92 FEDERAL REPORTER.
sought. The fact, sought to be averred by the proposed amendment, that the plaintiff is a citizen of· the state of Wisconsin, is an immaterial fact, except as it is a !3tatement in detail of one of the facts necessary to complete with requisite certainty the statement of the ultimate and material fact (which is alleged) that the controversy is between citizens of different states. The proposed amendment tlJerefore does no more than set forth in proper form, and with sufficient fullness of detail, what had originally been imperfectly stated in the petition. Olldered, that upon payment to plaintiff's attorney of the sum of $10, allowed as costs of motion, the defendant have leave to amend its petition as requested, within 20 days after the filing hereof, and in such case said motion to remand shall stand denied. If such costs me not paid, and amendment made within such time, the said request to amend will stand as refused, and the motion to remand granted, with judgment in plaintiff's favol' for costs and disbursements.
FELCH et al. v. TRAVIS et al. (Circuit Court, E. D.
March 2, 1899.)
UNITED STATES CIRCUIT COURTS-JURISDICTION.
A United States circuit court has jurisdiction of a suit between citizens of different states to set aside a tax title to land exceeding $2.000 in value, located within the district.
2. TAX DEED-VAI.TD1TY.
A tax deed executed by a special township tax collector is void where no such office existed under the laws of the state at the time of his appointment. vVhere a county purchases land at a tax sale, as authorized by Laws N. C. 1895, c. 119, § 90, it only acquires the right to foreclose the certificate by proceedings similar to the foreclosure of a mortgage, and acquires no title thereunder to the land.
SAME-RIGHTS OF ASSIONEE.
An assignee of a tax certificate of sale issued to a county acquires no greater right to the land sold than the county had, and can acquire title thereto only by foreclosure of the certificate, as provided by Laws N. C. 1895, c. 119, § 90.
The court finds the following facts from the pleadings. depositions, and admissions ot parties: 'I.'hat the plaintiffs are residents and citizens of Massachusetts, and defendants are residents and citizens of North Carolina. That the matter in dispute In this action, exclusive of Interest and costs, exceeds the sum of $2,000. That on the 13th day of March, 1889, one 'V. B. Martin, as trustee, conveyed by deed duly executed and delivered to one J. W. Old, a citizen of Norfolk, Va.· in fee, in consideration of $6,000, the land in Brinkleyville township, Halifax county, N. C., described in the bill, which deed was proved and recorded In 1889. Said Old entered into possession of said land on the execution of the deed aforesaid. On the 11th day of May, 1892, said J. 'V. Old and wife, to secure a debt of $5,000 due Felch Bros., executed a deed of trust to William N. Portlock, of Va., for the land in controversy, with a waiver of the homestead exemptions and a power of sale. 'I.'hat plaintiffs became the owners in fee of said land on May 9, 1895, by virtue of
FELCH V. TRAVIS.
a sale under the deed of trust aforesaid, the payment of $2,500 cash, and a deed executed to them by the trustee, which was duly proved and recorded October, 22, 1895, and complainants took possession of said land on May \j, 1895, by their tenants, and have held such possession since. 'That in 1894 the said land was listed in Halifax county, N. C., for state and county purposes, by a list taker duly appointed by the board of commissioners of said county in the name of said J. W. Old at a tax valuation of $2,500, and taxes imposed on it were $15.83, of which $10.33 was for state purposes and $5.50 was for county purposes; and was exposed for sale on 6th day of May, 1895, by "V. 'V. Rosser, then tax collector for said township, and was purchased by the county commissioners, for the use of said county, at the price of $16.53, the same being the amount of said tax and expense of sale. On the 26th day of April, 1897, a deed purporting to convey said land to Jennie G. Travis, defendant, signed by 'V. 'V. Rosser, "former tax collector," and J. A. Norman, "collector," setting forth the listing, as aforesaid, in 18\)4, by J". "V. Old, nonpayment of the ta..-.;:es, failure to redeem, sale, IIDd that the holder of the certificate of purchase of said real estate had complied wir.h the laws of North Carolina necessary to entitle him [her] to a deed for the said real estate. Said deed was executed in the prescribed form, proved, and recorded April 30, 1897. At the :November session, 1893, of the board of commissioners of Halifax county, "V. "V. Rosser was appointed tax collector for Brinkleyville township for a term of one year, and at Oetober session, 1894, of said board, said Hosser was reappointed for a like term. At Oetobel' session, 1895 (October 7th), of said board, said Rosser was appointed and acted as tax collector as aforesaid for a terIll of one year, but at the expiration of the last term J. H. :Norman was appointed such tax collector (October G, 1896). No notice of the tax sale was given to complainants, J. W. Old, or "V. N. Portlock prior to such sale or after such sale, except that about six months after the sale E. L. 