in which the mortgagor, or one claiming under him, should file the bill to avoid the sale and redeem. Each case must be determined upon its own peculiar facts. 2 Jones, Mortg. § 1885; 11 Am. & Eng. Enc. Law (2d Ed.) p. 225, note 4, and the authorities. In the section cited from Jones, Mortg., 13 years is held to be too long; and in the passage cited from the Encyclopædia 20 years is held to be too long. In this case it is shown con

terest and integrity. It restrains all agents, public and private; but the value of the prohibition is most felt, and its application is more frequent, in the private relations in which the vendor and purchaser may stand towards each other. The disability to purchase is a consequence of that relation between them which imposes on the one a duty to protect the interest of the other, from the faithful discharge of which duty his own personal interest may withdraw him. In this conflict of interest the law wisely interposes, and it makes no difference in the application of the rule that a sale was at public auction, bona fide, and for a fair price, etc. The inquiry in such a case is not whether there was not fraud in fact. * * The rule,

as expressed, embraces every relation in which there may arise a conflict between the duty which the vendor or purchaser owes to the person with whom he is dealing, or on whose account he is acting, and his own individual interest.'" To the same effect is Roberts v. Fleming, 53 Ill. 196, and Thomas v. Jones, 84 Ala. 302, South. 270. The running comment in Hyde v. Warren, 46 Miss. 28, 29, does not approve the cases which are cited. On the contrary, the court expressly refrains from expressing any opinion on the point.

Counsel next insists that this is not a sale by the mortgagor to the mortgagee, because George J. Peet purchased at the sale. But Peet was a mere nominal purchaser. It perfectly appears that he bought for the appellee on July 3, 1895, and conveyed to it on July 13, 1895. He paid nothing on his bid. He bid $1,075, out of which $43 were deducted for the expenses of the sale, and the balance was credited on the indebtedness of the mortgagor to the mortgagee. It is perfectly obvious that Peet was a mere conduit of the title for the mortgagee. In such case the law is exactly the same as if the mortgagee had bid in his own name in the first instance. This is expressly decided in Roberts v. Fleming, supra, at page 200, and also in Thornton v. Irwin, supra. Indeed, it needs no decision to maintain so manifestly proper a conclusion. "Qui facit per alium facit per se."

Counsel for appellees next insists that appellant is barred by unreasonable delay in filing the bill. If we were to deal with this question apart from the statutes of limitations, then no hard and fast rule can be laid down as to what is a reasonable time with

the mortgagors, did not know until the latter part of 1900 or the first part of 1901 that the appellee was the real purchaser at the foreclosure sale on July 1, 1895, and that the appellant did not obtain the deed conveying the mortgagor's equity of redemption until some three or four months before the bill was filed. It cannot be held, under the facts of this case, that the delay has been unreasonable, apart from the statute of limitations, especially in view of the fact that the appellant offered to do equity by paying the full amount-principal and interest-due on the mortgage debt to the mortgagee. The mortgagee cannot sustain any possible injury. If it does not get the property, it is because of its own willful folly in becoming the purchaser at its own sale. But stale claims are unknown in this state, and hence a consideration of the effect of laches, wholly disconnected from any element of estoppel, in barring a bill to redeem, is, with us, useless. There is no element of estoppel here, whatever. Helm v. Yerger, 61 Miss. 51, points out the difference between mere laches and estoppel in cases of this sort. The cases of Westbrook v. Munger, 61 Miss., at page 336, and Hill v. Nash, 73 Miss., at page 862, 19 South., at page 710, are conclu sive that, so far as mere laches is concerned (there being no element of estoppel in the case), no lapse of time short of the period that would bar the bill to redeem under section 2732 of the Code of 1892 (10 years), will bar the right to file the bill. We said in Hill v. Nash, supra: "Finally it is contended by counsel for appellant that as ten years, lacking only four days, intervened between the death of N. P. Ragan, the father, and the date of the institution of the suit, a court of equity, in the exercise of its own inherent powers, independently of the statute of limitation, may and should refuse relief, on the ground of discouraging stale claims or gross laches, or unexplained acquiescence in the assertion of an adverse right. Much and excellent authority is cited by counsel in support of this proposition, but it has been decided that there is no such thing as a stale claim, properly so called, in this state; and, by positive law, the statute of limitations is to be applied in our courts of equity as in our courts of law. With us no claim is barred until the limitation of the statute has accrued. Code, § 2731."

