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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 bas 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 La ed. 120, V. McGeher, 107 U. 8. 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 (Brit8. 670, 686, 33 L. ed. 696, 702, 10 Sup. Ct. ish statutes), they become our own as en. Rep. 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 conOti, 142 U. S. 622, 627, 35 L. ed. 1136, 1138, sidered as accompanying the statutes them. 12 Sup. Ct. Rep. 318.

selves, and forming an integral part of The same rule has been held to be appli- them. But however we may respect subcable to decisions of state courts constru- sequent decisions,—and certainly they are ing the statute of frauds. Allen v. Massey, entitled to great respect, we do not admit 17 Wall. 351, 21 L. ed. 542; Lloyd v. Ful their absolute authority.” See also Kirk ton, 91 U. S. 479, 485, 23 L. ed. 363, 365. patrick 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 statutes adopted from other states. Com. assignment, the question is one which, upon v. Hartnett, 3 Gray, 450 ; Tyler v. Tyler, 19 the authorities above cited, must be held Ill. 151; Bloodgood v. Grasey, 31 Ala. 575; to be determinable by the state law as in- Marqueze v. Caldwell, 48 Miss. 23; State v. terpreted by the supreme court of such Robey, 8 Nev. 312; The Devonshire, 8 Sawy. state.

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 Con- of Congress above cited, it becomes mate gress approved May 2, 1890 (26 Stat. at La rial to consider the decisions of the su94, § 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 con. to 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 as. which laws are enumerated assignments for signment for the benefit of creditors with. the 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 elabo terpreting 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 contro ces 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 bad. 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 en. voted to the payment of the assignor's cred. tered. It does not appear that any assiga. itors, 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 judge should 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. Mor. changed 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, 9 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. Elliing of Clayton v. Johnson in Collier v. ott, 21 Wall. 632, 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. While it is the duty of this court to reIt follows, said the court, that “the law is view the action of subordinate courts, jus. established here, in accord with much au- tice to those courts requires that their althority elsewhere, that a stipulation for a leged errors should be called directly to release in a general assignment, which is their attention, and that their action should made only as a condition of preference, does not be reversed upon questions which the not invalidate the instrument." The as- astuteness of counsel in this court has signment in that case preferred one cred- evolved from the record. It is not the provitor, and provided for payment to all other ince of this court to retry these cases de creditors who should execute releases of the novo. residue of their debts. This case was fol. The judgment of the Court of Appeals is lowed by King v. Har ine-McKittrick affirmed. Dry Goods Co. 60 Ark. 1, 28 S. W. 514, where the very assignment in question in this case was held to be valid, notwith white concurred in the results

Mr. Justice Shiras and Mr. Justice standing the provision for & release by creditors

condition of preference. Without determining the validity of such a

(187 U. S. 61) provision at common law, we are of opinion that the courts of the Indian territory did

FRED A. BAKER, Piff. in Err., not err in applying the settled construction of the law of Arkansas to the assignment

STEPHEN BALDWIN. in this case, and in holding the provision for a release of creditors to be valid.

2. Plaintiffs also seek to impeach the as- Error to state court decision sustaining signment upon the ground that there was validity of Federal statute. no evidence of its acceptance by any of the creditors, or their assent thereto; and the The judgment of a state court sustaining the position is taken that, while the creditors validity of the act of Congress of February may be presumed to accept an assignment

28, 1878 (20 Stat. at L. 23, chap. 20), mak. made for their benefits such acceptance will

ing the silver dollar of 412.5 gralns troy of

standard silver a full legal tender, cannot be not be presumed where the assignment is

reviewed in the Supreme Court of the United subject to the condition that the creditors States, since that court has Jurisdiction, consent to a release and discharge of their under 0. S. Rev. Stat. $ 709,* to review the claims against the estate. Error is also judgment of a state court upon the validity charged in the rendition of the judgment

of a Federal statute, only when against its

validity. against persons who were not parties to the

(No. 4.) immediate case, but who had stipulated | U. S. Comp. St. 1901, p. 575. other cases into this case for a like judg. ii. See Courts, vol. 13, Cent. Dig. 81 1048, 1051, 1062

as

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case.

(187 U. S. 51) Submitted October 14, 1902. Decided No WILLIAM J. TURPIN, Appt., vember 3, 1902.

0.

