The fact that there is no controversy between the parties may be shown at any time before the decision of the case; and there is no laches in de- laying to bring it before the court until after argument heard on the merits. Little v. Bowers, 547.
See APPEAL, 1, 2, 3;
CERTIFICATE OF DIVISION IN OPINION;
EX POST FACTO LAW, 4; JURISDICTION A, 11, 12.
A rule in force for the subdivision of public lands for disposal under the public land law does not necessarily apply to the subdivision of pri- vate lands by their owners after they have been granted by the gov- ernment without having first made official subdivisions. McKey v. Hyde Park, 84.
1. A State may provide by statute that the title to real estate within its limits shall be settled and determined by a suit in which the defend- ant, being a non-resident, is brought into court by publication. Arndt v. Griggs, 316.
2. The well-settled rules, that an action to quiet title is a suit in equity; that equity acts upon the person; and that the person is not brought into court by service by publication alone do not apply when a State has provided by statute for the adjudication of titles to real estate within its limits as against non-residents, who are brought into court only by publication. Ib.
1. A railroad company made a mortgage to secure an issue of 3000 bonds of $1000 each. It contracted with a contractor for the construction of 31 miles of its road, and as part consideration therefor agreed to give him 310 of these bonds. Before any further issues were made it agreed with a banking house in New York, as a part consideration for their acquiring these bonds, that it would only issue bonds to the ex- tent of $10,000 a mile on its constructed road, and on the faith of this the New York house bought and paid for the bonds, and the 31 miles of road were constructed. Subsequently, and without constructing any additional miles, it issued 147 more bonds which were mostly used in the settlement of debts to parties who had notice of the agree- ment with the New York house. Default having been made in pay- ment of interest a bill in equity was filed to foreclose the mortgage; Held, (1) That as to all persons acquiring any part of the 147 bonds with notice of the agreement with the New York house, the 310 bonds held by the latter were entitled to priority; (2) That holders who
took them without notice of it, whether taking originally from the company, or by purchase from one who took with knowledge, were entitled to share with the New York house in the distribution. Mc- Murray v. Moran, 150.
2. A consolidation of railroad companies in Missouri, under the act of Missouri of March 24, 1870, § 1, held valid. Leavenworth County Commissioners v. Chicago, Rock Island &c. Railway, 688.
3. A provision for the filing with the Secretary of State, by each of the consolidating companies, of a resolation accepting the provisions of the act, passed by a majority of the stockholders, at a meeting called for the purpose, was not observed, but its non-observance did not render the consolidation void. Ib.
4. The object of the statute was to prevent the consolidation of compet- ing roads, and to confine it to roads forming a continuous line. 5. A certified copy from the office of the Secretary of State of the copy of the articles of consolidation filed there, under the statute, is con- clusive evidence of the consolidation in every suit except one brought by the State to have the consolidation declared void. Ib.
6. A foreclosure of a mortgage on a railroad, and its sale under a de- cree, held valid, in a suit attacking them for fraud, because of the trust relations of the parties, when there was no collusion or fraud in fact. Ib.
1. While repeals of statutes by implication are not favored by the courts, it is settled that, without express words of repeal, a previous statute will be held to be modified by a subsequent one, if the latter
was plainly intended to cover the whole subject embraced by both, and to prescribe the only rules in respect to that subject which are to govern. 2. Upon the construction of the constitution and laws of a State this court, as a general rule, follows the decisions of the highest court of the State, unless they conflict with, or impair the efficacy of some provision of the federal constitution, or of a federal statute, or a rule of general commercial law; and this is especially the case when a line of such decisions have become a rule of property, affecting title to real estate within the State. Gormley v. Clark, 338.
3. When there is an ambiguity in a section of the Revised Statutes, resort may be had to the original statute from which the section was taken, to ascertain what, if any, change of phraseology there is, and whether such change should be construed as changing the law. United States v. Lacher, 624.
