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LINQUENT DRAINAGE TAXES-COLLECTION–cifically each of the alleged grounds of inVACATION OF DECREE.

The provision in Acts 1909, p. 710, § 3, validity set up in the complaints, and averamending Acts 1905, p. 437, § 11, that at any ring that the decree of the chancery court time within three years after final decree under and all the proceedings thereunder condemnwhich a sale is made for delinquent taxes the ing the lands to be sold were in all things owner may file his petition in the court rendering the decree, alleging payment of the taxes, regular and valid. The decree condemning and, on the establishment of that fact, the court the lands to be sold was rendered at the April shall vacate the decree, provides a remedy for term, 1910, of the Clay chancery court, and an attack on a decree of the chancery court ordering a sale of land for delinquent drainage the deeds were approved in November 22, taxes where the taxes have been paid, and an

1911, owner paying drainage taxes is entitled to have Glover testified that he paid drainage taxes, a decree directing a sale of land for delinquent and exbibited receipts showing the payment taxes set aside and deeds executed in pursuance of such taxes for the years 1905, 1908, 1909, thereof canceled.

[Ed. Note.-For other cases, see Drains, Cent. 1910, and 1911 on the north 12 of the northDig. 88 53, 82, 102, 103; Dec. Dig. 8 91.*] west 14 of section 31, township 19 north,

range 8 east. Appeal from Clay Chancery Court; Chas.

One Seitz testified that he was secretary D. Frierson, Chancellor. Consolidated suits by G. W. Sanders and the years 1905, 1906, and 1907, and that the

of the St. Francis drainage district during another and by D. V. Glover and another taxes for 1905, 1906, and 1907 were all in and by Alvis Hogan and others against W.

the same book. H. O'Barr and another. From a decree grant- 1906 and 1907 were made out together and

The two years' taxes of ing relief to complainants, defendants appeal. levied together; the taxes were assessed Affirmed in part, reversed and remanded, jointly for the two years. This book shows with directions, in part.

that the assessment for the year 1905 of On August 13, 1912, G. W. Sanders and J. $4 on above tract was paid November 18, F. Ogles filed their complaint against W. H. 1906. The assessment of 1905 was also paid O'Barr and C. C. Jarrett; on August 31, on the east 12 of the northwest 14 of section 1912, D. V. Glover and Paul M. Will filed 33, township 19 north, range 8 east, on their complaint against the same defendants; October 23, 1906. and on September 8, 1912, Alvis Hogan, Russ The assessment for 1906 and 1907 on the Howerton, Charley Hayden, W. R. Winn, and above tracts of land as shown by the list or Albert Vincent filed their complaint against book was not paid. This book was the only the same defendants, all in the chancery book furnished the treasurer, and contained court for the Eastern district of Clay coun- the only list showing what lands were assessty, Ark., to quiet title to several tracts of ed and the amount of the assessments. It land, described in their respective complaints. also showed that the assessment against lots Sanders and others claimed to own lots 10, 10, 11, and 12, Wright's addition to the town 11, and 12 in block 1, Wright's addition to the of Rector for the years 1905, 1906, and 1907 town of Rector, Ark., Glover and others had not been paid. If the taxes for the years claimed to own the north 12 of the northwest specified had been paid the books would 14 of section 31, township 19 north, range 8 show it. east. Vincent and others claimed to own the

Witness Hogan testified that he paid taxes east 42 of the northwest 14 of section 33, on the east 12 of the northwest 14 of section township 19 north, range 8 east.

33, township 19 north, range 8 east, both genThe complainants set up that the several eral and special, for the year 1907. He got lots and tracts of land owned by them re- the receipt. He paid the drainage taxes, and spectively were sold on June 4, 1910, under the receipt for this was separate from the an order of the chancery court condemning general tax receipt. His attention was called the lands for sale for delinquent drainage at the time to pay his drainage taxes, and taxes, penalty, and costs for the years 1905, the collector was there at Rector, and he 1906, and 1907; that the lands were bought went in and paid them. The tax receipt was by O'Barr; that the deeds executed to deposited in the Rector bank. When he went O'Barr and approved by the court making the to get the receipts some of his papers had sale were void, and were clouds on plain- been misplaced and he could not get them. tiffs' title, for the following reasons: (Here

The above was substantially the evidence 17 different grounds were given as reasons for avoiding the sale made for the drainage on behalf of plaintiffs below, appellees here.

