UNITED STATES 'D. WILLIAMS.
309
in the debt. It simply confers a right to a portion of the money which may be ·collected. This portion is uncertain, depending on the amount eventually recovered. Certainly the agreement should not be regarded as a transfer of any part of the debt, or the verdict subsequently recovered for it. Under circumstances of great hardship, when serious injustice is threatened, the doctrine of equitable or constructive assignment has _been carried very far, but it has never been applied under circumstances such as are shown in this case. No doubt Harlan acquired rights against Plater, and has a cause of action against him for part of the money received. This, however. does not .touch the question of Meng's liability. Indeed, had the agreement beeJ;ra transfer in form, of a part ofthe debt, it is doubtful, to say the least, whether Harlan could have asserted a right against Meng. At law he certainly could not. A creditor:cannot divide his clal:tninto several parts l and, by assignment to$everal persons, make' hi6' debtor answerable in ,suit to each. Why should he be allowed to make his debtor answerable in equity under such circum!ltances? It is said in more than one itlstance in this state that eqnity will· recognize.and enforce such assignments. I am not convinced of the soundness oHhis, when applied to ordinary circumstances, guch as exist·here. . .. Then, again,the agreement on which the right depends, is not such as equity should enforce. . At common law such contracts were <lhampertous, and Harlan would have been liable to indictmenUor entering into it. While: this is no longer so, generally. the fact remains that such contracts are of doubtful policy and morality; that they tend to ilpeculation, and involve danger of injustice and oppression. Equity ilhould not, tHerefore, lend its aid for their enforcement. . . The rule must be dismissed. _, '. _t'-........
(Oircuit Oourt. D. Ne'Dada. November 23, .1886.
1., PUBLIO LA!fDS-'-"WHAT ARE APPROPRIATED." By act ·of congress approved June 16, 1880, there was granted to the state of Nevada 2,000;000 of acres onand, in lieu of the sixteenth ..ad thirty-sixth sections of land theretofore granted for school purposes. the same to be selected fr9m "any unappropriated, non-mineral land in said state, "in the manner provided in said act. Held, that lands of which parties had been in the peaceable possession for several rears, and on which they had erected costly and valuable improvements prior to the passage of the act, and prior to any selection ·thereof by the state, were not "unappropriated * * * public lands, " within the meaning of said act. '2. SAKE-LANDS SUB JUDIOE. While ,a contest is pending and .undecided in the general land-office. as to the right of the state to select certain lands. and. have the same listed to it, such landS are 8ub judice, and lJ,ot within the terms of said act. :S. SAME-FRAuD IN OBTAINING · . Where title to government land has been obtained by fraud perpetrated upon the officers of the land-office, the United States can maintain a suit to vacate and set aSIde such transfer of title. -(Syllabus 'by ·tMOourt.)
310 Trenmor:Coffin, U. S. Dist.Atty., JameaD. %rreyBOn and Wren &- Oheney, for complainant. T. W. Healy and R. M. Clarke; for respondent. SABIN, J. This suit is brought to cancel and vacate a listing of certain lands to the state of Nevada, which listing is alleged to have been procured by the fraudulent acts of parties unknown, or by mistake, misadventure, or inadvertence olthe officers of the land department at Washington. The lands affeeted by the suit are described as the E. I of the S. E. t of section 33, and W. I of. the S. W. i of section 34, all in township 8 N., range 50 E., Mount Diablo base and meridian, situate in Nye county, state of Nevada. The amended bill set out the alleged frauds and mistakes by reason of which the lands were liRted to the state quite fully and in detail. The bill avers.
