that the attaching creditors did not know of the existence of these debts until the assignment was made. The eleventh finding of fact is "that said assignment was made by said defendants A. F. Sipperly and H. S. Lee to said Frank W. Ross with intent to hinder, delay, and defraud their creditors." After making proper conclusions of law the court entered judgment making distribution of the fund in the hands of the receiver among the attaching creditors in the order of their attachments, and dismissed the petition in intervention. The interveners appeal.

The first question presented is, was the assignment void because of the preference of the creditors of the individual partners as provided in Schedule B? The next and remaining one is: If the assignment is void as to the preference given to the parties named in Schedule B, is it not valid for all other purposes?

As to the first question, it is conceded the firm was always insolvent, and that the members thereof were likewise insolvent. The creditors in Schedule B know this, and knowingly loaned the money, to be used as capital in this business. Is it a fraud upon the other creditors to provide for and prefer these parties? We think it is well settled that such an act is fraudulent and void. In Webb v. Armistead, 26 Fed. Rep. 70, which was a case very like the one under consideration, the court says: "These creditors were dealing with him on the faith of such capital in ignorance of the fact that he was all the time insolvent, and that large family debts of many thousand dollars were lying in abeyance to be preferred whenever the business should come to the disastrous end, which was inevitable. I do not know how a more gross injustice could be done those who gave credit on the faith of a large in-put capital than was done by this deed, which revealed the fact when it was too late that there was no capital whatever available to protect them in the event of losses in trade or shrinkage in value." This language we have quoted at length, because it so aptly describes the case at bar. the same effect are the cases of Ferson v. Monroe, 21 N. H. 462; Bailey v. Clark, 21 Wall. 284; Cribb v. Morse, 77 Wis. 322, 46 N. W. Rep. 126.

To

This brings us to the second question, can the assignment be upheld in any part? The supreme court of the United States in Peters v. Bain, 133 U. S., at page 670, 10 Sup. Ct. Rep. 354, say: "We agree that, as respects fraud in law as contradistinguished from fraud in fact, where that which is valid can be separated from that which is invalid without defeating the general intent, the maxim 'void in part, void in toto' does not necessarily apply;" and this rule is relied on by appellants to sustain the assignment notwithstanding the fraudulent preferences in Schedule B. At the argument we were

forcibly impressed with this suggestion, but the trouble is that in this case the assign. ment is fraudulent in fact. It was made with a fraudulent design and purpose. This fact is expressly found. The rule in such a case is declared in Crawford v. Neal, 144 U. S., at page 598, 12 Sup. Ct. Rep. 759, as follows: "Undoubtedly the rule is that a transaction void in part for fraud in fact is entirely void." The rule is fully stated, with the authorities in support of it, in Burrill, Assignm. (5th Ed.) § 352. See, also, Vernon v. Upson, 60 Wis. 418, 19 N. W. Rep. 400. We find no error in the record, and the judgment of the district court is affirmed, with costs to respondents.

MINER and BARTCH, JJ., concur.

UNITED STATES V. TITHING YARD AND OFFICES et al., (FREEZE et al., Interveners.)

(Supreme Court of Utah. Aug. 31, 1893.) ESCHEAT LAND OF MORMON CHURCH - VESTED RIGHTS ACTION TO FORFEIT-STATUTE OF LIMITATIONS.

1. In an action by the United States against certain real estate belonging to the Church of Jesus Christ of Latter-Day Saints, known as the "Tithing Yard and Offices," to forfeit and escheat the property, it appeared that the land was first laid out in 1848, and taken possession of by the representatives of the church of the same name as such corporation, then and until 1855 a voluntary sect; that in the latter year the church was incorporated, and such corporation thereafter possessed the property up to July 1, 1862, and that valuable improvements were put on it by the church. In November, 1871, the land was entered under the town-site act by the mayor of Salt Lake City, who conveyed it to the church's president, as trustee, by whose successor, as trustee, title was held March 3, 1887. Held, that such property was within the proviso of Act Cong. July 1, 1862, § 3, which declares that all real estate acquired or held, in any territory of the United States, by any corporation or association for religious or charitable purposes, of greater value than $50,000, shall be forfeited and escheated to the United States, "provided that the existing vested rights in real estate shall not be impaired by the provisions of this section," and was not subject to forfeiture.