'l'ravis, as attorney for the board of commissioners, wrote a letter to J. W. Old, stating that the land had been sold for taxes, and purchased by the county, the amount of tax due, when the time for redemption would expire, and mailed the same directed to Old at :Norfolk, Va. Said Travis did not know that Portlock or the complainants had any interest in said land, but thought said Old was the sole owner thereof, he having never examined the record as to the title. He also believed Norfolk, Va., to he the place of residenee of said Old. Said letter was never received by said Old. On May 8, 1895, when "V. N. Portlock saId said land to complainants, O. H. Felch, in company with another, went to the office of the register of deeds and clerk of the superior court of Halifax county, and inquired of those officers if there was any defect in the title to said land, and was told there was none. Complainants had no knowledge of the alleged tax sale until July or August, 1897. In June, 1895, and June, 1896,-the time fixed by law for listing property for taxes,-the said land was entered on the tax lists in the name of complainants by the list takers duly appointed, and the taxes for each of those years were paid by them; those for 1895 ta Vi'. 'V. Hassel', tax collector, on the 6th of January, 1896, and those for 1896 to J. H. Norman, tax collector, on June 5, 1896. The taxes for every year prior to 1894 were duly paid, and on August 11, 1897, complainants tendered defendant .Tennie G. Travis the taxes, costs, interest, and penalty, which she was entir.ied to demand under the statute, which tender was refused. E. L. TraYis is the husband of the defendant Jennie G. Travis, and has acted as her agent and attorney in all transactions in connection with said land. The land was listed for taxes in 1894, and the taxes for the year 1894 were not paid. Said land was sold for such taxes on the 6th day of May, 1895, and purchased by the county of Halifax. The same was not redeemed within 12 months, "unless the court shall hold the payment of the taxes for 1895 and 1896 operated as a redtlmption pro tanto." There is no record of an order by the board of commissioners placing in the hands of E. L. Travis, as attorney for said board, the certificates of tax sales of land bid in by the county, and directing him, in all cases when he could not procure the taxes either by sale of the certificates or collection from the parties, to bring action in the name of the county far the recovery of the land. On April 7, 1894, L. Vinson, W. "V. Rosser, and W. P. Sledge were appointed assessors for Brinkleyville town-
ship by the bOll'rd of commissioners of Halifax county. The board of county commissioners of Halifax county met on the 4th day of March, 1895, was in session but one day, and there is no record of any other meeting of said board until the first :\Ionday in April, 1895. The April session was held on the 1st ,lay of flaid month, and there was no other session during the month. No one w,as nppointed tax collector for Brinkleyville township at the April session of the board.
Thos.. N. Hill, for complainants. Robert O. Burton, for defendants. PURNELL, District Judge (after stating the facts as above). The facts disclose violations of several fundamental principles which would seriously affect defendants' standing in a court of equity were the positions of the parties reversed. 'Vhat effect should be given these in the present status it is unnecessary to discuss or decide, especially since, with that delicacy sometimes marked in the legal profession, they were studiously avoided in the case as presented and the argument. It is only deemed necessary to incidentally mention the circumstance that it may notbe supposed the court is inadvertent thereto. Without discussing either question, it is held this court has jurisdiction. Complainants are in possession under apparent title in fee, and have no adequate legal remedy in the premises. The first question discussed by counsel was the legality and authority of Rosser, as special township collector in 1894. At that time there seems to have been no such officer known to the laws of North Carolina for Halifax county, but the appointment was ratified, and attempted to be validated by the legislature of 1895, two years after. Such matters must be. determined according to the decisions of the courts of the state, arid the supreme court of the state in State v. "Meares, 116 N. C. 582, 21 S. E. 973, is decisive of this question. The election or appointment to an office which does not exist is void, and confers no authority. If the appointment of Rosser was void, he had no authority to make the sale or execute the deed; both are null. But, waiving this point,-admitting, for the purpose of discussion, that the appointment and acts of Rosser were made valid by the act of 1895,what title did the deed exe.cuted by him as "ex"collector" and his successor, the then collector for the township, confer? This is the real question involved, and sought to have decided. 'Vas that according to the laws of North Carolina? for this is a matter which must be determined under these laws. It is common knowledge that tax deeds for land have never been favored by the courts of Carolina, a state whose people have always been honored for their fair dealing and honesty; and very few such deeds have availed the grasping purchasers when the courts were permitted to pass upon supposed title thus acquired. The legislature of 1893, by chapter 296, Laws N. C.. undertook to remedy this, and cure what seeJ;ns to.have been regarded as an evil to the executive branch of the state government in collecting reven,ne, possibly to enterprising speculators who attend tax sales, and. td spur up landowners Who were delinquent in paying taxes. It is interestiJlg, but not necessary to ,decide the constitutionality of the drastic provisions of the act of 1893, the provisions as to presumptiveevidellceand conclusive evidence discussed in the briefs, when
