800, 301, mortgage void, where sales were continued on behalf of mortgagor by tacit consent; McKibbon v. Brigham, 18 Utah, 83, 84, 55 Pac. 67, mortgage invalid, though net proceeds were to be applied on debt; Byrd v. Forbes, 3 Wash. Ter. 328, 13 Pac. 717, where sales were to be "for sole use and benefit of mortgagee;" Blakeslee v. Rossman, 43 Wis. 124, where one-half proceeds were left to mortgagor's disposition; First Nat. Bank v. Knowles, 67 Wis. 387. 28 N. W. 230, trust deed of personalty fraudulent; dissenting opinion in Frankhouser v. Ellett, 22 Kan. 152, majority sustaining mortgage authorizing sale with net proceeds to apply on debt. Cited also in notes in 99 Am. Dec. 550, 31 Am. Rep. 180, and 15 Am. St. Rep. 914, 915.

Distinguished in People's Sav. Bank v. Bates, 120 U. S. 561, 30 L. 756, 7 S. Ct. 681, holding terms of mortgage contemplated no such result; Etheridge v. Sperry, 139 U. S. 272, 273, 275, 35 L. 174, 175. 11 S. Ct. 567, 568, mortgage valid where net proceeds of sales were paid to mortgagee; Huntley v. Kingman, 152 U. S. 533, 535, 38 L. 543, 14 S. Ct. 691, reviewing authorities, assignment for beneft of certain of creditors, reserving surplus, valid; Argall v. Seymour, 4 McCrary, 56, 57, 58, 48 Fed. 548, 549, 550, mortgage not void because mortgagee did not at once take possession; Miller v. Jones, 17 Fed. Cas. 323, 324, where mortgage contemplated no such result, retention and sale of goods did not make it fraudulent; Morse v. Riblet, 22 Fed. 502, and Hills v. Stockwell, 23 Fed. 436, under ruling of State court fraud in such case held question of fact; Maish v. Bird, 22 Fed. 577, 578, 579, 580, mortgage sustained where proceeds of sales were to be applied on the debt; First Nat. Bank v. Lindenstruth, 79 Md. 139, 47 Am. St. Rep. 368, 28 Atl. 808, mere retention of possession did not render mortgage fraudulent; Eph- raim v. Kelleher, 4 Wash. 250, 251, 252, 253, 256, 29 Pac. 987, 988, 989, 18 L. R. A. 618, 620, 621, 622, 624, 625, and n., reviewing cases, and sustaining mortgage where part of proceeds were to be applied on debt and part to replenishing stock. Criticised in Lister v. Simpson, 38 N. J. Eq. 441, reviewing cases, mortgage, with power to sell in usual course, not per se void. Criticised in note in 15 Am. St. Rep. 915.

Bankruptcy. A mortgage, void as to other creditors, held void as to assignee of bankrupt mortgagor, p. 526.

Cited in In re Gurney, 7 Biss. 416, F. C. 5,873, where assignee avoided unrecorded bill of sale; Lane v. Innes, 43 Minn. 142, 45 N. W. 6, where assignee maintained action to set aside fraudulent conveyance.

Bankruptcy.- If holder of chattel mortgage, on its face vold as to creditors, seizes the goods within forbidden time, transaction is in violation of preference clause of bankrupt act, p. 527.

Cited in Stein v. Munch, 24 Minn. 394, and Blakeslee v. Rossman, 43 Wis. 127, taking possession under fraudulent mortgage did not remove taint.

22 Wall. 527-576, 22 L. 805, TUCKER v. FERGUSON.

Public lands.- When public lands are granted to State in aid of construction of railroads, subject to revert upon company's fall ure to perform certain conditions, and such lands have been transferred to the company by the State, default may be asserted by United States only, p. 571.

Approved in Grinnell v. Railroad Co., 103 U. S. 744, 26 L. 458, affirming S. C., 51 Iowa, 485, 1 N. W. 720, homestead settler could not object that grant had been forfeited by change in line of railroad.

Taxation.-State cannot tax public lands while title is in United States, nor while holding them as trustee for United States, p. 572. Approved and applied in Van Brocklin v. Tennessee, 117 U. S. 168, 169, 29 L. 851, 6 S. Ct. 679, 680, reviewing authorities, land sold to United States for tax imposed by Congress, exempt; Hussman v. Durham, 165 U. S. 147, 41 L. 665, 17 S. Ct. 254, citing cases, tax sale of land, while title was in United States, invalid; Sioux City, etc., R. Co. v. County of Osceola, 43 Iowa, 321, assessments, levied while State held lands in trust, were void; Jackson v. La Moure County, 1 N. Dak. 238, 46 N. W. 449, indemnity selections not taxable before approval by secretary of interior; Tyler v. Cass County, 1 N. Dak. 382, 48 N. W. 233, railroad lands not taxable while costs of survey remained unpaid.