2. Rev. St. U. S. § 1047, provides that no suit or prosecution for any penalty or forfeiture, pecuniary or otherwise, accruing under the laws of the United States, shall be maintained, except in cases where it is otherwise specially provided, unless the same is commenced within five years from the time when the penalty or forfeiture accrued. Held that, where land was subject to forfeiture more than five years before the action to forfeit it was commenced, and was not conveyed by the owner, but was held by such owner in violation of the statute rendering it forfeitable within five years next before the commencement of such action, the action was not barred.

Appeal from district court, third district; C. S. Zane, Justice.

Action by the United States against certain real estate situated in the city and county of Salt Lake, belonging to the late corporation of the Church of Jesus Christ

F. S. Richards, Le Grand Young, and W. H. Dickson, for appellants. The United States Attorney, (Bennett, Marshall & Bradley, of counsel,) for the United States.

SMITH, J. This is an action begun by the United States against certain real estate belonging to the late corporation of the Church of Jesus Christ of Latter-Day Saints, to forfeit and escheat the property. The property involved in this particular action is part of lots 3, 4, 5, and 6, block 88, plat A, Salt Lake City survey, commonly known as, and called, the "Tithing Yard and Offices." The defendants William B. Preston, Robert T. Burton, and John R. Winder are alleged to be claimants, as trustees of the property for

the voluntary religious association known as the Church of Jesus Christ of Latter-Day Saints. James P. Freeze and Spencer Clawson intervened in behalf of themselves and all other members of the religious association known as the Church of Jesus Christ of Latter-Day Saints, claiming that the property belonged to that religious body. The defendants Preston, Burton, and Winder answered the complaint. Freeze and Clawson, by their petition in intervention, set up substantially the same facts as alleged in the answer of the trustees. The case was tried by the court without a jury. Findings of fact and conclusions of law were made, and judgment entered in favor of the United States, escheating and forfeiting the property. The defendants and interveners appeal. Two assignments of error are made, which we deem it necessary to consider upon this appeal: First, that the court erred in deciding that the property was subject to forfeiture and escheat, for the reason that upon the facts found it appeared the Church of Jesus Christ of Latter-Day Saints had a vested interest in said property on or before July 1, 1862; second, the court erred in deciding that the property was subject to forfeiture or escheat, for the reason that, upon the facts found, all proceedings to forfeit or escheat the property were barred by section 1047 of the Revised Statutes of the United States. This section of the Revised Statutes was pleaded both by the defendants and the interveners in bar of the action. We will consider these objections in the inverse order in which they are stated.

Section 1047, relied upon, is as follows: "No suit or prosecution for any penalty or

under the laws of the United States, shall be maintained except in cases where it is otherwise specially provided, unless the same is commenced within five years from the time when the penalty or forfeiture accrued." The forfeiture claimed in this case arises under section 3 of the act of July 1, 1862, which is as follows: "That it shall not be lawful for any corporation or association for religious or charitable purposes to acquire or hold real estate in any territory of the United States during the existence of the territorial government, of a greater value than $50,000.00, and all real estate acquired or held by any such corporation or association contrary to the provisions of this act shall be forfeited and escheated to the United States, provided that the existing vested rights in real estate shall not be impaired by the provisions of this section." The title to the land in controversy was acquired by the mayor of Salt Lake City in November, 1871. In 1872 it was conveyed to the trustees of the corporation of the Church of Jesus Christ of Latter-Day Saints for the use and benefit of said church. Title remained in said trustees until the 3d of March, 1887. It is claimed by the appellants that, more than five years having elapsed since the perfect title to the property was acquired by the church, no action can now be prosecuted by the United States to forfeit or escheat the property. We have been cited to no case upon this question exactly like the one at bar. Several cases have been cited in which it is held that seetion 1047 applied to debts and civil actions and forfeitures, as well as to criminal ones. It was so held in the case of Adams v. Woods, 2 Cranch, 336, which was a suit to enforce a penalty founded on the act of the 22d of March, 1794, (1 Stat. 347,) prohibiting the slave trade. It was held that the action was barred, not having been begun within the period prescribed by the statute. Marshall, C. J., discussing the question, says: "It is pretended that the prosecutions limited by this law are those, only, which are carried on in the form of an indictment or information, and not those where the penalty is demanded by an action of debt. But if the words of the act be examined they will be found to apply, not only to any particular mode of proceeding, but generally to any prosecution, trial, or punishment for the offense." And the court held that the action of debt for the penalty was a prosecution, and was barred by the statute of limitation. We think section 1047 includes civil as well as criminal proceedings. But the difficulty in the case at bar is that the language of section 3 of the act of July 1, 1862, is that all real estate acquired or held by any such corporation or association shall be forfeited, etc. Counsel for appellant do not deny that the property in question was held

