889. transfer, and often passed through the hands of many persons by an assignment in blank." In that case, one Jowell owned a land certificate as community property, and, after his wife's death, sold it to one who was a purchaser in good faith, and without notice of the community. The heirs of the wife brought suit for a portion of the land located under the certificate, and contended that the purchaser was bound to take notice of the wife's interest; but it did not appear on the record whether the certificate was issued on Jowell's own headright, or some other person's. The court held that for all that appeared, it might have been obtained in the way indicated above. "So far as the record shows," says the court, "it may have been true that Jowell purchased the certificate through a blank assignment, and that he transferred, with this assignment on it, simply by delivering it to the persons through whom the appellee claims. If so, his name would not even appear, either on the certificate or on any writing by which the transfer was made; and, in such case, a purchaser would not be put on inquiry as to the rights of other persons, unless it be of those persons who claim by inheritance from the original grantee, or some one in whom a right vested, by operation of law, at the time the certificate issued." There seems to have been an assignment of this kind of Rutledge's unconditional certificate. Two witnesses are sworn in the case who distinctly testify that they saw it, with Johnson's name inserted as assignee. One of these is C. G. Payne, of Dallas county, Tex., an attorney at law. He states that in January, 1868, he visited the land-office at Austin, to investigate some land claims and land locations in Tarrant county. While there, he examined the Rutledge claim. He says he found that two certificates had been issued to Rutledge, namely, a conditional one, upon which a survey had been made in Cass county, and an unconditional certificate, transferred by Rutledge to M. T. Johnson, and by Johnson located in Tarrant county, at Fort Worth, upon the land now in controversy, the field-notes and survey returned to the general land-office, and there filed, mapped, and platted, and the patent refused on account of the conditional certificate located in Cass county. He says that the transfer of the latter certificate from Rutledge to Johnson was written in a coarse, rough, round handwriting. The usual form of transfers of certificates was used. The substance of said transfer was an assignment of all right, title, claim, and interest of said T. P. Rutledge of, in, and to the said certificate to the said M. T. Johnson, and authority therein authorizing the commissioner of the general land-office to issue the patent to the said M. T. Johnson or to his assigns. On his cross-examination the witness says that the transfer was acknowledged before some officer authorized to use a seal, and had his certificate of acknowledgment and seal thereon. He states that he also saw the deed from Johnson to E. M. Daggett on record in Tarrant county. The other witness who testifies to having seen the assignment of the unconditional certificate from Rutledge to John son is W. H. H. Lawrence. He testifies that he was engaged in the land business at and about Fort Worth; that he had transactions with E. M. Daggett from 1873 to 1878, and examined his title papers, at his request, especially in reference to the 320acres tract, known as the "Rutledge Survey;" that this examination was made, he thinks, in 1876, and he distinctly remembers making a favorable report to Daggett after he had finished the examination. He further says: "My recollection is that among the papers I examined was the Thomas P. Rutledge certificate. I did find a transfer of such certificate to M. T. Johnson. Iam sure of this, because, had it not been present, I should have known that the title from Rutledge was defective." Being asked from whom, to whom, and the form thereof, he said: "I can only say that it was from Rutledge to M. T. Johnson, and in the usual form of transfers of such certificates.' The witness further states: "If there had been no transfer, I should have discovered it, and made a different report." To another interrogatory, he added: "I had occasion in very many cases to look up the titles of different lands in Texas, and became familiar, in the course of five years in the land business at Fort Worth, with the general laws of the state in regard to lands, as also familiar with the examination of titles." Apparently, but, perhaps, not necessarily, opposed to the hypothesis that the certificate in question was purchased by Johnson from Brinson is the evidence of Henry Beaumont, who testifies that in the winter of 1851-52 he placed a lot of land certificates, including the T. P. Rutledge certificate for 320 acres, in the hands of M. T. Johnson, for location, under a written contract, and that the certificate in question had come into his hands, with others, from a party, whose name he does not mention, who had been engaged in locating and surveying lands, and was then retiring from the business. In corroboration of this testimony, a receipt in the handwriting of M. T. Johnson was produced in evidence, a copy of which is as follows, towit: "Rec'd, Austin, March 9th, 1852, of Henry Beaumont, the following land certificates, to be located or accounted for, viz.: dated Oct. 10, 1836..... [Signed duplicate.] [Signed.] "M. T. JOHNSON. "Indorsed: 'Henry Beaumont land matters.' A duplicate of this receipt was found among Johnson's papers, after his death, by J. P. Smith, his administrator. It is somewhat difficult to reconcile this evidence with that of the other witnesses. There 989. 