Opinion of the Court. edge, served with notice of the tax sales of these particular lots. The witness relied on to prove the contrary is Westerfield. He states in his deposition, taken November 29, 1884, but not in the presence of the plaintiff or of his attorney, and, so far as the record shows, without notice to either, that on the 4th day of April, 1879- more than five years before he gave the deposition - he served a notice of the tax sale of this property personally on Peter Caldwell and wife. It is difficult to believe that he could have remembered, at the time he testified in November, 1884, the particular day in the spring of 1879 when he served such a notice, unless his memory was refreshed by some memorandum made at the time by him or in his presence. But he does not state that he made, or that he ever saw, any such memorandum. The deposition of Caldwell was given before that of Westerfield, and it behooved the defendant to show, if he could do so, that when Westerfield gave the 4th of April, 1879, as the date of the service of the notice on Caldwell he was not guessing or giving merely his impressions. But Westerfield was not asked whether he ever made, or saw, any memorandum of the date of service, nor did he state how he was able, apparently without hesitation or doubt, to fix the exact day of such service nearly six years before giving his deposition. It may be that Westerfield based his statement upon the affidavit made by him on the 15th day of July, 1879. But that affidavit was not made contemporaneously with the alleged service, and is one showing service only on Peter Caldwell; whereas in his deposition he testified that the service on the 4th of April, 1879, was on both Caldwell and wife. In this connection there are some circumstances that are not without interest. Taylor made an affidavit in support of Gage's application for the deed, stating that he, also, was an agent of Gage, was present "on the date and at the place as mentioned" in Westerfield's affidavit, and witnessed the service of the notice upon Caldwell "in the manner and form" as stated by Westerfield. A witness so clear in his recollection, being one of the numerous agents whom Gage seemed to have had in this business, ought to have been required to give Opinion of the Court. his deposition, or some reason should have been given why he was not produced as a witness. Of course, the defendant knew that ex parte affidavits, filed to procure a deed, would not be conclusive evidence in a suit between the owner of the land and the holder of the tax title in respect to the notice of the tax sale. There is another circumstance not without weight. The agent and attorney of Gage, in his affidavit in support of the application for a deed, stated that there were then in existence "the original memoranda of service of the respective parties making the same," and that the affidavits of Westerfield, Bunker and Taylor were correct according to such memoranda. He based that statement upon a comparison by himself of the affidavits with the memoranda. But he does not testify in the case as a witness, although he knew that Caldwell, under oath, had denied service of notice as to the sale of the particular lots here in dispute. And no such original memoranda appear upon the notice returned. If such memoranda were made by Westerfield, or in his presence contemporaneously with the service of the notice, and the court was informed by the record that the statements in his deposition were made, after his recollection had been refreshed by examining them, there would be ground to contend that Caldwell's statement was incorrect. There is still another difficulty in the way of the defendant. Caldwell having testified that he did not receive any notice of the tax sale, and Westerfield being afterwards called as a witness to show notice, there was no distinct reference by the latter to the notice filed by Gage with the county clerk. Being asked whether "in the spring, on or about the 4th of April, 1879," he "served a notice of the tax sales of this property upon Peter Caldwell," he replied: "On the 4th day. of April I served a notice personally on Peter Caldwell and wife." Now what notice was this? The statute required that the notice should state certain facts, and that the affidavit should state "particularly the facts relied on" as showing compliance with the statute. Did the notice to which Westerfield refers in his deposition meet these requirements? He · Opinion of the Court. does not so state. Was that notice the same as the one referred to in his affidavit of July 15, 1879? We cannot tell from the record. In determining the weight to be given to Westerfield's deposition, upon the issue as to whether notice was in fact given to Caldwell, that deposition is not to be supplemented by his ex parte affidavit used in supporting Gage's application for a deed, and to which in his deposition he makes no reference whatever. So that upon the issue as to notice of the tax sale there is no proof whatever in this case in conflict with the statement of Caldwell, except the prima facie evidence furnished by the ex parte affidavit of Westerfield made July 15, 1879. Under all the circumstances disclosed by the record, we are not prepared to say that the court below erred if it proceeded upon the ground, as it may well have done, that the proof failed to show satisfactorily, or with sufficient certainty, such notice by the purchaser, or his assignee, as the statute required before he could receive a deed. The right of an occupant of land, sold for the non-payment of taxes or special assessments, to personal notice of the fact of sale before the time of redemption expires, is expressly given by the constitution of Illinois, and is fundamental. And upon a direct issue as to whether such notice was given the owner testifying that he did not receive notice the evidence should be clear and convincing that it was given, as required by law, before the tax title is held to be paramount. The case as to the deeds of June 30, 1880, and July 6, 1880, is substantially the same as that made in relation to the deed of July 3, 1880. What has been said in reference to the lastnamed deed applies to the other two. Other questions involving the validity of the tax title have been discussed in the briefs of counsel. But, in view of the conclusions reached, they need not be examined. Decree affirmed. Syllabus. UNITED STATES v. MISSOURI, KANSAS & TEXAS RAILWAY COMPANY. