proper, without consulting the former owner of the state court, observed that what was or anyone else. For after the forfeiture had said in McClure v. Maitland, as to the landbecome complete, as it had in the case before owner not being entitled of right to be made us, the former owner had no more claim to or a party to the proceeding instituted for the lien upon the land than one who never had sale of forfeited lands for the benefit of the pretended to own it. In the exercise of this school funds, had reference to the then existperfect dominion over her own property the ing act which was changed by the act of 1882. state saw proper to transfer and vest her title Answering the suggestion that the proceedto so much of said land owned by her, in ings under the new law were not judicial, the any person, other than those who occasioned court said: "Now, why, with parties plaintiff the default, as such person may have been and defendant, process, pleading, hearing be in the actual possession of, or have just title tween the parties, decree, etc., it is not, if not to, claiming the same, and was not in default technically a chancery suit, yet a suit, I canfor the taxes thereon chargeable to him. . . . not see; a suit under a special statute, it is The laws, as we have shown, by their own true, but none the less a suit. So, substanforce, transferred to and vested the title to tially, it was regarded in Hays v. Camden's the land absolutely in the state without any Heirs, 38 W. Va. 109, 18 S. E. 461. Proceedjudicial inquiry or inquest of any kind. ings at rules take place as in ordinary and [432]There could therefore be no necessity or rea-common-law suits. In some places it is called

sen for proceeding in rem against the land. a 'suit.' But I know that it is said by those
That had already become the absolute prop- holding the other view that the question is
erty of the state, and she had a perfect right not to be tested by the circumstances, such
to sell it without further inquiry. All the as I have alluded to, the presence of pleading,
laws providing for the sale of these lands pre-process, hearing, etc., but it must be tested
supposed the title to have vested in the state by the nature of the proceeding; that is, that
prior to the commencement of the proceed- it is only an administrative process by the
ings. In fact the whole authority of the com-state, through an officer and court, to realize
missioner and the jurisdiction of the court money on its own property. But to this I
are based upon the assumption that the un-reply that though the state might make the
conditional title is in the state; for unless proceeding such, and did in its acts up to
such is the fact neither has any authority to 1882, yet by its act in 1882 it changed the
act. Twiggs v. Chevallie, 4 W. Va. 463. proceeding from one ex parte to one inter
And all the right, title, and interest of the partes, and clothed the proceeding with all
former owner having been completely devest- the habiliments of a suit; and still it did not
ed, he has not a particle of interest in the proceed against the land, taking the act of
land-no more than if he had never owned forfeiture as a concession, and simply at once
it; there is therefore no possible reason for sell the land, but it subjected its right and
making him a party or proceeding against title under the supposed forfeiture to ques-
him in personam or otherwise. The proceed- tion and investigation under the law through
ing is of necessity, then, neither in rem nor a suit, called in all interested adversely to
in personam; and as all judicial proceedings its claim, and gave them leave to contest its
properly so styled must belong to either the right, and made its claim the subject of liti-
one or the other of these classes, it follows gation."
that this is not and cannot be in any technical
sense a judicial proceeding."

It thus appears that under the statutes of
West Virginia in force after 1882 the owner

It is said that this shows that the taxpay-of the forfeited lands had the right to become er, after his land is forfeited to the state, is left by the statutes of West Virginia without any right or opportunity, by any form of judicial proceeding, to get it back or to prevent its sale, and, therefore, it is argued, he is absolutely devested of his lands solely by reason of his failure to place them on the proper land books.

a party to a judicial proceeding, of which he was entitled to notice, and in which the court had authority to relieve him, upon terms that were reasonable, from the forfeiture of his lands.

An answer to this view is, that what was said in McClure v. Maitland, on this point, had reference to proceedings under the act of November 18, 1873 (Acts 1872-73, p. 449, chap. 134), which were not judicial in their nature but administrative. But, as declared in Hays, Com'r, v. Camden's Heirs, 38 W. Va. 109, 110, the act of 1873 was so amended by the act of March 25, 1882 (Acts W. Va. 1882, p. 253, chap. 95), as to make the proceeding in the circuit court for the sale of forfeited lands, in which the owners or claimants could intervene and effect a redemption of their lands from forfeiture, a judicial proceeding. This view was reaffirmed in Wiant v. Hays, Com'r, 38 W. Va. 681, 684, in which Judge (433]Brannon,*delivering the unanimous judgment 171 U. S. U. S., Book 43.

*It is said that the landowner will be wi [434] out remedy if the commissioner of the scho fund should fail to institute the proceeding in which the statute permitted such owner to intervene by petition and obtain a redemption of his lands from the forfeiture claimed by the state. It cannot be assumed that the commissioner will neglect to discharge a duty expressly imposed upon him by law, nor that the courts are without power to compel him to act, where his action becomes necessary for the protection of the rights of the landowner.

