he entered into a stipulation with other at- | Livingston v. Bell, 3 Watts, 201; Phippen v. taching creditors, of whom there were a Durham, 8 Gratt. 464; Bump, Fraud. Conv. large number, whereby it was agreed that 4th ed. § 420, p. 437. this interplea should be considered as filed in every suit, and, virtually, that the result of the interpleader proceedings in the suit of J. M. Robinson & Co. should control all other suits. The property was, after its attachment, sold under order of court, pur suant to statutes governing such proceedings, and at such sale realized the sum of $7,900.

If courts did not undo the ruling which was opposed to their better judgment, they nevertheless limited and qualified it by holding that the condition for a release was permissible only in a general, and not in a partial, assignment.

Thomas v. Jenks, 5 Rawle, 221; Green v. Trieber, 3 Md. 11; Gadsden v. Carson, 9 Rich. Eq. 252, 70 Am. Dec. 207; Gordon v. Cannon, 18 Gratt. 387; Rankin v. Lodor, 21 Ala. 380; Nightingale v. Harris, 6 R. I. 321.

And some cases even went to the extent of holding that the conditional assignment was invalid, unless it appeared upon its face to be a conveyance of all the property of the assignor.

Barnitz v. Rice, 14 Md. 24, 74 Am. Dec. 513.

A demurrer to the interplea was filed and sustained by the court, from which order King sued out a writ of error from the United States court of appeals. He gave no supersedeas bond, however, and the fund was, by order of the court, distributed pro rata to the attaching creditors according to their priorities. The court of appeals reversed the judgment on the demurrer, and on September 19, 1895, Robinson & Co. filed their answer to the interplea, denying that The legislatures in Maine, New HampKing was owner by virtue of the deed of as-shire, Pennsylvania, Vermont, and Alabama signment, and alleged the same to be fraud- undid what the courts had not the courage ulent and void; denied that King filed a to undo. complete inventory; denied that certain personal property described in the deed of assignment was the property of the wife of Belt, and admitted that the property described in the deed was seized under the attachment.

The trial on the interplea was had before a jury, and resulted in a verdict in favor of the interpleader, which found the attached property to be the property of King, as assignee. A judgment was thereupon entered in his favor, which was subsequently affirmed, first, by the court of appeals for the Indian territory, and then by the circuit court of appeals for the eighth circuit. Whereupon a writ of error was sued -out by Robinson & Co. from this court.

Mr. David Goldsmith argued the cause and filed a brief for plaintiffs in error:

Courts have vigorously assailed the insolvent debtor's right to exact a release in an assignment for the benefit of his creditors, and have declared assignments of that character fraudulent and void.

Wakeman v. Grover, 4 Paige, 23, 11 Wend. 187, 25 Am. Dec. 624; Hubbard v. McNaughton, 43 Mich. 220, 38 Am. Rep. 176, 5 N. W. 293; Miller v. Conklin, 17 Ga. 430, 63 Am. Dec. 248; Ingraham v. Wheeler, 6 Conn. 277; Duggan v. Bliss, 4 Colo. 226, 34 Am. Rep. 80; Brown v. Knox, 6 Mo. 302; Conkling v. Carson, 11 Ill. 503; Howell v. Dixon, 21 Fla. 413; Sperry v. Gallaher, 77 Iowa, 107, 41 N. W. 586; Atkinson v. Jordan, 5 Ohio, 293, 24 Am. Dec. 281; Wilde v. Rawlings, 1 Head, 34; Ware v. Wanless, 2 Wyo. 144; Hafner v. Irwin, 23 N. C. (1 Ired. L.) 490.

Courts which, in deference to prevailing practices and conditions, had sustained assignments of this character, afterwards recognized the fallacy of their ruling, and regretted their inability, under the doctrine of stare decisis, to change it.

Ashurst v. Martin, 9 Port. (Ala.) 572;

Pearson v. Crosby, 23 Me. 261; Hurd v. Silsby, 10 N. H. 108, 34 Am. Dec. 142; Perry Ins. & T. Co. v. Foster, 58 Ala. 502, 29 Am. Rep. 779; Burrill, Assignm. 6th ed. §§ 159, 161.

The provision is obnoxious because it enables the debtor "to operate upon the fears of his creditors and coerce them into his own terms."

Grover v. Wakeman, 11 Wend. 200, 25 Am. Dec. 624.