InEquity.
try embraced the lands above described, with other lands; that on July 26, 1879. in consideration of $5.000 then paid to him by the New Philadelphia Silver Mining Company, Ilaid Williams conveyed to said company 80 acres of land, being E.l of the S. E. i of Section 33, township and range aforesaid, the same bt>ing'apart of the land embraced in said desert-land entry No. 15S, and that said coilipany immediately thereafter erected a quartz-mill thereon at anexpens6 exceeding $50,000; that on May 20, 1882,WilIiams made a written relinqUishment of said desert-land entl'y, and filed the same in said Eureka, Nevada, June 9, 18!:!2, and, that the same was forwarded by said office, to the general l',md-office at Washington for action thereon; that on May 20, 1882, Williams made a!l'applieationto the register of the land-office of the state of Nevada to purchase 160 ilcresof laM, being portion of the land embraced in said desert-land entry, to-wit, the 80 acres of land last above described, and 80 acres adjoining thereto, to-wit, the W. t of S. W. ! of section 34, township aforesaid, which application was filed in said state land-office, May 22,18S2;' that on JUly 29, 1882, the state of Ne-vada executed an application of that date for said 160 acres of land; that on Au/{ust 4, 1882, the commissioner of the general land-office ordered said desert-land entry to be canceled, wllicQ order was received at the local land-office at Eureka, Nevada, August 12. 1882, and the same was canceled in said office 011 that date; :thaton August 14,1882. the applicationof the state ofNevada for said 160',acres of land, based upon Williams'application of May 20, 1882, was received at the United States land-office at Eureka, Nevada, arid thereupon the register of said office notified the state that they might include said tract of 160 acres of land in their selection for the month of August, 1882; that on or about September 2, 1882"said state authorities selected a list of lands to be approved, to the state, under an act of congress of June 16, 1880, and presented said list to said United States land-office at Eureka, Nevatfa,&ptember2,1882, which list embraced said 160 acres of October, 1882, said list, being list No. 24, under said act of congress,«rastrailsmitted to the ,generalland-otflce, at Washington, $Icld WflS receiye!l, last-named offiM 'about Octob,er, 12, 1882, and filed No. 24 Wllsnot attested by officer or agent of the state of Nevada until on or,about Septem,ber 12,1883, and was not so attested when the lands therein listed were erroneously certified to the state, May 3,
No. 158, aUhe land-office at Eureka, Nevada, for 240 acres of land, which en-
That
19, 1879, the respondent, Williams, made desert-land entry
UNITED STATES ,. WILLIAMS.
811
1883; that said list of lands so selected by the state was designated as list :N"o. 24,and embraced, with other lands, the two tracts of 80 acres above dethat on May 3, 1883, the secretary of the interior, upon the certificate of the commissioner of the general land-office, approved the lands embraced in said list No. 24 to the state of Nevada, including said two 8o-acre tracts of land; that said commissioner certified that said lands embraced in said list No. 24 were open to such selection, and free from conflict with claims, upon the belief that they were so open to selection and free from eonflict; that they were not in fact open to selection by the state, and were not free from conflict With other claims, and that said action of the commissioner was induced either by the fraudulent erasure of records by some person unknown, acting in the interest of Williams, or by reason of the mistake. inadvertence, or misadventure of·some officer or employe of complainant. Tbat the facts and circumstances under which said lands were so certified and approved, and the fraudulent acts. or mistake, inadvertence, or misadventure which induced such certification, in addition to those hereinbefore set forth, are as follows: That prior to the filing of said list No. 24, on September 6, 1882, F. O. Mattbiessen and L.B. Ward, who had theretofore purchased said 80 acres "Of land,to-wit, the E. tof S. E. 8ection 83, township 8, range 50 E., by their 'attorneY8, filed in the generalland-ofllce at Washington an application for the rein8tatement of said desert-land entry No. 158, together with a protest :against the selection by the state of said 80 acres contained in said list No. 24;' to which they had acquired title, and asking a hearing of their.rights, they claiming to have derived an interestin said lands by purchase from Williams, through interm.ediateparties, who 'had exp.ended more than $50,000 in theer.eetion of a quartz-Diilltheteon;thaton or about January 8,1883,said Matthiessen and Ward, being duly qualified in that regard, and being the 'OWners Of ,the qual'tz-mill'and reduetionworks