fendant now moves to remand the cause. been a settlement which extinguished all Held, Dillon, Cir. J. We have of that item save $170.09. On the comno doubt that the cause was proper-ing in of this report the Surrogate corly removed. It is one arising under rected the first report by reducing the the laws of the United States. [Rev. item to that amount, and in all other reStats. sec. 3148, act of March 3, 1875, | spects confirmed it. sec. 1, 2, 3; act of February 8, 1875, sec. 12 (18 Stats. at Large, 309): Osborn v. U. S. Bank, 9 Wheat 739.] Indeed. this last act gives this court original jurisdiction of such actions, concurrent with the state courts. Motion denied. SURROGATE. N. Y. COURT OF APPEALS. Abercrombie, admtr.. etc., applt., v. Holder, respt. Decided Nov. 30, 1875. Surrogate has the power to order a second or amended report from an auditor on an account. This was an appeal from a judgment of the General Term affirming the decree of a surrogate, settling the accounts of plaintiff, who was the administrator, with the will annexed, of H., deceased. A citation having been issued to compel him to file his account, he did so. Held, That the Surrogate had power to order the second or amended report; that in the absence of any evidence of bad faith or injustice, every intendment was in favor of the legalty of the proceedings had, and, that as no new evidence was required or taken, neither party had a right to demand a second hearing, and that therefore there was no error in the proceedings. Judgment affirmed. TAX TITLE. SUPREME COURT OF KANSAS. Though a tax deed be void upon its face, This was an action to recover certain real estate to wit:-Lot No. 2, of Block No. 2, in the City of Atchinson, Kansas. The plaintiff neglected and failed to pay his taxes on said lot, from 1860 up to the time of the commencement of this suit. In May 1862, the lot was sold to the County of Atchison for the tax of 1861. It appeared that plaintiff had credited himself with several items which were objected to, and, objections having been duly filed, the account was referred to an auditor, who, after taking evidence and hearing parties, reported in favor of the account, except as to two items. One of these items was an account for goods sold and delivered, upon which the auditor allowed $418.86. Upon motion and notice, the Surrogate made an order directing a further and amended report as to whether during the running of said account there had been a settlement between the parties and, if any, how In May, 1864, the defendant paid into much of said item was extinguished by the settlement. It did not appear that any notice of a second hearing before the auditor was given, or any additional testimony taken. The auditor made a second report to the effect that there had The taxes for these years, 1862 and 1863, were charged up against the lot. the County treasury the amount of the tax, interest and costs then due on the lot for the years 1861, 1862 and 1863, and obtained a tax sale certificate for the lot assigned to himself by the County treasurer of said County. In June, 1864, the defendant obtained the cost of such deed, and the recording a tax deed on this certificate, and had of the same, with interest on such amount the same immediately recorded in the at the rate of twenty per cent. for such County Register's office, and then took sum, and the further amount of taxes and held possession of the property. paid after the date of such deed, and inHe had also made lasting and valuable terest thereon at the rate of twenty-five improvements on the lot, and had paid per cent per annum." all the taxes accruing thereon since his supposed purchase of the County tax title. The plaintiff was the original owner of the lot in controversy. The defendant holds the same under the tax deed. The Court below held that the defendant was entitled to the occupying claimants' act, Gen. Stat. 749, sec. 601, et seq., and also of Sec. 117 of the tax law, Gen. Stat. 1057. The plaintiff claimed that the Court below erred, and took the case up for review. Held, While we think the tax deed is void upon its face and confers no title upon the defendant, yet we think the defendant is entitled to the benefit both of the occupying claimants' act, and of the provisions of Section 117 of the tax law. Although the tax deed is void upon its face, yet it takes a process of reasoning to make it apparent, and hundreds, and perhaps thousands, of just such deeds have been executed in the various counties of this State, and until the judicial decision of the Court was promulgated, announcing that such deeds were void upon their face, the whole question was considered, both by the bench and bar, as involved in considerable obscurity. The occupant of land under such deed. is entitled to the benefit of the occupying claimants' act, and we think he is also entitled to the benefit of Sec. 117 of the tax law. That Section requires "the successful claimant in an action against the party holding such tax deed, before he can be let into possession, to pay to the holder of such tax deed the full amount of taxes paid on such lands, with all interest and costs, so allowed by law, up to the date of said tax deed, including This statute was enacted in the interest of equity and justice, and its provisions should be construed as to promote justice. It is wholly unlike that class of statutes, which attempt to give the land of one man to another for an inconsiderable sum. The former is liberally construed, the latter construed strictly. The Laws under the provisions of which tax titles are created are usually construed