No insolvent debtor has the right to prescribe terms to his creditors, to say to these, "Take up these crumbs on my own terms, or have nothing."

Ingraham v. Wheeler, 6 Conn. 283.

The requirement is repugnant to our moral sense, as well as to legal principle and authority.

Bump, Fraud. Conv. 4th ed. § 415, p. 434. The decisions of the supreme court of Arkansas do not in any way depend upon any statute local or peculiar to Arkansas.

The utmost that can be claimed is that the invalidity of the requirement for a release in an assignment for the benefit of creditors rests upon the statute of fraudulent conveyances known as 13 Eliz. chap. 5 (Burrill, Assignm. 6th ed. §§ 11, 295; Bump, Fraud. Conv. 4th ed. § 12; 14 Am. & Eng. Enc. Law, 2d ed. p. 222); and that this statute, together with the common law, became operative in the Indian territory through the adoption of chapter 20, Mansfield's Digest of the Statutes of Arkansas, by Congress in the act of May 2, 1890.

The adoption of a statute does not carry with it the construction received in the state from which it is taken, if such construction is at variance with that which the same statute has, prior to its adoption, received in other jurisdictions.

Coulam v. Doull, 133 U. S. 216, 33 L. ed. 596, 10 Sup. Ct. Rep. 253; Whitney v. Fox, 166 U. S. 637, 41 L. ed. 1145, 17 Sup. Ct. Rep. 713..

The statute of 13 Eliz. is merely declaratory of the common law, which in itself denounces and avoids conveyances made with the intent to defraud, hinder, or delay creditors.

Wait, Fraud. Conv. § 16, p. 36; Burrill, Assignm. 6th ed. § 11, p. 20; Bump, Fraud. Conv. 4th ed. § 12; 2 Bigelow, Fr. p. 24; 14 Am. & Eng. Enc. Law, 2d ed. pp. 222,

223.

The Federal courts are free to exercise and follow their own judgment in the administration of the common law, even when exercising their functions in the states, and when their judgment leads them to conclusions in conflict with the rulings of the courts of the state in which they are sitting. Chicago v. Robbins, 2 Black, 418, 17 L. ed. 298; Myrick v. Michigan C. R. Co. 107 U. S. 102, 27 L. ed. 325, 1 Sup. Ct. Rep. 425; Baltimore & O. R. Co. v. Baugh, 149 U. S. 368, 37 L. ed. 772, 13 Sup. Ct. Rep.

914.

No counsel for defendants in error.

Mr. Justice Brown delivered the opin

ion of the court:

[44] *This is a contest between certain attaching creditors of John C. Belt, and one King, his voluntary assignee for the benefit of creditors.

the states, and in a large number of cases has been held to avoid the assignment, upon the ground that the debtor has no right to compel his creditors to accept his terms or lose their preference. In England a clause of a somewhat similar nature was held to be void under the statute of Elizabeth as an attempt to hinder, delay, or defeat creditors (Spencer v. Slater, L. R. 4 Q. B. Div. 13), though the applicability of that case to this particular provision admits of some doubt.