18, evidently, wanting some undiscovered | Daggett, became entitled to the benefit of the Rutledge survey, us a protection against all persons claiming under a title inferior thereto. But this is not the whole case. There are other points, which go to fortify the position of the defendants, which it is proper to notice. After the Childress certificate was located by Dr. Worrall, in 1868, E. M. Daggett, who had then been in possession, under the Rutledge title, for the space of 14 years, purchased in, as he supposed, the entire Childress claim. In 1868 or 1869, George R. Childress, the second son of John Childress, appeared at Fort Worth, having returned from California, where he had been residing for many years. He did not? know that his brother John was living, but supposed him dead, and that he (George) was his father's sole heir. He claimed the land in question, and Daggett compromised with him for about $300; and George gave a deed selling and relinquishing all his right and title to Daggett, in fee, with a general warranty against himself, his heirs, and all others. He afterwards went to Austin, saw Green, learned of his brother's being alive, and confirmed the arrangement made by the latter with Green, who acted therein for the benefit of Dr. Worrall. In September, 1869, Daggett also compromised the claim of Dr. Worrall, and procured a deed from him and his wife, Adaline S. Worrall. This deed is in the usual form of deeds of bargain and sale. It is dated 30th of September, 1869, recites a consideration of $300, conveys to Daggett the land in dispute by metes and bounds, as in the Childress patent, and recites that the land was the separate property of the said Adaline S. Worrall; referring to the deeds from John W. Childress to Green, and from Green to the said Adaline. The deed concluded with this habendum and warranty, to-wit: "To have and to hold, to him, the said E. M. Daggett, his heirs and assigns, forever, free from the just claim or claims of any and all persons whomsoever claiming, or to claim, the same." The deed was acknowledged before a notary public, and a certificate of said acknowledgment was made in due form, with one exception: it contains no statement that Adaline S. Worrall (the wife) was privily examined by the officer, apart from her husband. This is necessary, in order to validate a conveyance of the wife's separate property in Texas; and its absence cannot be supplied by showing that she was actually privily examined. Berry v. Donley, 26 Tex. 737; Fitzgerald v. Turner, 43 Tex. 79; Looney v. Adamson, 48 Tex. 619; Johnson v. Bry an, 62 Tex. 623. To the same effect see Elliott v. Peirsol, 1 Pet. 328, 340; Hitz v. Jenks, 123 U. S. 297, 303, 8 Sup. Ct. Rep. 143. This seems to be a fatal defect; and it is on this defect that the complainants in the cross-bills_rely. Their position is that the land was Mrs. Worrall's separate property; that she never executed any conveyance of it, according to law; and that it* was hers when she died, in November, 1870, and descended, one-half to her husband, Dr. I. R. Worrall, and one-half to her brothers and sisters, represented by William Dunlap and others. The complainants 689. *692 in the other cross-bill, Martha R. Worrall | and others, claim the other half of the property as heirs of Dr. Worrall, being his mother and his brothers and sisters. They contend that Dr. Worrall had no interest to convey when he executed the deed, with his wife, in 1869, and hence the one-half part which he inherited from his wife in November, 1870, was unaffected by that conveyance. It is true, if the deed contained a warranty, he would be estopped from claiming the land; but it is contended that the clause above recited does not amount to a warranty. It has been decided, however, by the supreme court of Texas, that words substantially such as those contained in the deed do import a general warranty. In Rowe v. Heath, 23 Tex. 618, the following words were so construed, to-wit: "For him, the said R. H., his heirs and assigns, to have and to hold forever, as his own right, title, and property, free from the claim or claims of me, my heirs, or creditors, and all other person or persons whomsoever, to claim the same or any part thereof, lawfully." In our judgment, the deed of Worrall and his wife did contain a general warranty, and the one-half part of Adaline S. Worrall's interest which descended to Dr. Worrall was carried, by estoppel, to Daggett, when Dr. Worrall inherited the same from his wife. The other questions arise on the statute of limitations. The defendants pleaded the limitations of 3 years and of 5 years and also peaceable possession for 30 years. The act of February 5, 1841, first created the limitations referred to. The fifteenth section created that of three years, declaring that "every suit to be instituted to recover real estate, as against him, her, or them, in possession under title, or color of title, shall be instituted within three years next after the cause of action shall have accrued, and not afterwards;" not computing the duration of disability from minority, coverture, or insanity; and, by "title," meaning regular claim of transfer from or under the sovereignty of the soil; I also, reserving the right of the government. The sixteenth section created the limitation of five years, declaring that "he, she, or they who shall have had five years' like peaceable possession of real estate, cultivating, using, or enjoying the same, and paying tax thereon, if any, and claiming under a deed or deeds duly