the (jompany may have had was forfeited by reason of the non-payment of such taxes, and the lands were liable to be sold for non-payment of such taxes. It may be that a more minute examination of the evidence would develop the fact that a few of the tracts of land described in the pleadings will not be found to belong to either party, as is the case with regard to the lands in Sunflower county, conveyed by S. M. Thompson, which were located with scrip issued to Choctaw county; and other lands in which there is not sufficient evidence of defendant's title, especially certain lands in Bolivar county, unless the title was obtained under the sale of 1875 and the conveyance to J. D. Stewart. the receiver. Such tracts, if they exist, are few in number; and as the lands the title to which is involved in this suit amount to 200,000 acres, and the value in the neighborhood of $1,000,000; and as the title to more than the same number of other acres of equal value, and most of which are now in suit in this court and in the circuit court of the United States in the northerIl. district of this state, depends npon the same law and facts involved in this cause; and as I am so strongly impressed with the uncertaiutyas to whether the Selma, Marion & Memphis Railroad Company had ceased for any purpose to have an existence before the suit of Timpson against the railroad company was instituted; and, if so, that the judgment and all proceedings had in said. suit were void, and the com- \ plainants are without any title to any of these lands whatever; and also as to the invalidity of the title under the sale made in pursuance of the decree of the United States circuit court for West Tennessee in the cause it best to dismiss of Luke P. Blackburn, above referred to,-I complainants' bill to the end that an appeal may be taken at once to the supreme court of the United States, where the errors in the conclusion reached by me will be corrected, and such decision rendered as will finally and conclusively settle the vexed questions of title to this large body of land,which is rapidly increasing in value. In justice to myself, as well as to the learned and distinguished counsel on both sides who have aided me by their diligent research into the facts and law presented in this ,case, I cannot conclude this opinion without returning my thanks for their able and exhaustive arguments in presenting the tiona of law 'arising on each side. It gives· me great pleasure -to 'state
that these arguments have seldom been equaled in any cause heard by me during the many years I have presided in the federal courts of this
MCCONNAUGBY 11. PENNOYER
(Circuit Cowrt, D. Oregon. July 28, 1890.)
SUIT AGAINST STATE-INJUNOTION-SALB BY COMMISSIONERS.
A suit by a citizen of Califorllia to elljoin the persons constituting the board of land commissioners of the state of Oregon from certain swamp lands, claimed by the plaintiff, as forfeited to the state: for non-compliance with a condition of a former sale of the same lands by the state to the plaintiff's grantor, is not a suit against the state of Oregon; it appearing that the legislation under which the defendants claim the right to act is unconstitutional and void, because it impairs the obligation of the contract of the state witp such grantor.
An application for the purchase of swamp lands under section 3 of the act of October 26, 1870, for "the selection aQd sale" of swamp lands, from the date of its receipt and filing by the land commissioner constitutes a contract between the state and the applicant for the sale to the latter of the tract or tracts therein mentioned, with the right to the immediate possession thereof; and, on the performance of the conditions subsequent. of payment 'and reclamation, within the terms and requirements of said section, the applicant, or his assigns, is entitled to a patent therefor.
8. SAME-OBLIGATION OF CONTRAOTS-AoTS OOTOBER 18,.1878, AND FEBRUARY 16, 1887. Section 9 of the act of 1878 does not, when fairly construed, include an application for the purchase of swamp land linder the act of 1870, where there is no default in 1870; but, if it does include such a Case. then it is unconstitutional and void, as im-
the payment of the 20 per centum of the purchase price, as, provided in said act of
pairing the obligation of the contract of the state with the applicant, whic4 gave him until 90 days after the pUblication of the notice of the filing of the map of such lands in the office of the clerk of the county in which they lie, to make such payment; and section 1 of the act of 1SS7, which declares all certificates of sale of swamp lands void on which the 20 Per centum of the purchase price was not paid prior to January 17,1879, is, in toe case where the 20 per centum was paid when due, according to the contract of sale, Whether before or after said da.v in 1879, unconstitutional and vqid for the same reason. (SyllabU8 by fheOourt.)
InEquity. Suit for an injunction. Charles B. Bellinger, for plaintiff. Lewis L. McArthur, for defendants.
DEADY, J. By the act of March 12, 1860, congress granted to the state of Oregon the swamp and overflowed lands within its border. On October 26, 1870, the legislature passed an act "providing for the selection and sale" of such lands. Sess. Laws, 54. By this act it was made the duty of the governor, as land commissioner, to select such lands by means of deputies, who were required to return their t:>elections to the commissioner for examination. Upon the selections being made in any county, the commissioner was required to make out, in duplicate, maps thereof, one copy of which was to be filed in the office of the clerk of such county, the date of which filing was to be certified by said clerk to the commissioner, and thereupon the latter was required to give notice of such selection and filing by publication