*The fact that it enables the debtor to ex-[45] tort a settlement by playing upon the fears or apprehensions of his creditors is thought by the courts of many of the states to be sufficient to justify them in setting aside the assignment; and, where such provision has been sustained, it has usually been in deference to authority, rather than upon conviction of its propriety or wisdom. The question was discussed at considerable length by Mr. Justice Story in Halsey v. Fairbanks, 4 Mason, 206, 227, Fed. Cas. No. 5,964, and the validity of the clause sustained, largely in deference to the case of King v. Watson, 3 Price, 6, where, as he states, the very exception was taken by counsel, and the assignment held good by the court of exchequer. King v. Watson, however, has but a remote bearing, and seems to have been pro tanto overruled by the case of Spencer v. Slater, above cited. The record is in an unsatisfactory condi- Mr. Justice Story finally remarks that if tion. It is impossible to tell whether the the question were entirely new, and many plaintiffs are a corporation or a partner- estates had not passed upon the faith of ship; and, if the latter, who constitute the such assignments, the strong inclination of firm, or against what individuals the judg- his mind would be against their validity. ment of the court was rendered. Although "As it is," said he, "I yield with reluctance the only right of the plaintiffs to contest to what seems the tone of authority in fathe assignment of Belt to King arises from vor of them." Somewhat similar doubt is the levy of an attachment upon the assigned property, neither the writ of attachment expressed by Mr. Chief Justice Taney in nor the return of the marshal of the levy White v. Winn, a memorandum of which is thereunder appears in the record or testi- found in 8 Gill, 499. The question was also mony. Nor does the record contain a copy incidentally considered by this court in Seof the complaint, in which these proceed-curity Trust Co. v. Dodd, 173 U. S. 624, ings were probably averred. The only 633, 43 L. ed. 835, 839, 19 Sup. Ct. Rep. pleadings before us are the interplea of 545, but the case went off upon another King, filed in the action (which appears to point. have been brought against Belt alone), setThis court has never directly passed upting up the assignment, and the answer of on the validity of this provision, but, wherthe plaintiffs thereto, denying the owner- ever it has been called in question, it has ship of King and averring the fraudulent been treated as determinable by the local character of the assignment. But as the law of the state from which the question interplea of King alleges that on December arose. Thus, in Brashear v. West, 7 Pet. 31, 1891, and just after he had completed 608, 8 L. ed. 801, the clause was upheld an inventory of the property so assigned, solely upon the ground that the courts of plaintiffs caused a writ of attachment to be Pennsylvania had sustained its validity. levied upon a portion of the property, we The assignment in that case was in trust may treat this as a sufficient admission of to pay and discharge the debts due from the plaintiffs' title to justify us in passing upon assignor, first, to certain preferred credthe question of the validity of the assign-itors, and afterwards to creditors generally, ment, upon which the case largely depends. provided that no creditor should be entitled 1. This assignment is attacked by the to receive a dividend, who should not, withplaintiffs chiefly upon the ground that it in ninety days, execute a full and complete contains a provision that the preferred release of all claims and demands upon the creditors shall accept their dividends "in assignor. Mr. Chief Justice Marshall, after full satisfaction and discharge of their re- summarizing the arguments for and against spective claims, and execute and the validity of this provision, did not comdeliver to said John C. Belt a legal release mit the court to the expression of *an opin-[46] therefor." This provision has been the sub-ion, but held that "the construction which ject of discussion in England and in most of the courts of that state [Pennsylvania] have

put on the Pennsylvania statute of frauds | eral laws of Arkansas, "which are not lomust be received in the courts of the United cally inapplicable, or in conflict with this States," and decided the case upon the au- act, or with any law of Congress relating thority of Lippincott v. Barker, 2 Binn. to the subjects specially mentioned in this 174, 4 Am. Dec. 433, in which this question section, are hereby extended over and put arose, and was decided, after an elaborate in force in the Indian territory," among argument, in favor of the deed. He also re- which laws are enumerated assignments for marked that the question had been decided the benefit of creditors and the statute of the same way in Pearpoint v. Graham, 4 frauds. In adopting this law with respect Wash. C. C. 232, Fed. Cas. No. 10,877. In to assignments, the courts of the Indian that case Mr. Justice Washington thought territory are also bound to respect the decithat an assignment in trust for the benefit sions of the supreme court of Arkansas interpreting that law.