4. Penal statutes, like all others, are to be fairly construed according to the legislative intent, as expressed in the act. Ib.
1. The plaintiff in error failed to make a return of its loans to the state authorities as required by law, whereupon the auditor general, under direction of state law, made out an account against it containing the following charge: "Nominal value of scrip, bonds and certificates of indebtedness held by residents of Pennsylvania, $539,000-tax three mills-$1617.00." The company appealed from this court to the Court of Common Pleas, which decided in its favor, and the Common- wealth from thence to the Supreme Court of the State, which rendered a judgment in favor of the Commonwealth for $666. Among the grounds for the appeal was, that the tax was in violation of section one of the Fourteenth Amendment, because the assessment was for the nominal value, and not for the real value of the bonds; because the owners of the bonds had no notice, and no opportunity to be heard; because the company was taxed for property that it did not own; and because the deduction of the tax from the interest due the bondholders in Pennsylvania took their property without due process of law, and denied to them the equal protection of the laws. The case being brought to this court from the state court by writ of error, a motion was made to dismiss for want of jurisdiction; to which was united a motion to affirm; Held, (1) That there was clearly a federal question raised, and the writ could not be dismissed for want of jurisdiction; (2) That although it was doubtful whether, under the rules, there was sufficient color for the motion to dismiss to justify the court in con- sidering the motion to affirm, yet, as the Supreme Court of Pennsyl- vania, in its opinion, did not seem to have expressly passed upon the federal question, which was clearly in the record, the court could con- sider that there was color for making that motion; (3) That the provision for the assessment of the tax upon the nominal or face value of the bonds, instead of upon their actual value, was a part of the state system of taxation, authorized by its constitution and laws, and violated no provision of the Constitution of the United States; (4) That the failure to give personal notice to the owners of the bonds involved no violation of due process of law, when executed according to customary forms and established usages, or in subordination to the principles which underlie them; (5) That it was not true, in point of fact, that the corporation was taxed for property which it did not own. Bell's Gap Railroad Co. v. Pennsylvania, 232.
2. The power conferred by the statutes of Missouri upon counties within the State, to levy and collect annually a tax of one-half of one per cent upon all the taxable wealth of the county for county revenue, is not exhausted by a levy of thirty cents on every one hundred dollars of taxable property for county purposes, and the levy of twenty cents on the same by the board of townships for township and bridge pur- poses; and a judgment creditor of such a county has a right to requir
it to impose further taxation within the limit of the unexhausted power, for his benefit. Macon County v. Huidekoper, 332.
3. The validity of a state tax upon corporations created under its laws, or doing business within its territory, can in no way be dependent upon the mode which the State may deem fit to adopt in fixing the amount for any year which it will exact for the franchise. Home Ins. Co. v. New York, 594.
See CONSTITUTIONAL LAW, 17, 18; EQUITY, 10;
JURISDICTION, A, 11.
The provision in the constitution of Louisiana declaring a tax-title to be prima facie valid is intended to be applied to cases in which the tax- title is attacked for alleged informalities in the proceedings; but not to cases in which it is attacked for fraud and collusion in effecting the sale. Mendenhall v. Hall, 559.
1. A trustee of real estate, after a court of equity, on his own motion, has discharged him and relieved him of his trust and appointed another trustee in his place, has no remaining interest in the property which he can convey by deed. Kenaday v. Edwards, 117.
2. A trustee of real estate, appointed by the court, subject to its control and order, cannot give good title to the trust estate by a deed made without the consent of the court. Ib.
VOLUNTARY CONVEYANCE. See HUSBAND AND WIFE, 1, 2.
WARRANTY.
See CONTRACT, 8, 9, 10, 11.
A testatrix, residing in South Carolina, who died in July, 1866, left a will made by her in 1863, by a codicil to which, made in January, 1866, she bequeathed to her daughter, then married to C., three-fourths of her. interest in a bond and mortgage debt, to be vested in a trustee, who was appointed, and to be enjoyed by the daughter during her life,
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