The evidence on behalf of the defendants taxes.) The eleventh reason set out was as below, appellants here, consisted of the recfollows:

ord of the proceedings of the chancery court "The commissioner's deeds are void because the taxes for which said lands were condemned for the Eastern district of Clay county in and sold were not delinquent but had been the case of St. Francis drainage district paid."

against delinquent lands, in which the lands It is unnecessary, in the view we take, to in controversy were condemned and sold for set forth the other grounds alleged.

the delinquent drainage taxes for the years

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

1905, 1906, and 1907. The record showed the [3] N. However, Act No. 235 of the Acts complaint against the lands in controversy, of 1909 contains this provision: the notice, proof of publication, the decree, “Provided, that at any time within three the commissioner's report showing the sale years after the rendition of the final decree unof the lands, and the approval thereof, and der which the sale is made, the owner of the

land may file his petition in the court rendering the deeds to O'Barr, and the approval there the decree, alleging the payment of the taxes on of by the chancery court.

the lands for the year for which they were sold, The decree in the present case recites that and that upon the establishment of that fact, the three cases were consolidated and tried the court shall vacate and set aside the decree,”

etc. together, and the chancellor found in favor

It will thus be seen that the act itself of the plaintiffs below, and entered a decree canceling the commissioner's deeds to O'Barr, provides a direct method for an attack on giving him a lien for the taxes, penalty, and the lands for sale where the “taxes have been

the decree of the chancery court condemning costs that had been paid by him. To reverse paid on the lands for the year for which that decree this appeal has been duly prose- they were sold.” Under this provision appelcuted.

lants were entitled to have the decree set Johnson & Burr, of Paragould, for appel aside, and the deeds made in pursuance therelants. Lafayette Hunter, of Piggott, and of canceled, as to those tracts of land where M. P. Huddleston and Robert E. Fuhr, both they showed that the taxes were paid for the of Paragould, for appellees.

years for which they were sold.

The chancellor was warranted in finding,

under the testimony set forth in the stateWOOD, J. (after stating the facts as ment, that the taxes were paid on the east above). [1,2] I. This suit, as to all the 42 of the northwest 14 of section 33, township grounds alleged for invalidating the deeds 19 north, range 8 east, for the years 1905, of the commissioner except that the taxes 1906, and 1907. But as to the other tracts were paid, was a collateral attack on the in controversy there is no testimony to condecree of the chancery court condemning the tradict or rebut the testimony of the witlands to be sold. See Hall v. Morris, 94 Ark. ness to the effect that the taxes on these 519, 127 S. W. 718; Crittenden Lumber Co. tracts were not paid for all the years for V. McDougal, 101 Ark. 390, 142 S. W. 836 ; which they were sold. Beck v. Anderson-Tulley Co., 169 S. W. 246. The decree of the chancery court, therefore,

The record of the proceedings of the chan- will be affirmed as to the east 12 of the northcery court under which the lands in contro-west 14 of section 33, township 19 north, versy were condemned and sold for delin- range 8 east; but as to the other tracts it quent drainage taxes shows that those pro- will be reversed and remanded, with direcceedings were in all things regular and actions to enter a decree dismissing the appelcording to Act No. 172 of the Acts of 1905, lees' complaints for want of equity. as amended by Act No. 235 of the Acts of 1909. There is nothing on the face of the proceedings, as shown by this record, evidencing a want of jurisdiction in the chancery

AMERICAN INS. CO. v. McGEHEE LIQcourt to decree a sale of the lands in contro

UOR CO. (No. 66.) versy. It is clear that Act No. 235 of the (Supreme Court of Arkansas. June 29, 1914.) Acts of 1909 did not intend to abolish any 1. JUDGMENT (843*)-ASSIGNMENT-ASSIGNcauses of action that had accrued and that

ABILITY OF JUDGMENT OF SUPREME COURT.

