from a very early period. * * * In those actions quia timet which may be brought independently of the statute, we find no authority for holding that possession by the plaintiff is essential to the cause of action; and unless an averment of such possession is necessary to show that the plaintiff has no adequate remedy at law, no valid reason is perceived why it should be required. True, it is said in the opinion of Chief Justice DIXON, in Lee v. Simpson, supra, [29 Wis. 333,] that it is only the person having the possession and legal title to land who may institute his suit quia timet in equity against any other person setting up a claim of title thereto,' (page 337;) but the learned chief justice is there speaking of an action under the statute, and his remarks have no application to those actions quia timet which may be brought independently of the statute." And see Clouston v. Shearer, 99 Mass. 209.

And the court held that the statute could not be construed as taking away or restricting the inherent jurisdiction of courts of equity to remove clouds upon the title of unoccupied land.

It is apparent, therefore, that this and other like statutes do not confer a more extensive remedy than exists by virtue of the customary jurisdiction of the chancery courts. They may regulate the mode of proceeding and form of decree, but they are not necessary to the exercise of the jurisdiction.

A short sentence in the opinion of the court in the case of Orton v. Smith, 18 How. 263, is cited as supporting the proposition that equity has no jurisdiction to remove a cloud from title except at the suit of one who holds the legal and equitable title and has the possession. The case is cited in support of this proposition by counsel, and in the late case of Patrick v. Isenhart, 20 FED. REP. 339, and other cases. This is a total misconception of what was before the court in that case for decision, and what was actually decided. At the threshold of the opinion the court say: "The bill in this case is in the nature of a bill of peace, as authorized by the statute of Wisconsin." The statute is not given, but it is the same that came under discussion in the case of Pier v. Fond du Lac, supra. Orton v. Smith was decided in 1855, and Pier v. Fond du Lac in 1875, but the same statute was in force at both periods. It will be observed that in proceeding under that statute the plaintiff must have both "the possession and the legal title." It does not appear who, if any one, was in possession of the land, but as it is said the suit was founded on the statute, it is highly probable the plaintiff was. However this may be, it is obvious that the question of possession, as affecting the jurisdiction of the court under the statute, or independently of it, was not raised or considered. Orton, the defendant in the suit below, had in good faith paid $2,100 for a title bond to the land executed by Knab, who held the legal title. One Hubbard claimed a secret equity in the land, of which Orton had no knowledge. On the twenty-sixth of August, 1851, Orton filed his bill in chancery, in the state court, against Knab, demanding from him a conveyance of the legal title according to the exigency of his bond. During the pendency of this bill, Smith purchased, for a nominal consideration, the

real or supposed secret equity of Hubbard, and also obtained from Knab, for a like consideration, a transfer of the legal title, and thereupon filed his bill against Orton in the federal court, under the Wisconsin statute, to quiet his title. While Smith was the holder of the legal and equitable title to the land, he had acquired this title for a mere nominal consideration, while Orton's suit against Knab in the state court, for specific performance of the covenants to the latter's bond, was pending. Having reference to these facts, and touching a title so acquired, the court said:

"Those only who have a clear, legal, and equitable title to land connected with possession, have any right to claim the interference of a court of equity to give them peace, or dissipate a cloud on the title. The complainant in this case is the volunteer purchaser of a litigious claim; he is the assignee of a secret equity for apparently a mere nominal consideration, and of the bare legal title for a like consideration. This legal title was improperly assigned to him, during the pendency of a suit in chancery to ascertain the person justly entitled to it."

The manifest sense of the opinion, when read in the light of these facts, is that there was such a want of consideration, conscience, and good faith in the acquisition of Smith's title, that a court of equity would not lend him its aid against a bona fide purchaser for value of an equitable title. The question of possession was not mooted. The word occurs but once in the opinion, and then casually. There was no fact or issue in the case making it necessary or proper to decide whether the jurisdiction in equity, independently of any statute, to remove a cloud from title is restricted to those only who have a clear, legal, and equitable title, and actual possession of the land. This is made clear by the fact that the court, in enumerating the defects and weaknesses in the plaintiff's case, does not mention want of possession as one of them. On the facts of the case the court refused to treat the plaintiff as the bona fide owner of the legal or equitable title. The court say he acquired his title without any valuable consideration, and that the "legal title was improperly assigned to him during the pendency of a suit in chancery to ascertain the person justly entitled to it." These findings were fatal to the plaintiff's case. It was upon these grounds, and the further ground that a court of the United States should not entertain a bill of peace upon a title already in litigation in a state court, that the case was decided and the bill dismissed.

