M:'DONALD
tI.
HANNAH.
73
the ground that the question as to whether the lands named in the bill are of the character and description embraced in plaintiff's grant arEl facts to be determined by the evidence in any given case. If tho question were as to whether the land named in the bill was known to bfl mineral or not, at the time of the definite location of plaintiff's railroad, this, it appears to me, would have to be supported by evidence extrinsic of any terms in the grant. I know of no means possessed by the land department for determining this fact. And it is certain that the tinguished judge who decided the case of Northern Pac. R. Co. v. Walker, 1mp1'a, did not think it was necessary for the commissioner of the general land office to determine this fact before it could be ascertained whether the land belonged to plaintiff or not. For the reasons assigned the demurrer to the bill is sustained, and the temporary restraining order heretofore issued herein is dissolved.
McDONALD
HANNAH et va:.
(Ci'1'C'wlt Court, D. Washington, W. D. June 29,1899.)
L Tn: TITLE-ESTATE ACQUIRED. Under the tax laws of Territory, taxes due on lands constituted a debt due from the owner, collectIble by distraint, and the lands were only subjedt to sale on failure of the collector to find personal property of the delinquent own!'r Iluftlcient to produce the amount due. Held. that a tax title under this law was purely derivative, and the tax deed conveyed only such title as was vested inthe delinquent. ;. .. ACTION TO REOOVER LANDS-COMMON SOURCE 011' TITLE.
In an action to recover possession of lands the rule that title need not be beyond a common source cannot be applied in favor of plaintiff, after the parties have actually introduced evidence showing that the common source had, in fact. no title whatever. In a suit between numerous parties for partition, and to remov:e cloud from title, adecree was entered which, in effect, operated as a quitclaim deed to each party of the land claimed by him from all the other parties. Held that, in a subsequent suit by one of the parties against a stranger to recover possession of some of the lands, such docree was admissible in evidence in plaintilT'll favor, but was not conclusive upon defendant. The grantee by quitclaim of a widow's dower right which has never been Ilet oft
.. ,
.. SAME-EVIDENCE-PRIOR DECISION.
"
DOWER-CONVEYANCE.
br any proceeding under the statutes for the assignment of dower takes no title or rIght of possession.
At Law. Action by F. V. McDonald against D. B. Hannah and wife to recover possession of real estate. Findings and judgment for defendant. W. &ott Beebe and J. C. Stallcup, for plaintiff. Judaon « Sharpstein, for defendants. HANFORD, District Judge. The plaintiff claims title by virtue of a quitclaim deed to him from one Mary A. Givens. The defendants en· tertld and were in actual possession of the demanded premises for a
Plll'ioll of more tbaQ:fQul' years before the,cOllimencetpent ofrthe action, thereto by virtue of a tax deed executed by the sheriff of Pierce county, pursuant to a sale of the property for delinquent taxes 8SSE1$sed against the plaiptiff's grantor, Mary A. Givens. In their answer the <lefendants deny that. the plaintiff has any title or right to the possessiQn of the property; therefore·. before allY q uestioll affecting their rig-ht!ililan with propriety be considered, the plaintiff must prove his title,Jor, unless he can show a prima facie right of possession, it is mere impertinence on his .part to question the, of the deffmdants' actual possession. The evidence does not show that the title to the property was ever vested in Mary A. Givens. but, inasmuch as in their answer the defendants claim title to the property under a conveyance PUl'SUM,t toa sale for delinquent taxes of said Mary A.Givens, it is urged in behalf of the plaintiff that the parties claim. title from 8 COllimon source; that the defendants cannot. without utterly destroying their own claim, successfully impeach the title of the plaintiff's grantor, and that proof of her title is therefore unnecessary. Where the revenue laws of a state provide for the taxation of land and proceedings in rem against the property assessedJor the collectiOn of the tax levied upon it, without imposing any personal liability upon the owner, the purchaser at a tax sale acquires an original and title created by law, but the system of taxation provided by the laws of Washington Territory under defendants' tax deed was executed is quite different. Sai<l Ia;ll\s require the listing of property for taxation upon an assessment roll, in, ,a prescribed form, containing the tiames ofall known owners of property, ,real and personal, and provide that lands must be assessed in the names of the owners, if known. Taxes, when levied, constitute a debt due frolll the owner, and the same may be collected by distraint; and lands aoo not subject to sale for delinquent taxes, except in the event of failure on the part of the owner to pay the tax and of the tax collector to find personal property of the owner sufficient to produce the amount due.. lJnder 8llch a system the title conveyed by a tax deed is derivath'e, as in the case of a sale under jqdicial process·. The revenue officers making .the sale and tax deed are clothed with authority to convey the title of thedelirlqueilt owner, llnd only such title as he had passes to the grantee by the tax deed. Black, Tax Titles, §§ 232, 233. While I agr¢e. with· counsel for. the plaintiff as to the abstract legal proposition, it is impossible for me to give him the benefit of it in this case, as I would do if there were no evidence in the case in regard to Mary A. Givens' The parties have introduced an abstract of the record,showing the· facts in regard to her claim of title, by which it affirmatively appears that no title was ever vested in her. This evidence is in the case, and' hi the light thereof the court cannot blindly presume, contrary to the facts, that she has made a valid conveyance of title to the premises, there being no basis for such presumption other thana 'mere rule of'pritdtice, under which, foroonvenience, if the partieshltd seen fit to relytlpon it; proof of her title might have heen' dtspensed with. The landineontrovers;ris part of the tract involved in
y'DONALD V. HANNAH.