registered, shall be held to have full title, precluding all claims, but shall not bar the government," and saving disabilities for non-age, coverture, or insanity. Now, supposing that the prerogative of the government prevented the statute from running until after the patent issued to the heirs of John Childress, in June, 1868, it certainly commenced to run at that time against those who claimed under the patent; and the facts present a strong case of adverse possession on the part of E. M. Daggett and his grantees. They were in full, continuous, and peaceable possession for a period, altogether, of 30 years, namely, from 1854 to 1885, when William Dunlap and others appeared as intervenors in this suit, and from 1854 to 1886, when the Worralls intervened. This possession was complete in the use, cultivation, and enjoyment of the land in dispute, and the payment of taxes thereon. It was claimed and exercised under a regular deed of conveyance from M. T. Johnson, dated 23d June, 1855, which granted and conveyed, not only the certificate of Rutledge, but the land located under it, describing and identifying the same, and which was duly registered in the records of Tarrant county, on the 30th of March, 1857. It is difficult to see why the plea of limitation of five years, at least, is not a good bar against the heirs of Adaline S. Worrall. She died November 4, 1870, and one-half of her estate descended to her husband, I. R. Worrall, who survived to the 22d September, 1871. The statute, having commenced to run against him, was not suspended by his death, and had been running more than 14 years at the commencement of the suit. The other half of Adaline S. Worrall's estate descended to her brother, John Cook, and her two sisters, Alizannah, wife of William Dunlap, and Matilda, wife of Dr. Jonas Fell. John Cook was living at Adaline's death, and survived to August, 1873. The sisters were married women when Adaline S. Worrall died; but as her disability as a married woman had already prevented the statute from running during her life-time, their disability, according to the law of Texas, cannot be added to hers. It was decided by the supreme court of Texas in the cases of White v. Latimer, 12 Tex. 61, and McMasters v. Mills, 30 Tex. 591, that one disability cannot be tacked to another, so as to prolong the disabilities beyond the continuance of that which existed when the cause of action accrued. See, also, Wood, Lim. § 251, and notes. According to this rule, the statute commenced to run at the death of Adaline S. Worrall, on the 4th of November, 1870. If this is so, as we think it is, the complainants in the crossbills are barred by the statute of limitations. The new statute of limitations contained in the Revised Statutes, which went into effect on the 1st day of September, 1879, do not materially differ, so far as its application to the present case is concerned, from the old statute of 1841; and it is explicit in declaring that "the period of limitation shall not be extended by the connection of one disability with another." Article 3225, Rev. St. In our judgment, the statute of limitations is a complete bar to the claims set up by the complainants, both in the original and in the cross bills, whether we are right or not in regard to the validity of the Rutledge title. The decree of the circuit court is affirmed. CASE V. KELLY et al. (January 6, 1890.) (133 U. S. 21) CORPORATIONS-RIGHT TO HOLD LAND. 1. As no general statute of Wisconsin authorizes corporations to hold lands without regard to their uses, a railroad company incorporated by Laws Wis. April 12, 1866, c. 540, authorizing it to acquire lands for railroad purposes, and 100 feet in width for right of way, and the land necessary for depots and other railroad buildings, and for purposes connected with the use of the road, cannot maintain an action to recover lands granted to it, where they are to be used for purposes not specified in the act of incorporation. 9. Where there is no general law authorizing a corporation to hold land for indefinite purposes, it will not be held to have a right to maintain an action for such lands, because its act of incorporation is a private one, of which the court cannot take judicial notice, and which was not brought to the attention of the court by the pleadings and proof. 3. Though an act private in its nature may not be changed by legislative declaration into a public one, the legislature may provide that after the passage and publication of any law the courts of the state shall take judicial notice of it, without it being pleaded or proved, which enactment would be binding on the federal courts in that state. 4. Though the federal courts may hesitate to declare against a title to lands, held without authority of law, on the principle that the matter concerns the state alone, they will not aid a corporation to violate a state law, and obtain a title which it has no authority to hold. 5. Where a defendant admits that he holds land in trust for plaintiff, there is no reason why, in an action to recover title and possession, a court of equity may not require plaintiff to pay him for his improvements on the land. 6. The question as to whether defendants shall be left in possession of property fraudulently acquired, and for which they gave no consideration, cannot be raised by a plaintiff who has no right to take the land. Appeal from the circuit court of the United States for the eastern district of Wisconsin. Action by Timothy Case, receiver of the Green Bay & Minnesota Railroad Company, against David M. Kelly and others, to recover lands alleged to belong to