It is further said that a forfeiture may arise under the Constitution of West Virginia despite any effort of the landowner to prevent it; that although the owner may direct his lands to be entered on the proper land books, and that he be charged with the taxes due thereon, the custodian of such 15


failure of those who owned or claimed to own
large tracts of lands, patented in the last cen-
tury, or early in the present century, to put
them on the land books, so that the extent
and boundaries of such tracts could be easily
ascertained by the officers charged with the
duty of assessing and collecting taxes.
Where the tract was a small one, the proba-
bility was that it was actually occupied by
someone, and its extent of boundary could

ment and taxation. We can well understand
why one policy could be properly adopted as
to large tracts which the necessities of the
public revenue did not require to be prescribed
as to small tracts. The judiciary should be[436)
very reluctant to interfere with the taxing
systems of a state, and should never do so
unless that which the state attempts to do,
is in palpable violation of the constitutional
rights of the owners of property. Under this
view of our duty, we are unwilling to hold
that the provision referred to is repugnant to
the clause of the 14th Amendment forbidding
a denial of the equal protection of the laws.

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books may neglect to perform his duty. Thus, | it is argued, the lands may be forfeited by reason of the landowner not having been, in fact, charged on the land books with the taxes due from him, although he was not responsible for such neglect. We do not so interpret the state Constitution or the statutes enacted under it. If the landowner does all that is reasonably in his power to have his lands entered upon the land books and to cause himself to be charged with taxes there-be readily ascertained for purposes of assesson, no forfeiture can arise from the owner not having been "charged on such books" with the state tax. The state could not acquire any title to the lands merely through the neglect of its agent having custody or control of its land books. Any steps attempted to be taken by the officers of the state, based upon such neglect of its agent, the taxpayer not being in default, would be without legal sanction, and could be restrained by any court having jurisdiction in the premises. We go further, and say, that any sale had under the statute providing for a sale, under the order of court, for the benefit of the school fund, of lands alleged to be forfeited by reason of their not having been charged on the land books for five consecutive years with the state tax due thereon, would be absolutely void, if the landowner was not before the court, or had not been duly notified of the proceedings, but had done all that he could reasonably do to have his [435]lands entered on the proper books and to cause himself to be charged with the taxes due thereon. If the state was not entitled to treat them as forfeited lands, that fact could be shown in the proceeding instituted for their sale as lands of that character, and the rights of the owner fully protected. In the present case, it does not appear that any evidence was offered tending to show that the absence from the land books of any charge of taxes on the lands claimed by the plaintiff during five consecutive years after their redemption by Randall, trustee, in 1883 was due to any neglect of the officers of the state, or that the plaintiff, or those under whom he asserts title, entered or attempted to enter the lands upon the land books, or that he or they caused or attempted to cause the lands to be charged with taxes thereon. But there was evidence tending to show that the requirements of the Constitution were not met during any of the years from 1883 to the bringing of this action. So far as the record discloses, it is a case of sheer neglect upon the part of the landowner to perform the duty required of him by the Constitution and statutes of the state.

For the reasons stated, we hold that the
system established by West Virginia, under
which lands liable to taxation are forfeited to
the state by reason of the owner not having
caused to be placed,
them placed, or
on the
during five consecutive years,
land books for taxation, and
caused himself to be charged with the taxes
thereon, and under which, on petition re-
quired to be filed by the representatives of
the state in the proper circuit court, such
lands are sold for the benefit of the school
fund, with liberty to the owner, upon due
notice of the proceeding, to intervene by pe-
tition and secure a redemption of his lands
from the forfeiture declared by paying the
taxes and charges due upon them, is not in-
consistent with the due process of law re-
quired by the Constitution of the United
States or the Constitution of the state.

Another point made by the plaintiff in error is that the provision of the Constitution of Virginia exempting tracts of less than 1,000 acres from forfeiture is a discrimination against the owners of tracts containing one thousand acres or more, which amounts to a denial to citizens or landowners of the latter class of the equal protection of the laws. We do not concur in this view. The evil intended to be remedied by the Constitution and laws of West Virginia was the persistent

Having discussed all the points suggested by the assignments of error which we deem it necessary to examine, we conclude this opinion by saying that as neither the plaintiff nor those under whom he claims title availed themselves of the remedy provided by the statutes of West Virginia for removing the forfeiture arising from the fact that, during the years 1884, 1885, 1886, 1887, and 1888, the lands in question were not charged on the proper land books with the state taxes thereon for that period or any part thereof, the forfeiture of such lands to the state was not displaced or discharged, and the circuit court properly directed the jury to find a verdict for the defendants. The plaintiff was entitled to recover only on the strength of his own title. Whether the defendants had good title or not the plaintiff had no such interest in or claim to the lands as enabled him to maintain his action of ejectment. We concur in what the aupreme court of appeals of Virginia said in a case recently decided: "In[ 437) an action of ejectment the plaintift must recover on the strength of his own title, and if it appear that the legal title is in another,

171 U. S

Liverpool Sailing Shipowners' Mut. Indemnity Association, L. R. 19 Q. B. Div. 242; Canada Shipping Co. v. British Shipowners' Mut. Protection Association, L. R. 23 Q. B. Div. 342; The Ferro [1893] P. 38; The Glenochil [1896] P. 10.