Distinguished in Wisconsin Cent. R. Co. v. Taylor County, 52 Wis. 52, 8 N. W. 834, lands granted to State, to aid construction of railroad, taxable when patented.

Mortgages. Where mortgage contains warranty, legal title, as fast as acquired by mortgagor, inures to mortgagee, p. 573.

Mortgages. If mortgage does not contain warranty, and land, and not title of mortgagor, was conveyed, mortgagor is barred by estoppel from setting up after-acquired title, and the estoppel runs with the land, p. 573.

Approved in note in 49 Am. Dec. 231.

Taxation. Where Congress has granted lands to State to aid in construction of railroads, and State in execution of trust has transferred her entire title to company, whose title has been com pleted, such lands may be taxed by State, p. 572.

Cited and applied in West Wisconsin Ry. Co. v. Supervisors, 93 U. S. 595, 597, 23 L. 814, 815, to same effect; St. Louis, etc., Rys. . Loftin, 30 Ark. 714, exemption of capital stock did not exempt VOL. VIII-35

such lands from taxation; Sioux City, etc., R. Co. v. County of Os ceola, 43 Iowa, 321, lands similarly held taxable from time company's right was complete; State v. Railroad Co., 89 Mich. 491, 51 N. W. 105, where State was estopped to deny company's right to lands involved in principal case; Mobile, etc., R. Co. v. Moseley, 52 Miss. 134, 135, charter exemption did not cover lands such as mentioned in rule; Wisconsin, etc., R. Co. v. Taylor County, 52 Wis. 54, 55, 8 N. W. 834, 835, reviewing authorities, such lands taxable as soon as patented; Wisconsin, etc., R. Co. v. Price County, 64 Wis. 591, 594, 595, 26 N. W. 97, 99, 100, reviewing authorities, such lands taxable while patent was withheld because of erroneous construction of law.

Taxation.- Imposition of taxes can in no just sense be said to be a diminution of value of lands, p. 573.

Approved in Mobile, etc., R. Co. v. Moseley, 52 Miss. 135, charter exemption did not cover real estate not necessary, and used in actual business of road.

Taxation.- Liability to taxation is an incident to all real estate, exemption is the exception, p. 573.

Approved in Mobile, etc., R. Co. v. Moseley, 52 Miss. 135, exemp tion did not cover land not necessary, and used in actual business of company; Courtney v. Missoula County, 21 Mont. 592, 55 Pac. 859, State lands sold, but not fully paid for, held taxable; Tyler v. Cass County, 1 N. Dak. 383, 48 N. W. 234, assessor not liable for tax sale of railroad lands not taxable.

Taxation. Statute imposing specific tax on "cost of railroad and its equipments and appurtenances," in lieu of all other taxes, has no relation to lands owned by the company, not used nor necessary in operating the road, though such lands have been mortgaged to secure construction bonds, p. 574.

Cited and applied in New Orleans, etc., Ry. v. Parker, 143 U. S. 56, 36 L. 70, 12 S. Ct. 368, reviewing authorities, "appurtenances," in mortgage, did not cover subsequent grant of lands by Congress; Pearsall v. Great Northern Ry., 161 U. S. 665, 40 L. 844, 16 S. Ct. 710, reviewing authorities, where charter authorized consolidation generally, and subsequent act limited it to non-parallel lines; Ford v. Delta, etc., Co., 164 U. S. 667, 41 L. 592, 17 S. Ct. 232, reviewing authorities, exemption of capital stock, property and effects did not cover such lands; Brodie v. Fitzgerald, 57 Ark. 449, 22 S. W. 30, exemption of property used for charity did not cover property rented for its benefit; Mobile & Ohio R. Co. v. Moseley, 52 Miss. 134, 135, charter exemption held not to cover lands granted by Congress to aid construction.

Taxation. Statute exempting certain property of railroad company from taxation for period of years, the company not being

required to do and doing nothing in return, is mere nude pact, which may be kept, changed, or recalled at pleasure, p. 574.

Approved and relied upon in West Wisconsin Ry. Co. v. Supervisors, 93 U. S. 595, 597, 23 L. 814, 815, and Manistee, etc., Co. v. Commissioners, 118 Mich. 351, 76 N. W. 634, cases similar on the facts; Railway Co. v. Loftin, 98 U. S. 565, 25 L. 224, similar statutes held repealable; Grand Lodge v. New Orleans, 166 U. S. 149, 41 L. 953, 17 S. Ct. 525, reviewing cases, statute exempting Masonic hall repealable, though expenses were incurred on faith of it; State v. Maine Central, 66 Me. 501, reviewing authorities, corporation formed by consolidation did not take benefit of exemption favor of one consolidating company; Appeal Tax Court v. Grand Lodge, 50 Md. 429, reviewing cases, statute exempting Masonic temple held subject to modification; Holly Springs, etc., Co. v. Marshall County, 52 Miss. 291, 24 Am. Rep. 674, holding State might change rate of tax fixed previously to company's incorporation; State v. Mayor, 50 N. J. L. 69, 11 Atl. 148, and State Board v. Paterson, etc., R. Co., 50 N. J. L. 451, 14 Atl. 613, both holding an exemption in charter did not amount to contract; Railroad v. Alsbrook, 110 N. C. 162, 14 8. E. 658, exemption of "main line" did not extend to branch roads acquired; Pennsylvania R. Co. v. Bowers, 124 Pa. St. 192, 16 Atl. 838, 2 L. R. A. 623, statute limiting company's lability for torts, held repealable.