Though Kirby's Dig. § 4457, requiring the were then in existence for the delinquent sale of a judgment of a court of record or of taxes of prior years. But the act of 1909 any cause of action after suit is brought to be was intended to furnish the remedy that evidenced by a written transfer which may be should thereafter be pursued for the collec- the record where the judgment is recorded, does

filed with the papers of the suit and noted on tion of all delinquent taxes, no matter for not authorize the assignment of a judgment of what year the same had accrued. Since the the Supreme Court, the rights of the judgment proceedings of the chancery court condemn- right to enforce the judgment in the name of the

creditor can be transferred so as to carry the ing the lands in controversy were regular assignor; the assignment not vesting the legal on their face, and did not show any want of title in the assignee. jurisdiction in the chancery court, all the

[Ed. Note.-For other cases, see Judgment, matters alleged in the complaints of the ap- Cent. Dig. 8 1539; Dec. Dig. 843.*] pellees as grounds for invalidating the sale 2. JUDGMENT (8 847*)-ASSIGNMENT-RIGHTS made under the order of the chancery court

OF ASSIGNEE AS TO JUDGMENT DEBTOR,

A judgment is not negotiable, and the asand the deed of the commissioner in pursu-signee takes the assignment subject to all the ance thereof cannot avail here; because, the equities between the parties to the judgment. chancery court having jurisdiction, its de [Ed. Note.-For other cases, see Judgment, cree, as to all things necessary for adjudica- Cent. Dig. 88 1548–1555; Dec. Dig. 8 847.*] tion before the rendition thereof, cannot be 3. EXECUTION ($ 161*)-QUASHING-GROUNDS. overcome and set aside by this collateral at- inherent power to control its own judgments and

The Supreme Court, in the exercise of its tack. See Lumber Co. v. McDougal, supra. process, may quash an execution issued by its For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

clerk to enforce one of its judgments upon proofs and recovered judgment in the trial court of payment of the judgment; this not being an | against all of them. A supersedeas bond on exercise of original jurisdiction.

appeal to this court was executed, and peti[Ed. Note. For other cases, see Execution, tioners, A. B. Poe and A. J. Graham, signed Cent. Dig. 88 467-471; Dec. Dig. 8 161.*] 4. APPEAL AND ERROR ($ 1236*)

the bond as sureties. When the cause was

SUPERSEDEAS BOND-LIABILITIES ON – JUDGMENT heard here the judgment against the sureties IN SUPREME COURT.

on the original bond of the insurance comWhere, in an action on drafts on an in- pany was reversed, and the cause was dissolvent foreign insurance company for the missed as to them, but the judgment against amount of a loss against the company, the sureties on the statutory bond given to authorize it the insurance company and Poe and Driver to do business, and the indorsers of the drafts, as indorsers of the draft was affirmed, and a judgment for plaintiff was reversed as to the the judgment was also rendered against Poe the indorsers, and judgment was also rendered and Graham as sureties on the supersedeas against the sureties on the supersedeas bond, bond. American Ins. Co. v. McGehee Liquor one of whom was also an indorser, the Supreme Co., 93 Ark, 62, 124 S. W. 252, 20 Ann. Cas. Court, on a motion to quash an execution on 855. its judgment on the ground that one of the sureties on the statutory bond had paid the judg

The petitioners, Poe and Graham, allege in ment, but taken an assignment thereof instead their petition or motion, now filed, that shortof satisfying it, could not adjust the equities ly after the affirmance of the judgment an between the moving parties and the sureties, as execution was sued out by the judgment credthis relief must be sought in a court of original jurisdiction, especially where a suit for such itor, but that said execution was paid, either relief was pending in the chancery court. by the American Insurance Company or by

[Ed. Note. For other cases, see Appeal and one of the sureties on the bond. In a suppleError, Cent. Dig. 88 4778 4784; Dec. Dig. 8 mental petition it is alleged that the pay1236.*]

ment was made by W. B. Calhoun, and that 5. EXECUTION ($ 171*)-ENJOINING ENFORCE- the judgment was assigned to him by the MENT OF-GROUNDS.