In the case, cited by the appellant, of Dobell v. The Steamship Rossmore Co. [1895] 2 Q. B. 408, 414, the ship was unseaworthy at the time of sailing, by reason of the cargo having been so stowed against an open port that the port could not be closed without removing a considerable part of the cargo; and Lord Esher, M. R., upon that ground, distinguished that case from the decision of the circuit court of appeals in the present case. Judgment affirmed.

ning of her voyage. The Carib Prince, 170 | closing the iron covers of the ports, it was U. S. 655 [42: 1181]. a fault or error in the navigation or in the But the contention that the Silvia was un- management of the ship. This view accords seaworthy when she sailed from Matanzas with the result of the English decisions upon is unsupported by the facts. The test of sea- the meaning of these words. Good v. Lonworthiness is whether the vessel is reasona- don Steamship Owners' Mut. Protecting As bly fit to carry the cargo which she has un-sociation, L. R. 6 C. P. 563; The Warkworth, 465]dertaken to transport. *The portholes of the L. R. 9 Prob. Div. 20, 145; Carmichael v. compartment in question were furnished both with the usual glass covers and with the usual iron shutters or deadlights; and there is nothing in the case to justify an inference that there was any defect in the construction of either. When she began her voyage, the weather being fair, the glass covers only were shut, and the iron ones were left open for the purpose of lighting the compartment. Although the hatches were battened down, they could have been taken off in two minutes, and no cargo was stowed against the ports so as to prevent or embarrass access to them in case a change of weather should make it necessary or proper to close the iron shutters. Had the cargo been so stowed as to require much time and labor to shift or remove it in order to get at the ports, the fact that the iron shutters were left open at the beginning of the voyage might have rendered the ship unseaworthy. But as no cargo was so stowed, and the ports were in a place where these shutters would usually be left open for the admission of light, and could be speedily got at and closed if occasion should require, there is no ground for holding that the ship was unseaworthy at the time of sailing. Steel v. State Line Steamship Co. L. R. 3 App. Cas. 72, 82, 90, 91; Hedley v. Pinkney & Sons Steamship Co. [1892] 1 Q. B. 58, 65, and [1894] A. C. 222, 227, 228; Gilroy v. Price [1893] A. C. 56, 64.

The third section of the Harter act provides that "if the owner of any vessel transporting merchandise or property to or from any port in the United States of America shall exercise due diligence to make the said vessel in all respects seaworthy and properly manned, equipped, and supplied, neither the vessel, her owner or owners, agent or charterers, shall become or be held responsible for damage or loss resulting from faults or errors in navigation or in the management of said vessel." 27 Stat. at L. 445.


JAMES A. BRIGGS, Executor of Charles M. Briggs, Deceased, Plff. in Err., AMANDA M. WALKER, and Ohio Valley Banking & Trust Company, Administrator of the Estate of A. L. Shotwell, Deceased.

(See S. C. Reporter's ed. 466-474.) Federal question-act of Congress for the relief of an estate.



A Federal question is presented by the determination of a state court as to whether the right given by act of Congress to the "legal representatives" of a person is for the benefit of his next of kin, to the exclusion of his creditors, or not.

An act of Congress for the relief of the estate of a person, and referring to the court of claims a claim of his "legal representatives," makes the recovery on such claim assets of his estate and subject to his debts and liabilities. [No. 260.]

17, 1ა98.

This provision, in its terms and intent, includes foreign vessels carrying goods to or Submitted April 25, 1898. Decided October from a port of the United States. The Scotland, 105 U. S. 24, 30 [26: 1001-1003]; The Carib Prince, above cited.

IN ERROR to the Court of Appeals of the Not only had the owners of the Silvia ex- State of Kentucky to review a judgment of ercised due diligence to make her seaworthy, that court amrming a judgment of the Cirbut, as has been seen, she was actually sea- cuit Court of Jefferson County in said state worthy when she began her voyage. in a suit brought against James A. Briggs, [466] *This case does not require a comprehen- executor, to which Amanda M. Walker and sive definition of the words "navigation" and others were parties in favor of defendants "management" of a vessel, within the mean- Walker and Shotwell for certain sums of ing of the act of Congress. They might not money, and adjudging that moneys in the include stowage of cargo not affecting the hands of Briggs as executor be applied to fitness of the ship to carry her cargo. But the payment of these sums, and of a further they do include, at the least, the control, dur- sun due from Moorehead to Briggs. On ing the voyage, of everything with which the motion to dismiss the writ of error or to vessel is equipped for the purpose of protect-affirm the judgment. Judgment affirmed. ing her and her cargo against the inroad of See same case below, 19 Ky. L. Rep. 1490, the seas; and if there was any neglect in not 43 S. W. 479.








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