strictly, and therefore we hold that the tax deed in this case is void. But laws enacted for the purpose of enforcing in a fair and reasonable manner upon the delinquent members of society to discharge the moral obligations resting upon them, as well as upon others, to bear their proportionate share of the public burdens, are always construed liberally, so as to promote their object, and we therefore hold that that the plaintiff, before he can recover his property, must pay to the defendant, the tax which he ought to have paid a long time ago to the public officers, and which the defendant has paid. Gulf Rail Road Co., v. Morris, 7 Kansas, 230 et seq. Sebbrum v. Challis, 15 Kansas, and cases there cited. Opinion by Valentine, J.; all the Justices concurring. court, though the statutes of the state requires certain legal proceedings, in which he might defend, before a sale for taxes can be made. This action was brought to restrain the collection of taxes by the city of Omaha upon plaintiff's lands lying within the corporate boundaries of said city, but used exclusively for agricultural purposes. Submitted upon the pleadings and agreed state of facts. The 15th proposition in defendant's brief, referred to below, is as follows: 15. The relief sought is to restrain the sale of the land for the taxes, for the sale if made, would cast a cloud upon plaintiff's title. By general statutes in force at the commencement of this suit (see Gen. Stat. page 940); after the first day of December 1873, no sales of land could be made by treasurers for taxes levied thereon prior to the year 1872. The only manner in which a sale for such taxes could be made after said date was by a decree in chancery granted by the district court of the state, after judicial proceedings had therefor in the manner pointed out by the aforesaid statute, in which proceedings every party interested would have an opportunity to be heard upon the merits and equities, and which proceedings to obtain such a decree have been duly instituted and are now pending. The effect of a decree herein, then, would be to enjoin the action of a court of competent jurisdiction from rendering a decree of sale, or hearing the rights of the respective parties therein. fence as he has, and then ask to remove his case into the federal courts. There- TENDER. N. Y. COURT OF APPEALS. Freeson et al, respts., v. Bissell, applt. Decided Nov. 9, 1875. Tender of deed in an action to foreclose an equitable lien for purchase money not necessary. Offer to perform may be made in complaint. Rule requiring tender. This action was brought to foreclose an equitable lien for the purchase money under a contract for the sale of lands. The only question raised upon the trial and presented by the exceptions was, whether a tender of a deed of the property by plaintiffs to defendant was necessary to enable plaintiffs to maintain this action. Held. That the question whether such an action could be maintained by one holding the legal title would not be considered as it was not raised in the court below; that a previous tender and demand was not necessary before suit brought, but an offer to perform could have been made in and by the complaint, and that, although the complaint here does not contain such an offer, as the objection was not made upon the trial where it could have been obviated by amendment, it cannot be raised here. Also held, that the rule requiring tender and demand before suit applies only to actions based upon a rescission of the contract or where a rescission is sought, not to an action for the enforcement of the contract. Held, Mr. Justice Miller-I am satisfiied that the case comes within the principle of Bradshaw v. Omaha, 1 Neb. 16; and that this court is bound by it. The only doubt I have had is raised by the 15th proposition of defendant's printed argument, but as the present plaintiff is entitled to come into the federal court I see no good reason why he should wait until he is sued in a state court with plaintiff's affirmed. many others, who may have no such de- Opinion by Miller, J. In the former actions it only affects the question of costs. Judgment of General Term affirming judgment at Special Term in favor of NEW YORK WEEKLY DIGEST. VOL. 1.] MONDAY, DECEMBER 13, 1875. [No. 18. ABATEMENT. U. S. CIRCUIT COURT-D. OF IOWA. Brooks vs. Mills County. A suit pending in a state court, when the Plea in abatement. The plea sets up the pendency of a prior suit upon the same subject matter, and between the same parties in the District Court for Mills County, Iowa. flicting adjudicated rights—the judgment of one court being a lien upon the defendant's property, that of the other a lien upon that of the plaintiff, and conflicting executions issued thereupon would produce "confusion more confounded," and thus bring the two jurisdictions into unseemly and dangerous antagonism. But it is claimed that the party first obtaining judgment might go into the other court and plead his judgment puis darrein in lieu of the action there pending. This remedy however might prove utterly unavailable, as judgment might be rendered the same day in each court, or so nearly at the same time as to render such a plea impossible, or the one party might suspend the judgment The question was whether or not a against himself in one court by appeal, or party may in the United States circuit otherwise, so as to prevent his successful court for any district plead in abate-adversary in the other court from making ment of a suit therein the pendency of the plea effectual. a prior suit in a State court within the same district, between the same