rial to consider the decisions of the supreme court of that state with reference to the validity of the provision of an assign ment exacting a release by creditors of all their demands against the assignor as a condition of preference. The subject was first considered in Clayton v. Johnson, 36 Ark. 406, 424, 38 Am. Rep. 40, in which an assignment for the benefit of creditors with out preferences was held to be valid, notwithstanding a proviso that no creditor provided for should participate in the assets "unless he accepts the same in full of his claim." The question is most elabo rately considered in that case, and a distinction taken between a conveyance of the whole, and the conveyance of a part only, of the debtor's property upon condition of releasing the residue. The latter was thought to be fraudulent, and pernicious in its tendencies. In McReynolds v. Dedman, 47 Ark. 347, 1 S. W. 552, it was held that, although an assignor might make preferences and exact releases from creditors who assented to the assignment, if he reserved to himself, to the exclusion of nonassenting creditors, the surplus that remained, the deed was fraudulent upon its face. The difficulty with that assignment was that, It is a sufficient answer to these objections in case the creditors refused to execute the to say that neither of them appears to have releases, the residue, instead of being de- been called to the attention of the courts voted to the payment of the assignor's cred- below. They do not seem to have been itors, was to revert to the assignor himself. raised at the time the judgment was enThis case is wholly consistent with that of tered. It does not appear that any assign[49]Clayton v. Johnson. In the subsequent ments of error were filed in the court of case, however, of Collier v. Davis, 47 Ark. appeals for the Indian territory, but the 367, 58 Am. Rep. 758, 1 S. W. 684, Clayton opinion states that plaintiffs relied upon v. Johnson was formally overruled, and an four objections to the assignment, as showassignment which provided that no creditoring upon its face that it was fraudulent in should participate unless he should accept law. No objection seems to have been his share in full satisfaction of his claim, raised in that court to the form of the judg and gave no direction for the application of the surplus after satisfying assenting creditors, was held void upon its face. It may be noted that the personnel of the court had changed since Clayton v. Johnson was decided. In the subsequent case of Wolf v. Gray, 53 Ark. 75, 13 S. W. 512, decided a few weeks before the act of Congress of 1890, notwithstanding the former overruling of Clayton v. Johnson in Collier v. Davis, it is said that its authority upon the stipulation for a release was not impaired, except as modified by the cases before cited. It follows, said the court, that "the law is established here, in accord with much au- While it is the duty of this court to rethority elsewhere, that a stipulation for a view the action of subordinate courts, jusrelease in a general assignment, which is tice to those courts requires that their almade only as a condition of preference, does leged errors should be called directly to not invalidate the instrument." The as- their attention, and that their action should signment in that case preferred one cred- not be reversed upon questions which the itor, and provided for payment to all other astuteness of counsel in this court has creditors who should execute releases of the evolved from the record. It is not the provresidue of their debts. This case was fol-ince of this court to retry these cases de lowed by King v. Hargadine-McKittrick novo.

Without determining the validity of such a provision at common law, we are of opinion that the courts of the Indian territory did not err in applying the settled construction of the law of Arkansas to the assignment in this case, and in holding the provision for a release of creditors to be valid.

2. Plaintiffs also seek to impeach the assignment upon the ground that there was no evidence of its acceptance by any of the creditors, or their assent thereto; and the position is taken that, while the creditors may be presumed to accept an assignment made for their benefit, such acceptance will not be presumed where the assignment is subject to the condition that the creditors consent to a release and discharge of their claims against the estate. Error is also charged in the rendition of the judgment against persons who were not parties *to[50] the immediate case, but who had stipulated other cases into this case for a like judgment; and also in the fact that a personal judgment rendered against the plaintiff's in error for the value of the goods in controversy was not contemplated or allowed by the statute under which the proceedings were had.

ment. In the assignments of error in the United States court of appeals for the eighth circuit no such question is raised, and none alluded to in the opinion. Such objections could not be raised for the first time in this court. Insurance Co. v. Mordecai, 22 How. 111, 117, 16 L. ed. 329, 331; First Nat. Bank v. Kentucky, 9 Wall. 353, 19 L. ed. 701; Wheeler v. Sedgwick, 94 U. S. 1, 24 L. ed. 31; Wilson v. McNamee, 102 U. S. 572, 26 L. ed. 234; Edwards v. Elliott, 21 Wall. 532, 22 L. ed. 487; Clark v. Fredericks, 105 U. S. 4, sub nom. Davis v. Fredericks, 26 L. ed. 938.

Dry Goods Co. 60 Ark. 1, 28 S. W. 514, The judgment of the Court of Appeals is where the very assignment in question in affirmed.

this case was held to be valid, notwith

standing the provision for a release by Mr. Justice Shiras and Mr. Justice creditors as a condition of preference. White concurred in the result.

[51]

*WILLIAM J. TURPIN, Appt.,

v.

JOHN B. LEMON et al.

(See S. C. Reporter's ed. 51-61.)

Constitutional law-due process-tax sale pleading bill presenting academic

case.

1. Due process of law in making sales of land for unpaid taxes, even if it requires the observance of all the steps prescribed by a state statute, does not demand that they shall be made matter of record, much less that they shall be made matter of a particular record, such as the return of the sheriff of the sale

of the lands.

2. A bill to set aside a tax sale, which does not charge that the statutory procedure was not strictly pursued, but relies on the failure of

business, he paid no attention to the land, which was returned delinquent for the nonpayment of these taxes, and was sold by the sheriff of Ritchie county for such taxes on January 12, 1886. Having failed to redeem the land within the year allowed by law from the time of the sale, on February 3, 1887, some weeks after the expiration of the year, a deed was made by the clerk of the county court of Ritchie county to the defendants.

