gave him the right to redeem. Duboise v. Hepburn, 10 Pet. 1, 9 L. Ed. 325; Corbett v. Nutt, 10 Wall. 464, 19 L. Ed. 976; Schuch v. Gerlach, 101 Ill. 338. In Schuch v. Gerlach, supra, it is said:

"Redemptions are looked upon with favor, and, when no injury is to follow, a liberal construction will be given to our redemption laws, to the end that the property of the debtor may pay as many of the debtor's liabilities as possible."

This view would seem to be applicable to the redemption laws of Montana. Under it the opera house company was enabled to pay, not only the judgment obtained against it by O'Rourke on one of his causes of action, but also the amount claimed to be due under the remaining one. If, however, this position should not be sustained, it is evident that both Bender and Forbis intended to redeem from the sale to King, if the redemption of O'Rourke was ineffectual. Their notices of redemption are addressed to Silas F. King, as well as the opera house company and O'Rourke. In said Bender's notice. it is recited:

"That he is entitled to redeem said property from said sale [that is, from the sale to King], and from said redemptioner John O'Rourke, and in accordance therewith, within one year after said sale, and within sixty days after said redemption by said John O'Rourke, upon the 27th day of December, 1898, has paid to P. H. Regan, sheriff of Silver Bow county, for said redemptioner John O'Rourke, the sum of $1,201.12, the amount paid or to be paid to said Silas F. King."

The notice of redemption of the redemptioner Forbis is also, addressed to the opera house company, Silas F. King, P. H. Regan, sheriff, John O'Rourke, and J. O. Bender. In this notice it is claimed that he has a right to redeem from the sale made to King and from the redemptions of O'Rourke and Bender, and that he has paid to the sheriff the sum of $2,669.59, making a total of $1,201.12, the amount to be paid to said King, purchaser, together with $585 claimed by said O'Rourke as an attachment creditor, together with 2 per cent. on both of said sums, together with $795.40 claimed by Bender as a judgment creditor, together with 2 per cent. As it will be seen, the money paid by all of these parties, claiming to be redemptioners, was to the sheriff, and all recite that $1,201.12 is to be paid to King, and seek to protect him to the full extent of his legal rights. Under the doctrine announced in Perkins v. Center, 35 Cal. 713, a court of equity would treat the money paid to the sheriff to have been paid for the benefit of King. It was undoubtedly the intention of all of the parties that the amount due King should be paid to and remain in the hands of the sheriff for said King. I therefore have come to the conclusion that there was a proper and valid redemption made from the sale to King, unless the amount paid in was insufficient by reason of the failure to pay the amounts claimed by King on account of tax-sale certificates. To hold otherwise would require the strictest construction of the proceedings for redemption in such cases.

Prior to the redemptions hereinbefore referred to, the property in controversy had been assessed for certain state, county, and city taxes. The taxes became due and were delinquent. Not having been paid, the property was advertised for sale in pursuance of law,

111 F.-5

and sold for said delinquent taxes assessed against the same. At these sales said King became the purchaser, and certificates of sale were executed and delivered to him. It is contended for said King that as the holder of these certificates of sale for delinquent taxes he became and was a creditor of said opera house company, having a prior lien, and that in order to effect a valid and legal redemption it was necessary for and said redemptioners were required to pay to him the amount named in these certificates of sale, in addition to the amounts due him on account of his purchase of the property under the sale under execution, and, having failed or neglected to pay or tender said additional amounts so claimed to be due him, no valid redemption of said property from said sale under execution was effected. It therefore becomes an important question for the consideration of the court. Were the redemptioners required to pay, as a part of the redemption money, the amounts claimed to be due King on his certificates of purchase of the property under these tax sales? For solution of this question resort must be had to section 1235 of the Code of Civil Procedure of Montana, which reads as follows:

"The judgment debtor, or redemptioner, may redeem the property from the purchaser any time within one year after the sale, on paying the purchaser the amount of his purchase, with 1 per cent. per month thereon in addition up to the time of redemption, together with the amount of any assessment or taxes which the purchaser may have paid thereon after purchase, and interest on such amount, and if the purchaser be also a creditor having a prior lien to that of the redemptioner, other than the judgment under which such purchase was made, the amount of such lien, with interest." It will be observed that the amounts named in these certificates were not the amounts paid by King when these taxes became due, but upon a sale of the property at a delinquent tax sale. These certificates of sale created a lien upon the property, which lien, under the provisions of the statutes of Montana, could only be discharged in a particular way. In sections 3890 and 4871 of the Political Code it is provided:

"Sec. 3890. Redemption must be made in lawful money, and when paid to the county treasurer he must credit the amount paid to the person named in the county treasurer's certificate, and pay it on demand to the person or his assignees."