Counsel for appellees next insists that, even if the sale is voidable at the instance of the

mortgagor, the appellant could have no right to maintain this bill, derived from his quitclaim deed from the mortgagor executed after the foreclosure sale; and he very earnestly contends that when the rule is announced that in cases of a voidable sale the mortgagor, or any person claiming under him, may avoid the sale, it is only meant that any person claiming under him at the date of the sale, and having at the time of the sale an existing interest in the property, may avoid the sale, and not one who acquires an interest under the mortgagor after the sale, and with notice of the sale. He cites many authorities, amongst which is Wade v. Thompson, 52 Miss. 367. Counsel misconceives this case. That was a contest between rival claimants of the title in ejectment, and not a bill filed to avoid a sale and to redeem. The case of Wormell v. Nason, 83 N. C. 32, does not support the contention. On the contrary, it expressly declares on page 36 that the mortgagor, or any one claiming under him, as assignee or creditor, may file the bill to avoid the sale; and the court held that since the creditors were not prejudiced by the sale, and the administrator was not acting or professing to act in their interest, he could not, as administrator, on those facts, maintain such a bill. But the court expressly said that there might be cases in which even an administrator might file such a bill. The case of McCall v. Mash, 89 Ala. 487, 7 South. 770, 18 Am. St. Rep. 145, is the only case that we have seen that appears to sustain the contention of counsel for the appellees. And the whole case proceeds upon the idea that the equity of redemption cannot be conveyed or transferred by a quitclaim after a voidable sale, and that no bill could be maintained to avoid such sale by one who purchased the equity of redemption from the mortgagor, and obtained a quitclaim deed purporting to convey the equity of redemption, after such voidable sale. Whether this decision was based upon some statute does not appear. The reasoning seems to be that whilst the equity of redemption constitutes a beneficial estate in the land, and may be conveyed as any other interest in the land prior to the foreclosure sale, yet, that after a foreclosure sale, though voidable, it can no longer be so conveyed, because the equity is barred by the foreclosure, and, being barred, no right of redemption exists. But this case obviously confuses a valid sale with a voidable sale. So long as the sale remains voidable, it is liable to be avoided upon a bill filed for that purpose; and, whenever thus avoided, the status quo, as to the right to redeem, is put just where it was ante the voidable foreclosure sale. The court conceded in this case that the mortgagor, or any person claiming under him in privity, may disaffirm the sale and redeem in a reasonable time. How it can reconcile this concession with the position that those claiming under

