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of the logs binding upon Paine & Co.? There was no evidence of the express (direct) appointment of Idison to sell them. His authority could only be inferred from the relation of the parties, or proved by the subsequent ratification of the contract. Briefly, the court instructed the jury that the relation of the parties, (Idison being defendants' general agent for the sale of manufactured lumber, sash, doors, etc.,) did not authorize him to make the contract, and left the question of ratification to the jury, omitting such of the instructions asked not pertinent to the case. Neither abstract questions of law were given, nor the exact language of plaintiff's requests.
In reference to the claim urged, that defendants, with full knowledge of Idison's act, and with a copy of the contract in their possession, by acquiescence, had ratified it, the court, in substance, said: When information is given of the action of an agent who exceeds his authority, it is the duty of the principal, as soon as possible, to repudiate it. It is not fair dealing, under such circumstances, to reject the contract and not inform the other party, (as the plaintiff in this case,) of its repudiation. This covered the request asked, and I see no error in the instruction. In fact, I am satisfied with the charge, as a whole, and think the case was fairly placed before the jury, according to the testimony. There is, however, a troublesome feature of the case, and a new trial should be granted.
The plaintiff offered certain letter-press copies of his own letters, containing competent and material evidence. No notice to produce the originals had been given, and they were excluded.
On the trial plaintiff's counsel stated, and now reiterates, that the rule had been established in the Iowa district, with the concurrence of all the judges, “that letter-press copies made at the time of letters written and sent by mail between parties to a suit are not copies in the sense of the rule requiring notice, but are duplicate originals.” I declined to recognize any such rule, but offered to withdraw a juror and postpone the trial to the next term; but for some reason the counsel determined to proceed and accept the decision. I was under the impression at the time that the amount involved would permit a writ of error, and the plaintiff, in case of an adverse verdict, could take advantage of this ruling against him. It now appears the judgment of this court is conclusive, and while I am of the opinion that the copies were properly excluded and if a writ of error could be taken would not disturb the verdict, yet there is a possibility of error in rejecting the evidence. The counsel asseverates that my opinion is in conflict with all the judges of the Iowa district. A
judgment obtained under these circumstances, and no opportunity to review the decision, is not satisfactory and may be unjust. It makes no difference that the plaintiff rejected the offer to postpone the case. The judgment may be the result of a conflict in opinion between the judge presiding at the trial and the other judges of the court, and the plaintiff unable to ascertain which is correct. A new trial is granted, and it is so ordered.
GREENWALT v. TUCKER and others.
(Circuit Court, E. D. Missouri. September 27, 1881.)
1. REVENUE ACTS OF MISSOURI OF MARCH 3, 1872, AND MARCH 21, 1873–ASSESS
MENT OF TAXES.
The Missouri revenue acts of 1872 and 1873 require land situate in St Louis county to be assessed, not numerically, but alphabetically, in the name of the
person owning or holding it, and such person is liable for the taxes thereon. 2. SAME-SAME.
Where a person who has purchased a piece of land gives a deed of trust thereon to secure the purchase money, but remains in possession, he does not cease to be the owner or holder of the property within the meaning of said
statutes. 3. SAME-SAME.
Said statutes authorize proceedings against the realty itself. 4. SAME-SAME-EJECTMENT-EFFECT OF A SALE FOR TAXES UPON THE RIGHTS
OF PARTIES CLAIMING UNDER A DEED OF TRUST AND CONVEYANCES THERE
Where A. bought land from B. and gave his note for the purchase-money, and a deed of trust on said land to secure their payment, and entered into and remained in possession until certain taxes were assessed in A.'s name and levied thereon, under said statutes; and where E, the trustee named in said deed of trust, had, in pursuance of its terms, sold said land, after said assessment and levy, to B., because of A.'s failure to pay said notes, and B. had taken immediate possession and thereafter conveyed his interest to other parties; and where said land was thereafter sold for said taxes assessed as aforesaid, and deeds therefor executed and delivered to the purchaser,-held, that said tar deeds not only conveyed A.'s interest, but also the interest of all persons holding under said deed of trust and said conveyance to B.
