JunGE OF MUHLENBURG COUNTY COURT.
would afford little protection to a. bona fide purchaser, fOI: by nO'vigilance could he guard against sucb secret liens. That a judgment creditor is nota pnrchaser of an interest in his debtor's land is elated in Gover v. Black, 1 Po.. St. 493. "He stands on the foot of his debtor," it is there said. Id. 495. Lien is an incident, but not the object, of a judgment, and the judgment creditor is not entitled to any advantage which his debtor had not. Reed's Appeal, 13 Po.. St. 476,478. . A purchaser at a sheriff's sale is affected by the records and state of possession at the time when the sale takes place. Gingrich v.;Foltz, 19 Po.. St. 38; Stewart v. Freeman, 22 Po.. St. 120. Now, at the date of the sheriff's sale on December 15, 1875, Metzger was not in possession, and his deed was not yet recorded. But Smith's deed was then on record, and had been for 15m.onths. The records, therefore, gave unequivocal notice to Wilson that under the racordingacts . Metzger's title was extinct. It thus appearing that the title of Alexander Smith was good and valid, it is not' necessary to consider whether the title of his vendee, Duncan McBane, the plaintiff, would not be good, even if' that of Smith were impeachable. Upon the facts found, 1 am of opinion that the plaintiff is entitled to recover; and, accordingly, the court do find in favor of theplairitiff, and that he recover the land claimed by him and described in this
Let judgment be entered upon the finding of the court for. the plaintiff for the land claimed by him and described in his prcecipe, with costs.
JunGE OF THE MUHLENBURG COUNTY COURT.
(Oircuit Oourt, D. Kentucky.
July 12, 1881.)
The phrase" county court," as used in an act to amend the charter of the Elizabethtown & Paducah Railroad Company, approved February 24, 1868, does not mean a court composed of the county judge alone. So held, on a demurrer to a petition for the purpose of compelling a county judge alone to levy a tax on the property in his county, under the provisions of this act, to pay a judgment, which had been obtained against the county, on coupons for interest on county bonds issued to pay the county's subscription to road's capital stock. .
FEDERAL REPORtER. .
)3A:RR, D.;' J ..' The pl"intiff.uobtained· .iil this'jcourt a judgment against the county of Muhleubllrg for the sum of·"$5,274.28, with illterestfromFebrfiaty 21,1876. This< ,judgment was obtained on <loupons which were for il1terest On bonds of the' county of Muhlenburg,.issued to pay a subscription: of stock made· by said connty to the' Elizabethtown &. PadMah Railroad Company·. , This petition is for the purpose of'obtaining ,a ma1ulamusto,compel the county judge, T. C. Thompson, to levy a tax on the property in said county suftto pay plaintiff-'his judgment;; andcaus& it, to be oollected. QQuntyjudge dembrs to :this petition, the ground of the dit!iUUlirer jS,thM "thEt court;" in .the, mea,ning of the statute wh:W,ll authorizes the levy ,and collection of a!tax. to,pay t,hese bonds and,ifiterest,is the jus.tices·of the peace for said 'cortnty and himself,. and that he, sitting as a connty court,. withoutsu.ch j,ustices, has no authOrity to make 81:1ch levy. This.isan important question, and its: solution' depends solely upon the meaning of the, phrase, "county. as used in the charter which· aU,thorized this subscription and t}:1e levy of pay the bonds ,a.ndthe interest AS it accrued. . of an aot to amend the cba,rter,ofthe Elizabeth. town & Paducah Railroad Company, approved Fe.brual'Y 24, 1868, prclvides--:,.·· .. in any county, city, ;ti>wn. or election, <liitrict shall subscribe to ato.ck of said Elizabethtown & Railroad Company, under the provisions of this act, and issue bonds for the payment of such subscription. it shall be the duty o( til\) county court of such county * * * to c!tuse'·to collected a 'tax s\l:fficierit to p3,y the semi-annual interest ,on th(l bondS issued, and' all cost of collecting such taxes." . The county court in this state is, and was in 1868, usually held by tbe county judge. He attended to all the judicial duties of the court, but the fiscal affairs of the county were ordinarily controlled and managed by a county court, which was composed of the presiding judge (county judge} and the justices of the peace in and for the county. This latter court was sometimes called a "court of claims." This was its constitutional designation. The thirty-seventh section, article 4, provides that"The general assembly may provide, by law, that justices of the peace in each county shall sit at. the court of claims and assist in levying the county levy, and making appropriations only." 'Tbecapital C in "court of claims" has been dropped in printing both the Revised Statutes and the General Statutes, but it was used in the"original official publication of the constitution. Debates KentU6ky Convention, 1097-1136.
