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The assignment was supported in favor of | into it. Thus, in Pennock v. Dialogue, 2 such of the creditors as executed a release Pet. 1, 7 L. ed. 327, it was said by Mr. of their demands within sixty days after Justice Story (p. 18, L. ed. p. 333): "It is the date of the instrument, that being the doubtless true, as has been suggested at the time limit provided for such acceptance. bar, that where English statutes, such, for Neither in Lippincott v. Barker nor in instance, as the statute of frauds and the Pearpoint v. Graham were there any pre- statute of limitations, have been adopted ferred creditors, but the assignments were into our own legislation, the known and setin trust for all the creditors who should, tled construction of those statutes by within sixty days in one case, and four courts of law has been considered as simonths in the other, execute a release of lently incorporated into the acts, or has their demands. In several subsequent cases been received with all the weight of authorthe rule laid down in Brashear v. West has ity." In speaking of our patent act, which been adopted, and the principle fully estab- was largely taken from the English statute lished that the construction and effect of of monopolies, he says (p. 20, L. ed. p. a state statute regulating assignments for 334): "The words of our statute are not the benefit of creditors is one upon which identical with those of the statute of the decisions of the highest courts of the James, but it can scarcely admit of doubt state are a controlling authority in the that they must have been within the conFederal courts. They are treated as estab- templation of those by whom it was framed, lishing a rule of property applicable with- as well as the construction which had been in their several jurisdictions. Sumner v. put upon them by Lord Coke." In CathHicks, 2 Black, 532, 17 L. ed. 355; Jaffray cart v. Robinson, 5 Pet. 264, 8 L. ed. 120, v. McGehee, 107 U. S. 361, 27 L. ed. 495, 2 Mr. Chief Justice Marshall said (p. 280, Sup. Ct. Rep. 367; Peters v. Bain, 133 U. L. ed. p. 126): "By adopting them [Brit S. 670, 686, 33 L. ed. 696, 702, 10 Sup. Ct. ish statutes], they become our own as enRep. 354; Randolph v. Quidnick Co. 135 tirely as if they had been enacted by the U. S. 457, sub nom. Jencks v. Quidnick Co. legislature of the state. The received con34 L. ed. 200, 10 Sup. Ct. Rep. 655; Union struction in England at the time they are Nat. Bank v. Bank of Kansas City, 136 U. admitted to operate in this country, indeed S. 223, 235, 34 L. ed. 341, 345, 10 Sup. Ct. to the time of our separation from the Rep. 1013; South Branch Lumber Co. v. British Empire, may very properly be conOtt, 142 U. S. 622, 627, 35 L. ed. 1136, 1138, sidered as accompanying the statutes them12 Sup. Ct. Rep. 318. selves, and forming an integral part of them. But however we may respect subsequent decisions,-and certainly they are entitled to great respect, we do not admit their absolute authority." See also Kirkpatrick v. Gibson, 2 Brock. 388, Fed. Cas. Whatever might be our own views with No. 7,848. The same rule has been applied regard to the validity of a release by cred-in the state courts in the construction of itors as a condition of preference under an assignment, the question is one which, upon the authorities above cited, must be held to be determinable by the state law as interpreted by the supreme court of such state.

The same rule has been held to be applicable to decisions of state courts construing the statute of frauds. Allen v. Massey, 17 Wall. 351, 21 L. ed. 542; Lloyd v. Fulton, 91 U. S. 479, 485, 23 L. ed. 363, 365.

statutes adopted from other states. Com. v. Hartnett, 3 Gray, 450; Tyler v. Tyler, 19 Ill. 151; Bloodgood v. Grasey, 31 Ala. 575; Marqueze v. Caldwell, 48 Miss. 23; State v. Robey, 8 Nev. 312; The Devonshire, 8 Sawy. 209, 13 Fed. 39.