an attendant speculator purchases at a sale for taxes. At the sale set out and under consideration the land was bid off by or for the county, as provided in the act, and it is the effect of such sale,-the interest or lien or title acquired by the assignee of the county as a purchaser at such sale,-that in this case must be decided. This being local state law,-a matter peculiarly within the province of the state legislature under the constitution,-is one of those cases or class of cases in which the courts of the Lnited States adopt the construction and decision of the highest court of the state. At the October term, 1898, in Wilcox v. 123 K C. 74, 31 S. E. 374, this question was before the supreme court of North Carolina,-a purchase by or for the county, a subsequent transfer of the certificate and deed, just as in the case at bal'. That court held the party to whom a certificate is transferred could acquire no greater interest or higher title in the land than his assignor (the county of Halifax, as in this case) had; that the county had only such title as a mortgagee has. The only right, section 90, c. 119, I.aws N. C. 1895, tonferred on the county in lands sold for taxes, when purchased by the county, is to foreclm;e the liens or certificate by proper proceedings in the court "in all respeets as far as practicable, and in the same manner and with like effect as though the same were a mortgage executed by the owners of such real estate to the owner and holder of certificate or liens for the amount therein expressed," etc. "A county, such circumstances, tan acquire no fee-simple interest." The defendants' counsel is confident this holding will be reversed. but such confidence cannot control the court at this time, especially the decision of the court in the case cited has not, as appears, been attacked, and the holding in other cases is to the same effect. The law seems to be so written, both in the decision of the supreme comt and in the statute law of the state. This court adopts the decisions of the state supreme court, and holds the defendant Jennie G. Travis acquired no fee-simple interest or title in or to the land described in the bill, and only such interest or lien as the county of Halifax might have claimed under the sale and the certificate, had all the proceedings been regular, and according to law; that, a tender having been made and refused of the amount paid by the said Jennie G. Travis, she is estopped from claiming any interest subsequent to such tender, and the land described in the bill is only liable for the taxes thereon for the Jear 1894, that of preceding ai1d subsequent years having been regularly paid. A decree will be drawn and entered in accordance with this opinion, granting the prayers of the complainants' bill. It is so ordered by the court.
BRUNDAGE et a1. v. DF]ARDORF et a1. (Circuit Court of Appeals, Sixth Circuit. No. 596. 1. EQUTTY JUlUSDJCTION-CHURCH PROPERTy-'fITLE-REMlWY AT LAW. . Where trustees holding church property are claimed to have been' illegally elected a withdrawing faction of the church, and to be holding such property in perversion of the trust, equity has jurisdiction of a suit by trustees alleged to be the legal representatives of the church, to enjoin them from exercising further authority over the property; the remedy by injunction being peculiarlIy adapted, and that by ejectment inadequate. 2. TRUSTS-RELIGIOUS SOCIETIES. While equity will not permit a perversion of trust property given to a church. for the support of some particular creed or dogma so long as there are agencies within the dedication to carry out uses intended, yet where property is conveyed to a church by a sale for a valuable consideration, there is no trust for a specific form of worship to enforce, and the fact that the church subsequently changed its creed, etc., is immaterial. 3. REI,WroUS ASSOCIATIONS-SUPREME JUDICATORy-POWERs-CON"STITUTIONAMENDMENT. 'Where the constitution of a church of the associated class provided that it should not be amended except on request of two-thirds of the whole society, and that the confession of faith should not be abrogated or amended, a general conference of the society, which had adopted the constitution and confession, composed of representatives from the various churches, and constituting the supreme judicatory thereof, was authorized to determine that such constitution and confession were inadequate, and provide means for their amendment, and the submission thereof to the vote of the members of the society. 4. SAME-CONCI,USIVENESS OF DECISIONS-REVIEW IN CIVIL COURTS. The decisions of the supreme judicatory of a religious society 01' the associated class having a constitution, and governed by local, state, and national bodies, of all questions of ecclesiastical cognizance, are binding and conclusive on the members, and cannot be reviewed in the civil courts. 5. SAME-DISSENTING MEMBERS-RIGHT TO CHURCH PROPERTY. The general conference of a religious society decided that its constitution and creed, which the conference had previously adopted, and which provided that it should not be amended except on request of two-thirds of its members, etc., was inadequate, and adopted measures for its amendment. The amendments were submitted to a vote of the members, after due notice, and more than two-thirds of those voting voted in favor of the amendments, whereupon the general conference decided that they had been adopted. A portion of the dissenting members then withdrew, and claimed the property purchased by the church, on the ground that those favoring the amendments had departed from the principles and purposes of the church. Held, that the amendment to the constitution and creed were matters of ecclesiastical cognizance within the jurisdiction of the conference, that the society was bound by its decisions, and that the withdrawing members were not entitled to such property. March 7, 1899.)
Appeal from the Circuit Court of the United States for the Northern District of Ohio. George R. Young, for appellants. John B. McMahon and Lewis B. Gunckle, for appellees. Before LURTON, Circuit Judge, and SEVERENS and CLARK, District Judges.