United States v. Mackoy.

spective claims, I recommend that by agreement all the pleadings and proofs be filed in the district court, and the cause submitted thereon to it, reserving, if desired, the right of all parties to appeal. This will save time and expense, and facilitate the closing of this complicated and already long protracted litigation.

No costs will be allowed to any of the parties.

DUNDY, J., concurs.

BILL DISMISSED.

NOTE.-Lien for tax as against innocent purchaser. Sec. 32 of the act of July 13, 1866 (14 Stats. at Large, 157), was construed by Mr. Justice SWAYNE in the U. S. circuit court for the southern district of Ohio, in the case of the United States v. Turner Brothers and Stoltz, 18 Int. Rev. Record, July 5, 1873, page 5. The case was heard upon bill brought to subject a distillery into payment of tax upon whiskey, claimed to be a lien thereon. The tax accrued in February, 1867, while the Turners were owning and operating the distillery. It was, in the same month, removed upon transportation bonds, but was, without the payment of tax, sold in the markets. Suits were begun in September, 1867, upon the bonds, and judgment recovered thereon in March and April, 1871, for the aggregate sum of $31,533.26. In June, 1867, the Turners sold their distillery, and in April, 1868, Stoltz became the innocent owner for value. In his answer Stoltz claimed: First, that being an innocent purchaser, without notice of the alleged lien of the government, he took the premises discharged therefrom. Second, that the lien of the United States upon the distillery for tax is upon the whiskey, and was discharged by the taking of the transportation bond. Justice SWAYNE held that the provisions of section 32 of the act of July 13, 1866, upon which the claim of the plaintiff is founded, providing that the tax in question should be a lien on the interest of said distiller in the tract of land whereon the said distillery is situated from the time said spirits are distilled until said tax should be paid, is absolute and unconditional, and secures to the government a lien upon the distillery premises as against innocent purchasers without notice. The learned justice alluded to a case he had decided some years previously, in which he had held, after consideration, that the lien of the government for unpaid taxes, under the same section, upon spirits fraudulently recovered from the distillery, was good as against innocent purchasers. Decree was passed in favor of the government for sale of the property.

Union Pacific Railroad Company v. Watts.

UNION PACIFIC RAILROAD Co. v. JAMES R. WATTS.

1. The land grant to the Union Pacific Railroad Company (12 Stats. at Large, 492, sec. 3) excepts, inter alia, lands to which homestead claims had attached at the time the line of the railroad was definitely fixed: Held, that this exception did not operate in favor of a sham and fraudulent homestead claim.

2. What would constitute such a claim, illustrated.

(Before DILLON and DUNDY, JJ.)

Union Pacific Railroad Company.—Construction of Land Grant.

EJECTMENT for one hundred and sixty acres of land. No questions arise on the pleadings. The plaintiff introduced a patent for the land in dispute, dated February 23, 1871, made under the act incorporating the plaintiff, July 1, 1862 (12 Stats. at Large, 489), and rested.

Defendant was in actual possession, and claimed that this land was excepted out of the grant to the plaintiff, of July 1, 1862 (12 Stats. at Large, 492, sec. 3), because before the definite location of the plaintiff's line of road there was a homestead right thereon in favor of one Peter Hugus..

On the trial the defendant offered evidence of the filing of papers by Hugus, December 5, 1863, to obtain a homestead right under the act of Congress in that behalf. Plaintiff, in rebuttal, produced the said Hugus as a witness, who testified, in substance, as follows:

"I am same person that, on December 5, 1863, made a homestead filing on this quarter section; never made but one such filing; I had never seen this land before I made that filing; I made it as a great many others made them in those days; four of us agreed to build one house on the four corners of the section; two of them abandoned the scheme, and when they did, I gave the whole thing up, and we never went on to this land; never made any improvement upon it; I lived in Omaha then, and ever since, and

Union Pacific Railroad Company v. Watts.

never moved on to the land, and never saw it.

Afterwards,

Mr. Davis, land agent of the Union Pacific Railroad Company, called upon me, and refunded what I had paid, about $10, and I relinquished my right to the company; I never had any intention of improving this land or of moving on to or entering it; I did not know where it was, except that it was between the Elkhorn and Platte rivers; the land office at the time was in Omaha."