While the case under consideration arose As the Arkansas statutes concerning asin the Indian territory, the law applicable signments for the benefit of creditors and thereto is determined by the laws of Ar- the statute of frauds were extended and put kansas, which were adopted and extended in force in the Indian territory by the act over the Indian territory by the act of Con- of Congress above cited, it becomes mategress approved May 2, 1890 (26 Stat. at Lrial to consider the decisions of the su 94, § 31), which declares that certain gen- preme court of that state with reference to eral laws of Arkansas, "which are not lo- the validity of the provision of an assigncally inapplicable, or in conflict with this ment exacting a release by creditors of all act, or with any law of Congress relating their demands against the assignor as a conto the subjects specially mentioned in this dition of preference. The subject was first section, are hereby extended over and put considered in Clayton v. Johnson, 36 Ark. in force in the Indian territory," among 406, 424, 38 Am. Rep. 40, in which an aswhich laws are enumerated assignments for signment for the benefit of creditors withthe benefit of creditors and the statute of out preferences was held to be valid, notfrauds. In adopting this law with respect withstanding a proviso that no creditor to assignments, the courts of the Indian provided for should participate in the asterritory are also bound to respect the deci-sets "unless he accepts the same in full of sions of the supreme court of Arkansas in his claim." The question is most elaboterpreting that law. rately considered in that case, and a disIn more than one case we have had occa-tinction taken between a conveyance of the sion to hold that, if a foreign statute be whole, and the conveyance of a part only, adopted in this country, the decisions of of the debtor's property upon condition of foreign courts in the construction of such releasing the residue. The latter was statute should be considered as incorporated thought to be fraudulent, and pernicious in

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its tendencies. In McReynolds v. Dedman, ment; and also in the fact that a personal 47 Ark. 347, 1 S. W. 552, it was held that, judgment rendered against the plaintiffs in although an assignor might make preferen- error for the value of the goods in controees and exact releases from creditors who versy was not contemplated or allowed by assented to the assignment, if he reserved the statute under which the proceedings to himself, to the exclusion of nonassenting were had. creditors, the surplus that remained, the It is sufficient answer to these objections deed was fraudulent upon its face. The to say that neither of them appears to have difficulty with that assignment was that, been called to the attention of the courts in case the creditors refused to execute the below. They do not seem to have been releases, the residue, instead of being de- raised at the time the judgment was envoted to the payment of the assignor's cred-tered. It does not appear that any assignitors, was to revert to the assignor himself. ments of error were filed in the court of This case is wholly consistent with that of appeals for the Indian territory, but the Clayton v. Johnson. In the subsequent opinion states that plaintiffs relied upon case, however, of Collier v. Davis, 47 Ark. four objections to the assignment, as show367, 58 Am. Rep. 758, 1 S. W. 684, Clayton ing upon its face that it was fraudulent in v. Johnson was formally overruled, and an law. No objection seems to have been assignment which provided that no creditor raised in that court to the form of the judgshould participate unless he should accept ment. In the assignments of error in the his share in full satisfaction of his claim, United States court of appeals for the and gave no direction for the application of eighth circuit no such question is raised, the surplus after satisfying assenting cred- and none alluded to in the opinion. Such itors, was held void upon its face. It may objections could not be raised for the first be noted that the personnel of the court had time in this court. Insurance Co. v. Morchanged since Clayton v. Johnson was de- decai, 22 How. 111, 117, 16 L. ed. 329, 331; cided. In the subsequent case of Wolf v. First Nat. Bank v. Kentucky, Wall. 353, Gray, 53 Ark. 75, 13 S. W. 512, decided a 19 L. ed. 701; Wheeler v. Sedgwick, 94 U. few weeks before the act of Congress of S. 1, 24 L. ed. 31; Wilson v. McNamee, 102 1890, notwithstanding the former overrul- U. S. 572, 26 L. ed. 234; Edwards v. Elli ing of Clayton v. Johnson in Collier v. ott, 21 Wall. 532, 22 L. ed. 487; Clark v. Davis, it is said that its authority upon the Fredericks, 105 U. S. 4, sub nom. Davis v. stipulation for a release was not impaired, Fredericks, 26 L. ed. 938. except as modified by the cases before cited. It follows, said the court, that "the law is established here, in accord with much authority elsewhere, that a stipulation for a release in a general assignment, which is made only as a condition of preference, does not invalidate the instrument." The assignment in that case preferred one creditor, and provided for payment to all other creditors who should execute releases of the residue of their debts. This case was fol- The judgment of the Court of Appeals is lowed by King v. Hargadine-McKittrick | affirmed. Dry Goods Co. 60 Ark. 1, 28 S. W. 514, where the very assignment in question in