parties, upon the same subject matter. Held. Love, J. If the Circuit Court of the United States and a state court in the same federal district may proceed at the same time to adjudicate the same matter between the same parties what results must inevitably follow? Congress has seen fit to so to frame the law as to leave the state courts in possession of concurrent jurisdiction with the United States circuit court in civil actions, and in suits between citizens of different States. Why then should the suitor be harassed with two suits at the same time upon the same subject matter before two courts of competent jurisdiction. It would therefore seem most natural and just that a plea in abatement should be allowed in order to avert consequences so mischievous. The current of authority however, so far as there is any authority upon the subject, runs in opposition to the plea. The dicta of the United States circuit judges seem to proceed upon the assumption that the two jurisdictions are foreign to each other in the same sense that the courts of independent countries and of the different States of the Union are foreign to each other. Of course, where two jurisdictions exist, exercising judicial power over wholly different territories, there can be no such m.schiefs to be apprehended as have been Two courts so proceeding and ex-pointed out flowing from conflicting ercising judicial power, within the adjudications, and divers liens and prosame territorial limits would move upon cesses of execution. Therefore no serious parellel lines with no authority to review each other's judgments, and no common superior to bring them into harmony. mischiefs could come from opposing and conflicting judgments upon the same subject matter and between the same parThe federal court might have decided ties in two or more different States of the a controversy for the plaintiff, and the Union. But the case would be otherwise state court the for defendant, creating con- | if two such hostile judgments should be rendered by competent courts exercising A stipulation that a like judgment may judicial power within the same territorial limits. Yet some of the United States circuit courts seem wholly to ignore the manifest distinction and to reason upon the subject as if the state courts and the United State circuit courts in the same states exercised jurisdictions entirely foreign to each other. be entered in a like case to that selected to be tried does not affect the appeal in the case not tried. Where the Court of Appeals reverses a judgment of the court below, in a case involving the same questions, the court below will assume, when there is no opinion in the Court of Appeals, that it held differently upon the points decided, and will grant a re-argument. Unless, however, on the re-argument it is shown that the Court of Appeals did overrule the law decided below, that court below will hold to its ruling. Motion for a re-argument on appeal. There were three cases pending against From a careful examination of numerous State authorities it does not appear that they go further than to establish the proposition that an action pending in a foreign court, or in a court of another State in the Union, or in the court of the United States in another State or the same defendant, involving precisely District cannot be pleaded in abatement, Brown v. Joy, 9 Johnson, 221; Newell V. Newton, 10 Pick, 470; Walsh v. Dunken, 12 John, 99; McTilton v. Love, 13 Ill., 486; Mitchell v. Bench, 2 Paige, 606; Salmon v. Walter, 9 Dana, 422. It is not believed that an English case can be found in which it has been held that the pendency of a suit in one of the Courts of Westminster was not a good plea in abatement to a subsequent suit in another of the Courts of Westminster of concurrent jurisdiction. See Maul v. Munz, Term Rep., 470; Imlay v. Ellison, 2 East, 453; Dillon v. Alvares, 4 Ves., Jr., 358; Foster v. Vassall, 3 Atk., 557; Bezly v. Edmunds, 3 Swanst, 703; Howell v. Walchen, 2 h. Co., 35; 2 Daniel's, Prac. 721, and Story's Equity Pleading, 41. The present case however presents no real difficulty, since it appears upon the face of the plea that the parties to the suit in the State court are not the same as the parties to the bill. The plea must therefore be overruled, and the respondents ruled to answer. Ordered accordingly. APPEAL. N. Y. SUPERIOR COURT-GENL Decided December 6, 1875, the same questions of law and fact. The case being ready for trial the attorneys stipulated as follows: * "Buttterfield v Radde. * in It is hereby stipulated and agreed by the respective attorneys that the verdict to be rendered in this cause now on trial shall control and be conclusive in the two following cases volving the same questions to wit: Mallory v. the same defendant, and Selchow, v. the same defendant, and that judgment be entered accordingly, and that the same evidence, rulings, exceptions and charges shall be considered as inserted in the same two cases as are in the above entitled cause, and shall be as of the cord in all three of these causes against Radde." re The trial resulted in a verdict for the plaintiff, which with the other two causes, were appealed separately, to the General Term, and there affirmed. The Mallory case was carried to the Court of Appeals and there reversed; but the court refused to allow appeals to be taken in the other cases, the judgments being under $500, when an application was made for that purpose. A motion was made for the re-argument of the other two appeals, on the TERM,ground of the reversal of the Mallory case. No opinion was written in the Court of Appeals. |