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF KANSAS. No. 317. Argued March 10, 11, 1891.-) Congress, March 3, 1863, granted to Kansas every alternate section of land, designated by odd numbers for ten sections in width on each side, in aid of the construction of the following roads and each branch thereof: First, a railroad and telegraph from the city of Leavenworth, Kansas, by the way of Lawrence and the Ohio City crossing of the Osage River, to the Southern line of the State in the direction of Galveston Bay, in Texas, with a branch from Lawrence by the valley of the Wakarusa River to the point on the Atchison, Topeka and Santa Fé Railroad, where that road intersects the Neosho River; Second, a railroad from the city of Atchison, Kansas, via Topeka, to the western line of that State, in the direction of Fort Union and Santa Fé, New Mexico, with a branch where the latter road crosses the Neosho, down said Neosho Valley to the point where the road, first named, enters the Neosho Valley. The act provided that in the case of deficiencies in place limits, it should "be the duty of the Secretary of the Interior to cause to be selected, for the purposes aforesaid, from the public lands of the United States nearest to tiers of sections above specified, so much land, in alternate sections, or parts of sections, designated by odd numbers, as shall be equal to such lands as the United States have sold, reserved or otherwise appropriated, or to which the rights of preëmption or homestead settlements have attached." The act also provided that the "sections and parts of sections of land which, by such grant, shall remain to the United States, within ten miles on each side of said road and branches" [that is, the even-numbered sections within the place or granted limits,] "shall not be sold for less than double the minimum price of the public lands when sold; nor shall any of said lands become subject to sale at private entry until the same shall have been first offered at public sale to the highest bidder, at or above the increased minimum price, as aforesaid: Provided, That actual and bona fide settlers, under the provisions of the preëmption and homestead laws of the United States, may, after due proof of settlement, improvement, cultivation and occupation, as now provided by law, purchase the same at the increased minimum price aforesaid: And provided, also, That settlers on any of said reserved sections, under the provisions of the homestead law, who improve, occupy and cultivate the same for a period of five years, and comply with the several conditions and requirements of said act, shall be entitled to patents for an amount Syllabus. 66 not exceeding eighty acres each, anything in this act to the contrary notwithstanding." By a subsequent act, July 16, 1866, for the benefit of the Union Pacific Railroad Company, Southern Branch, there was granted to the State for the use of that company, every alternate section of land, or parts thereof, designated by odd numbers to the extent of five alternate sections per mile on each side of said road, and not exceeding in all ten sections per mile; but in case it shall appear that the United States have, when the line of said road is definitely located, sold any section or any part thereof, granted as aforesaid, or that the right of preemption or homestead settlement has attached to the same, or that the same has been reserved by the United States for any purpose whatever, then it shall be the duty of the Secretary of the Interior to cause to be selected for the purposes aforesaid, from the public lands of the United States nearest to the sections above specified, so much land as shall be equal to the amount of such lands as the United States have sold, reserved or otherwise appropriated, or to which the right of homestead settlement or preëmption has attached as aforesaid, which lands, thus indicated by the direction of the Secretary of the Interior, shall be reserved and held for the State of Kansas for the use of said company by the said Secretary for the purpose of the construction and operation of said railroad, as provided by this act." This last act provided also "That any and all lands heretofore reserved to the United States by any act of Congress, or in any other manner by competent authority, for the purpose of aiding in any object of internal improvement or other purpose whatever, be, and the same are hereby, reserved and excepted from the operation of this act, except so far as it may be found necessary to locate the route of said road through such reserved lands, in which case the right of way, two hundred feet in width, is hereby granted subject to the approval of the President of the United States: And provided further, That said lands hereby granted shall not be selected beyond twenty miles from the line of said road." The routes of the Leavenworth, Lawrence and Fort Gibson Railroad Company, which got the benefit of the first road named in the act of 1863, and the Union Pacific Railroad Company, Southern Branch, now the Missouri, Kansas and Texas Railroad Company, which succeeded also to the rights of the Atchison company in respect to the road down the Neosho Valley, crossed each other in the valley, so that some of the even-numbered sections within the original place limits of the first-named road were within the indemnity limits of the latter road, and some even-numbered sections were within the common indemnity limits of both roads: Held, (1) That the even-numbered sections within the place limits of the Leavenworth, Lawrence and Fort Gibson Railroad were reserved to the United States by the act of 1863, and, therefore were excepted from the grant in the act of 1866 and could not be patented to the Missouri, Kansas and Texas Railway Company to supply deficiencies in its place limits; (2) The even-numbered sections that were within the common indemnity limits of both roads could be used to supply deficiencies in the place limits of the Missouri, Kansas and Texas |