the company. On the hearing in the circuit court, Mr. Justice HARLAN delivered the following opinion: 66 The chief object of this action is to have a decree adjudging that the title held by the defendants Kelly, Ketchum, and Hiles to certain tracts of land lying along and covering the line of the Green Bay & Minnesota Railroad Company be surrendered to the company, or to the receiver of this court. The lands are all in different tracts. At Seymour there are, altogether, about 18 acres, the different parcels conveyed, respectively, by Henry Robbins, Sally Munger, S. W Munger, and Fred Muhl. At Manana station there are 100 acres, conveyed by Marquis Wood; at Black Creek station, 8 acres, conveyed by Thomas Burdick et al.; at Merrillan station, about 30 acres, conveyed by B. H. Merrill; at Blair station, 40 acres, conveyed by E. Thurston; at Whitehall station, about 250 acres, conveyed by D. W. Wade; at Arcadia station, 204 acres, conveyed by Isaac Briggs. The depot of the company at each station is within the boundary of tract, the title of which is held by the defendants, or some of them. The theory of the suit is that the several tracts were, in fact, donations by the several grantors to the railroad company, with a view as well to aid in the construction of the road as for the purpose of securing the location of the respective tracts and depots, whereby the grantors expected to derive benefit; that the defendants, in view of their relations to the railroad company, at the time of the donations, as well as at the time the various deeds were executed, were forbidden by the law to take the title to themselves; that taking the title to themselves, under the circumstances, discloses a fraud as well upon the company as upon the grantors, and in violation of the intentions of the donors. There is some conflict among the witnesses; but, after a careful review of all the evidence, I find it impossible to resist the conclusion that all the transactions with the grantors, so far, at least, as the defendants Kelly and Ketchum are concerned, were had and concluded upon a basis of donations to the company. That impression, the proof reasonably establishes, was intended by Kelly and Ketchum to be made upon the grantors; that they used their relations to the company and its property to induce the grantors to believe that their donations were, in effect, to be and for the benefit of the company. I do not think they should be allowed to hold title as against the company. Their doing so is forbidden by the plainest principles of public policy. The question arose, at the threshold of this case, as to the extent of relief to which the company or its receiver is entitled here. As we have seen, the claim of the receiver is to obtain title to numerous tracts of land, aggregating nearly 650 acres. The company, by its charter, (section 1,) is made capable of acquiring, for its legitimate use for railroad purposes, a fee-simple in lands, tenements, or easements in the same, and of conveying such interest or estate. By its charter (section 10) it is further authorized and empowered, through its officials, engineers, and agents, to enter upon any lauds for the purposes of locating the route of its railroad; and, the route being located, it is authorized and empowered, by its officials, agents, and servants, to enter upon, take possession, occupy, and use any land along and including the line of its road, not exceeding 100 feet in width. It was further empowered, at any time, to enter upon, take possession, occupy, and use any other lands, beyond the limits of 100 feet, which shall be necessary for its use, for the purposes of erecting depot buildings, stopping stages, station-houses, freight-houses, warehouses, engine-houses, and machineshops; or for buildings or factories of any kind, or grounds to be used for such build. ings, houses, or factories, for the operation of the business of the road; or for the purpose of removing such substructures and things as injure, obstruct, or interfere with the free use of the road; or for the purpose of making deep cuts or excavations; or for the purpose of depositing earth, gravel, stones, or other materials for embankments, structures, or superstructures necessary to, or for the construction, completion, alteration, maintenance, preservation, and building operations of, said road. The charter of the company further declared that all the private property which the corporation was authorized by its charter to take was declared to be taken for public use. Confessedly, the company does not need, and cannot use, for railroad purposes, but a very small part of these lands. It clearly had no power to condemn land for any purposes except those named in its charter; at is, for legitimate use for railroad purposes. Land, when condemned for railroad purposes, is deemed to be taken for public use. It may well be doubted whether the legislature can authorize a cor MILLER, J.