erected and standing for more tha.n two years prior thereto on said lands, to-wit, the E; ! of S. E. isection SS,and the W.lof S. W. 1; section 34, township 8 N., range 50 E., made their application at the United States land-office"at Eureka, Nevada, to enter asa mill-site, and for a patent therefor, five acres of land, being a part of the lands and two tracts last described, and being a part of the land embraced in said desert-land entry No. 158,made by Williams, and including said quartz-mill, reduction works, and improvements connected therewith; that said' application was rejected by said localland;.office, for the reason that the land applied for for such mill-site was embraced iil said state selectiQn ,embraced in list No. 24, filed in said office, September 2,1882; that from said decision an appeal was duly taken, the day the same was rendered, to the 'commissioner of the general! land-office, at;Washington, and the papers connected therewith were received by said commissioner, January 18, 1883, and filed in said office, and said mill-site application, became and was a pending adverse claim to the claim of' the state of Nevada to the said land; ,that. at the dateo! the receipt of said.lnill-aiteapplicationat said general land-office, said list NO'. 24 was on file in said office, but without action or decision as to any of the tracts of land embraced therein; that, upon the receipt of saidapplication for a mill-site. said commisSioner caused a note of conflict to be enteredon said list No. 24, opposite to the two 8aid tracts of lan(l in controversy,by writing the words "mill-site" on the margin of said list No. 24; that this was the customary way in said office of denoting an adverse claim to:" state selection, and suspended action upon said state selection until said application for a mill-site, could be disposed ,of in the'due course of bU8iness in such. office; that on February 21; 1883, said office denied said application of Mattbiessen and Ward to reinstate said desert-land; entry No. 158, and in 'making said decision, in relation to the protest against so much of the state 'selection as embraced the, lands in controversy,said,"The questioD of the va-
" 'FEDERAL REPORTER.
lidity of the state selection will be determined in due course of action thereon by this office;," that said application of Matthiessen and Ward for said millsite was,referred to the proper department of said land-office, with the direc. tion that the same be considered, together with said state selection of said lands embraced in list No. 24; that on May 3, 1883, and while said mill-site application was still pending and undecided, the officers and clerks of the preemption division of said contrary to law, and in disregard of the rules and regUlations of said office, and in disregard of the speCial instructions of. the commissioner,' proceeded to consider and determine the application of the state ofNevada as evidenced by said list N 24, and without consideration,examination, decision, or reference to the then pending mill-site appliand Ward, made out a "clear-list," so called, in favor of the.state, of the tracts of land inuring to the state, embracing therein, by mistake lUlderror, and contrary to the truth, the lands embraced in the mill-site appliMilion of'Matthiessen a.nd Ward; that the commissionel' and secretary of theinteriorsigned said upon the faith of the certificate indorsed thereon, that the lands embraced therein were free from conflict, and upon thebelief,that 'all necessary examinations had been made, and thereby said listbeoameiJi form a con veyance to the of Nevada of the several tracts of<landienibraced the land embraced in the application of Mattlhiessen and Ward for uponiwhich the quartz-mill. bUildings. and bthei'dmprovements had ,been placed; that said MattMessell and Ward were ;lawfuIJy, entitled to have their rights as such applicants for said millsite,passed upon, and determined before thalegal title to the lands claimed by them'should be passed oup ofi the United States to any party claiming adversely tot1}emj that said,certiticatiQnof .said was made by ·sMd officers,of ;the land department by mistake, inadvertence, and misadventure. iIJldthat said .list, at the date thereof, was, and now is, false and fraudulent as to the lands in controversy; that, while said state selection No. 24 was in the general> land-ofliceat Washington, it was SUbject to inspection by in thehlterest of the state. or of Williams, respondent. and their agents and attorneys. and before the same was taken up for action by the commissioner ·thenote and words "mill-site, "entered on the margin of said list, were fraudUlently erased by some unknown person, with the fraUdulent intention of obtaining action upon said selection embraced in said list favorable to 'the .state, and in aid of the application of Williams to purchase said lands in controversy; that said lands were so approved to the state by reason of such.fraudul6nt erasure; that in December. 