the mortgagor in privity cannot file such a bill within a reasonable time after the sale, it is impossible for us to understand. The misconception of the court is obvious. It is idle to speak of the right of those in privity with the mortgagor to file a bill within a reasonable time after the sale, and yet say that the right to redemption is cut off by even such voidable sale. The fallacy of the reasoning is in holding that a voidable sale can ever, at all, have the effect of finally and conclusively cutting off the right of redemption, and changing such equity of redemption, which was an interest in the land, into a mere right to disaffirm. Such voidable sale has no such conclusive effect, obviously. So far as the equity of redemption is concerned, a voidable sale is no sale at all, leaving such equity wholly unaffected, if the option to avoid it is seasonably exercised. It is in direct conflict with 84 Ala. 302, 4 South. 270, which supports our view, and the view of all other authorities we have seen. The court in that case says, at page 304, 84 Ala., and page 271, 4 South.: "But the rule is clearly settled to be otherwise where the mortgagee, when unauthorized, purchases at his own sale. Not that the sale, so long as it is permitted to stand, is ineffectual to cut off the equity of redemption; for such is, undoubtedly, its legal effect. But the court, construing the transaction as a fraud on the rights of a cestui que trust by the trustee, will set aside the sale at the request of the injured party, who files his bill to redeem within a reasonable time, offering to do equity. When the sale is thus set aside, the complainant's equity of redemption is restored to its original status, subject only to the lawful charges incident to redemption, but otherwise it is completely disembarrassed of the sale." This is the sound view, manifestly, and a multitude of authorities support this view, as can be seen by reference to 11 Am. & Eng. Enc. Law (2d Ed.) pp. 214-224, inclusive,-the text and the authorities in the notes. See, specially, section 3, p. 216, and authorities cited in it. The case of Boarman v. Catlett, 13 Smedes & M., at page 153, expressly sanctions the same view; the court saying: "The right extends to the judgment creditor, where the judgment constitutes a lien, and to an assignee." See specially, also, Dickinson v. Burrell, L. R. 1 Eq. 337; McMahon v. Allen, 35 N. Y. 403; Marvin v. Inglis, 39 How. Prac. 329,-all cited at close of note to Marshall v. Means, 56 Am. Dec. 451. And see specially, also, the note and authorities in Horn v. Bank (Ind. Sup.) 21 Am. St. Rep., at pages 240, 246, 247 (s. c. 25 N. E. 558, 9 L. R. A. 676).

Counsel for appellees next contends that this is a bill to remove clouds from title, but this is an entire misconception of the bill.

Counsel finally contends that the appellant obtained by his quitclaim deed only the

assignment of a bare right to file a bill in equity for alleged fraud committed upon the assignor, and that this assignment is void, as against public policy, and as savoring of the character of maintenance. Sections 2433

and 2438 of the Code of 1892, and the case of Cassedy v. Jackson, 45 Miss. 397, dispose of this contention adversely to this view. This is not a mere right to file a bill to set aside a deed for fraud. It is unlike Crocker v. Bellangee, 6 Wis. 645, 70 Am. Dec. 489, and the other cases on that line cited in note to Marshall v. Means, 56 Am. Dec., at page 449. Crocker's Case is cited in McCall v. Mash, 89 Ala. 487, 7 South. 770, 18 Am. St. Rep. 145, also. Under the law in this state, appellant got all the estate and right his assignors had, and could file this bill, since they could have done so.

We also think that the prayer of the bill that the appellee be required to pay the complainant the money it has received from Katharine and W. H. De Loach, the innocent purchasers for value without notice, and that such purchasers be required to make the further payments for the 52 feet off the east end of said lots sold to W. H. and Katharine De Loach, codefendants herein, by appellee, to complainant, should be granted. The mortgagee gets his debt, with all interest, and is not prejudiced. Its sale, being avoided, is as to it avoided in toto; the rights of the Innocent purchasers being fully protected. A proper accounting should also be had.

Decree reversed and remanded to be proceeded with in accordance with this opinion.

RICHARDSON v. STATE. (Supreme Court of Mississippi. March 17, 1902.)

CRIMINAL LAW-BURGLARY-LARCENY

INSTRUCTIONS.

1. Where defendant was indicted in the circuit court for burglary and larceny, and charged with having broken into a house and stolen a gun, and a justice testified that the defendant was brought before him for stealing the gun and pleaded guilty, defendant was titled to an instruction limiting the plea of guilty to the charge of larceny only.

en

2. That defendant, charged with larceny, adImitted his guilt, is insufficient to convict him of burglary in connection with the larceny without other evidence of such fact.

Appeal from circuit court, Monroe county; E. O. Sykes, Judge.

"To be officially reported."

Mathew Richardson was convicted of burglary and larceny, and appeals. Reversed.