JOHN B. LEMON et al.
IN
N ERROR to the Supreme Court of the

State of Michigan to review a judgment Constitutional larodue processtaw sales which affirmed a decree of the Circuit Court

pleading bill presenting academio for Oakland County which granted the relief sought by a bill to compel the release 1. Due process of law in making sales of land of a mortgage Dismissed.

for unpaid taxes, even if it requires the ob See same case below, 121 Mich. 259, 80 N. servance of all the steps prescribed by a state W. 36.

statute, does not demand that they shall be The facts are stated in the opinion.

made matter of record, much less that they Messrs. Albert B. Hall and Fred A.

shall be made matter of a particular record,

such as the returd of the sheril of the sale Baker for plaintiff in error.

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

charge that the statutory procedure was not

strictly pursued, but relies on the fallure of Mr. Chief Justice Faller delivered the

the sheriff's return of sale to set forth a com

pliance with such procedure, cannot be main. opinion of the court:

tained on the theory that, as the statute vall. This was a bill filed by Stephen Baldwin dated tax deeds notwithstanding any Irin the circuit court for the county of Oak. regularities in the sale not appearing on the land, Michigan, against Fred A. Baker, to record, plaintiff was deprived of his prop

erty without due process of law, as this is compel the release of a mortgage given to

an attempt to test the constitutionality of secure payment of a promissory note for

the law without showing that plaintif was $330, dated January 12, 1894, and payable Injured by its application. in three years thereafter. Baldwin had purchased the land subject

[No. 35.) to the mortgage, which had been assigned to Baker, and tendered the amount due Argued and submitted March 17, 1902.

Decided November 9, 1902. thereon in silver dollars coined after 1878. This tender Baker declined to accept on the ground that the legal tender provisions of ONAPPEAL from the Circuit Court of the

United States for the District of West the act of Congress of February 28, 1878, Virginia to review a decree sustaining « entitled "An Act to Authorize the Coinage demurrer to and dismissing a bill to imof the Standard Silver Dollar, and to Re- peach a tax sale. Affirmed. store its Legal Tender Character” (20 Stat. at L. 25, chap. 20), were unconstitutional, Statement by Mr. Justice Brown: and refused to discharge the mortgage as

This was an appeal from a decree of the demanded by Baldwin.

circuit court for the district of West Vir. The circuit court for Oakland county en- ginia sustaining a demurrer to, and dismisstered a decree in accordance with the prayer ing, a bill filed for the purpose of impeachof the bill, and Baker carried the cause by ing a tax sale and deed of certain lands, appeal to the supreme court of Michigan, the defendants, who were purchasers under

and of obtaining a judicial declaration that which affirmed the decree. Baldwin ! such tax deed, took no title to or interest in Baker, 121 Mich. 259, 80 N. W. 36. This

such lands. writ of error was then allowed.

The facts set forth in the bill were substanThe supreme court of Michigan said: tially as follows: On April 30, 1874, Turpin, “The sole question presented is whether the a citizen of the state of Pennsylvania, puract in question, making the silver dollar of chased from the executors of one Smith C. 412.5 grains troy of standard silver a full Hill 225 acres of land in the county of legal tender for all debts and dues, public Ritchie, West Virginia, and received a deed. and private, is constitutional;” and held therefor. In the year 1879 100 acres of this that it was. That decision is assigned for land were sold for delinquent taxes for prior error, but it was not a decision against the years, by which the quantity owned by Turvalidity of the statute, and, on the contrary, pin was diminished to 125 acres, which were sustained its validity.

assessed to him for taxes for the years 1883 * As our jurisdiction over the judgments and 1884. Being absent from the state for and decrees of state courts in suits in which several years, in poor health and unfit for the validity of statutes of the United States business, he paid no attention to the land, is drawn in question can only be exercised, which was returned delinquent for the nonunder $ 709 of the Revised Statutes, 1 when payment of these taxes, and was sold by the the decision is against their validity, the January 12, 1886. Having failed to redeem

sheriff of Ritchie county for such taxes on writ of error cannot be maintained. Mis the land within the year allowed by law souri v. Andriano, 138 U. S. 496, 34 L. ed. from the time of the sale, on February 3, 1012, 11 Sup. Ct. Rep. 385; Rae v. Home- 1887, some weeks after the expiration of the stead Loan & Guaranty Co. 176 U. S. 121, year, a deed was made by the clerk of tho 44 L. ed. 398, 20 Sup. Ct. Rep. 341. county court of Ritchie county to the do Writ of error dismissed.

fendants. *U. S. Comp. St. 1901, p. 676.

89.