"Sec. 4871. The city or town treasurer has the same power to collect municipal taxes as the county treasurer has to collect state and county taxes, and has the same right to give notices, add penalties, seize and sell property for delinquent taxes, to give deeds to purchasers, and to do everything that a county treasurer might do in the premises, as provided in chapter 7, tit. 10, pt. 3, of this Code, except that he must make settlements with the city or town council, and all property sold for delinquent taxes must be bid in for the city or town."

For property sold for state and county taxes, and for property sold for city taxes, the money is to be paid to the county or city treasurer, as the case may be. A payment to the sheriff would not be a compliance with this statute. In a redemption from a tax sale, the statute must be strictly pursued, or no redemption will be effected. It cannot, therefore, be maintained that a requirement to repay the taxes paid by a purchaser under an execution sale and holding the certificate of sale applies to a case where the property

has been sold at public sale for delinquent taxes. It appears from the evidence that the complainant, Bender, subsequently and within the time allowed by law for the redemption of property sold for delinquent taxes, paid to the proper officials the money required to redeem this property from these tax sales; but the purchase of the property at these delinquent tax sales was not a payment of the taxes under most of the authorities. Such a purchase is not a payment of taxes, but a purchase of a new lien, independent of the estate acquired in the property under a sheriff's sale under execution. 2 Jones, Mortg. pp. 36, 37, § 1080; Cooley, Tax'n, pp. 500-509; 2 Desty, Tax'n, p. 932; Ror. Jud. Sales, § 1162; Williams v. Townsend, 31 N. Y. 411; Sidenberg v. Ely, 90 N. Y. 264, 43 Am. Rep. 163; Jones v. Wells, 31 Mich. 170; Insurance Co. v. Bulte, 45 Mich. 113, 7 N. W. 707; Waterson v. Devoe. 18 Kan. 232; Kelsey v. Abbott, 13 Cal. 619; Allison v. Corson (C. C.) 83 Fed. 752; Society v. Davidson, 38 C. C. A. 365, 97 Fed. 716; Kofoed v. Cosbey (Cal.) 54 Pac. 1115. The conclusion reached is that the redemptioners were not required to pay to the sheriff, for said King, the amounts named in the several certificates of sale for delinquent taxes, with interest thereon, in order to effect a legal and valid redemption of the property under the statute.

It was also contended that the defendant King was a "creditor" of the opera house company, having a lien prior to that of the redemptioners; that he became a creditor of said opera house company by the purchase of its property at said delinquent tax sales, which sales are specified in the certificates heretofore referred to. Was he a "creditor," within the meaning of this section of the statute, by reason of having purchased said property at tax sales? I hold that he was not, and this view is supported by the following authorities: Iowa Homestead Co. v. Des Moines Val. R. Co., 17 Wall. 1153, 21 L. Ed. 622; Osterberg v. Trust Co., 93 U. S. 424, 23 L. Ed. 964; Abidie v. Lobero, 36 Cal. 398; Trust Co. v. Weiss, 118 Cal. 489, 50 Pac. 697; Williams v. Townsend, supra; Raynsford v. Phelps, 43 Mich. 342, 5 N. W. 403, 38 Am. Rep. 189. A purchaser of property at an execution sale does not become, by this act, a creditor of the defendant in the cause in which the execution was issued. A purchaser at a tax sale can have no greater right to claim that he is a creditor of the defaulting taxpayer than a purchaser at an execution sale as above described. The purchaser at a tax sale obtains the lien of the state as against the particular property sold, and does not obtain the assignment of a personal debt.

The complainant being a redemptioner under the statute, and having effected a valid and legal redemption of the property of the opera house company from the execution sale to King, and being entitled to the conveyance to him of the legal title therein, the question arises as to what was embraced within that redemption that would pass to him as a part and parcel of the realty upon a conveyance of the legal title. The evidence shows that the building erected upon this land was erected, constructed, and used as an opera house from the very beginning, and that it is still used for that purpose; that it is suitable and adapted for and to such purposes, and could not well be

