,MOWRY V. CUMMINGS.

713

mental defects which affect the power to levy the tax, or sell for its non-payment. But while the act cannot have the free course that its framers intended, it is still our duty to give it such effect as may be consistent with lpgal and constitutional principles. And this may be best accomplished by restricting its operation to mere irregularities or informalities on the part of officers having some duty to perform in relation to the assessment and levy of taxes or sale. Our legislation and previous decisions have always distinguished between this class of defects, which have no tendency to injuriously affect the taxpayer, and substantial defects, such as go to the jurisdiction of the levying court to levy a particular tax, or of the powpr of the otlicer to sell for non-payment, or the omission of any legal duty, which is calculated to prejudice the land-owner." It is obvious that the defenses pointed out to the tax title in suit in this case are "meritorious," as that term is defined by the court in Radcliffe v. Sf:fUggs, and by the weight of authority, and that the legislatqre cannot deprive the property owner of such defenses without, in the language of Mr. Justice SMITH, "transcending the boundaries of its power..'" Davis v. Minge, 56 Ala. 121; Stoudenmite v. Brown, 57 Ala. 481; Cooley, Tax'n, (2d Ed.) 298, 299, 521, and cases cited, and notes; Black, Ta'x Titles, 253; Silsbee v. Stockle, 44 Mich. 561, 7 N. W. Rep. The questi'on whether Mrs. Barbour, as a married woman, has not.a right to redeem without regard to the validity of the sale, and whethE!r her infant children have not an interest in the lot which would entitle them to redeem under the statute, and objections to the validity of the tax sale, other than those passed upon, are not decided. Let a decree be entered declaring the plaintiff's deed void, giving hiin a lien on the lot for the purchase money and interest, and directing the sale of the lot unless the amount is paid into the registry of the court for his use within 20 days, and that the plaintiff pay all costa. ....

MOWRY

v.

CUMMINGS.

(Circuit Court. 8. D. illinois.

January Term, 1888.)

EJECTMENT-EQUITABLE DEFENSES-DEED CONSTRUED AS MORTGAGE.

In ejectment, plaintiff. to rebut any presumption of outstanding title arising from a certalD deed conveying the land in controversy to defendant, offered in evidence a defeasance executed the same day as tl:\e deed, and then showed conclusively that the deed in question, although on its face absolute, was a mortgage only; that the debt thereon had been paid; and that defendant knew of such defeasance and payment before acquiring any title to the premises. Held. thai such evidence was admissible, and that, notwithstanding the rule that in ejectment the legal title mUst prevail, equitable defenses should be allowed. .

At Law. In action for ejectment. Esther O. Mowey brought suit against William O. Cummings. ment for plaintiff. JlJ,mca C. Conkling, for plaintiff.

Judg-

714

"FEDERAL REPORTER.

J(Jhn M. Palmer, for defendant.