While it is the duty of this court to review the action of subordinate courts, justice to those courts requires that their alleged errors should be called directly to their attention, and that their action should not be reversed upon questions which the astuteness of counsel in this court has evolved from the record. It is not the province of this court to retry these cases de novo.

this case was held to be valid, notwith-white concurred in the result.

Mr. Justice Shiras and Mr. Justice

standing the provision for a release by creditors as 8 condition of preference. Without determining the validity of such a provision at common law, we are of opinion that the courts of the Indian territory did not err in applying the settled construction of the law of Arkansas to the assignment in this case, and in holding the provision for a release of creditors to be valid.

2. Plaintiffs also seek to impeach the assignment upon the ground that there was no evidence of its acceptance by any of the creditors, or their assent thereto; and the position is taken that, while the creditors may be presumed to accept an assignment made for their benefit, such acceptance will not be presumed where the assignment is subject to the condition that the creditors consent to a release and discharge of their claims against the estate. Error is also charged in the rendition of the judgment against persons who were not parties to the immediate case, but who had stipulated other cases into this case for a like judg

(187 U. S. 61)

FRED A. BAKER, Piff. in Err.,

v.

STEPHEN BALDWIN.

Error to state court-decision sustaining validity of Federal statute.

The Judgment of a state court sustaining the
validity of the act of Congress of February
28, 1878 (20 Stat. at L. 25, chap. 20), mak-
ing the allver dollar of 412.5 grains troy of
standard silver a full legal tender, cannot be
reviewed in the Supreme Court of the United
States, since that court has jurisdiction,
under U. S. Rev. Stat. § 709, to review the
judgment of a state court upon the validity
of a Federal statute, only when against its
validity.
[No. 4.]

1. See Courts, vol. 13, Cent. Dig. §§ 1045, 1051, 1063. U. S. Comp. St. 1901, p. 575.

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89.

Submitted October 14, 1902. Decided November 3, 1902.

IN

'N ERROR to the Supreme Court of the State of Michigan to review a judgment which affirmed a decree of the Circuit Court for Oakland County which granted the relief sought by a bill to compel the release of a mortgage. Dismissed.

See same case below, 121 Mich. 259, 80 N. W. 36.

The facts are stated in the opinion. Messrs. Albert B. Hall and Fred A. Baker for plaintiff in error.

(187 U. S. 51)

WILLIAM J. TURPIN, Appt.,

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Due process of law in making sales of land for unpaid taxes, even if it requires the observance of all the steps prescribed by a state statute, does not demand that they shall be made matter of record, much less that they shall be made matter of a particular record, such as the return of the sheriff of the sale of the lands.

Mr. Timothy E. Tarsney for defendant 2. A bill to set aside a tax sale, which does not in error.

Mr. Chief Justice Fuller delivered the opinion of the court:

This was a bill filed by Stephen Baldwin in the circuit court for the county of Oakland, Michigan, against Fred A. Baker, to compel the release of a mortgage given to secure payment of a promissory note for $330, dated January 12, 1894, and payable in three years thereafter.

charge that the statutory procedure was not strictly pursued, but relies on the failure of the sheriff's return of sale to set forth a compllance with such procedure, cannot be maintained on the theory that, as the statute valldated tax deeds notwithstanding any irregularities in the sale not appearing on the record, plaintiff was deprived of his property without due process of law, as this is an attempt to test the constitutionality of the law without showing that plaintiff was injured by its application.

[No. 35.]

Argued and Submitted March 17, 1902.
Decided November 3, 1902.