1l:l83, said mill-site application was taken. up in, the general land-office, together with said state selection of, the Jands in SUit, for action, when it was then first disco;vered that said land had been appl'oved to the state; that on February 2. 1l:l84, Williams.enterediintoa written contract with the state of Nevada to pnrchasethe1andsin controversy, in compliance with his application to purchase the same, of date May '20. 1882; that, immediately upon the discoveryof the erroneous:certification of said lands, the commissioner of the general land-office, on December-n, 1883, notified the of the state of Nevada, by telegraph, that said two tracts of land had been erroneously included in said clear-Jist, and requested· him to cause thesame to be returned to said generallalnl-office f'lr correction; that its return was refused, as Williams had madeiappliication to purchase the same. and on the fifteenth of December, 1888, said 'go.v-ernor waE\ notified that· suit would be brought to annul said listing as wthelan<!s in suit; that' Williams, prior to entering into contract with the state for the purchase of said lands, had full knowledge of the intention of.colnplainantto annul said listing as to said lands. and enteted into said contract· with full knowledge of said alleged frauds, and of the false and traudulent lDanner ,by whicb the same were procured to be certified to
UNITED STATES 11.' WILLIAMS.
813
the state; that said lands in controversy were not unappropriated public lands, and not within the terms of the grant of June 16, 1880, but that the same had been occupied as private lands since July 26, 1879, under and by virtue of the deed of conveyance thereof,executed by Williams, of tbat date, and the same were so occupied when said Williams applied to the state to purchase the same, May 20. 1882, all of which Williams well knew when he applied to purchase the same; that at the date of said Williams' application to purchase said lands of the state he knew they were not subject to selection. and purchase, as his desert-land entry No. 158 therefor was still in force and uncanceled, and the same constituted a record appropriation thereof on the books of the localland-otlice at Eureka, Nevada, and on the books of the generalland-office, in Washington. ' The answer admits many of the averments of the bill, and denies but few of them. It avers that said lands were free from conflict with other claims at the date of their certification to the state, May 3, 1883; denies that, respondent made, or caused to be made, "any erasure of records, fraudulently or otherwise, or had any knowledge of such erasure, until he heal.'dthe allegation or such in December, 1883, as emanating f!:'Om the honorablesecretaryofthe interior, at Washington;" denies that such erasure was a sufficient cause for withholding the certification and aPPl'oval of said lands to the state; or that it induced such certification, or that, if it had not been made, said list No. 24 would not have been vitiated thereby; avers that the lands in suit were" unappropriated, nonmineral public land," within the meaning of the act of congress of June 16, 1880; that the app!jcation of Matthiessen and Ward, of dat,e January 8, 1883, for a patent for a mill-site, was frivolous, and ought not to be entertained; that the whole subject-matter of the suit is re8 adThe evidence submitted fully sustains all of the material allegations of. the bill, and it would be a superfluous task to review it in detail. By act of congress approved June 16, 1880, there was granted to the state of Nevada 2,000,000 of acres of land, in lieu of the sixteenth and thirty-sixth sections of land theretofore granted to said state. 21 St. U. S. 287. Section 2 of said act provides: "The lands herein granted shall be selected by the state authorities of said, state from any unappropriated, non-mineral public land in said state, ... ... * and, when selected in conformity with the, terms of ,this act, the same shall be duly certified to said state by the commissioner of the general l:md-office, and approved by the secretary of the interior." This grant took effect upon its passage. It was a grant in prmsenti, and attached to specific tracts of land when the same should be selected by the state, and duly certified to it by the commissioner of the general landoffice, and approved by the secretary of the interipr, as provided by the act. Under the pleadings and proofs in the case two questions arise: was the land in controversy, at the date of selection and listing the same to the state, "unappropriated, non-mineral public land," within the meaning of said act? There is no contention but that it is "non-mineral" land,and this qualification, therefore, need not be considered.
judicata.