in violation of this statute within five years preceding the commencement of this suit. The cases most nearly in point, it seems to us, are those arising under the internal revenue laws, where proceedings in rem for forfeiting real estate are repeatedly provided for. For instance, land becomes forfeited for being used for the purposes of distillery, where the required bond has not been given. Sections 3281, 3260, Rev. St. U. S. Under such statutes it has been frequently held that the property is subject to forfeiture on account of continued use of it, notwithstanding the use may have begun more than five years before the commencement of the action. In contemplation of law, the land itself is guilty, and it is the guilt of the land that makes it forfeitable by reason of its being employed in an unlawful use. Wap. Proc. in Rem. § 178, says: "Lands are forfeited for use in contravention of law. The violation of law by the use of the land is in some instances by the owner, but not necessarily so. It is not the owner's guilt, but the land's guilt, by its use, that renders it forfeit. There is an offending person and an offending thing, but the proceedings are against the latter." At section 182, the same author, analyzing section 3 of the act of July 1, 1862, above cited, says: "The thing to be seized and condemned is territorial real estate worth more than $50,000. The offense of the thing is being acquired or held by the religious or charitable association to the amount forbidden. The jus in re arises from the contravention of law." We believe this to be a proper construction of the statute before us,-that the property acquired or held in violation of the law within five years before the commencement of the action is subject to forfeiture.

The remaining question which we deem it necessary to consider is whether or not the property involved in this action comes within the proviso found in section 3 of the act of July 1, 1862. That proviso is as follows: "That existing vested rights in real estate shall not be impaired by the provisions of this section." The findings of fact in this case show that the land in controversy in this action was first laid out in 1848; then taken possession of by the representatives of the church known as the Church of Jesus Christ of Latter-Day Saints. This church was a voluntary sect until January 19, 1855, when it was incorporated, and that the corporation subsequently possessed it, up to and including July 1, 1862. That buildings and other improvements of considerable value were built thereon by the church, and that the church was in actual possession and use of the property, and the improvements thereon, until the 1st day of July, 1862. That in November, 1871, the land was entered under the town-site act by the mayor of Salt Lake City. That Brigham Young, who was then president of the church, claimed the land under the town-site law,

on.

and it was conveyed to him by the mayor of said city, as trustee for the church aforesaid. That it afterwards passed by mesne conveyance to Robert T. Burton, who held the title on the 3d day of March, 1887, as trustee for the church. The question arises whether or not this parcel of land is forfeitable to the government of the United States under section 3 of the act of congress of July 1, 1862, which we have already quoted at length in this opinion. It is claimed by counsel for the government that inasmuch as the town-site law had not been extended over the territory of Utah at the time of the passage of this act, nor hau the public surveys been extended over the lands in controversy, the church had not, nor was it possible for it to have, acquired any vested interest in the lands in controversy at or prior to the time this act took effect; that it had no interest which the government was bound to respect. We do not deem it necessary to decide whether or not congress had authority, under the constitution, to ignore a right such as the church had in these lands in July, 1862. The real question is whether or not this act manifests an intention on the part of congress to preserve or ignore that right, such as it was. We seriously doubt whether congress has that unlimited control over the property rights of persons upon the public domain which counsel for the government insist upThe city of Salt Lake was founded in 1847. In 1850 the territorial government was organized. Congress passed the organic act, and thereby extended an invitation to the citizens of the government to establish their homes in the territory. Under this invitation, citizens took up their abode here in great numbers prior to the passage of the act of 1862. It was, of course, undisputably necessary that these settlers should found cities and villages at once, and enter into possession of portions of the public domain, cultivate, build upon, and otherwise improve the same, nothwithstanding that neither the town-site law nor the public surveys had been extended over the territory. In 1862 Salt Lake City was a town of several thousand families, and large sums had already been expended in buildings and other improvements by the inhabitants within the corporate limits of the city. Now it is claimed that congress had the power in 1862 to have withdrawn all lands within the city for sale, and to have driven the inhabitants of the city therefrom. We think it may well be questioned whether such action on the part of the government would not be a violation of that provision of the constitution which ordains that no one shall be deprived of his life, liberty, or property save by due process of law, but it is not necessary for us to decide this question. In our view of this case, if it be conceded that congress has the authority, under the constitution, to perpetrate such an act of cruelty and op