What is said by the court in Branch v. Mitchell, supra, is appropriate here:

"The language of the court is always to be understood by applying it to the facts of the case decided. That which seems to be general and of universal application, has, in reality, often a limited application; and so the words of truth and the utterances of the law, undeniable in the case wherein they are spoken, become the parents of error and false doctrine.”

It is next objected that section 5206 of Gantt's Digest declares that tax deeds shall be "conclusive evidence" of the regularity of every

thing required to be done by law to make a valid tax sale; and that it is not, therefore, open to the plaintiff to prove the irregularities relied on to invalidate the sale. But the supreme court of the state has held that provision of the statute unconstitutional, and decided that the deed is only prima facie evidence that the necessary steps were taken to make a valid sale. Cairo & F. R. Co. v. Parks, 32 Ark. 131; Hickman v. Kempner, 35 Ark. 505. The fact that no warrant was issued to the collector authorizing him to collect the taxes, as required by section 5139, is fatal to the tax title. Cooley, Tax'n, 292, and cases cited. The failure of the assessor to authenticate his assessment roll by the oath required by section 5112, is also fatal to the validity of the tax sale. Cooley, Tax'n, 289, and cases cited; Burroughs, Tax'n, 232, 249, 250. Irregularities less serious than either of these have been held to avoid tax sales in this state. Hickman v. Kempner, supra; Hare v. Carnall, 39 Ark. 196; Crane v. Randolph, 30 Ark. 579; Pack v. Crawford, 29 Ark. 489; Vernon v. Nelson, 33 Ark. 748.

It is objected that the plaintiff did not tender to the defendant the taxes paid by him, with penalties, etc., and make affidavit of that fact, as required by section 2267 of Gantt's Digest, before bringing his suit. That section has no application to suits like the one at bar. Chaplin v. Holmes, supra; Hare v. Carnall, 39 Ark. 196, 203. The provisions of section 5214 of Gantt's Digest are applicable to this case, and the defendant is entitled to recover in this suit the taxes, interest, penalty, and costs of advertising charged on the land at the time of the sale, and all subsequent taxes paid by her, with interest, and to have a lien decreed on the land for the same. Hunt v. Curry, 37 Ark. 100.

As to the equities of a purchaser at a tax sale, independently of the statute, see Hickman v. Kempner, 35 Ark. 505, 510; Hare v. Carnall, 39 Ark. 196, 203; Ware v. Woodall, 40 Ark. 42; Chaffe v. Oliver, 39 Ark. 531.

CLAPP and others v. DITTMAN and others.1

PERRY and others v. CORBY and another.1

(Circuit Court, E. D. Missouri. July 25, 1884.)

1. GENERAL ASSIGNMENT BY INSOLVENT DEBTOR REV. ST. Mo. § 354, CON

STRUED.

Where an insolvent debtor transfers all his property to a single creditor, under such circumstances that it is obvious that there is no intention of merely giving security, the transfer will be treated as an assignment in trust for the benefit of all his creditors, within the provisions of section 354 of the Revised Statutes of Missouri, regardless of the form of the instrument.

1 Reported by Benj. F. Rex, Esq., of the St. Louis bar.

2. SAME-POWER OF FEDERAL COURTS UNDER STATE STATUTE-PROCEDURE. Federal courts have authority to take possession of property so assigned, and dispose of it in accordance with the provisions of the state statute; and where a form of procedure is prescribed by the state statute, which may be pursued by the state courts of general jurisdiction, it may also be pursued in the corresponding federal courts.

3. SAME-REDUCTION OF CLAIM TO JUDGMENT UNNECESSARY.

It is not necessary in such cases, to entitle a creditor to equitable relief in a federal court, that he should reduce his claim to judgment.

In Equity. Demurrers to bills.