used for other purposes without considerable changes and alterations in its interior arrangement and condition as it now stands and is used; that it contains a stage and stage fixtures, and appliances to facilitate the expeditious handling of scenery during theatrical performances, a large amount of theatrical scenery, a drop curtain, and also a number of opera chairs and seats attached to the floor by means of screws and nails. The scenery in question was attached to the stage only as needed, and is capable of being moved about without injury to the stage and stage fixtures or to itself, and for the most part was lodged or stored in certain storerooms in the basement of said building. The defendant Murray claims that all of these articles were and are personal property, and owned by him. In his testimony he claims to have acquired a title to the chairs above mentioned by a purchase thereof from one John Maguire, who prior to such purchase owned the same. He fixes the time at which he made this purchase at a date in 1893, and asserts that at that time he paid off and discharged a chattel mortgage upon the same. held by one John O'Rourke. The evidence shows, however, that said O'Rourke, under a contract with said Maguire, canceled his chattel mortgage upon said chairs some time in the early part of the year 1891, and that said Murray had no connection with this transaction. Giving the testimony of said Murray all the credit it would be legally entitled to, still, taking into consideration the facts, as disclosed by the evidence of said Murray, that he made a redemption from the judgment owned by the First National Bank of Butte in order to protect a small judgment which had been assigned to him, and that he never did actually pay any money or other valuable thing to said Maguire by means of this redemption from the said bank, as a consideration for the alleged sale of these chairs, and that said Maguire retained the possession of the same for a long time. after the alleged sale, I do not feet warranted in adjudging him to be the owner of said chairs.

True, there is a disclaimer of ownership of the chairs on the part of the opera house company, and an averment that said Murray is the owner of them. There was also introduced in evidence the resolution of the board of trustees or directors of the opera house company to the effect that Murray be allowed a monthly rental for these chairs, etc. But, after a consideration of all the evidence as a whole, it definitely appears that this was all done at a time when said Murray, by purchase or otherwise, had obtained control of a majority. of the stock of the corporation; that he elected a majority or all of the trustees or directors of said corporation; that the trustees acting at the time said resolution was adopted were all of them in some way identified with Murray's interest and subject to his control. Maguire was his agent, Chapman was a clerk in his bank, and O'Donnell was his attorney. So far as the record shows, none of the minority stockholders of the corporation were present, or represented in this transaction, and their rights do not appear to have been considered or deemed worthy of consideration. The corporation was heavily involved in debt. The transaction as a whole appears to have been colorable and suspicious, and I am unwilling

to consider it as a corroboration of Murray's claim of ownership by purchase of the property. It does not commend itself as entitled to much weight, and is not conclusive as evidence of Murray's ownership. Then there is the further uncontradicted evidence that a lease in which this very same property is described was negotiated by said Murray with the defendant McFarland. This lease was executed by and in the name of the Grand Opera House Company. Murray was cognizant of the fact that the opera house company was being held out to said McFarland as the owner of this property. He stood by and helped to clothe the opera house company with the apparent ownership and title to this very property to a stranger to its title. It seems to me that, if said Murray is not precluded from repudiating the good faith of his acts and conduct in the premises, it goes far to weaken his claim of ownership to the property. The same may be said with reference to the answer and disclaimer of the opera house company in the premises. It executed a lease of this property to McFarland. Presumably lessor and lessee acted in good faith at the time, and both ought in equity and good conscience to be bound by it; but notwithstanding it executed the lease in due form and in writing, and held itself out to a stranger as the owner of the property, it comes into a court of equity and solemnly denies that it is now or ever was the owner of the property now claimed by said Murray. This is remarkable, to say the least. Then, again, we have the remarkable circumstance of Murray, having negotiated this lease for the Opera House Company as the owner of the property, repudiating the whole transaction by notifying the receiver that he (Murray) is the owner and entitled to the possession of this property, and must either pay rent therefor or surrender its possession, and threatening its removal in default thereof; and all this in the face of the fact that the tenant under the lease was in good faith complying with the terms and conditions of his lease, and had not made default in any of its covenants. If it was the property of the opera house company for the purposes of a lease thereof to McFarland, and that lease in full force at the time, why should it change. its character of title and ownership so soon after the receiver was appointed? These facts are all of them inconsistent with Murray's testimony as to his claim of ownership. I find, therefore, that said Murray never purchased said chairs as he claims, and that he is not the owner thereof.

At the time said chairs were placed in said opera house, Maguire owned said house and purchased said chairs for use in the same. For a time O'Rourke held a chattel mortgage upon the same; but when this mortgage was canceled the full legal title to the chairs passed to Maguire. They then undoubtedly became fixtures in said building. It is clear from the evidence that the Grand Opera House would have been incomplete as an opera house without these chairs; and these chairs, or similar chairs, were absolutely necessary in its use and occupation for theatrical performances; and said chairs, affixed as they were, became and were a part of the building itself, and passed to King in virtue of the sheriff's deed to the premises. The case of Insurance Co. v. Allison (C. C. A.) 107 Fed. 179, is direct