Distinguished in Asylum v. New Orleans, 105 U. S. 368, 26 L. 1130, exemption contained in charter held binding; County Commrs. v. New Mexico, etc., Ry. Co., 3 N. Mex. 137 (99), 2 Pac. 381, exemption held not repealable where railroad was built in reliance upon the statute; Worth v. Wilmington, etc., R. Co., 89 N. C. 299, 45 Am. Rep. 686, tax on gross receipts held to violate contract of exemption in charter.

Taxation.-Taxing power may be restrained by contract in special cases for the public good, where such contracts are not forbidden, p. 575.

Approved, but contract held not to exist, in State Board v. Paterson, etc., R. Co., 50 N. J. L. 450, 14 Atl. 612.

Taxation.-Taxing power is vital to functions of government, and every reasonable doubt should be resolved against existence of contract in restraint of it, p. 575.

Cited and principle applied in West Wisconsin Ry. Co. v. Supervisors, 93 U. S. 597, 23 L. 815, gratuitous exemption might be revoked before expiration of its period; Fertilizing Co. v. Hyde Park, 97 U. S. 666, 24 L. 1038, citing cases, silence of charter as to liability for nuisance did not exempt; Bank of Commerce v. Tennessee, 161 U. S. 146, 40 L. 649, 16 S. Ct. 460, collecting cases, where exemption of capital stock did not exempt surplus; Wells v. Mayor,

107 Ga. 3, 32 S. E. 670, refusing to imply exemption from failure to exercise right to tax; Appeal Tax Court v. Baltimore Academy, 50 Md. 447, where, pursuant to reservation of right to amend, immunity from taxation was removed; Esser v. Spaulding, 17 Nev. 801, 30 Pac. 897, certificates of indebtedness not contracts to pay out of first money in fund; Dow v. Railroad, 67 N. H. 48, 36 Atl. 534, reviewing, at length, authorities on surrender of legislature's right of repeal; State Board v. Paterson, etc., R. Co., 50 N. J. L. 449, 14 Atl. 612, citing cases, holding exemption in charter subject to right of repeal reserved; Lee v. Sturges, 46 Ohio St. 159, holding shares of stock in foreign corporation taxable; Pennsylvania R. Co. v. Miller, 132 U. S. 84, 33 L. 272, 10 S. Ct. 37, reprinted, 129 Pa. St. 200, silence of charter did not exempt company from injury incident to enlargement of its works; State v. Anderson, 90 Wis. 562, 63 N. W. 748, refusing to imply exemption from legislature's silence as to details of assessment; Yates v. Milwaukee, 92 Wis. 358, 66 N. W. 250, exemption from " taxation" did not exempt from special taxes, under local statute.

The following cases approve the rule, but hold that there was a valid contract to exempt: Farrington v. Tennessee, 95 U. S. 686, 24 L. 560, collecting cases, charter provision for tax on each share of stock, held exclusive; People v. Hall, 8 Colo. 495, 9 Pac. 39, holding county warrants receivable for taxes; State v. Whitworth, 8 Lea, 607, land held exempt in hands of purchaser. Approved in dissenting opinion in People v. Soldiers' Home, 95 Ill. 564, majority holding property permanently exempt under charter.

Taxation.- Where contract in restraint of taxing power exists it is to be rigidly scrutinized, and never permitted to extend, either in scope or duration, beyond what terms of concession clearly re quire, p. 575.

Approved and principle applied in Newton v. Commissioners, 100 U. S. 561, 25 L. 712, reviewing authorities, statutes establishing county seat at certain place held no contract; Vicksburg, etc., R. Co. v. Dennis, 116 U. S. 668, 29 L. 771, 6 S. Ct. 627, affirming S. C., 34 La. Ann. 956, exemption of property for certain time from completion of road did not exempt it during construction; St. Louis, etc., Rys. v. Loftin, 30 Ark. 711, exemption of capital stock did not exempt lands granted in aid of construction; Memphis, etc., R. Co. v. Berry, 41 Ark. 446, exemption did not pass to purchaser at foreclosure sale; Commissioners v. Colorado Seminary, 12 Colo. 500, 21 Pac. 491, exemption of property used exclusively for seminary purposes covered only buildings, campus, etc.; Northwestern University v. People, 80 Ill. 335, 22 Am. Rep. 189, reviewing authorIties, legislature had no power to exempt property of university held for profit merely; State v. Maine Central, 66 Me. 497, exemp tion did not pass to new corporation, formed by consolidation with