Both bills allege an assignment by an insolvent debtor of all his assets to a single creditor, with the purpose of giving the assignee an undue preference over other creditors, and of hindering, delaying, and defrauding the latter. In the first case, the assignment was in the form of a chattel mortgage, but was not, it is alleged, intended to operate as such, but as an assignment. The complainants seek to have said conveyances declared assignments for the benefit of all creditors, within the meaning of section 354 of the Revised Statutes of Missouri, which provides that "every voluntary assignment of lands, tenements, goods, chattels, effects, and credits, made by a debtor to any person in trust for his creditors, shall be for the benefit of all the creditors of the assignor in proportion to their respective claims."

G. Porter, W. D. Anderson, and McKeighan & Jones, for complainants in the first case; and Mills & Fletcraft, for complainants in the second.

Hugo Muench, for defendants in the first case. John D. Johnson and Smith P. Galt, for defendants in the second.

BREWER, J. These cases were argued together. Both stand on demurrer to the bill. Both involve the same questions, and will therefore be disposed of by the same opinion. In them are presented three questions:

First. Where a debtor who is insolvent transfers all his property to a single party, and under such circumstances that it is obvious that there was no intention of merely giving security, and with the idea of paying the debt and reclaiming the property, must such transfer, no matter by what form of instrument, whether that of a chattel mortgage or otherwise, and whether made to the creditor directly or to a trustee, be treated as a general assignment, and for the benefit of all creditors? This question was fully considered by this court in the case of Martin v. Hausman, 14 FED. REP. 160, and after a full examination of the statutes of Missouri and the decisions of its supreme court, it was answered in the affirmative. The opinion in that case was written by Judge KREKEL, and was concurred in by my predecessor, Judge MCCRARY. That opinion was followed in Dahlman v. Jacobs, 15 FED. REP. 863, in Kellogg v. Richardson, an unreported case in the Western district, and also, I am informed, in other cases in this court, as well as in some of the district courts of

the state. While, if this was a new question, I confess my own conclusions would be different, and in harmony with the decisions of Nat. Bank v. Sprague, 20 N. J. Eq. 28; Farwell v. Howard, 26 Iowa, 381; Doremus v. O'Harra, 1 Ohio St. 45; Atkinson v. Tomlinson, Id. 241; and other cases cited by counsel for defendants; yet I think there has been such a course of decision in this circuit as to establish the rule in the United States courts for this state in accordance with the opinion in Martin v. Hausman, supra, and until there be some authoritative construction of the statute by the supreme court of the United States, or of the state, I shall follow the rule laid down as above. I feel the more constrained to do this, as such a construction, securing an equal distribution of the property of an insolvent among all his creditors, is manifestly most just and equitable.

Second. It is insisted that if this instrument is to be treated as a general assignment under the statute for the benefit of all creditors, the state courts have exclusive jurisdiction; and that the remedy of the plaintiff was by citing the supposed assignee to appear in the state courts and distribute the property among all the creditors in accordance with that statute. This claim cannot be sustained. The mere fact that rights are created by virtue of a state statute, and proceedings made for the enforcement of those rights in the courts of the state, does not prevent a foreign creditor from asserting the same rights in the courts of the United States. The question here is not whether the federal courts can take possession of property already in the custody of the state courts, or whether they can supersede or interfere with any action of the latter, but whether, no action having been taken in the latter, the federal courts are without jurisdiction to enforce rights under the statutes of the state, and for which a special mode of procedure is prescribed. It must be borne in mind that the rights asserted in these cases are not wholly statutory. The transfer of property by assignment, bill of sale, or mortgage is a common-law right, and the statute only prescribes the effect of such a transfer by an insolvent; it does not create, but only regulates, the right. It is like that legislation which determines, as between the mortgagor and mortgagee, the right of possession, or which requires notice to give validity as against subsequent purchasers. So as to the procedure. Jurisdiction over the assigned property is by the statute given to the state courts. It could not well be otherwise. Methods of procedure are prescribed; but such is the case as to general rules of practice. The state law enacts them, and the federal courts follow them. There is nothing of a substantial character in the methods prescribed which makes it impossible for courts of general jurisdiction, like the circuit courts of the United States, to take possession of assigned property and dispose of it in accordance with the terms of the state statute. And where the question arises solely on the matter of procedure, as a rule I think it may be affirmed that if the proceeding is one which by the terms of the state statute may be pursued in the v.21F,no.1-2