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Nothing was done, and no effort was made ord evidence shoros, were without foundato pay these taxes, until about February 21, tion in fact." This, however, is but a re1899, when Turpin met the defendant John statement of the proposition theretofore B. Lemon, and tendered him the sum of stated more particularly, that the return $176.50, to cover the amount of the taxes did not show that the successive steps laid paid by the defendants in the purchase of down by the statute were followed. That the land, and all taxes paid by them subse the pleader did not intend thereby to charge quently, as well as the cost of all surveys, that the statutory procedure was not actuetc., which amount he now offers to pay in ally pursued is evident from the plaintiff's to court; but Lemon refused to receive the brief, that, "while the proceeding may have money, and has since cut large quantities been conducted under this statute, yet the of timber and removed the same from the system provided is arbitrary and uncertain land,

in its character, etc. As the statute does Whereupon he filed this bill, which really not require the sheriff to show in his return raises but a single question, and that is of sale that he has complied with these rewhether the laws of the state of West Virquirements, or any of them, or even to state ginia enacted with reference to the sale of in general terms that the sale was made in delinquent lands for taxes are contrary to accordance with the statutes, the plaintiff the Constitution of the United States, or fails to show that he has suffered any acconstitute due process of law within the tual injury, or that the forms of law wero 14th Amendment. Other questions were not literally observed. raised in the bill, but in his petition for an The act of 1882, chap. 130, 88 12 and 13, appeal to this court the appellant rests his specially provides a form of return of the case upon the single question of the consti- sale as follows: tutionality of these laws.

“12. The sheriff or collector who made the

sale shall forthwith make out a list of sales Mr. C. D. Merrick for appellant. so made, with a caption thereto, in form or Mr. J. G. McCluer for respondents.

effect as follows: ‘List of real estate gold in the county of

in the month (or Mr. Justice Brown delivered the opinion months, as the case may be) of of the court:

eighteen for the nonpayment of the The general charge is made by the appel. for the year (or years, as the case may be)

taxes charged thereon, in the said county, lant in his assignments of error, that the

- Underneath shall be the tax sale complained of in the bill, as well eighteen as the statutes of West Virginia, are obnox- several columns mentioned in the 10th sec ious 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 law or the equal protection of the laws.

“13. There shall be appended to such list the bill to invalidate the sale in question ty for CD's, sheriff or collector), of the The particular errors which are alleged in an affidavit in form or effect as follows:

sheriff (or collector or depuere,

do swear that the above That it nowhere appeared in the return county of of the sale made by the sheriff for these list contains a true account of all the real taxes, either (1) that the land had been estate within my county which has been certified to him as delinquent by the aud- sold by me during the present itor of the state as required by law, or (2) year, for the nonpayment of taxes thereon

and that I that he published or posted the notice of the for the year

am not sale as required by law, or (3) that said

directly or indirectly interested in 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,

By § 15 of the same chapter "the owner or (5) that such sale was made at public of any real estate so sold, his heirs or asauction, or (6) that such land was sold to signs, or any person having a right to a person or persons who would take the charge such real estate for a debt, may releast number of acres and pay the taxes deem the same by paying to the purchaser, thereon, or (7) that such sale was made in his heirs or assigns, within one year from accordance with the provisions of the law the sale thereof, the amount specified in the of the state.

receipt mentioned in the 10th section of this In making sales of land for unpaid taxes chapter, and such additional taxes thereon the procedure indicated by the above excep-as may have been paid by the purchaser, his tions is undoubtedly required by the stat. heirs or assigns, with interest on said pur. ute, the provisions of which are so numer. chase money and taxes at the rate of 12 ous that they do not require citation. It per cent per annum from the time the same will be observed, however, that there is no may have been so paid." No attempt was allegation in the bill that such requirements made by the plaintiff to comply with this were not actually followed, but simply that statute. the return of the sale failed to set forth a By $ 19 of the same chapter it is provided compliance with them. It is true the bill that after the expiration of the year the avers that the statements in the tax deed purchaser may obtain from the*clerk of the * of a compliance with the law, as the rec-'county court of the county in which said

sale was made a deed of conveyance for the that there is no irregularity which can viland; and by $ 25, when the purchaser shall tiate the sale. This is not entirely accuhave obtained a deed thereot, "and caused rate. It is true that the statute prescribes the same to be admitted to record,