Nothing was done, and no effort was made to pay these taxes, until about February 21, 1899, when Turpin met the defendant John B. Lemon, and tendered him the sum of $176.50, to cover the amount of the taxes paid by the defendants in the purchase of the land, and all taxes paid by them subsequently, as well as the cost of all surveys, etc., which amount he now offers to pay inthe sheriff's return of sale to set forth a com- to court; but Lemon refused to receive the pliance with such procedure, cannot be main-money, and has since cut large quantities tained on the theory that, as the statute vali- of timber and removed the same from the dated tax deeds notwithstanding any ir-land. regularities in the sale not appearing on the record, plaintiff was deprived of his prop erty without due process of law, as this is an attempt to test the constitutionality of the law without showing that plaintiff was injured by its application.

raises but a single question, and that is Whereupon he filed this bill, which really whether the laws of the state of West Vir ginia enacted with reference to the sale of delinquent lands for taxes are contrary to the Constitution of the United States, or constitute due process of law within the 14th Amendment. Argued and Submitted March 17, 1902. raised in the bill, but in his petition for an Other questions Decided November 3, 1902.

[No. 35.]

N APPEAL from the Circuit Court of the ON APPEAL from the Circuit Court of the Virginia to review a decree sustaining a demurrer to and dismissing a bill to impeach a tax sale. Affirmed.

were

appeal to this court the appellant rests his
tutionality of these laws.
case upon the single question of the consti-

Mr. C. D. Merrick argued the cause and filed a brief for appellant:

The effect of the West Virginia statute is to prevent the owner from urging any objection to the proceeding which the records do not show.

Statement by Mr. Justice Brown: This was an appeal from a decree of the circuit court for the district of West Virginia sustaining a demurrer to, and dismissMcCallister v. Cottrille, 24 W. Va. 173; ing, a bill filed for the purpose of impeach-Carrell v. Mitchell, 37 W. Va, 136, 16 S. E. ing a tax sale and deed of certain lands, 453: Winning v. Eakin, 44 W. Va. 19, 28 and of obtaining a judicial declaration that S. E. 757. the defendants, who were purchasers under such tax deed, took no title to or interest in

such lands.

All the preliminary requirements of the statutes, designating the various proceedings which are to culminate in the sales, should have been strictly complied with; and the officers who execute the power should follow with precision the course marked out for them by the law; and the conditions subsequent to the sale, if any, should be duly observed.

The facts set forth in the bill were substantially as follows: On April 30, 1874, Turpin, a citizen of the state of Pennsylvania, purchased from the executors of one Smith C. Hill 225 acres of land in the county of [52] Ritchie, West Virginia, and received a deed therefor. In the year 1879, 100 acres of this Black, Tax Titles, § 155; Cooley, Taxn. land were sold for delinquent taxes for prior 470; 25 Am. & Eng. Enc. Law, p. 374; Wilyears, by which the quantity owned by Tur-liams v. Peyton, 4 Wheat. 78, 4 L. ed. 518; pin was diminished to 125 acres, which were assessed to him for taxes for the years 1883 and 1884. Being absent from the state for several years, in poor health and unfit for

NOTE.-As to what constitutes due process of law-see Kuntz v. Sumption (Ind.) 2 L. R. A. 655, and note; Re Gannon (R. I.) 5 L. R. A. 359, and note; Ulman v. Baltimore (Md.) 11 L. R. A. 224, and note; and Gilman v. Tucker (N. Y.) 13 L. R. A. 304, and note. And see notes to People v. O'Brien (N. Y.) 2 L. R. A. 255; Pearson v. Yewdall, 24 L. ed. U. S. 436; and Wilson v. North Carolina er rel. Caldwell,

42 L. ed. U. S. 865.

70

Thatcher v. Powell, 6 Wheat. 119, 5 L. ed. 221; Ronkendorff v. Taylor, 4 Pet. 349, 7 L. ed. 882; Early v. Doe ex dem. Homans, 16 How. 610, 14 L. ed. 1079; Rich v. BraxCt. Rep. 1006; Marx v. Hanthorn, 148 U. S. ton, 158 U. S. 375, 39 L. ed. 1022, 15 Sup. 172, 37 L. ed. 410, 13 Sup. Ct. Rep. 508; Yancey v. Hopkins; 1 Munf. 419; Wilson v. Doe er dem. Bell, 7 Leigh, 24; Martin v Snowden, 18 Gratt. 100.

It has been always considered essential that somewhere, somehow, and at some time,. the party aggrieved should have the privi