Cited in Stein v. Munch, 24 Minn. 394, and Blakeslee v. Rossman, 13 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 ere 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, afirming 8. O., 51 Iowa, 485, 1 N. W. 720, homestead settler could not object that grant had been forfeited by change in Une of railroad.

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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, otc., 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 tax. able before approval by secretary of interior; Tyler v. Çass County, 1 N. Dak. 382, 48 N. W. 233, rallroad lands not taxable while costs of survey remained unpaid.

Distinguished in Wisconsin Cent. R. Co. v. Taylor County, 52 Wis. 62, 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. V. Loftin, 30 Ark. 714, exemption of capital stock did not exempt


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 ton 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 neces sary in operating the road, though such lands have been mort. gaged to secure construction bonds, p. 574.

Cited and applied in New Orleans, etc., Ry. V. Parker, 143 U. S. 66, 36 L. 70, 12 8. 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 & Obio 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

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required to do and doing nothing in return, is mere oude 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 stat. utes held repealable; Grand Lodge v. New Orleans, 166 U. S. 149, 41 L. 963, 17 S. Ct. 525, reviewing cases, statute exempting Masonic bal repealable, though expenses were incurred on faith of it; State V. Maine Central, 68 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 Uability for torts, held repealable.

Distinguished in Asylum v. New Orleans, 105 U. 8. 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 ex. emption in charter.

Taxation.— Taxing power may be restrained by contract in special cases for the public good, where such contracts are not for. bidden, 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 existenco 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. 8. 666, 24 L. 1038, citing cases, silence of charter as to liability for nuisance did not exempt; Bank of Commerce v. Tennes see, 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 fadlare 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. 301, 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. 634, 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, hold-' ing 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 ea 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 taxiag 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, exemption did not pass to new corporation, formed by consolidation with company, not exempt; Boody v. Watson, 63 N. 8. 321, authority to exempt for ten years did not permit exemption for second period; Ussenting opinion in People v. Soldiers' Home, 95 Ill. 564, majority holding property permanently exempt under charter; State v. Board of Assessors, 35 La. Ann. 661, majority holding State and municipal bonds not taxable.

Taxation.- Contract in restraint of taxing power is in derogation of public right, narrows a trust created for benefit of all, and Is to be strictly construed, pp. 574, 575.

Approved in Vicksburg, etc., R. Co. v. Dennis, 116 U. S. 668, 29 L. 771, 6 S. Ct. 627, exemption of property from taxation for ten years “after completion " did not exempt before; Pennsylvania R. Co. v. Miller, 132 U. S. 84, 33 L. 272, 10 S. Ct. 37, reprinted in 129 Pa. St. 200, collecting authorities, holding company not exempted from liability for taking or injuring property; Brodie v. Fitzgerald, 67 Ark. 448, 22 S. W. 30, exemption of property used for charity did not cover property rented for its benefit; White v. Farmers, etc., Canal Co., 22 Colo. 201, 43 Pac. 1031, 31 L. R. A. 831, a contract contrary to subsequent police regulation held void.

22 Wall. 576–594, 22 L, 730, ROSS V. JONES.

Limitation of actions.- Civil war prohibited commercial intercourse, suspending right of rebel citizens to sue in Federal courts on contracts made during peace; hence statute of limitations did not run against action on note between Arkansas citizens between June 1, 1861 and April 2, 1866, pp. 586-587.

Cited and followed in Williamson v. McCrary, 33 Ark. 472, holding statute of non-claim suspended during war; Hammond v. Johnston, 93 Mo. 221, 6 8. W. 01, computing period of suspension in ejectment by citizen of Tennessee, from April 19, 1861, to April 2, 1866; Rogers v. Wentworth, 58 N. H. 318, holding statute of limitations suspended by bankruptcy proceedings; Haymond v. Camden, 22 W. Va. 189, 200, 201, holding decree enforcing vendor's lien by attachment and publication during war against rebel in favor of Northerner, void; applied in Scovill v. Shaw, 4 Cliff. 567, F. C. 12,552, holding claim against assignee in bankruptcy barred by limitation. Cited in note in 10 Am. Dec. 633, and elaborate note, 13 Am. Dec. 370.

Distinguished in Abnert v. Zann, 40 Wis. 629, holding capture of New Orleans by Federal troops removed disability to sue.

Bills and notes.- Indorser whose liability is fixed is not a surety, and he cannot require holder to pursue maker; his contract is independent, he is not primarily liable, and he cannot be joined with maker, pp. 589_593.

Approved in First Nat. Bank v. Wood, 71 N. Y. 411, 27 Am. Rep. 68 holding accommodation indorser liable where holder held secu

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