* The Green Bay & Minnesota Railroad Company being in the hands of a receiver, namely, Timothy Case, in the circuit court of the United States for the eastern district of Wisconsin, in a suit by the Farmers' Loan & Trust Company to foreclose a mortgage on said railroad, said receiver was directed by the court to take possession of all the property, real and personal, of said company, namely, its roadbed, lands, right of way, and all its other property and rights whatsoever, with authority to bring suits, in the name of the railroad company, as he should be advised by counsel to be necessary. Under this order, Mr. Case, as receiver, brought the present suit, stating that he sues in behalf of said railroad company, and as receiver, the defendants David M. Kelly, Henry Ketchum, and George Hiles, and the Arcadia Mineral Spring Company, a corporation created by the laws of the state of Wisconsin. The allegations of the bill are that the defendants Kelly,*Ketchum, and Hiles, who were officers of the railroad company during its period of construction, had procured numerous donations of land from citizens who were interested in the con poration to condemn land for any other appellee. Geo. H. Noyes, for George Hiles, than railroad purposes. The company, un-appellee. questionably, had no right to buy or condemn land for mere speculative or farming purposes. The application, therefore, to this court, is for its aid in investing the company with the title to land which it never could have lawfully condemned, and the title to which, consistently with its charter, it never could have received. The court will not lend its aid to that end. Its duty to refuse it is none the less imperative because some of the defendants used their official relations to the company to acquire the title for themselves to these lands. Had the several grantors made conveyances directly to the company, its title, although it may have been acquired in violation of its charter, could not, perhaps, have been questioned collaterally, or otherwise than by the state, in some appropriate proceeding for that purpose. The difference between the supposed case and the one now before us shows the inapplicability of the rule announced in Mathews v. National Bank, and the authorities therein cited. But, while relief sought could not be granted to the full extent asked by the receiver, he is entitled to relief to the extent of such portions of each tract contiguous to the depots as may be necessary for the company's use for legitimate railroad pur-struction of the road, along its line, intendposes, including, of course, right of way and depot grounds. But the case has not been prepared with the view to the determination of such questions. It must therefore go to the special master, to hear additional proof, and report as to the quantity and boundary required by each station, right of way, depot grounds, and for other legitimate railroad purposes, as defined and limited in the charter of the company. Whether the defendant Hiles was deterred, by any relation which he held to the company, from taking title for himself to any of these lands, we have not found it necessary to consider. Upon the argument in this case, we understood his counsel to announce that he had already executed, or would execute, proper deeds to cover right of way, depot grounds, and land for other proper railroad purposes, covering land the title to which was in whole or in part in him; reserving, however, any claim he had for improvements, or for money paid on the original purchase. Some question arose on the argument as to whether defendants are not entitled to be reimbursed for sums paid by them for the portion of these lands, and also for compensation for improvements made by them, or either of them, on the lands, the title to which they may be required to surrender for depot grounds, or other railroad purposes. The determination of that question is reserved until coming in of the master's report, when the court will be better advised than it now is as to the facts connected with such expenditures. As to all tracts of land described in the bill, except such portions thereof as the company was entitled under its charter to condemn and hold for legitimate railroad purposes, the bill is dismissed. The necessary order of reference will be prepared and entered." Walter C. Larned and H. B. Turner, for appellant. E. H. Ellis, for David M. Kelly, | ed to be for the use and benefit of the railroad company, and to assist it in such construction. The fundamental allegation of the bill is that these defendants, representing to the persons who made the donations that they were officers of the road, and soliciting these grants for the benefit of the road, took the conveyances to themselves individually; that they did this in a fraudulent manner, by making the grantors in the conveyances believe that they, as the officers of the company, could receive the conveyances for the benefit of the road; and that either the grantors did not really know to whom the conveyances were made, or were induced to believe that when made the grantees held the lands as a trust for the benefit of the road. These defendants not recognizing this trust, and the conveyances on their faces being merely conveyances to the individuals, either separately or collectively, to-wit, to Ketchum, Kelly, and Hiles, who now refuse to convey to the company, or to admit its right to the lands, this suit is brought to have a declaration of the trust made by the court, and a decree ordering conveyances by the defendants of the land to the corporation. It is further alleged that the mortgage in process of foreclosure in the court under which Case is acting as receiver covered all the lands of the corporation, and would cover these lands, if the title of the corporation in them was established. The defendants Kelly, Ketchum, and Hiles filed answers, in which they denied all fraud or deception, denied that they held the lands in trust for the railroad company, and denied the right of plaintiff to any relief. A decree, for want of an answer, was taken pro confesso against the Arcadia Mineral Spring Company. Replications were filed to the answers. The case was put at issue as regards the three principal defendants, and an immense mass of testimony, document |