The court of chancery in a suit in which it plaintiff, and that he assigned it to the Ger. has acquired jurisdiction over all of the parties man Investment Company. It is further alto a Supreme Court judgment may prevent the leged that one of the attorneys for the judg. enforcement of such judgment; since, while it cannot coerce the officers of the Supreme Court, ment creditor, instead of having the execuit may prevent the parties thereto from en tion returned satisfied, “caused the same to forcing the judgment.

be returned unsatisfied, and then proceeded [Ed. Note.-For other cases, see Execution, to secure the said McGehee Liquor Company Cent. Dig. 88 497–518; Dec. Dig. $ 171.*]

to assign said judgment to the corporation Action by the McGehee Liquor Company named, the German Investment Company, against the American Insurance Company and that this was done

for the and others. A judgment for plaintiff was af- purpose of defrauding the petitioner" and firmed as to certain of the defendants (93 Ark. preventing him from enforcing his right of 62, 124 S. W. 252, 20 Ann. Cas. 855) and A. subrogation against the sureties for amounts B. Poe and another, sureties on the superse that he had paid out for the insurance comdeas bond, move to quash an execution upon pany on other judgments. There are other such judgment. Motion overruled without allegations in the motion unnecessary to re prejudice.

cite.

The response contains a general denial that PER CURIAM. This is a proceeding insti- the judgment has been satisfied, and contuted here by two judgment debtors moving tains also denials of the other allegations of the court to quash an execution issued by the petition, except the written assignment the clerk of this court, on the ground that set forth therein. But it contains the state. the judgment has been satisfied. They also ment also that, after the case had been apask that assignments of the judgment by the pealed to this court, and before the reversal original judgment creditor and its assignee of the judgment as to the sureties, a writ be stricken from the files.

of execution was issued from the Pulaski The American Insurance Company was do- circuit court to the sheriff of Mississippi ing business in Arkansas, and gave bond in county against W. B. Calhoun, and that Calaccordance with the statute, signed by peti- houn, “to prevent the levy or sale of his tioner A. B. Poe and certain others.

property, satisfied said execution, and the The McGehee Liquor Company sustained a judgment was assigned to him, loss under a policy, which was adjusted, and appears upon the margin of the record of the adjuster gave a draft on the home office said judgment.” The records of this court in another state, and the draft was indorsed show the assignment made by the plaintiff by petitioner Poe and John B. Driver, Be- to the German Investment Company and the fore the draft could be presented for collec- sub quent assignments. tion the insurance company became insolvent It is argued in the first place that the asand passed into the hands of a receiver. The signments should be stricken from the files policy holder instituted an action against because there is no statutory authority to the company and the indorsers on the draft, assign a judgment of this court, or to place and also against the sureties on the bond, an assignment upon the files of this court.

as

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

[1] It is quite true that there is no statute , seeking to have the pet tioners' rights of authorizing an assignment of a judgment of contribution enforced and the judgment stay. this court, the only statute on the subject of ed until that can be done. The sheriff of assignment of judgments being one which re- Pulaski county, to whom the execution was lates to the assignment of causes of action delivered, is also made a party to that suit. as well as, of judgments rendered thereon. [5] Now, it would be improper to underKirby's Digest, & 4457. We have held that take to decide, in advance, the question inthat statute has no reference to cases pend- volved in that case; but it is not improper ing in this court. Railway Co. v. Ham- to say at this time that, if a cause of action bright, 87 Ark. 242, 112 S. W. 876.

on behalf of the petitioners to prevent enBut, aside from any statute on the subject, forcement of this judgment against them be the rights of a judgment creditor can be established, the chancery court, acting in transferred to another so as to carry the personam, has the power to prevent the enright to en orce the judgment. Such assign-forcement of the judgment, even though it ment does not vest the legal title in the as- be a judgment of this court. The court cansignee, but he can enforce the judgment in not coerce the officers of this court, but when the name of his assignor. 2 Black on Judg- it acquires jurisdiction of the persons of ments, $$ 940, 948; 2 Freeman on Judgments, those who are parties to the judgment it § 421.

has the power to prevent them from taking (2) A judgment is not negotiable, and, of any steps towards the enforcement of the course, the assignee takes the assignment judgment. This, of course, is dependent upsubject to all the equities between the parties on there being a statement of grounds for to the judgment. 2 Freeman on Judgments, equitable relief. § 427. It would not, therefore, be proper to The motion of petitioners is, therefore, strike out the assignments unless it is shown overruled, without prejudice to their rights that the judgment has been satisfied.

to seek relief in a court of competent jurisThere is, as before stated, an allegation diction. in the petition to the effect that the judgment has, in fact, been paid and satisfied; but that is denied, and the record shows an as- WESTERN TIE & TIMBER CO. v. CAMPsignment of the judgment by the judgment

BELL et al. (No. 86.) plaintiff.

