LOUDON v. SPELLMAN. (Circuit Court of Appeals, Eighth Circuit. April 12, 1897.) No. 773. 1. TAX SALES-FORFEITURES-REDEMPTION FROM STATE. The statute of Arkansas (Sand. & H. Dig. § 4596) relating to redemption of lands forfeited for nonpayment of taxes, by application to the commissioner of state lands, applies only to lands which remain in the hands of the state, and not to those which have been sold or donated by the state. 8. SAME-REDEMPTION FROM DONEE OR PURCHASER. The statute of Arkansas (Sand. & H. Dig. § 2595) providing that no action shall be maintained for the recovery of lands forfeited for nonpayment of taxes against a purchaser or donee of the state, without a previous affidavit of tender to such person of the amount of taxes paid and the value of improvements made by him, does not apply where a bill in equity is filed for the redemption of lands by one claiming an undivided share thereof. In such a case a tender is impracticable, and the right must be determined upon equitable principles. Appeal from the Circuit Court of the United States for the Eastern District of Arkansas. Charles Cummings Collins and C. S. Collins, for appellant. Before SANBORN and THAYER, Circuit Judges, and LOCHREN, District Judge. LOCHREN, District Judge. The bill of complaint in substance alleges that complainant is the owner in fee of an undivided five-ninths of the tract of 80 acres of land described in the bill, deriving his title from his grandfather, who died testate in 1841, and through the complainant's mother, who was one of the devisees under the will of the grandfather, and heir of another devisee, and who died in 1873, when the complainant was less than two years old. The bill also avers the sale of the land to the state of Arkansas, June 10, 1873, for the delinquent taxes of 1872, amounting, with penalty, to $43.20, which sale is alleged to have been void, because it included a tax for interest on levee bonds, assessed at 16 cents per acre, instead of being assessed upon a valuation of the land, as required by the constitution of the state of Arkansas, and because of irregularities stated. It avers also that the county clerk, after expiration of the period of redemption, certified the tract to the state land commissioner, who placed the same on record, and offered it for sale or donation, as the property of the state, and that on December 18, 1875, one J. Redwood procured a certificate of donation of said tract from the land commissioner, and made proof of improvements, and obtained a donation deed of the tract in due form; and that after his death his heirs transferred their title and the possession of the tract to defendant, who has since been in possession of the land; that complainant arrived at full age on the 22d day of November, 1892, and that he had no means of knowing the amount of taxes that may be due the defendant, in order to make tender of the same; and he prays that he may be permitted to pay such taxes as may be due the defendant, and that he may be allowed rent, and have writ of possession, and that the donation deed may be declared a cloud on his title, and removed as such, and for general relief. A general demurrer to the bill, alleging want of equity, and that complainant has an adequate remedy at law, and that the bill does not show that complainant had filed with the clerk of the court an affidavit of tender to the defendant of all taxes, interest, and the value of improvements, was sustained by the circuit court, on the ground that complainant had a complete and adequate remedy at law by applying to the commissioner of state lands to redeem the lands in controversy, under the provisions of section 4596 of Sandels & Hill's Digest, which reads as follows: "All lands and town or city lots, or parts thereof, which have been or may hereafter be forfeited to the state for non-payment of taxes, which belong to minors, femmes covert, persons of unsound mind, and persons in confinement at the date of forfeiture, may be redeemed by such persons by application to the commissioner of state lands within the limitation now prescribed by law, and upon the terms and in the manner now provided by law, or that may hereafter be prescribed by law." Section 6615 of the same Digest provides that redemption from tax sales may be made by minors, insane persons, etc., within two years after the expiration of such a disability. Section 2595 of the same Digest provides that no person shall maintain an action for the recov ery of any lands, or for the possession thereof, against a person holding such lands under a purchase at a tax sale, or purchase from the state of land forfeited for the nonpayment of taxes, or person holding the land under a donation deed from the state, unless before issuing the writ he shall file in the office of the clerk of the court in which the suit is brought an affidavit setting forth that the claimant has tendered to the person holding such land, his agent or legal representative, the amount of taxes first paid for said lands, with interest thereon from the date of payment thereof, and all subsequent taxes paid by the purchaser, with interest thereon, and the value of all improvements made on such land by the purchaser, his heirs, assigns, or tenants, after the expiration of the period allowed for the redemption