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Opinion of the Court.
“The statutory provisions that no sale for delinquent taxes shall be held in valid unless it be made to appear that all legal taxes were paid or tendered, and that all taxes shall be presumed to be legally assessed until the contrary is affirmatively shown (Comp. L., $ 1129), are unconstitutional so far as they sustain sales for taxes which are in part illegal.”
Counsel for plaintiff in error deny the sufficiency of the evidence produced in regard to the increase of salary by the county, above what the State allowed to the judge, or that the fact is established by competent testimony; and it is urged with much force that this attempt to show now, some fifteen or twenty years after the transaction, that the tax levy for the particular years in question did include this increased compensation, cannot be accomplished by parol testimony. We think, however, that there is enough in the bill of exceptions which is not parol, but matter found in the records of the boards of supervisors who made the tax levy, to establish the fact without any parol testimony. The records of the proceedings of this body for Marquette County were read in evidence for each of the years 1861, 1865, 1866, and 1867, the same being all that appeared therein relative to the equalization of the assessment rolls of the several townships and the action by which the rate of apportionment of the State and county taxes for each of those years was fixed. This is spread in full upon the record in the bill of exceptions. It appears that the aggregate valuation of the taxable real and personal property of the county in 1861 was determined to be $1,285, 965.50, and we then find this entry.
“ The subject of additional compensation to Judge Goodwin being under consideration, on motion of resolved that all former action of the board on this subject be rescinded and that the sum of four hundred dollars be paid to Judge Goodwin in orders on the treasurer of this county, upon his signing a receipt in full of all demands against the county on such account, up to the first day of January, A.D. 1862, such receipt to be filed with the clerk before such orders are issued.”
Then immediately follows the rate of taxation:
Opinion of the Court.
“On motion it was resolved that a tax of six and one-half mills on the dollar be raised on the taxable property of Marquette and Schoolcraft Counties for the contingent fund, to defray the general expenses of the county.”
The only parol evidence introduced which seems to have had any influence upon the decision of this question was the testimony of a witness that Judge Goodwin received this $400 from the county treasury at a time when it must have been paid out of the levy made at this time. We think that was competent, and that the date of the receipt of the money being shown the inference that it was paid out of the tax levy, which we have already recited, is sufficient.
It is also shown by the records of the board of supervisors, in regard to the levies of other years, that for the years 1865, 1866, 1867 and 1868, an illegal sum of the same character, being $350 per annum, was included in the assessment and paid over to Judge Eddie. The court left it to the jury to determine, under all the evidence which was introduced, whether, in pursuance of such resolutions, these sums were levied as a tax and for the purpose, as claimed by the plaintiff, of paying salaries to these judges. Although he refers in this connection to the additional evidence of two witnesses, Healy and Maynard, as having some influence upon the determination of this question, it is quite obvious that the proposition was established of the payment of additional compensation to these judges out of an unlawful levy of taxes, so far as the lands in question are concerned. And while the parol testimony was not necessary to show that the amount paid for that purpose was included in the tax levy for the years under which these sales were made, it was competent to show by oral testimony that these judges actually received the money out of the taxes collected under those assessments.
These are the only assignments of error which we are called to consider, and as we do not find that there was error in the matters alleged, the judgment of the Circuit Court is
No. 180. Argued February 10, 13, 1888. – Decided April 30, 1888.
The Attorney General has authority, under the Constitution, to file a bill in
equity in the name of the United States to set aside a patent of public land alleged to have been obtained by fraud or mistake, when the government has a direct interest in the tract patented, or is under an obliga
tion respecting the relief invoked by the bill. The United States are not bound by any statute of limitations, nor barred
by laches of their officers in a suit brought by them, as sovereign, to enforce a public right, or to assert a public interest; but where they are formal parties to the suit, and the real remely sought in their name is the enforcement of a private right for the benefit of a private party, and no interest of the United States is involved, a court of equity will not be restrained from administering the equities between the real parties by any exemption of the government, designed for the protection of the rights of the United States alone.