& general form of return by the sheriff, such right, title, and interest in and to said which does not set forth in detail the proreal estate as was vested in the person or ceedings prior to and at the sale; but that persons charged with the taxes thereon for there are irregularities which appear of which it was sold,

shall be trans- record, and therefore that the exception in ferred to and vested in the grantee in such the curative statute is not without force, is deed, notwithstanding any irregularity in evident from the case of McCallister' v. the proceedings under which the same was Cottrille, 24 W. Va 173, in which it was sold, not herein provided for, unless such held to be the official duty of the clerk of irregularity appear on the face of such pro the county court to note in his office the ceedings of record in the office of the clerk day on which the sheriff returned his list of the county court, and be such as mate of the sales of lands sold for delinquent rially to prejudice and mislead the owner of taxes, and if he fails to make such note, the real estate so sold, as to what portion or his office shows that such list was not of his real estate was so sold, and when and returned and filed for more than ten days for what year or years it was sold, or the after the completion of such sales, this, in name of the purchaser thereof; and not either case, is such an omission and irregu. then, unless it be clearly proved to the larity as to materially prejudice the rights court or jury trying the case that but for of the owner of lands sold at such sale, and such irregularity the former owner of such therefore vitiates any deed made to the purreal estate would have redeemed the same chaser by the clerk. The court went fur. under the provisions of this chapter.” This ther in this case, and held that parol evisame section further declares, in a subse- dence could not be introduced to affect the quent clause, that “no irregularity, error, validity or invalidity of a tax deed. So, or mistake in the delinquent list, or the re- too, in Carrell v. Mitchell, 37 W. Va. 130, turn thereof, or in the affidavit thereto, or 136, 16 S. E. 453, it was said the fact that in the list of sales filed with the clerk of the land was advertised and sold as delinquent county court, or in the affidavit thereto, or under a description in the advertisement, in the recordation of such list or affidavit, locating it in a different district from that or as to the manner of laying off any real in which the land was situated, was such an estate so sold, or in the plat, description, irregularity as would void the deed made in or report thereof made by the surveyor or pursuance of such sale. In Hays v. Heath other person, shall, after the deed is made, erly, 36 W. Va. 613, 15 S. E. 223, the titlo invalidate or affect the sale or deed." obtained by a purchaser was held to be de

The substance of this legislation, then, is fective for the reason that the affidavit* did this: That a certain procedure is pre not comply with the form contained in the scribed for the sheriff in making sales of statute. In that case the deed had not been land for unpaid taxes; but it is not required obtained; but in Phillips v. Minear, 40 W. that he incorporate the various steps of Va. 58, 20 S. E. 924, the same defect was such procedure in his report of sales,- held to be fatal after the deed was obtained, me that he shall swear that the list of and after the curative section (25) had lands to which his affidavit is appended taken effect. See also Jackson v. Kittle, 34 contains a true account of all the real es. W. Va. 207, 12 S. E. 484; Baxter v. Wade, tate within the county sold by him during 39 W. Va. 281, 19 S. E. 404. the current year for the nonpayment of

That it is competent for the legislature to taxes, and that he is not directly or indi- provide by curative statutes that irregurectly interested in the purchase of any larities in the sales of lands shall not preBuch real estate. A year is then allowed judice the purchaser after a certain time for redemption, after the expiration of has elapsed and a deed has been given is enwhich a deed of the land is executed to the tirely clear, although, as observed by Judge purchaser at the sheriff's sale by the clerk Cooley in his work upon Taxation, chap. 10, of the county court, which deed, the statute p. 227, such defective proceedings cannot be provides, shall not be invalidated by reason cured where there is a lack of jurisdiction of any irregularity in the proceedings under to take them. “Curative laws may heal irwhich the land was sold, unless such irregu- regularities in action, but they cannot cure larities appear upon the face of such pro- want of authority to act at all," and that ceedings of record in the office of the clerk, "whatever the legislature could not have and be such as to materially prejudice and it may not be altogether easy in a particu

authorized originally, it cannot confirm." mislead the owner.

lar case to determine whether the defect be Counsel for the plaintiff criticises this jurisdictional or not, but certainly irregulegislation, and particularly $ 25, upon the larities in the personal conduct of the ofground that it does not provide for any rec- ficer making the sale would not be so re ord of the successive steps of procedure in garded; and it is at least exceedingly advertising and selling lands for the non-doubtful whether the failure to preserve the payment of taxes, and yet declares that the auditor's list of delinquent lands or the evt title to the land shall be vested in the pur-dence of the publication and posting of the chaser, notwithstanding any irregularity, statuory notices would vitiate a deed made mless such irregularity appears upon the by the clerk, after a lapse of twelve years. face of the proceedings. The inference is But, even if parol or other evidence were

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