of lands sold for taxes, and that the same have been refused. From the reading of these several provisions of the Arkansas statutes, it seems quite clear that the complainant could not have redeemed the land in controversy by applying to the commissioner of state lands, under the provisions of section 4596 of Sandels & Hill's Digest, above quoted, and that such section only applies to the case of lands which remain forfeited to the state for nonpayment of taxes. In such case only the state is interested in the matter of the delinquent taxes, and consequent forfeiture, and the land commissioner, on behalf of the state, can certify the redemption on the terms prescribed by law. But when such lands have been purchased from or donated by the state, the state ceases to be interested in the matter of the delinquent taxes, and only the purchaser or donee, or persons holding under and through him, have such interest; and section 2595 then applies. The state land commissioner has no longer jurisdiction, nor any data upon which to act. He cannot determine upon the value of improvements, for instance, nor issue any process to put the redemptioner in possession 80 F.-38 of the land. The complainant therefore had no remedy in this case by means of application to the state land commissioner. This is a bill to redeem, and a redemption of land through the intervention of a court is equitable in its nature, its effect being, ordinarily, to devest an outstanding legal title, upon the payment of what is due to the holder of such title. In Arkansas a donation deed is prima facie evidence of good title in the donee. Radcliffe v. Scruggs, 46 Ark. 96. And the plaintiff's suit to redeem is an affirmance of the tax title, and an election to defeat it by complying with the law governing such case, and the right of minors to redeem, may, in that state, be enforced in equity. Bender v. Bean, 52 Ark. 132, 12 S. W. 180, 241. The most serious question is whether the bill to redeem can be maintained without filing the affidavit of tender provided for by section 2595, Sand. & H. Dig., above referred to. The language of that section forbids the maintenance of an action to recover the lands, or for the possession thereof, without filing such affidavits of tender. The theory seems to be that such tender of itself effects the redemption, so that the redemptioner may thereupon maintain an action of ejectment, and he is not allowed to maintain that kind of action without such affidavit of tender. The section does not, by its terms, forbid the maintenance of a suit to redeem. And the supreme court of Arkansas holds that suits to redeem may be maintained, where that right remains because of the minority of the plaintiff, in cases where actions by the same plaintiffs for the recovery of the land have failed. Sims v. Cumby, 53 Ark. 418, 14 S. W. 623; Anthony v. Manlove, 53 Ark. 423, 14 S. W. 624. Even if such tender could be held requisite in ordinary cases, where the redemptioner claimed the entire land, and would become entitled to the whole upon paying the amount of all taxes, costs, interest, and the value of improvements, it would be impracticable, in a case like this, where the complainant claims only an undivided five-ninths of the land, and has the right to redeem only that five-ninths, and there is no existing right of redemption in the owners of the other four-ninths interest. He ought not to be compelled to pay the whole amount of such taxes, interest, and costs, and the entire value of all the improvements, as a condition to the exercise of his right to redeem his undivided partial interest in the land. Neither could he take from the defendant, by such re demption, his right to the four-ninths, in respect to which there is no outstanding right of redemption, and to which the complainant has no claim of title. And if it be a fact, as alleged, that the original tax sale was void because of including taxes not levied in accordance with the provisions of the constitution, that may effect the liability of the complainant to pay amounts which are in the nature of penalties. Douglass v. Flynn, 43 Ark. 398. Section 2595 of said Digest is not applicable to a case of this kind. It must be settled upon principles of equity, making practicable the existing right of redemption, and adapted to the unusual circumstances of the case. The decree appealed from is reversed, with costs, and the cause remanded for further proceedings. TRUSTS-DISPUTE AS TO CONTINUANCE-APPOINTMENT OF RECEIVER. When there is a dispute among the parties to a suit as to the continued existence of a trust, the court will not appoint a new trustee, on a preliminary motion, though all parties concede the need for some one to protect the trust property, but will reserve that question for the final hearing; but it will appoint a receiver to hold and protect personalty pending the suit, and, where there is real property out of the jurisdiction, and all persons interested are parties, will direct the heirs of a deceased trustee to convey to such receiver, leaving it to the court in the jurisdiction where the land lies to determine whether the receiver thereby acquires sufficient title to manage and protect the property. Charles W. Gauld, Arthur C. Rounds, Charles Bulkley Hubbell, and William L. Snyder, for