This brings us to the question of what is the meaning of the proviso "that existing vested rights in real estate shall not be impaired by the provisions of this section." In Cooley's Constitutional Limitations, (page 438,) the author says: "But, as a shield of protection, the term 'vested rights' is not used in any narrow or technical sense, or as importing legal power or control, merely, but rather as impairing a vested interest, which it is right and equitable that the government should recognize and protect, and of which the individual cannot be deprived arbitrarily without injustice." It is clear, by the decisions of the supreme court of the United States, that the church had at the time of the passage of the act of 1862 an interest in the lands in controversy in this action which the law recognizes, and such as the courts of the government would enforce and protect. It had a right of possession which the court would have enforced against any one who disturbed it in its possession. It had an interest such as it could incumber by way of mortgage, and the federal courts would have enforced the mortgage. It had an interest such as it could contract to sell and convey, and specific performance of such contract would have been enforced by the courts. See Stringfellow v. Cain, 99 U. S. 610; Hussey v. Smith, 99 U. S. 20; Lamb v. Davenport, 18 Wall. 307. An examination of these cases will show that according to the rule established in the supreme court of the United States, if in 1861 the church had entered into a contract with one then an occupant of the Tithing House property for the purchase thereof, upon a proper tender being made, the vendor had refused to convey, the courts of the United States would have compelled a conveyance, or, had the church refused to accept a conveyance, and make payment according to contract, the vendor could have had a decree enforcing payment. Suppose the church had acquired the interest which it had in the Tithing House property at the time of the passage of the act of 1862 in the manner just suggested. It is clear that it would have had no better or greater interest or right than it in fact had at that time; and yet, if the contention of counsel for the government is correct, the same court which rendered the decree enforcing such contract against the church would be compelled also to hold that the church had no estate or interest in the property, vested or otherwise. In the case of Lamb v. Davenport, 18 Wall. 307, the defendant, Davenport, had acquired possession by purchase of certain lots upon public lands of the United States in the city of Portland, Or. After the title had been perfected the owner of the title undertook to recover the property. Davenport defend

owner. Mr. Justice Miller, in delivering the opinion of the court, says: "The equity which Davenport sets up in his cross bill arises from transactions antecedent to the issue of the patent certificate of Lownsdale, and, indeed, antecedent to the enactment of the donation law of congress, under which Lownsdale's title originated. It is not necessary to recite in this opinion all of those transactions. It is sufficient here to say that, several years before any act of congress existed by which title to the land could be acquired, settlement on and cultivation of a large tract of lands, which includes the lots in controversy, had been made, and a town laid off into lots, and lots sold, and that these are a part of the present city of Portland. Of course, no legal title vested in any one by these proceedings, for that remained in the United States, all of which was well known and undisputed; but it was equally well known that these possessory rights and improvements placed on the soil were, by the policy of the government, generally protected, so far, at least, as to give priority of the right to purchase whenever the land was offered for sale, and where no special reason existed to the contrary. And though these rights or claims rested on no statute, or any positive promise, the general recognition of them, in the end, by the government, and its disposition to protect the meritorious actual settlers who were the pioneers of immigration in the new territories, gave a decided and well-understood value to these claims." And so we find here. The possessory rights of the several occupants, including the church, of lots in the city of Salt Lake, together with the improvements thereon at the time of the passage of the act of 1862, had a well-understood value; and it was this valuable estate or interest which congress intended to preserve unimpaired by the proviso of section 3 of the act of July 1. It is evident that it was not the intention of the government, by its legislation, to disturb, or in any manner interfere with, any interest, whatever the nature thereof might be, which had been acquired prior to the passage of the act. The act looked to the future only. This much is apparent from the face of it. If we look to the debates in congress upon the passage of the law, we find that such was, unquestionably, the general purpose of the framers of this act. Section 3 of the act was an amendment reported by the judiciary committee of the senate to the house bill. In the Congressional Globe of 1862, (page 2506,) will be found the statement of Senator Bayard, of that committee. In reporting this section, without quoting his language, it is sufficient to say that he declares clearly the purpose of congress is to prevent the church from acquiring any other or further property than that it then possessed, except it be within the limitation of the section. We are aware of the fact

that the arguments of legislators in debate on the passage of a law cannot be resorted to for the purpose of giving a meaning to the terms found in the statute, but they may be resorted to in ascertaining the general object of the legislative enactment. See opinion of Justice Field in Ah Kow v. Nunan, 5 Sawy. 560.