On cross-examination, he said: "I was a citizen of the United States, and a resident of Nebraska; I filed upon it with intention to procure it in the same manner as other people did at that time; Mr. Davis, agent of the Union Pacific Railroad Company, called upon me to relinquish; he paid me the amount I paid United States local land officers to make the filing, about $10."

The grant of public lands by Congress to the Union Pacific Railroad Company (12 Stats. at Large, 492, sec. 3), is "of five alternate sections per mile on each side of said railroad, on the line thereof, * * * not sold, reserved, or otherwise disposed of, by the United States, and to which a pre-emption or homestead claim may not have attached at the time the line of said road is definitely fixed."

Mr. Poppleton and Mr. Wakeley, for the plaintiff.

Mr. Baldwin, for the defendant.

DILLON, Circuit Judge.-The land in question is embraced in the patent to the plaintiff, introduced in evidence, dated February 23, 1871, and this gives the plaintiff the legal title thereto, unless the same was land which had been sold, reserved, or otherwise disposed of by the United States, or to which a pre-emption or homestead claim may have attached at the time the line of the plaintiff's road was definitely fixed.

Morton v. Root.

The defendant claims that the land was excepted out of the grant made by the act of July 1, 1862, because before and at the time the line of the plaintiff's road was definitely fixed, there was a homestead claim thereto in favor of one Peter Hugus.

If you find, from the evidence, that Peter Hugus never saw this land, never made any improvements thereon, and never intended to make any, or to comply with the provisions of the homestead act as to settlement, occupation, and improvement of it, and never did anything except to file an application for an entry, and that he afterwards relinquished all right to the plaintiff, then we instruct you, as a matter of law, that no homestead claim attached to the land in favor of Hugus, and that the land would be embraced in the grant to the plaintiff, made by the said act of July 1, 1862, and conveyed by the patent to the plaintiff, which has been introduced in evidence.

DUNDY, J., concurred.

NOTE.—The jury found for the plaintiff, and the court rendered judgment upon the verdict and signed a bill of exceptions.

For construction of congressional railroad land grant: Shulenburg v. Harriman, post.

MORTON V. ROOT.

1. Equity has jurisdiction to remove a cloud upon the title to real estate where there is no adequate remedy at law.

2. A sale under an execution issued upon a judgment in which the land sold had not been attached, and where there was no service upon the defendant except by publication, is void.

3. In the description of a tract of land, an omission to state the course in one call, held to be supplied and rendered certain by the remainder of the description.

(Before DILLON and DUNDY, JJ.)

Morton v. Root.

Jurisdiction.-Cloud Upon Title.-Defective Description in Deed.

THIS is a bill in equity to settle the title to certain real estate. The plaintiff in the bill alleges title in himself, derived as follows:

1. On the 27th of June, 1865, he sued Pierce in attachment in the district court of the then territory of Nebraska, for Douglas county, the writ of attachment issuing and being levied on the premises in question.

2. At the October term, 1865, judgment was entered, and also an order to sell the said lands and premises for the satisfaction of the said judgment.

3. On the 16th of May, 1868, an order of sale was issued commanding the sheriff to sell the said lands.

4. In pursuance thereof he, on the 29th of June, 1868, sold the premises to the plaintiff.

5. At the July term, 1868, the sale was confirmed by the court.

6. On the 15th day of April, 1869, the sheriff made the deed to the plaintiff.

To show an adverse claim of the defendant the bill alleges that one Glass sued Pierce in attachment; that the writ was levied on property other than that here in question, and not upon the same; that Pierce was not served therein and did not appear thereto; that after the attached property was exhausted, a general execution was issued and the premises in question sold to Glass, who conveyed to the defendant.

On the 2d of July, 1866, a deed, dated December 10, 1864, from Glass to Root, of said premises, was put upon the records of Douglas county. The defendant answers these allegations, saying that he believes them to be true, but the decree was void because it described no premises.

To support the equity jurisdiction, the plaintiff alleges that the defendant is not in possession of the premises. This the defendant denies, and alleges that at the time when