314
., FEDERAL REPORTER.
Second, was the listing of the land in suit obtained through or by means ofthe fraudulent acts of any party or parties, or by the ence, mistake, or misadventure of'any of the officers of the office, chargedwith the duty of listing and approving the same to the state? The evidence shows this state of facts: Some years prior to 1879 the respondent, Williams, entered upon and took possession of the land in controversy, the same being then unsurveyed, public land of the United States. He continued in possession thereof lintil July 26, 1879, when, in consideration of $5,000 paid to him, he conveyed the land to the New Philadelphia Silver Mining Company, a New York corporation, which company immediately entered into possession of the same, and during the same year erected a quartz-mill thereon at an expense exceeding $50,000. This company continued in possession of the land and mill, and expended a considerable sum of money in conducting water to the mill for reduction purposes and in' other improvements. In the year 1880 the company became embarrassed, was sued, judgment recovered against it, and this property sold, in: satisfaction thereof, toone Lebbeus Ward, and sheriff's deed therefor wasdtily issued to Ward, of date July 12, 1881. Proceedings were also instituted against the company about the same tinle in the supreme court of the state of New York, a receiver was appointed, and the affairs of the oompany wound up. The receiver was ordered to sen all of the property of the company, and at such sale Matthiessen and Ward became the purchasers of an of the property of the company,' !lnd received a deed therefor from said receiver of date September 16, '1881. From the dates of the deeds above mentioned Matthiessen and Ward have been the owners of all the property formerly owned by the New Philadelphia Silver Mining Company, including the mill and land in controversy, and privileges, and since said dates have had continuous, peaceable, and quiet possession of the same, and now have and hold such possession as against all persons. Under this Eltate of facts it cannot be contended, under the repeated decisions of both national and state courts, that this land was "unappropriated public land II at the time of its selection by the state; or at the <late when it was listed to the state. Athertcn v. Fowler, 96 U. S. 513; Hosmer v. WaUace,97 U. S. 575; .'l'rencntth v. San Fmncisco, 100 U. S. 251; Nickala v. Winn, 17 Nev. 189; McBrown v. Morri8, 59 Cal. 64, and cases cited. These decisions are authoritative as to what are" public lands," under the pre-emption law. and also what are "unappropriated public lands;" tinder the homestead law. Rev. St. §§ 2258, 2259, 2289. If, then, the lands in controversy were not "unappropriated public lands," and within the terms of the grant at the date of selection and listing to the state, as they were not, such listing was without authority of law, and wasll.nd isvoid,and,no valid title passed thereby. Under t.he grant in this cltSe, the officers of the general land-office were authorized to pass to the state the title only 'of "unappropriated public land." It conferred upon them no authority to transfer the title to lands appro-
UNITJ!)D STATES 11. WILLIAMS.