The appellant was indicted for burglary and larceny in the circuit court, the indictment being that appellant broke into the house of one T. A. Ward and took, stole, and carried away one gun, the property of said Ward, of the value of $10. The defendant pleaded not guilty to this charge. On the trial T. A. Ward testified, for the

state, that in September or October, 1900, the house where he resided was broken into and a gun worth about $10 taken away, that was in the house, and that a plank had been prized off the window, and that he got the gun back at the justice of the peace's office. B. C. Sims, a justice of the peace, testified, for the state, that appellant was brought before him on a charge of stealing a gun, and that he pleaded guilty to the charge, and he was fined $25. One Poe, a constable, also testified that appellant pleaded guilty to the charge of stealing the gun. The following instruction was asked by the defendant and refused by the court: "The court charges the jury for the defendant that a conviction of said defendant will not be warranted alone on the confession or admission of the defendant of having stolen the gun. It devolves on the state to show by satisfactory testimony beyond every reasonable doubt to the jury, not only that a crime of burglary was committed, but also the state must convict the defendant by sufficient evidence with the commission of the crime." The defendant was convicted and sentenced to the penitentiary, and appeals.

Gilleylen & Leftwich, for appellant. Monroe McClurg, Atty. Gen., for the State.

WHITFIELD, C. J. The plea of guilty should have been limited to the charge of larceny, in its consideration by the jury. It is manifest that it was only made as a plea of guilty of petty larceny, and that that was the only accusation before the magistrate, who fined appellant $25 and costs. And it is equally manifest that it may have been treated by the jury as a plea of guilty of burglary. The refused instruction should have been granted the appellant. "Convict" is clearly a misprint for "connect," and with the word read "connect" it was a peculiarly proper charge on the facts. Reversed and remanded.

ADAMS, State Revenue Agent, v. STONEWALL MFG. CO. et al.

(Supreme Court of Mississippi. March 17, 1902.)

TAXATION - DELINQUENT TAXES SUIT BY REVENUE AGENT NECESSARY PARTIES SUFFICIENCY OF ALLEGATIONS IN BILL.

1. Code 1892, § 4200, providing that in suits against delinquent taxpayers the assessor and tax collector shall be made parties, and authorizing a judgment against them in certain cases, is prospective only.

2. The assessor and tax collector cannot be held guilty of a violation of Code 1892, § 4200, subjecting such officers to a certain liability where the taxpayer's failure to pay taxes resulted from the willful default of such officers, where such violation occurred prior to the enactment of that section.

3. Code 1892, § 4200, providing that in suits against delinquent taxpayers the assessor and tax collector shall be made parties, aud au

thorizing a certain judgment against them when the taxpayer's failure to pay his taxes was caused by their willful default, applies only to cases of the assessor and tax collector's willful default, and hence they are not necessary parties in a suit to compel the payment of taxes according to assessments made, when the taxpayer's failure to pay is based on a claim that the property assessed is exempt from taxation, such claim raising a judicial question, which cannot be determined by the tax collector.

4. A bill by the state revenue agent for the collection of delinquent taxes which alleges that defendants' claims of exemptions from taxation are void, that defendants have entered into a fraudulent and collusive arrangement to defraud the public revenues, whereby the stockholders of an original corporation are now the stockholders of a new corporation, and the property of the former corporation, taxes against which are the subject of suit, was transferred to the latter, and that the purpose of organizing the new corporation was create a corporation which could claim exemptions under the constitution of 1890, presents a case within the jurisdiction of equity.

to

Appeal from chancery court, Clarke county; N. C. Hill, Chancellor.

"To be officially reported."

Suit by Wirt Adams, as state revenue agent, against the Stonewall Manufacturing Company and others. From a decree dismissing the bill, plaintiff appeals. Reversed.