plaintiff. William Pinkney Whyts, for defendants. LACOMBE, Circuit Judge. The decision of this motion lies with. in a much narrower compass than the argument. The situation is this: A trust was created by written agreement of individuals. By virtue of such trust, one Coe, now deceased, held certain property, real and personal. The personal property is in this district; the real estate is in Oregon. The legal title to such real estate at Coe's death was in him. All parties interested in such trust, or in its continuance, or in its funds, are parties to this suit. Complainant asked the court to appoint a trustee to continue the administration of the trust. Defendants resisted the application, contended that the trust terminated on the death of Coe, and that the property should be distributed to those entitled to it. This court refused to pass upon the question whether or not the trust had terminated, upon preliminary application, reserving it for final hearing. The personal property in this district, however, was in the possession of the executors of Coe, who wished to be relieved from its custody. An order was therefore made appointing a receiver of such property, to hold the same until termination of the suit. It now appears that the real estate in Oregon needs some one to conserve it pending this litigation; that portions of it have been, or are about to be, sold for taxes; and that portions of it could be rented if some one had authority so to do. The Oregon courts seem powerless to act, for the reason that nearly all the parties reside elsewhere, and no suit has been brought there. The receiver's appointment here gives him no title to the Oregon lands. Inasmuch as no statute of Oregon to the contrary is shown, it may be assumed that the legal title to the real estate there passed to Coe's children, to be held by them until a new trustee might be appointed, or the property turned over to the beneficiaries. The children of Coe do not wish to be burdened with this property, and there is no reason why they should be. No new trustee should be appointed until it is determined at final hearing whether or not there is any trust to administer, but in the meanwhile there should be some one authorized to look after the prop erty. It is suggested that a conveyance by the children of Coe to the receiver will give him sufficient authority, which would be recognized in Oregon. If it be the law in Oregon that the heirs at law of a deceased trustee succeed to the legal title of real estate held by him, and that, upon their declination to act, the court, all parties being present, may, by proper decrees, effect a conveyance of the trust estate to a new trustee, it would seem that the court would have abundant authority to place such estate in the hands of a temporary trustee, to wit, its receiver, until it determined whether a permanent new trustee should or should not be appointed. If, on the contrary, as complainant contends, it be the law of Oregon that the legal title to such real estate as a decedent may die seised of does not pass to his heirs when impressed with a trust, or that upon their declining to act as trustees it ceases to be in such heirs, and is thenceforth in nubibus, undoubtedly such conveyance from the heirs of Coe to the receiver will give him nothing. But it is not thought that this difficulty will be found to exist. Certainly this court should do what it can towards preserving the trust funds, and whether its orders and the conveyances under them will give the receiver sufficient authority in Oregon to hold and manage the real estate must eventually be decided by the courts in the state where the land is situated. The heirs of Coe therefore are directed to convey to the receiver, as prayed in the petition. Complainant concedes the desirability of having some one appointed to look after the Oregon real estate, and, since he has not moved in that state, he evidently assumes that this court has such power of appointment. The fundamental difficulty with his prac tice, however, is that he expects this court to decide the main question in dispute upon affidavits on preliminary hearing, to hold that there is an existing trust, and to appoint a trustee, whereas it is the uniform practice in this district not to decide such questions on motion, but to reserve them for final hearing on pleadings and proofs, the court meanwhile merely preserving the status quo by injunction, receiver, or otherwise. Motion granted in the main action. A bank, on receiving certain notes as a special deposit, issued a certificate for the amount thereof, made out on a printed form, from which the words "in current funds" were erased, and "in certain notes" substituted. The certificate was marked "Special deposit." Having been transferred, this certificate was sent by the holder to the bank for payment. The notes had not then been collected, and the teller was directed by the cashier to return the certificate; but, as the signature was torn, he was instructed to prepare and transmit a duplicate certificate. In doing so, he carelessly omitted to change the printed form by erasing "in current funds," and substituting "in certain notes." Held, that there was no ground for a claim that the second certificate was given in payment for the first; that it was |