75
the case of McDonaid v. Donaldson. 47 Fed. Rep. 765, (recently determined in this court.) The husband of Mary A. Givens, with other persons, acquired the title to said tract as tenants in common, and by transactions between themselves and a succession of untoward occurrences, as shown by the published statement and opinion of the court in that case, the title became snarled; one of the most serious complications being caused by the death of Givens, which occurred in the year 1873. Being nonresidents, the statutes of the territory in relation to the property rights of married persons enacted prior to his death were inapplicable to Mr. and Mrs. Givens, and conferred no rights upon the widow. Neither was she, by the laws then in force, entitled to take any part of her husband's real estate by inheritance. The partition deed made to her by Mathews as attorney in fact was void, for the reason that by the death of her husband the power of attorney under which Mathews acted was annulled. She had a right of dower and nothing more. But the demanded premises have not been awarded to her in any proceeding according to the statute for assignment of dower; thorefore her grantees acquired no title or right of possession by the deed from her, even if the execution, delivery, and validity thereof be assumed. . The record in the partition suit of McDonald v. DonaldBon, above referred to, was offered in evidence, and the samp. is now relied upon by the plaintiff, who claims that by the judicial determination of this court his title to tl.1e premises has been established. The defendants objected to the introduction of this record, claiming that the same is incompetent and immaterial, for the reason that, as they were not parties to the suit, they cannot be bound by the determination. The decree is equi valent to a quitclaim deed to the plaintiff from all the other parties to the partition suit of their respective interests in the demanded premises, and is therefore a connecting link in the chain of title, and is COlDpetent evidence for the plaintilf', just as conveyances of title from the respective owners of undivided interests, made without knowledge of or privity with the defendants, would be competent. I therefore overrule the defEmdants' said objection. The defendants are not, howevert concluded by said decreet nor can they be denied their day in court to put in issue the validity of plaintiff's pretenlled right to the demanded premises, and subject the same to the test of a judicial determination. Neither the dclendants nor the heirs or legal representatives of Gh'ens were in court as parties to the partition suit, and by the course pnrsued by those who were parties the conrt was precluded from investigating or deciding the questions alfecting the plaintitt"s pretended title now in issue. In view of these facts, the court could not by its decree create a new and original title, nor divest the true owner of his title to the premises, and against the parties in actual possession the decree affords of ouster. no ground for a I have, after mature reflection, determined to rest my decision upon the actual rights of the parties as they appear, rather than upon ground involving only mere questions of practice or technicalities. The deeds and documentary evidence introduced by the rtlspective parties .
FEDERAL REPORTER,
vol. 51.
wele'all to, and were all, at the time of being offered, received l'iubject to the' objections so made. I now overrule all of said objecand admit all of Baid deeds, papers, and documents except the 9riginal records of the city of Tacoma. Extracts from said originals, containing all that is material, made under my direction, will be received and filed in the case in place of said original records. My opinion upon other questions debated by counsel would not be determinative bf the rights of the parties, and could not be regarded as anything more than obiter dicta, and therefore not of sufficient value to justify a fU1'the1' extension of this opinion. Findings of fact may be prepared, and a judgment will be entered in accordance with this opinion.
In re ,. ,
BLUMENTHAL
et al.
(C1n'cuit Court, S. D. New York. June 20, 1892.)
CUSTOMS LAWS-TARI!!'F AOT OF OCTOBER 1.
1890. Sm!lll, highly polished disks of pearl, which are plain on the back, with grooved rings Or hollowed out in front, with rounded edges, and wit.h small cavities in their centers, anli Which, except that they are not pierced with holes or shanked through .'their centers, exactly correspond in appearance with the ordinary superfine pearl buttons Qf .commerce, are not dutiable as pearl buttons, under the provision for such buttQns contained in paragraph 429 of the tariff act of October 1, 1890, (26 " St. p. 567,) but are dutiable as manufactures of mother of pearl, under the provision for such manufactures contained in paragraph 462 of the same tariff act.
At Law. Appeal by hnporters from decision of the board of United States general appraisers. Reversed., On ¥arch 18, 1891, the firm of B. & Co. imported by the country into the United States, at the port of New Eider from a York, cert,ainarticles consisting of small, highly polished disks of mother f?f pearl, whicq were plain on the back, with grooved rings or hollowed out in front,with rounded edges, and with small cavities in their centers; which,except that they were not pierced with holes or shanked their cl'luters, exactly corresponded in appearance with the ordiJj1ary,superfine pearl buttons of commerce. These articles were returned by the local appraiser as pearl buttons, together with a report that they werepp.ttons in a completed state, except the drilling of holes; that they were clearly defined in their character and use, notwithstanding the absence of this one element (drilling the holes)of completion; and that this 'was, omitted for the purpose and with the intention of evading the p1l-yment of the correCt rate of duty. The collector of customs aUhis pOtt for duty as pearl buttons, under the provision for " penrls,lldshellbuttons." contained in paragraph 429 of the tariff'act of October'l, 1890, (26 U. S. St. p. 567.) and exacted duty thereon "at the qf,tr;o and one half (2!) cents per line, button measure, ofone, fortieth (14q) pf one,(l) inch per gross, and in addition thereto twenty-five (25) percenturn ad valorem." Against this clal':lsification and this exaction the duly protested, claiming that these articles were dutiable at