This is an action of ejectment. The plaintiff claims through mesne conveyances under two tax deeds, one of which was for the taxes of 1872, assessed on the land in question in the name of Mary A. Musser, under the revenue act of the Missouri legislature, approved March 3, 1872; and the other for the taxes of 1875, assessed against the same land, in the same name, and under the same act, as amended by revenue act approved March 21, 1873. Mrs. Musser bought said land from Charles Gibson, and gave a deed of trust thereon to secure the purchase money, L. H. Conn being named therein as trastee. The indebtedness to Gibson was evidenced by certain promissory notes, and, Mrs. Musser having failed to pay them, the land was sold by said Conn, in pursuance of the terms of said deed, to Gibson, and a deed to him was executed by said trustee, May 3, 1875. Gibson immediately went into possession, and he and his grantees have since held the premises. Defendants claim through mesne conveyances under said deed of trust and the deed to Gibson, and con. tend that said tax deeds only conveyed the interest of Mrs. Musser, and did not affect their title.
Menk & Menk, for plaintiff.
McCRARY, C. J. This is an action for ejectment brought by plaintiff, claiming under a tax title, to recover certain real estate situated in the city of St. Louis. The laws under which the sales and transfer were made are very confused, inasmuch as from the General Statutes there are repeated exceptions as to St. Louis county. It appears, however, with sufficient definiteness, that under the acts of 1872 and 1873, even when analyzed in connection with the act of 1874, that every person "owning or holding property shall be liable for the taxes thereon." See Laws of Missouri, 1873, § 59, p. 95. The agreed case and deeds submitted therewith show that Gibson sold tbe lots in question to Mrs. Musser and conveyed the same to her by deed, which was properly recorded. It also appeared that at the time of this sale Mrs. Musser entered into possession and remained in possession until after the taxes in controversy were assessed and levied upon the property. At the time of the sale by Gibson to Mrs. Musser he took from her a deed of trust to one Conn, as trustee, to secure the payment of the unpaid portion of the purchase mony and of accruing taxes, etc., with the usual terms of forfeiture.
We are inclined to the opinion that the tax laws in force at the time in the county of St. Louis required the assessment to be made, not numerically, but alphabetically, in the name of the person "owning or holding" the property. Mrs. Musser, by the terms of the conveyance to her, was the owner and holder of the property for the purpose of taxation, subject to defeasance. Hence, the assessment was rightfully in her name. She did not cease to be the owner-certainly she did not cease to be the holder—of the real estate by reason of having executed the deed of trust to recover the unpaid purchase money due to Gibson.
The acts of the special assembly applicable to this case were designed to enforce the collection of taxes through the different means provided, and, in the absence of their payment, they authorized procceedings against the realty itself, which stood charged with the lien therefor, to be enforced through the collector. This property was so charged, and the sale made in compliance with the law, with no de. fect in the proceedings which invalidates the purchaser's title. It was admitted at the hearing that the rents of the property in controversy have amounted to $18 per month. The judgment will be for the plaintiff for the possession of the property, and for $243.60 for rents and costs of suit.
STOUT v. SIOUX CITY & PACIFIC R. Co.
(Circuit Court, D. Nebraska. January, 1881.)
1. RAILROAD CORPORATIONS SAME COMPANY A CORPORATION OF DIFFERENT
STATES—CITIZENSHIP-JURISDICTION OF FEDERAL COURTS-SERVICE OF PRO
In an action between a citizen of the state of Nebraska and a railroad company, which, originally incorporated under the laws of the state of Iowa, had extended its road into the state of Nebraska, had filed a copy of its original articles of incorporation with the state secretary, and, in other respects, had complied with the state laws governing such companies, held, on a plea to the jurisdiction of the court, that, under the laws of the state of Nebraska, the company had become a domestic corporation. Held, also, that service upon the managing agent of the company for the state of Nebraska is not sufficient service on the Iowa corporation, though the line through both states is under one management, one set of officers, one board of directors, one set of stockholders; though the general offices are in lowa, and though the agent makes his reports to the general offices.