Again, this is a penal statute, and, according to a fundamental rule of interpretation, it is to be strictly construed against the government, and it is to be liberally construed in favor of the person or corporation sought to be charged with its penalties. As was said in Chase v. Railroad Co., 26 N. Y. 525: "In statutes giving a penalty, if there be reasonable doubt of the case made upon the trial or in the pleadings coming within the statutes, the party of whom the penalty is claimed is to have the benefit of such doubt." Now, if this proviso is not intended to preserve and protect just such a right as the church had in this parcel of land, it is entirely clear that there is nothing which it could preserve or protect, and this must have been known to congress. While the language of the section is general, it is a matter of common knowledge that it was aimed at the Mormon Church in Utah. As was said by Mr. Justice Field in the case just cited in 5 Sawy., "the class character of this legislation is none the less manifest because of the general terms in which it is expressed. We cannot shut our eyes to matters of public notoriety and general cognizance. When we take our seat upon the bench, we are not struck with blindness, and forbidden to know as judges what we see as men; and when an ordinance so general in its terms only operates upon a special race, sect, or class, it being universally understood that it is to be enforced against that race, sect, or class, we may justly conclude that it was the intention of the body adopting it that it should have such operation, and treat it accordingly." There was no United States land office established in Utah until long after 1862. Congress is presumed to have known that the legal title to no single foot of land in the territory had passed from the government, to any individual or corporation, at the time this law took effect. As we have shown, it was intended to affect only the rights and interests of the Mormon Church in Utah. It cannot be seriously claimed that the purpose of congress in the proviso of section 3, under the circumstances, was to preserve and protect only some legal, vested estate or interest in lands, for the reason that it was impossible to do this. The church against which the legislation was directed could not have, prior to that time, acquired any such interest. We are of opinion that this property involved in this action was not subject to forfeiture or escheat, under the provisions of the act of 1862, and that the judgment of the court below should be reversed, and

the case remanded, with directions to dismiss the action, and it is so ordered.

MINER and BARTCH, JJ., concur.

UNITED STATES v. GARDO HOUSE AND HISTORIAN OFFICE et al.

(Supreme Court of Utah. Aug. 31, 1893.) RES JUDICATA.

Act Cong. March 3, 1887, §§ 17, 26, aupoint a receiver for the property of the Church thorized the supreme court of Utah to ap of Jesus Christ of Latter-Day Saints, until it could be disposed of, and to dispose of it for lawful purposes of like nature with those for which it had been given to the church, and to set apart, and place in the hands of trustees, the real estate of the church used for places of worship, parsonages, and burial grounds. Held, that in the judgment an action brought under such statute was not res judicata of the right of the United States to forfeit and escheat land held by such church in violation of Act Cong. July 1, 1862, declaring that all real estate held in any territory of the United States, by any corporation for religious purposes, of greater value than $50,000, shall be forfeited and escheated to the United States.

Appeal from distrct court, third district; C. S. Zane, Justice.

Action by the United States against certain real estate situate in the city and county of Salt Lake, belonging to the late corporation of the Church of Jesus Christ of LatterDay Saints, known as the "Gardo House" and "Historian Office and Grounds," and William B. Preston and others, as trustees of such church, to forfeit and escheat such property to the United States, in which James P. Freeze and another intervened in behalf of themselves and all other members of such church. From a judgment in favor of plaintiff, defendants and interveners appeal. Affirmed in part, and reversed in part.

F. S. Richards, Le Grand Young, and W. H. Dickson, for appellants. The United States Attorney, (Bennett, Marshall & Bradley, of counsel,) for the United States.

SMITH, J.

This proceeding is, in its general features, like the case of U. S. v. Tithing Yard, 34 Pac. Rep. 55, (just decided,) and is governed by the decision in that case, except for the difference in the state of facts. The property called the "Gardo House," being the E. 1⁄2 of lot 6, in block 75, plat A, of Salt Lake City survey, as shown by the findings of fact, was not acquired by the church until 1877, and the church had no interest in it on July 1, 1862. Hence, under the conclusion reached in the Tithing Yard Case, the property just described as the "Gardo House" is subject to forfeiture, and the decree escheating it to the plaintiff should be affirmed. As to the property described in the complaint and findings as a part of the W. 1⁄2 of lot 6, block 75, plat A, in Salt Lake City, commencing at a point 10 rods west of the northeast corner of said lot 6,