MERIWETHER V. JUDGBOF lIIUHLENBUBG COUNTY COURT.
The distinction between thel'county court/:' 'propei' and the 'fcoltrt of claims" was not clearly recognized' by the legislMura in the enactments made soon after the adoption of the constitution, and quent were still more indifferent to this distinction, ll,nd this increases the difficulty in arriving at the. legislative when it court" to exercise powers or jurisdictiQIl without designating who shall compose the court. If the nature of the powers to be exerCised is the teat under the constitution whether the county coud shall beheld by the county or. the county judge and the Justices of the peace'; we would not be much enlightened in this case j because, when the constitu,. tion says that the justices of the peace "may sit at the court of claims ll,nd assist in levying the county levy and making appropriatiOnE! only," that did not, strictly construeq, a made for, the payment of either the principal ori,nterest of bonds issued for. a subscription to a railroad company. The power to subscribe stock'to a railroad, and levy a tax to pay the bonds issued for the stock, .might be conferred by the legislature on a county court composed of the county judge alone, or the county judge and the justices of.lhe county, or upon commissi9ners selected for that purpose. The court of appeals, in the Bowling Green et Madi8onvilleRailroad Company Case, 10 Bush, 714, decided "county court," as usedin the charter of that company, IDE:lant the county judge and the justices of the peace. The ground of this decision was that of Warren county was given a discretion of whether or not to submit the question of a subscription to the stock of the company to a vote of the people. The same court, in the case of Logan County v. Caldwell, MS. opinion of October, 1880, decided that the "county court," in the charter of Owensboro & Russellville Railroad Company, meant the county judge alone, acting as a court. The ground of this decision was that the county court was not given an absolute discretiou of whether or not the. 'voice of the p,eople of the county should he taken on the question of the county's scription of stock to that road. In the charter under consideration, the legislature has made no distinction in the language used when granting judicial powers, or those pertaining to the financial affairs of the county incident ,this subscription, nor has the legislature given the county court a discretion of whether or not to submit the question of the8'ubscription to the vote of the people of the county. Hence, this the decision of the Kentucky court of appeals, the
constitutional distinction between the county court and comt of claims, would decide that county court, in this charter, meant a court held by the county judge alone, except for the fourth section of this charter. This section enacts«That the person acting as sheriff at the several precincts shall return to the clerk of the county court, within three (3) days after the day of such tM' poll-books of their respective precincts. and on the next day thereafter the countyjudge and county clerk shall count the vote; and if it shall appear that the majority of those votin.iis infa,vor of the subscription of stock, as prO:' posed, the county jqdge shall order the vote to be entered on the record, and the subscription to be made by the clerk on behalf of the cotmty.on the terms specified in the order SUbmitting the question to a vote."
The courity judge is required to "order the vote to be entered on the 'record, and thesuhscription to be made," etc. This could' be done only in thereccirds of the county court, and the use of the w.ords "county jlidge," in this connection, is inconsistent with the construction that "connty court," as uaediri this charter,means merely the w countyconrt.. . .. " county judp acting Construmg the entIre wct, and gathermg from Its prOVISIOns· tha legisla.tive meaning· in th euse of the term "county court," I hava that it means a court composed' of the county,judge a.nd the justices of the peace,and that,und.er this chwrter,the county judge alone c'aunot levy a tax: to pay this , The demurrer will be: sustained.
(Circuit Court, No D.
INDIANS-THEIR STATUS AS REGARDS OWNERSffiP OF REAL PROPERTY.
A woman of the Potta;watomie trihe of Indians, whose hushand has acqUired title to lands hy a patent from the government, is thereafter suhject to the same laws, and, where the rights of third parties are concerned, is liable for the consequences of her acts and non-action, as any other person.
By the treaty made on the Tippecanoe river, in 1832, the section of land in controversy was granted to an Indian chief of the Pottawatomie tribe, to whom, two years after, the plaintiff was married. In the following'year, by a deed in which the woman did not join, the land was deeded away. In 1846 the husband died. The patent from the government was not issued until 18(l4. Thirteen years after, the widow filed this hill for the assignment of dower in the land. Held, that. as against those in possession under the deed of the husband, the bill must be dismissed.