Wirt Adams, state revenue agent, filed the bill in this case against the Stonewall Manufacturing Company and the Stonewall Cotton Mills in the chancery court of Clarke county to the October, 1898, term, in which he alleged that the Stonewall Manufacturing Company was chartered in 1870 as a corporation, such charter to last for 25 years; that from the date of its charter it had operated a large cotton factory in said county up to the date of the filing of this bill; that certain property was assessed as the property of the Stonewall Manufacturing Company upon its own return from the year 1886 to 1894, inclusive, sometimes under the head of the "Amount of Capital Stock Employed in Manufacturing and Merchandising," and sometimes under the head of "All Personal Property not Otherwise Mentioned," -setting out the amount of the assessment for each year,-and that the like assessments were made against the Stonewall Cotton Mills for the years 1895 to 1897, inclusive, and taxes levied thereon which were never paid; that defendant has claimed exemptions from taxation for thirty years-First, under the act of 1872; second, under the act of 1882; and, third, under the constitutional ordinance of 1892; that upon the expiration of its charter, in 1895, the stockholders of that corporation, with the view of further enjoying exemption from taxation under said ordinance, it having for twentyfive years already enjoyed exemption, changed the name of the company to the "Stonewall Cotton Mills"; that the ownership was the same; that it pretended to transfer its property to the said Stonewall Cotton Mills; that said conveyance was not recorded, and 31 So.-35

that it was made with the intent to defraud the state and county of the taxes due, or that the debts of the old company were assumed by the new company; that the property was held in trust by the new company, and that the taxes so assessed were a lien on all the property, or if not a lien a debt against the company; that under the statute the debt constituted a lien, if the old company was dissolved; that discovery was necessary, and it was prayed for in the bill, and relief was prayed for in the way of a decree against the defendants for the amount of the state and county taxes. There is some further statement of the allegations of the bill in the opinion of the court. The Stonewall Manufacturing Company filed an affidavit to the effect that it had ceased to exist more than three years before the filing of the bill, and could not be sued, and a motion predicated on that affidavit was sustained to dismiss the bill as to it. The Stonewall Cotton Mills demurred to so much of the bill which seeks to recover the taxes assessed against the Stonewall Manufacturing Company, on the grounds that its charter had expired more than three years prior to the institution of this suit; that the taxes prior to 1893 were not debts, and not collectible by suit; that the Stonewall Manufacturing Company had not conveyed its property, and hence upon its dissolution its property was vested in its stockholders, and cannot be subjected in a suit to which they are not parties; that the Stonewall Cotton Mills is not the owner of the property, and not personally liable for said taxes, and that all taxes prior to 1893 are barred by the statute of limitations. It demurred to the portion of the bill which seeks to recover of it the taxes for the years 1895, 1896, and 1897, on the ground that there is no lien on the property for the taxes. There was also interposed a general demurrer to the whole bill, because there is no equity on the face of the bill; it is multifarious; it fails to show that appellee is a corporation; the stockholders of the Stonewall Manufacturing Company are not made parties; it fails to show any assumption in writing by the Stonewall Cotton Mills of the debts of the Stonewall Manufacturing Company; the tax assessor and tax collector of Clarke county are not made parties to the bill. The demurrer was sustained, and the bill was dismissed. From that decree, complainant appeals.

Fewell & Son, for appellant. Buckley & Halsell and S. A. Witherspoon, for appellees.

WHITFIELD, C. J. The facts alleged in this bill disclose a most remarkable case, one falling peculiarly within the jurisdiction of the chancery court, pre-eminently a case for full and complete discovery. We do not think the tax assessor and tax collector of Clarke county necessary parties to this bill. Section 4200 of the Code of 1892 is applicable where there has been a willful