ALLEN,: J. This was an action of ejectment, brought by the plaintiff againsqhedefendant the S. l pf S. E'. t, section 2, township 10 N" nmge 9 W. Under a stipulation of record both the plaintiff and defendant claim titie from George W. Putnam, to whom the original patent was issued; and there does not seem to be any objection interposed to plaintiff's prima facie case: The chain of title is a very short one. George W. Putnam, the patentee, conveyed the land by deed to Washington F. Adams,onthe 16th day of July, 1855. By his deed of April 7, 1857, Adams reconveJ'ed it to Putnam, who, on the 12th of 1859, conveyxl to the plaintiff. This deed of Adams to Putnam 'of April 7., 1857, was not filed for record till the 21st day of June, 1887. The defendant, afterp1llintifl' had rested her case, introduced, for the purpose of establjshingoutstanding title, a deed from Washington F., Adams to HenryT. Darrah, conveying the land in controversy,dated June2, 1856, recorded, ¥ay 19, 1857; and an instrument without seal, dated August 25,1857, and recorded the same year, signed by Henry' Darrah his, wife, purporting to convey to Haynes and Rupert the same land, was also offered in evidence. The plaintiff, to rebut any presumption of ,outstanding title arising out of the deed from Adamst() Darrah, offered in evidence an, instl'uinent containing a defeasance made June 2, 1856, and recorded September 27, 1872. This W:8$ ,1l,p by testimony estltblishing the fact that what purdlled on its face from Adams to Darrah, was in fact but amc:)rtgage to secure the sum of about $3,200, due the grantee from the grantor, and thatthis sum waS fully paid by the grantor Adams to Darrah, iIi 1859 or1860, and that defendant Cummings had full knowledge of such defeasance and payment before acquiring any claim or color of title to the premises. Counsel for defendant object to this testimony, contending that it is inadmissible in a court of law; and this is the principal question in the case. The rule is quite a familiar one' that in ejectment the plaintiff must recover upon the strength of his own title, and not upon the weakness of that of his adversary, and that legal titles must prevail in this form of is invoked against the admissibility of the eyidence action. wllic.h, by producing a defeafjance executed at the same time as the deed, , converts it into 'a mortgage, and then shows conclusively that the mort:gage debt was paid about the year 1859. The while well recognized, 'is not broad enough to sustltin the objection. The evidence establishes beyond any question that there has been no outstanding title since 1859. The debt \Vas the principal thiqg, and the mortgage-for such was the real character of what purported to be an absolute deed on its face from Adams to Darrrah-a mere security; and, when the debt was fully paid; the mortgage was afterwards utterly, worthless. Counsel for the defend. ant'refer,,thecourt to F!inlonv..Clark, 118 Ill. 32,7 N. E. Rep. 475, in support of their objection to the admissibility of the evidence. The case cited fails to sustain defendant's position;, which is, that' proof that the

U1U:I1En STATES' fl.· LOVING.

715

deed to Darrah was made,to .secure a debt cannot be hea'rd in a court of law, but the mortgagor must go into a court of chancery for relief. The court, in delivering the opil1ion, used this language: "The. offer of the 1J0nd was not accompanied by any offer to prove, eit:ler
that the dt bt secured was npt due, or that the same had been paid, or that decree directed by the opinion in 90 Ill. 245 had been entered by the lower court, and performed by appellant."

The bond spoken of by the court had been offered by the defendant to prove that the deed on which plaintiff based his right to recover was not absolute, but was in effect a mortgage. The inference is very strong that, if the offer of the bond in evidence had been accompanied by an offer to prove that the debt secured had been paid, the evirlence would have been proper, and a recovery thereby defeated; and this view meets my approval. While the well-known distinction between the rules of pleading and evidence in courts of law and courts of chancery willbo recognized, the flexibility of the rules of law in adapting them to cases falling within the reason of such rules must not be lost sight of. To compel the plaintiff to resort to a court of chancery in order to establish that the defense interposed, alleged to be an outstanding title, is not a valid defensc, and is. no outstanding title, and presents no obstacle to her right of recovery, would tend to the multiplicity of suits, and would sustain a view of the question too technical and arbitrary for the prompt attainment of justice. 'rhere will be a judgment in favor of thel'laintiff for the SO-acre tract of land described in the declaration.

UNITED STATES

v.

LoVING.

(District f.!ourt, N. D;T.eif)aI. Marcll 27. 1888.)
1.

INDIANS-TRESPASS ON INDIAN LANDS-GRAZING CATTLE.

Rey. St. U. S. § 2117, provides that "every person who drives or otherwise conveys any stock of horses, mules, or cattle. to range and feed 011 allY land belonging to any Indian or Indian tribe, without the consent of such tribe. is liable to a penalty of one dollar for each animal of such stock." that this penalty is recoverable when cattle are driven and permitted to the lands of an Indian tribe a single daY'without permission. . One who makes a trail across Indian lands to the' accessible point of a permitted trail, incurs the penalty prescribed in Rev. St. U. S. §2l:J,7,. f(lr grazing cattle on said lands without permission, although.preventedbl ural Obstructions from said lands by the permitted trail., . '.

2. SAME:""OBSTRUCTION OF PERMITTED TRAIL.

At Law. Action to collect penalty under Rev. St. U. S. § 2117,{oT nriving cattle on land belonging to the Indians. Thisactioll was brought against J. C. Loving to coLlect the penalty for driving cattle into the Comanche, Kiowa, and Wichita tiona. . . . ' , . . .