Opinion of the Court. 376, where the decisions of the Supreme Court of Texas bearing on the point are fully cited. The assignment was properly excluded. Defendants had pleaded (1) not guilty; (2) for allowance of value of improvements; (3) title outstanding in Harrington. Defendants offered the original deed from Payne to Cooke, dated January 2, 1886, which was objected to on the ground "that said defendants having specially pleaded an outstanding title, the defendants could not prove title in themselves." This objection was sustained and the deed excluded. Defendants also offered to prove that from January 1, 1882, until the sale to Cooke, Payne was the head of a family, and that the land was claimed and used by him as his homestead, and was therefore not subject to the judgment lien, execution, levy and sale through which plaintiff claimed. The same objection was made to this evidence and sustained. The rule seems to be well settled that in this statutory action, if the defendant pleads his title specially, he waives the general issue, and is confined to the defence thus specially pleaded. In Joyner v. Johnson, 19 S. W. Rep. 522, the Supreme Court of Texas said: "The principle which underlies this doctrine is that when a party, either plaintiff or defendant, in an action of trespass to try title, pleads his title specially, he gives his adversary notice that he rests his case upon the title so pleaded, and it is to be presumed that he relies upon no other." Shields v. Hunt, 45 Texas, 424; Custard v. Musgrove, 47 Texas, 217; St. Louis & Texas Railway v. Whitaker, 68 Texas, 630. Apart from this, as we have held that the lien. of the judgment was valid, the exclusion of the deed was immaterial. As to the suggestion in relation to the homestead, this was an affirmative defence, and could not be made under the pleadings as they stood. The plaintiff was not required to offer in chief any proof as to the homestead, in respect of which, indeed, he had been given no notice that it would be relied on, and the evidence offered by defendants was not in rebuttal of plaintiff's proof, but to establish an independent ground for invalidating the lien. No such defence was specially pleaded, while the general issue had Opinion of the Court. been waived. The reference to the homestead in the plea for the allowance of improvements had relation to that subject only, and could not be resorted to for any other purpose. The provisions of the statutes of Texas on the subject of the allowance for improvements in actions of trespass to try title are contained in Articles 4813 to 4830, inclusive, (2 Sayles' Tex. Civ. Stat. 639,) and are set forth at length and considered in Cox v. Hart, 145 U. S. 376, 390. It must be alleged in the pleadings that the defendant and those under whom he claims have had adverse possession, in good faith, of the premises in controversy, for at least one year next before the commencement of the suit, and that he and those under whom he claims have made permanent and valuable improvements on the land sued for during the time they have had such possession. It is clear that the defendants Cooke were not in possession for twelve months before the commencement of the suit under any written evidence of title, for their deed was dated January 2, 1886, and the suit was commenced December 24 of that year; but they proposed to prove that they were in possession prior to the execution of the deed, under a verbal contract to convey, although they admitted that the consideration was not paid until the date of the deed. The evidence offered was to the effect that Cooke, after making his bargain with Payne, "immediately" entered upon possession and "commenced the erection of improvements, and that he erected improvements of large value upon the land, in good faith, after the commencement of his possession and before he knew of any judgment lien. There is a lack of definiteness in this offer, which under the circumstances probably did not commend it to the Circuit Court, for it did not appear therefrom that any of the improvements were made before the date of the deed, or exactly when, except that it was before Cooke obtained actual knowledge of the judgment lien. In Elam v. Parkhill, 60 Texas, 581, it is said: "To entitle a party to a recovery for the value of improvements it is essential that he be a possessor in good faith. While title is not essential upon which to predicate a claim for the value of improvements, it is necessary that the party should enter and Opinion of the Court. claim under color of title. That is, the party must claim under an apparent title, which he in good faith believes to be the real title to the land." So in Morrill v. Bartlett, 58 Texas, 644, it was held that "a claim under the statute by a defendant sued. for land, that he had made permanent and valuable improvements thereon, cannot be regarded when there is no evidence that he ever paid anything for the land, or received a deed there for, and when he was informed of the controversy which jeopardized his possession before improving the land.” Many decisions of the Supreme Court of Texas to the same effect are cited by counsel. House v. Stone, 64 Texas, 677, Hatchett v. Conner, 30 Texas, 104; Powell v. Davis, 19 Texas, 380; Armstrong v. Oppenheimer, 19 S. W. Rep. 520. We are satisfied that defendants were chargeable with notice of the judgment lien, and did not as against