[3] This court has power over its own (Supreme Court of Arkansas. July 6, 1914.) process, and it would be proper for this 1. MORTGAGES ($ 158*)--LIEN AND PRIORITYcourt, upon proof of payment of the judg- PURCHASE-MONEY MORTGAGE-MORTGAGE TO ment, to make an order quashing any process

THIRD PERSON.

A mortgage given at the time of the purerroneously issued thereon. That is not the chase of real estate to secure the purchase mon, exercise of original jurisdiction, but is mere- ey, whether given to the vendor or to a third ly the exercise of powers which courts in person, who, as a part of the same transaction, herently possess in the control of their own advances, the purchase money, has preference

over all judgments and liens against the mortjudgments and process. 17 Cyc. p. 1135.

gago. [4] That is as far, however, as this court [Ed. Note.-For other cases, see Mortgages, can go, because it would be an exercise of Cent. Dig. 88 337–343; Dec. Dig. $ 158.*] original jurisdiction for this court to attempt 2. FINES (8 3*)—LIEN-STATUTES. to adjust the equities between the sureties on Kirby's Dig. § 2467, providing that the real the bond of the defendant insurance com- and personal property of one charged with a If there exists any equities between of his arrest or the finding of an indictment

criminal offense shall be bound from the time pany. the parties to be adjusted, a remedy must be against him, whichever shall first happen, for sought in a court of original jurisdiction. the payment of all tines and costs which may be The admission that Calhoun satisfied the exe adjudged to pay, creates a lien upon such propcution issued from the Pulaski circuit court erty, not only in the hands of accused, but in

the hands of any other person possessing or and caused the judgment to be assigned to holding it, after the arrest or indictment found, him, and later to the German Investment until accused is discharged or lines and costs Company, raises a question of fact which re- adjudged against him are paid, which lien also

attaches to the accused's after-acquired proplates only to the alleged equities between pe- erty. titioners and Calhoun and those who claim [Ed. Note.-For other cases, see Fines, Cent. under him; for the judgment of this court Dig. & 5; Dec. Dig. $ 3.*] was not rendered against Calhoun. The ef-3. MORTGAGES ($$ 90, 173*)-RECORD-EFFECT fect of the admission is merely that Calhoun OF UNRECORDED MORTGAGE. purchased an assignment of the judgment,

Under Kirby's Dig. & 5396, providing that and the question whether he had a right to shall be a lien thereon from the time it is filed

every mortgage of real or personal property do so is one for investigation in a court of in the recorder's office for record, an unrecorded original jurisdiction. It is alleged in the mortgage is valid between the parties and as petition that the petitioners have instituted against persons holding the property under a

voluntary conveyance. an action in the chancery court of Pulaski county against all of the parties claiming Cent. Dig. $$ 199, 200, 412, 419-424; Dec. Dig.

[Ed. Note.-For other cases, see Mortgages, an interest in the judgment, and they are 88 90, 173.*j* •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

4. MORTGAGES (8 151*)—PRIORITY-LIEN OF purchasers. Subsequently appellant purchasJUDGMENT FOR FINE.

ed the notes secured by the mortgage exeUnder Kirby's Dig. § 2467, binding the cuted by Thomas, and foreclosed the mortproperty of an accused from the time of his arrest or the finding of an indictment against him gage, and became the purchaser at the sale. to the payment of fines and costs adjudged [1, 2] It is quite well settled by the authoragainst him, and section 5396 providing that ities that a mortgage, given at the time of every mortgage shall be a lien on the mortgaged property from the time it is filed in the record the purchase of real estate to secure the payer's office for record, the state after indictment ment of purchase money, whether given to had a valid lien for fines and costs prior to a the vendor or to a third person, who, as a mortgage of property of accused, executed after the indictment, but not recorded until several part of the same transaction, advances the months after execution.