default on the part of such officers to assess or collect, respectively, the taxes. Wherever the case made by the bill and admitted by the demurrer plainly shows that there could have been no willful default on the part of the assessors and collectors, the statute can have no application, and such is the case before us. Manifestly the provision of this section 4200 could not be applied retrospectively to all the various tax assessors and tax collectors, and the multitudinous sureties on their bonds, since the Stonewall Manufacturing Company was established in 1870, for two reasons: First, because the statute, on its face, is prospective only; second, because the tax assessors and tax collectors cannot be held guilty of a willful violation of a law, not passed at the time at which they acted. And it is equally plain, under the principles announced in Railroad Co. v. West, 78 Miss. 789, 29 South. 475, that the tax assessors and tax collectors, since the adoption of the Code of 1892, have not been guilty of any willful default in this matter, on the facts of this case. It plainly appears from the bill, so far as the assessors are concerned, that the property involved was returned by the appellees on lists furnished by the assessor, and by the assessor duly assessed. The effort here is not to backassess any part of the property of these two corporations, but simply to compel them to pay the taxes according to the sworn assessments that the corporations themselves returned, the bill charging also that a lien exists for these taxes, enforceable only in the chancery court. The assessors are not charged with any default, but, according to the allegations of the bill, fully discharged their duty. So far as the tax collectors are concerned, the bill does not charge them with any default, but plainly avers that the reason why the taxes have not been collected is that up to the adoption of the constitution of 1890 exemption was claimed from taxation under an act of the legislature passed presumably in 1882 (Laws 1882, p. 84), and under the ordinance of the constitution of 1890 after that date. As held in Railroad Co. v. West, supra, it was not the duty of the tax collector, acting in a mere ministerial capacity, to pass upon the validity of the exemption claimed, either under the statute or the constitution. That is a judicial question. A willful default cannot be predicated of the failure of a tax collector to collect taxes from a corporation when it exhibits an act of the legislature or a provision of the constitution purporting to exempt the property from taxation. The general scope of this bill is that these claims of exemption on the part of both corporations, whether under a legislative enactment or constitutional ordinance, are void, and that the taxes due from the Stonewall Manufacturing Company are liens charged upon the property of that corporation in the possession of the Stonewall Cotton Mills, which property, it is

alleged, still owes such taxes, though the corporation is now known as the Stonewall Cotton Mills, which has succeeded it; and it is further charged that there has been a fraudulent and collusive arrangement entered into between the two corporations, with the view of defrauding the public revenues out of an amount of taxes aggregating about $14,000; it being charged that the same persons that owned the capital stock of the Stonewall Manufacturing Company also own the capital stock of the Stonewall Cotton Mills, and that the change of name from the Stonewall Manufacturing Company to the Stonewall Cotton Mills was a part of such fraudulent scheme. the purpose in this respect being to claim that the Stonewall Cotton Mills was a factory established after the constitution of 1890 went into effect, whereas in truth and in fact the property of the Stonewall Manufacturing Company was the property of the Stonewall Cotton Mills, the stockholders of the one had become the stockholders of the other, and the superintendent or manager of the property of the Stonewall Manufacturing Company had continuously managed the property of the Stonewall Cotton Mills; and it is further averred that, if there was any transfer or conveyauce by the Stonewall Manufacturing Company to the Stonewall Cotton Mills of its property and effects, no record of it appears, and that an essential feature of such transfer was an assumption by the Stonewall Cotton Mills of these particular taxes due on the property of the Stonewall Manufacturing Company; and it is further averred that the Stonewall Cotton Mills has not paid any of the taxes due by it since its organization under the changed name. If the facts thus alleged are true, it must be obvious that a plain case for equity jurisdiction, on more grounds than one, has been shown, and no amount of subtle and refined reasoning can obscure the right of the complainant to an answer on the facts.

Decree reversed, demurrer overruled, and cause remanded and leave given to answer within 30 days from the date of the filing of the mandate in the court below.

ILLINOIS CENT. R. CO. v. SEAMANS. (Supreme Court of Mississippi. April 29. 1901.)

RAILROADS-DEATH OF EMPLOYE-PROXIMATE CAUSE.

Where a railroad company so manages its business as to entice cattle to its track to feed upon wasted cotton seed at a place from which they cannot readily escape passing trains, and where they cannot be seen by engineers in time to prevent a collision, it will be liable for the death of a fireman caused by the derailment of his engine in running over a cow at the place.

Appeal from circuit court, Yalobusha county; P. H. Lowery, Judge.

Action by Frances A. Seamans against the Illinois Central Railroad Company. Judg