Baldwin had purchased the land subject to the mortgage, which had been assigned to Baker, and tendered the amount due thereon in silver dollars coined after 1878. This tender Baker declined to accept on the ground that the legal tender provisions of United States for the Dist Court of est

the act of Congress of February 28, 1878, entitled "An Act to Authorize the Coinage of the Standard Silver Dollar, and to Restore its Legal Tender Character" (20 Stat. at L. 25, chap. 20), were unconstitutional, and refused to discharge the mortgage as demanded by Baldwin.

The circuit court for Oakland county entered a decree in accordance with the prayer of the bill, and Baker carried the cause by appeal to the supreme court of Michigan, which affirmed the decree. Baldwin V. Baker, 121 Mich. 259, 80 N. W. 36. This writ of error was then allowed.

The supreme court of Michigan said: "The sole question presented is whether the act in question, making the silver dollar of 412.5 grains troy of standard silver a full legal tender for all debts and dues, public and private, is constitutional;" and held that it was. That decision is assigned for error, but it was not a decision against the validity of the statute, and, on the contrary, sustained its validity.

As our jurisdiction over the judgments and decrees of state courts in suits in which the validity of statutes of the United States is drawn in question can only be exercised, under § 709 of the Revised Statutes, when the decision is against their validity, the

writ of error cannot be maintained.

Mis

souri v. Andriano, 138 U. S. 496, 34 L. ed. 1012, 11 Sup. Ct. Rep. 385; Rae v. Homestead Loan & Guaranty Co. 176 U. S. 121, 44 L. ed. 398, 20 Sup. Ct. Rep. 341.

Writ of error dismissed.

1 U. S. Comp. St. 1901, p. 575.

N APPEAL from Circuit

Virginia to review a decree sustaining a demurrer to and dismissing a bill to impeach a tax sale. Affirmed.

Statement by Mr. Justice Brown:

This was an appeal from a decree of the circuit court for the district of West Vir

ginia sustaining a demurrer to, and dismissing, a bill filed for the purpose of impeaching a tax sale and deed of certain lands, and of obtaining a judicial declaration that the defendants, who were purchasers under such tax deed, took no title to or interest in such lands.

The facts set forth in the bill were substantially as follows: On April 30, 1874, Turpin, a citizen of the state of Pennsylvania, purchased from the executors of one Smith C. Hill 225 acres of land in the county of Ritchie, West Virginia, and received a deed therefor.

In the year 1879 100 acres of this land were sold for delinquent taxes for prior years, by which the quantity owned by Turpin was diminished to 125 acres, which were assessed to him for taxes for the years 1883 and 1884. Being absent from the state for several years, in poor health and unfit for business, he paid no attention to the land, which was returned delinquent for the nonpayment of these taxes, and was sold by the sheriff of Ritchie county for such taxes on January 12, 1886. Having failed to redeem the land within the year allowed by law from the time of the sale, on February 3, 1887, some weeks after the expiration of the year, a deed was made by the clerk of the county court of Ritchie county to the defendants.

Nothing was done, and no effort was made to pay these taxes, until about February 21, 1899, when Turpin met the defendant John B. Lemon, and tendered him the sum of $176.50, to cover the amount of the taxes paid by the defendants in the purchase of the land, and all taxes paid by them subsequently, as well as the cost of all surveys, etc., which amount he now offers to pay into court; but Lemon refused to receive the money, and has since cut large quantities of timber and removed the same from the land.

Whereupon he filed this bill, which really raises but a single question, and that is whether the laws of the state of West Virginia enacted with reference to the sale of delinquent lands for taxes are contrary to the Constitution of the United States, or constitute due process of law within the 14th Amendment. Other questions were raised in the bill, but in his petition for an appeal to this court the appellant rests his case upon the single question of the constitutionality of these laws.

Mr. C. D. Merrick for appellant.
Mr. J. G. McCluer for respondents.