This was a suit in equity brought by the Attorney General on behalf of the United States to set aside and cancel certain patents issued in favor of Roswell Beebe, in 1838 and 1839, for about 480 acres of land upon which the present city of Little Rock, Arkansas, is partly built. Roswell Beebe having died many years ago, this suit is prosecuted against his heirs and legal representatives. It was brought in the United States Circuit Court for the Eastern District of Ar the bill having been filed on the 31st of January, 1883. The ground upon which it was asked that said patents might be set aside and cancelled was, that at the date of their issue, and for a long time prior thereto, the United States did not own the land embraced in them, but that, on the contrary, said land was legally appropriated by other persons, and was therefore segregated from the public domain; that said Roswell Beebe and others fraudulently conspired together for the purpose of securing said patents, and by false representations, pretences, and undue influence persuaded and “coerced
Statement of the Case.
the register" of the United States Land Office at Little Rock into the belief that he (Beebe) was entitled to said patents, etc.; and that by reason of said premises said patents were fraudulent and void.
The bill set out at considerable length and with much regard to details a great array of alleged facts connected with the issue of said patents, the former appropriation of the land, and the alleged fraudulent acts and practices of said Beebe with reference to said land. In substance they were as follows: That said lands were formerly a part of the Quapaw Indian reservation, but were ceded to the United States by the treaty of August 24, 1818, and thereby became part of the public domain ; that afterwards, to wit, in 1819 and 1820, they, with other lands not involved in this controversy, were located with what is known as “New Madrid Certificates issued by the recorder of land titles at St. Louis in November, 1815, under and in accordance with the provisions of the act of Congress approved February 17, 1815, entitled “ An act for the relief of the inhabitants of the late county of New Madrid, in the Missouri Territory, who suffered by earthquakes,” 3 Stat. 211, c. 45; that by virtue of said locations all of said lands were surveyed, and the surveys were returned to the recorder on the 17th of October, 1820, whereby said lands became legally appropriated by the holders and owners of said certificates, and thus severed from the mass of the public domain ; that the equitable title to said lands thus became vested in the locators of said certificates and their assigns, and was afterwards, by proper assignments and conveyances, transferred to and became vested in one W. M. O'Hara, who subsequently conveyed the lands in undivided moieties to Nathaniel Philbrook and Chester Ashley ; that in 1824 said Philbrook died intestate, seized and possessed of an undivided half interest in said lands held under the title aforesaid, and the same descended to his father, Eliphalet Philbrook, a citizen of New Hampshire, and his sole heir at law, who, dying in 1828, by last will and testament devised all of his interest in and to said lands to Thomas H. Ellison and six of his other children and grandchildren; that said devisees
Statement of the Case.
and heirs of such as are deceased have, by proper deeds, conveyed said lands to George V. Dietrich, Jabez C. Hurst, citizens of Galesburg, Illinois, and John F. Calder, a citizen of Troy, New York, in trust to apply for and obtain patents' thereto from the United States; that said trustees applied to the United States recorder of land titles at St. Louis, Missouri, for patent certificates in support of said original “ New Madrid” locations, and, on the 10th day of September, 1875, that officer issued such certificates in the names of the original locators and their legal representatives for said lands, as he was authorized to do by the said act of February 17, 1815; that afterwards said trustees made application for patents for said lands to the proper United States authorities, but that such patents were refused because of the existence of the outstanding patents issued to said Beebe as aforesaid ; that from the time of said locations, surveys, and returns in 1819 and 1820, up until the issuance of the Beebe patents in 1838 and 1839, the said New Madrid locations were the only titles to said lands, and under them the town of Little Rock was laid out and built on said lands, was duly incorporated, and contained hundreds of inhabitants prior to and at the time when said patents were issued; that said Beebe patents were issued on certain preëmption float claims, all located about the year 1838, under the provisions of the 2d section of the preëmption act of May 29, 1830, and the amendatory act of July 14, 1832; 4 Stat. 420, c. 2008; 603, c. 246; but that such preëmption locations were fraudulent and void, because the lands had already been appropriated by the New Madrid certificates, were at that time occupied and improved by actual settlers, and were consequently not subject to preëmption; that said Beebe never procured the consent of said settlers to the location of said preëmption floats, and the issue of said patents, as required and provided by the said preëmption acts and the regulations of the General Land Office, but on the contrary imposed upon the officers of the Land Department, and induced them to believe that he had complied with the law and the regulations in every respect, when in fact his every act in procuring said patents was done in violation of law and was