a15
priated., and lawfully in the possession of others, who had expended large sums thereon, and who were then seeking to obtain the United StateS title thereto, or a portion thereof, even though such lands were public lands, in the sense that the paramount title thereto still vested in the United States. The date of the applicatioliofthe state to select these- lands, list No. 24, is August 31,1882, but said application was not attested or authenticated by any offiCer or agent of the state until about Septelllber 12, 1883. The validity of such attestation at said date, September 12, 1883, is not now passed upon, as it is not necessary to a det,ermination of the case. Tbe rights of persons, situated as Matthiessen and Ward were in reference to· these lands, have . always been protected by the officers of the land department and by the courts. It may be conceded that they acquiredno right as against the United States, but as to third parties they had initiated rights which merited, and should receive, protection. U.S. v. Stone, 2 Wall. 525; Hughes v. U. S., 4 Wall. 232j F'ri8bie v. Whitney, 9 Wall. 187. It is alleged in the bill, not denied, and fully established by the proof, that at the date of listing these lands to the state, and long prior thereto, there was then pending in the general land-office, at Washington, a contest over the ,application of Matthiessen and Ward for this mill-site, and their, protest against the state selection of the lands in controversy. The whole matter. was then 8'JJb judice, in the proper department, in the manner by law provided. While this contest existed, and until determined, the lands in controversy were not within the terms of the grant. NewhaU v. Sanger, 92U. S. 761. , We pass to the second question raised in the case. The allegations of the bill as to the manner in which these lands were listed and approved to the state are in nowise controverted. That the erasure of the record was made, is not denied, and is patent from an inspection of list No. 24, submitted in evidence. The bill avers, and the proof sustains the averment, that, but for this erasure, the lands in controversy would not have been approved to the statej at least not until the rights of Matthiessen and Ward had been determined. A clear, palpable, confessed fraud was perpetrated upon the officers of the land department in procuring the certification of the lands. Frauds of this and like character have always been held sufficient ground for vacating patents procured thereby. In addition to the authorities cited, see Johnson v. Towsley, 13 Wall. 72; Moore v. Robbins, 96 U. S. 530, and cases there citedj U. S. v. Minor, 114 U. S. 234, 5 Sup. Ct. Rep. 836j U. S. 'v. Ourtner, 26 Fed. Rep. 296; U. S. v. Mullan, 7 Sawy. 466, 10 Fed. Rep. 785; and 118 U. S. 271, 6 Sup. Ct. Rep. 1041; Moffatt v. U. S., 112 U. S. 24, 5 Sup. Ct. Rep. 10. rt is unnecessary to review these authorities, and they cover every point raised in this case. It may be observed that the certificate inliorsed upon the clear-list passing the title is qualified, not absolute, itudevidently designed to reserve the rights of any parties interested. The list is approved, "subject to any valid interfering rights which ma.y have existed at the date of delection. * * *"
FEDERAL REPORTER.
Thefl,oove considerations dispose of this case ripon the merits and law applicable thereto. Upon the grounds that the land in controversy was not "unappropriated public land," :at: the date of its selection and listing; that its approval and listing to the state was procured by fraud, palpable and undisputed, upon the officers oLthe land departrr:ent, without which it would not have been listed to the state; and which frauds deeplyaffected the rights of third to the land in suit,-the complainant is entitled to a decree 'Canceling and annulling said listing as to the lands in suit, and as prayed for in the bill. I am not prepared, from the testimony, to say who was the party that made the fraUdulent erasures complained of and shown. They could of anyone other than the respondhardly have been made in the ent.· And.in. this connection we may recall the fact, as shown by the evidence, tha.tthe respondent concealed from Matthiessen and Ward, and from their agent in charge of this property, the fact that he had relinquished his desert-land entry No. 158; the fact that he had applied to the state to purchase this very land upon which their mill stands, which he had, three years before, conveyed to their predecessors in interest; his telegraphic dispatch from Washington to Carson, of date December 14, 1883. to Gov. Adams, to execute to him a deed of this land claim II imdelay." All of these things had but one purpose,mediately to wrest from Matthiessen and Ward this large property, by covertly obtaining the. legal title thereto. This purpose cannot be disguised, and is too obvious for comment. It should not, for a moment, be supposed that the state, or any of its officers, took any unusual or improper interest in this matter. When the attention .of the governor of the state was called to the matter, he very properly declined to issue a state patent for the land, and suggested that legal proceedings be instituted to determine the rights of the parties. It is not prQMblethat the state would ever claim to be the owner of this mill and improvements, even were not the listing annulled· as. to these lands. It could not afford to acquire property in that manner. A large amount of·evidence was submitted on the part of the respondent which is wholly irrelevant to any issue of fact or law raised in this case, and, if considered, cahnot in any way affect the judgment which must be rendered upon the facts conceded and proven. This evidence is chiefly in regard to certain contracts entered into between Williams and various parties, but in nowise affecting the merits of this case, or connecting him with Matthiessen and Ward, or establishing any'legal relations or obligations between them and himself. This evidence clearly shows that Williams strongly desires to sell to Matthiessen and Ward certain mining claims, he insisting that they are under obligation to purchase the same, and that they, denying such obligation, and doubting the value of the mining claims, just as strongly object to purchasing any of them. Under such circumstances, their position would not seem to be unreasonable. But these rights and obligations, if any there be, between these parties, cannot be settled in this suit. Ample means of redress are open to any of these parties to enforce any legal obligations existing between
COLEMAN. ". PESHTIGO LUMBER CO.