purchase money, has preference over all [Ed. Note.-For other cases, see Mortgages, judgments and other liens against the mortCent. Dig. $$ 307, 309–311, 314-329, 332-336; sagor. Dec. Dig. § 151.*]

“A purchase-money mortgage may," says

Mr. Jones, “be made to a third person who Appeal from Jackson Chancery Court; advances the purchase money at the time George T. Humphries, Chancellor.

the purchaser receives his conveyance, and Action by the Western Tie & Timber Com- such mortgage is entitled to the same preferpany against L. L. Campbell and others. De- ence over a prior judgment as it would have cree for defendants, and plaintiff appeals. had if it had been executed to the vendor Affirmed.

himself.” 1 Jones on Mortgages (6th Ed.) §

472. A. J. Stack and Frank H. Sullivan, both of

Prof. Pomeroy has this to say on the subSt. Louis, Mo., for appellant. Stuckey &

ject: Stuckey and Lon L. Campbell, all of New.

"Even in the absence of any statute, and upon port, for appellees.

the general principles of equity, a purchase

money mortgage given at the same time as the McCULLOCH, C. J. This controversy in precedence over any prior general lien, such as

deed, or as a part of the same transaction, bas volves the title to a tract of land in Jackson that part of a prior judgment against the mortcounty, Ark., both parties to the suit claim- gagor. The same equitable rule applies in like ing title from a common source; appellant manner to a mortgage given by the grantee to

a third person, as security for money loaned for claiming under a mortgage executed by one the purpose of being used, and which is actually Thomas, and appellees claiming under a sale used, in paying the purchase price.” 2 Pomupon execution issued againsť the property of eroy's Equity Jurisprudence (31 Ed.) § 725. Thomas. The question in the case relates to

The following cases, among many others, the priority of the respective liens.

fully sustain the text: Kaiser v. Lembeck, On February 11, 1904, the grand jury of 55 Iowa, 244, 7 N. W. 519; Clark v. Butler, Jackson county returned indictment

32 N. J. Eq. 664; Moring v. Dickerson, 85 against Thomas for misdemeanor, and he was N. C. 466; Rodgers v. Tucker, 94 Mo. 346, 7 arrested on a bench warrant in July of the S. W. 414; Roane v. Baker, 120 Ill. 308, 11 same year. After the return of the indict. N. E. 246; Courson v. Walker, 94 Ga. 175, 21 ment against Thomas, some time during the S. E. 287. month of February, 1904. the precise date

an

“The reason given," says the North Caronot being shown, he negotiated the purchase lina court in stating the principle in the of the tract of land in controversy from one above-cited case, “is that, the execution of Mustin, who was then the owner. The pur- the deed and of the mortgage being simulchase price was to be $350, and Thomas bor- taneous acts, the title to the land does not rowed $250 to complete the purchase, having for a single moment rest in the purchaser only $100 of his own to pay on the land, but merely passes through his hands, and and he executed the mortgage upon which without stopping vests in the mortgagee, and appellant rests its claim of title to secure the during such instantaneous passage no lien of amount so borrowed, which was used in pay any character can attach to the title.” ing the purchase price. The mortgage was

The facts presented in this record bring dated February 26, 1904, and the deed from the case within that rule as to the mortgage Mustin to Thomas bears date February 29, under which appellant claims title, but the 1904, but the proof shows that the two trans- real turning point in the case is whether actions were simultaneous. The mortgage or not appellant's lien under the mortgage was not recorded, however, until November was superior to the state's lien for the fine 4, 1904.

and costs assessed against Thomas. On January 30, 1905, Thomas entered a The statute provides that: plea of gui a fine of $50 was assessed

“The property, both real and personal, of any against him, and judgment was rendered in person charged with a criminal offense, shall favor of the state for the recovery of said be bound from the time of his arrest, or the findfine and the costs of prosecution. In October, shall first happen, for the payment of all fines

ing of an indictment against him, whichever 1905, execution was issued on the judgment, and costs which he may be adjudged to pay." the land was sold, and appellees became the Kirby's Digest, $ 2467.

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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