Mr. Justice Brown delivered the opinion

of the court:

ord evidence shows, were without foundation in fact." This, however, is but a restatement of the proposition theretofore stated more particularly, that the return did not show that the successive steps laid down by the statute were followed. That the pleader did not intend thereby to charge that the statutory procedure was not actually pursued is evident from the plaintiff's brief, that, "while the proceeding may have been conducted under this statute, yet the system provided is arbitrary and uncertain in its character," etc. As the statute does not require the sheriff to show in his return of sale that he has complied with these requirements, or any of them, or even to* state in general terms that the sale was made in accordance with the statutes, the plaintiff fails to show that he has suffered any actual injury, or that the forms of law were not literally observed.

The act of 1882, chap. 130, §§ 12 and 13, specially provides a form of return of the sale as follows:

"12. The sheriff or collector who made the sale shall forthwith make out a list of sales so made, with a caption thereto, in form or effect as follows: 'List of real estate sold in the county of in the month (or months, as the case may be) of eighteen for the nonpayment of the for the year (or years, as the case may be) taxes charged thereon, in the said county,

eighteen

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Underneath shall be the

The general charge is made by the appellant in his assignments of error, that the tax sale complained of in the bill, as well as the statutes of West Virginia, are obnox-several columns mentioned in the 10th secious to the 14th Amendment of the Consti- tion of this chapter [with a like caption to each column]. tution in failing to provide due process of "13. There shall be appended to such list law or the equal protection of the laws.

The particular errors which are alleged in an affidavit in form or effect as follows: the bill to invalidate the sale in question, AB, sheriff (or collector or deputy for CD, sheriff or collector), of the do swear that the above county of

are,

list contains a true account of all the real
estate within my county which has been
sold by me
during the present

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That it nowhere appeared in the return of the sale made by the sheriff for these taxes, either (1) that the land had been certified to him as delinquent by the auditor of the state as required by law, or (2) year, for the nonpayment of taxes thereon and that I am not that he published or posted the notice of the for the year, directly or indirectly interested in sale as required by law, or (3) that said sale was made at a time at which he would the purchase of any of said real estate, so be authorized by law to make such sale, or help me God.' Which oath shall be sub(4) that such sale was at a place, to wit, scribed and taken before some person auat the front door of the courthouse, at thorized to administer oaths." which the sheriff was authorized to make it, or (5) that such sale was made at public auction, or (6) that such land was sold to a person or persons who would take the least number of acres and pay the taxes thereon, or (7) that such sale was made in accordance with the provisions of the law

of the state.

In making sales of land for unpaid taxes the procedure indicated by the above exceptions is undoubtedly required by the statute, the provisions of which are so numerous that they do not require citation. It will be observed, however, that there is no allegation in the bill that such requirements were not actually followed, but simply that the return of the sale failed to set forth a compliance with them. It is true the bill avers that the statements in the tax deed of a compliance with the law, "as the rec

By 15 of the same chapter "the owner of any real estate so sold, his heirs or assigns, or any person having a right to charge such real estate for a debt, may redeem the same by paying to the purchaser, his heirs or assigns, within one year from the sale thereof, the amount specified in the receipt mentioned in the 10th section of this chapter, and such additional taxes thereon as may have been paid by the purchaser, his heirs or assigns, with interest on said purchase money and taxes at the rate of 12 per cent per annum from the time the same may have been so paid." No attempt was made by the plaintiff to comply with this statute.

By § 19 of the same chapter it is provided that after the expiration of the year the purchaser may obtain from the clerk of the* county court of the county in which said

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sale was made a deed of conveyance for the land; and by § 25, when the purchaser shall have obtained a deed thereof, "and caused the same to be admitted to record, such right, title, and interest in and to said real estate as was vested in the person or persons charged with the taxes thereon for which it was sold, shall be transferred to and vested in the grantee in such deed, notwithstanding any irregularity in the proceedings under which the same was sold, not herein provided for, unless such irregularity appear on the face of such proceedings of record in the office of the clerk of the county court, and be such as materially to prejudice and mislead the owner of the real estate so sold, as to what portion of his real estate was so sold, and when and for what year or years it was sold, or the name of the purchaser thereof; and not then, unless it be clearly proved to the court or jury trying the case that but for such irregularity the former owner of such real estate would have redeemed the same under the provisions of this chapter." This same section further declares, in a subsequent clause, that "no irregularity, error, or mistake in the delinquent list, or the return thereof, or in the affidavit thereto, or in the list of sales filed with the clerk of the county court, or in the affidavit thereto, or in the recordation of such list or affidavit, or as to the manner of laying off any real estate so sold, or in the plat, description, or report thereof made by the surveyor or other person, shall, after the deed is made, invalidate or affect the sale or deed."