817
them. This suiMs in the interest of public right and justice, to correct a.publicwrong and upon a department of the govern. ment. Let a decree be entered for complainant as prayed for in the bill,witb costs.
COLEMAN 'D. PESHTIGO LUMBER Co.
(Oircuit Cowrt, E.D. Wiaconain. January, 1887.)
1.
PU»LIOLANDs-TAX SA.LE+PATEN'r-EJECTMENT-WILD LAlms.
A.. entered on wild and unoccupied lands, but had obtained no patent for them up to the time they were sold for taxes. Subsequently to the sale he obtained a patent. Held, the patent related back to and confirmed the entry, so that the purchaser at the tax sale acquired the legal title, and maintain ejectment against A., or one to· whom he had sold after the patent. '
2.
ESTOPPEt.-lNACTION DOES NOT CONSTITUTE-SUFFERING ANOTRER TO 'PAY TAXES.
The purchaser at the tax sale suffered the purchaser under the patent to pay all the subsequently maturing taxes. Held, this inaction or failure on the part of the former 'actively to assert title is not sufficient to constitute an estoppel against his afterwards setting up his title against the other purchaser. , TQcreate an estoppel it ·must appear that one party has been influenced to pursue a certain course of action by the conduct of another, which in sticha case means more than passive inaction. The ,supreme court of Wisconsin, in Oconto (Jo. v. JerrarrJ" 46 Wis. 3,17, in construing the statute which requires a general index to be kept, in the offices ofTegisters of deeds, of all tax deeds, having held that the entry, "See in the column of the ,general index designed for a description of the property conveyed, is sufficient to put all parties interested upon inquiry, the ruling must be the !!ame in the case at bar, although the additional fact appears. ill. this case that,besides the particular deed in question being so indexeli, it was the practice of the regiater. in a majority of caaea, to 80 index tax deeds. That fact is not sufficient to distingui,.h the case from the Jerrard Oaae.
8.
REOORDS-GENERAL INDEX-"SEE REOORD"-TAX DEED.
4.
TAXATION-OMITTED TAXES-DOUBLE SALE.
of the landsin contest for taxation in 1868 was omitted, but in 1869, the levy and assessment was made, not only for that year, but for the omitted taxes of 1868. Held, there should have been, under the Wisconsin statutes, but one sale of each parcel for the aggregate of the two years' taxes on that parcel, and the issue of one certificate of sale on each parcel. The making of two sales. and issuing of two certificates, was a violation of law, and rendered the sale nugatory, and the tax deed void; and, as the assessments were concurrent and were returned delinquent at the same time, they cannot be separated, by the court striking out from the deed those parts which show a sale for 1868, and allowing to be valid those which show a sale for 1869. Laws Wis. 1859, c. 22, 32, provides that no action shall be maintained by the grantee in a tax deen to recover possession of the land conveyed unless such action be brought in three/ears next after the date of such deed, or unless th'egranteeshall have pai taxes for five years; or have been in actual or continual possession of the land for three years previous to the expiration of the five years next after the date of the deed. The supreme court of Wis consin having construed this section to mean that, after the lapse of three" years from the date of recording a tax deed, there being no· actual adverse
SAME-RECOVERY OF POSSESSION-LIMITATIONS-GOOD TITLE.