E. Wakeley and J. R. Webster, for plaintiff.
McCRARY, C. J. This case is before the court on a plea to the jurisdiction, which presents for consideration a question of importance in its application to this case, and, probably, to other cases in this district. The facts are agreed upon, and are as follows:
Plaintiff, a citizen of Nebraska, sues the defendant, alleging that it is a citizen of Iowa, to recover damages for personal injuries sustained, as he alleges, at the town of Blair, Nebraska, on the twenty-seventh day of March, 1869, through the negligence of defendant in the management of a railroad then possessed and operated by it in Nebraska. The said defendant, the Sioux City and Pacific Railroad Company, was duly organized and incorporated under the laws of Iowa in 1864. Prior to the year 1870 it built a railroad in the state of Iowa, and also extended the same into and built a railroad in the state of Nebraska. On the twenty-first day of September, 1869, the defendant filed a true copy of its original articles of incorporation in the office of the secretary of state of the state of Nebraska. Defendant still owns and operates said line of railroad in the states of Iowa and Nebraska, and has had from the beginning its principal place of business at Cedar Rapids, Iowa. By an act of the general assembly of Nebraska, approved February 12, 1869, it is provided“That any railroad company heretofore organized under the laws of the states of Kansas, Missouri, or Iowa is hereby authorized to extend and build its road into the state of Nebraska; and such railroad companies shall have and possess all the powers, franchises, and privileges, and be subject to the same liabilities, of railroad companies organized and incorporated under the laws of this state: provided, such non-resident company shall first file a true copy of its articles of incorporation with the secretary of state, and shall comply with the laws of Nebraska as to filing and recording articles of incorporation, and in all things required by law relating to railroads and otherwise in this state; and such nonresident company shall keep an otfice in this state, in some county in this state in which its road is or is proposed to be; and shall be liable to civil process, to be sued and to sue, as provided by law." Gen. St. Neb. 1873, p. 203.
By another act of said general assembly, approved February 14, 1873, it is provided “That any railroad company which has been organized under the laws of the states of Iowa, Kansas, or Missouri, and which has heretofore extended its line of road in this state, or built any portion of its line of road in this state, and has filed a true copy of its original articles of incorporation in the office of the secretary of state of this state, is, from the time of filing said copy of its original articles of incorporation as aforesaid, hereby declared to be a legal corporation of this state, and entitled to all the rights, privileges, and franchises of railroad companies organized under and pursuant to the laws of the state of Nebraska.” Id. 206.
The summons is returned served upon the defendant “by delivering to, and leaving with, Frank Harriman, its managing agent in this state and district, a certified copy of this summons, with all the indorsements thereon. Said service was made in Washington county, state and district of Nebraska.” The declaration in this case was filed April 27, 1874, and the summons was served on the eleventh day of May in the same year.
Upon these facts the following questions arise upon the consideration of the plea to the jurisdiction :
First. Was the defendant a foreign corporation at the time the suit was commenced? Second. And, if so, was the de ndant an inhabitant of, or found within, the district of Nebraska at the time of the service of process in this case ?
The suit was commenced and process served in April and May, 1874, at which times both the acts above named were in force—the latest one having been approved February 14, 1873. It is true that only the first of these acts was in force when the accident occurred which is the foundation of this suit, and inasmuch as I am of the opinion that the first act did not constitute the defendant a Nebraska corporation, it becomes necessary to consider whether it is the statute in force at the time of the accident, or that which is in force at the time of the service of process, that is to govern as to the forum. Upon this point I entertain no doubt. All questions of jurisdiction.