the plaintiff Occupy the position of adverse possessors, under a claim of title оссиру made in good faith prior to the deed of January 2, 1886. Moreover, no evidence was offered to prove the value of the land without regard to the improvements, an essential condition to the application of the statute. Cox v. Hart, supra. When and how far the remedy for valuable improvements may be sought in the courts of the United States, otherwise than in equity, we do not consider. Judgment was correctly entered against all the defendants for the recovery of the title and possession of the land, and as the Mortgage Company was only interested through the deed of trust to Simpson, it was properly omitted in the recovery of damages. It is conceded that the defendant M. E. Cooke was the wife of her codefendant, J. H. Cooke. The claim under the deed from Payne must be presumed to have been in community, it being the settled law of Texas that property purchased after marriage is prima facie such, whether the conveyance be in the name of the husband or of the wife, or in their joint the names. Veramendi v. Hutchins, 48 Texas, 531, 550; Cooke V. Bremond, 27 Texas, 457; S. C. 86 Am. Dec. 626; Mitchell v. Marr, 26 Texas, 329. But it does not follow that a general personal judgment, in damages for use and occupation, under Statement of the Case. the statute, and for costs, could be rendered against Mrs. Cooke. The record disclosed nothing to justify the subjection of her separate estate to such a liability, and there was error in the judgment in this particular. Linn v. Willis, 1 Posey Cas. 158; Garner v. Butcher, 1 Posey Cas. 430; Haynes v. Stovall, 23 Texas, 625; Menard v. Sydnor, 29 Texas, 257. This does not involve the disturbance of the verdict or a reversal of the judgment in any other respect. The judgment will therefore be affirmed except as to the recov ery of damages and costs against M. E. Cooke, and that part thereof will be reversed as to her, with costs, and the cause remanded, with a direction to the Circuit Court to order the judgment to be modified so as to conform to the conclusion above announced. Ordered accordingly. HARMAN v. CHICAGO. ERROR TO THE SUPREME COURT OF THE STATE OF ILLINOIS. No. 1022. Submitted January 9, 1893. - Decided January 23, 1893. The ordinance of the city of Chicago, imposing a license tax for the privilege of navigating the Chicago River and its branches upon steam tugs licensed by the United States authorities under the provisions of Rev. Stat. § 4321, is an unconstitutional exercise of municipal authority, and is invalid. Huse v. Glover, 119 U. S. 543, and Sands v. Manistee Improvement Co., 123 U. S. 288, each distinguished from this case. THIS was an action against the city of Chicago, Illinois, to recover the sum of three hundred dollars paid by the plaintiff on compulsion, and under protest, for licenses for twelve steam tugs of which he was the manager and owner. The action was commenced in the Circuit Court of Cook County, Illinois, and was tried by the court without the intervention of a jury, by stipulation of parties. At the trial the plaintiffs put in evidence the following agreed statement of facts: Statement of the Case. "It is hereby stipulated and agreed that for the purpose of determining the right of the defendant to require of the plaintiff a license, and to impose and collect a fine or license fee therefor, under an ordinance of the said defendant, hereinafter set forth, the following are the ultimate facts under which the said license was required, and the fine or license fee imposed and collected, viz.: That on the 26th day of September, 1888, the said plaintiff was the owner and manager of the following steam tugs, viz.: Tom Brown, F. S. Butler, J. H. Hackley, C. W. Parker, Bob Teed, A. B. Ward, W. II. Wolf, Crawford, G. B. McClellan, Mary McLane, Success and Wahbun; that said tugs, and each of them, were of twenty tons burden and upwards, and were on the said date and for long time prior thereto had been enrolled and licensed for the coasting trade in pursuance of and under the provisions of Title L of the Revised Statutes of the United States, to which reference is hereby made and which are made a part hereof; that prior to the date aforesaid and on the 5th day of March, 1883, the common council of said city of Chicago, acting under power supposed to be vested in it by chapter 24 of the Revised Statutes of the State of Illinois, and under which the said city was at said time incorporated, passed and enacted an ordinance regulating the navigation of steam tugs and other vessels on Chicago River and Lake Michigan and the waters tributary thereto, requiring that the owner thereof take out a license therefor, and imposing upon him a fine or penalty for the failing so to do, which said ordinance is in the words and figures following: “Be it ordained by the city council of the city of Chicago: "SEC. 1. No person or persons shall keep, use or let for hire any tug or steam barge or tow-boat, for towing vessels or craft in the Chicago River, its branches or slips connecting therewith, without first obtaining a license therefor in the manner and way hereinafter mentioned. "SEC. 2. All applications for such license shall be made to the mayor, and upon payment of twenty-five ($25) dollars to the city collector, a license shall be issued for the period of one year by the city clerk for such tug, or steam barge or |