The substance of this legislation, then, is this: That a certain procedure is prescribed for the sheriff in making sales of land for unpaid taxes; but it is not required that he incorporate the various steps of such procedure in his report of sales, merely that he shall swear that the list of lands to which his affidavit is appended contains a true account of all the real estate within the county sold by him during the current year for the nonpayment of taxes, and that he is not directly or indirectly interested in the purchase of any such real estate. A year is then allowed for redemption, after the expiration of which a deed of the land is executed to the purchaser at the sheriff's sale by "the clerk of the county court, which deed, the statute provides, shall not be invalidated by reason of any irregularity in the proceedings under which the land was sold, unless such irregularities appear upon the face of such proceedings of record in the office of the clerk, and be such as to materially prejudice and mislead the owner.

Counsel for the plaintiff criticises this legislation, and particularly 8 25, upon the ground that it does not provide for any record of the successive steps of procedure in advertising and selling lands for the nonpayment of taxes, and yet declares that the title to the land shall be vested in the purchaser, notwithstanding any irregularity, unless such irregularity appears upon the face of the proceedings. The inference is

that there is no irregularity which can vitiate the sale. This is not entirely accurate. It is true that the statute prescribes a general form of return by the sheriff, which does not set forth in detail the proceedings prior to and at the sale; but that there are irregularities which appear of record, and therefore that the exception in the curative statute is not without force, is evident from the case of McCallister v. Cottrille, 24 W. Va. 173, in which it was held to be the official duty of the clerk of the county court to note in his office the day on which the sheriff returned his list of the sales of lands sold for delinquent taxes, and if he fails to make such note, or his office shows that such list was not returned and filed for more than ten days after the completion of such sales, this, in either case, is such an omission and irregu larity as to materially prejudice the rights of the owner of lands sold at such sale, and therefore vitiates any deed made to the purchaser by the clerk. The court went further in this case, and held that parol evidence could not be introduced to affect the validity or invalidity of a tax deed. So, too, in Carrell v. Mitchell, 37 W. Va. 130, 136, 16 S. E. 453, it was said the fact that land was advertised and sold as delinquent under a description in the advertisement, locating it in a different district from that in which the land was situated, was such an irregularity as would void the deed made in pursuance of such sale. In Hays v. Heatherly, 36 W. Va. 613, 15 S. E. 223, the title obtained by a purchaser was held to be defective for the reason that the affidavit* did not comply with the form contained in the statute. In that case the deed had not been obtained; but in Phillips v. Minear, 40 W. Va. 58, 20 S. E. 924, the same defect was held to be fatal after the deed was obtained, and after the curative section (25) had taken effect. See also Jackson v. Kittle, 34 W. Va. 207, 12 S. E. 484; Baxter v. Wade, 39 W. Va. 281, 19 S. E. 404.

That it is competent for the legislature to provide by curative statutes that irregu larities in the sales of lands shall not prejudice the purchaser after a certain time has elapsed and a deed has been given is entirely clear, although, as observed by Judge Cooley in his work upon Taxation, chap. 10, P. 227, such defective proceedings cannot be cured where there is a lack of jurisdiction to take them. "Curative laws may heal irregularities in action, but they cannot cure want of authority to act at all," and that "whatever the legislature could not have authorized originally, it cannot confirm." It may not be altogether easy in a particular case to determine whether the defect be larities in the personal conduct of the ofjurisdictional or not, but certainly irregu ficer making the sale would not be so re garded; and it is at least exceedingly doubtful whether the failure to preserve the auditor's list of delinquent lands or the evidence of the publication and posting of the statuory notices would vitiate a deed made by the clerk, after a lapse of twelve years.

But, even if parol or other evidence were

29.

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