and costs due severally thereon for the years 1903 and 1904, and previous years when unpaid; and for an order to sell said lands and lots for the satisfaction thereof." At the end of said delinquent list said county treasurer and ex officio collector of taxes certified "that the foregoing is a list of delinquent lands and lots upon which taxes remain due and unpaid for the years 1902 and 1903 and previous years." The statement that application for judgment would be made for the taxes for certain specified years and previous years is not a compliance with the statute that "said advertisement ** ** shall contain a list of the delinquent lands and lots upon which the taxes or special assessments remain due and unpaid and the year or years for which the same are due." Gage v. People, 188 Ill. 92, 58 N. E. 947. Some other objections are made to the validity of this judgment, but, as it must be reversed for the reasons indicated, we deem it unnecessary to discuss them.

*

2. SAME.

To acquire title under the 20-year statute of limitations, it is essential that the occupancy shall be under claim of title or ownership.

[Ed. Note. For cases in point, see vol. 1, Cent. Dig. Adverse Possession, §§ 387-393.]

Appeal from Circuit Court, Macoupin County; R. B. Shirley, Judge.

Bill by Laura M. Bellamy and others against E. W. Page and others. From a decree for plaintiffs, said Page appeals. Affirmed.

Keefe & Peebles (Frank G. Wood, of counsel), for appellant. Charles C. Terry, for appellees.

FARMER, J. Appellees filed a bill in the circuit court of Macoupin county for the partition of a triangular piece of ground containing about one-seventh of an acre, lying in the city of Girard, on the west side of and adjacent to the right of way of the Chicago & Alton Railroad Company. It was originally a part of a tract of land belonging to Barnabas Boggess. Complainants claim title as heirs and grantees of said Barnabas Boggess. Some time in 1866 Boggess platted the land belonging to him, which surrounded the triangular tract in controversy, into lots

and blocks as an addition to the city of Girard. For some reason this small piece of land was not described in the plat. From the year 1866, or a few years prior thereto, there appears to have been a grain elevator or warehouse on this disputed piece of ground. It was never used or occupied by Boggess, and the record does not disclose who erected the buildings. They, together with the land in the triangular tract mentioned, were continuously in the possession of some one else, and were used in buying and handling grain up to the time of the commencement of this suit. W. S. Garretson testified that in 1876 he became associated with a Mr. Benion in the possession of the warehouse and ground, and so continued about 2 years, when Walker and Minnier became associated with him; that he and they occupied the premises in conducting a grain business for 2 or 3 years, when appellant became associated with the witness, and they together continued the business and the occupation of the premises until 1885 or 1886, when he sold out to appellant. Appellant and others representing him have had possession continuously since that time. The answer of appellant denied that complainants had any interest in the land, and set up and relied on the 21-year statute of limitations. Upon a hearing the court found against appellant, and decreed a partition of the premises as prayed in the bill. From that decree, appellant, E. W. Page, prosecutes this appeal.

There is no question that the legal title was in Barnabas Boggess at the time of his death. The sole defense relied upon was and is that appellant, and those under whom he claims, had been in the continuous, uninterrupted, adverse, and hostile possession of the land, under claim of ownership, for more than 20 years prior to the commencement of the suit. The proof does not sustain this claim. While it appears they had been in possession more than 20 years, such possession was not accompanied by any claim of ownership. None of the parties who had been in possession of the land prior to the time Garretson became connected with Benion, in 1876, testified on the hearing. Garretson was a witness, and testified he never had any interest in the land, and that he and Benion never claimed to own the ground the warehouse stood on, and that neither Walker, Minnier, nor Page, the appellant, claimed to own it while he was associated with them. He said he understood Boggess and the railroad company owned it, and, while he and his associates claimed the building, they occupied the land by permission and sufferance of its owners without the payment of rent or taxes. The land appears never to have been listed for taxation until 1897, when appellant caused it to be listed for the purpose of allowing it to be sold for taxes and

securing title to it in that way. His wife bought it at the tax sale in 1898, and after receiving a tax deed conveyed the premises to her husband. This was the first and only color of title he had to the land. The conveyance from Garretson of his interest in the premises to Page, in 1886, describes the property conveyed as "the undivided onehalf interest in one warehouse and elevator, together with all their appurtenances, such as engine, boiler, dump scales, wheat fan, corn burrs, grain truck, etc.; also the office building, and the scales attached thereto, and the furniture contained therein, situated on land owned by the Chicago & Alton Railroad Company, on the west side of the track and north side of Center street; also the undivided one-half interest in a one-story wood warehouse, together with the office building, situated on said railroad switch and near the south terminus of the same, and on the south side of Madison street, and all other fixtures or appurtenances thereunto in any wise belonging." The property is similarly described in a conveyance from Robert J. Walker to appellant. In 1888 appellant made an assignment to John Ball, as assignee, for the benefit of his creditors, and in his schedule to the deed of assignment he described the interest in the premises conveyed as "one warehouse situated on abovedescribed railroad lands, known as the 'Benion Warehouse." "

This proof conclusively shows that the land was not occupied under a claim of ownership, but was occupied, as was testified to by Garretson, by permission or sufferance of the supposed owners. To enable one to acquire title under the 20-year statute of limitations, it is essential that the occupancy shall be under claim of title or ownership. "The adverse possession which is required to constitute a bar to the assertion of a legal title by the owner of it must inIclude these five elements: It must be (1) hostile or adverse; (2) actual; (3) visible, notorious, and exclusive; (4) continuous; and (5) under a claim or color of title." Zirngibl v. Calument Dock Co., 157 Ill. 430, 42 N. E. 431. This language is repeated in Illinois Central Railroad Co. v. Hatter, 207 Ill. 88, 69 N. E. 751, and Roby v. Calumet & Chicago Dock Co. 211 Ill. 173, 71 N. E. 822. In the latter case it was said: "And all these elements must be made out by clear and positive proof." In Zirngibl v. Calumet Dock Co., supra, it was said: "Adverse possession cannot be made out by inference or implication, for the presumptions are all in favor of the true owner, and the proof to establish it must be strict, clear, positive, and unequivocal." The proof relied on by appellant to sustain his title does not meet the requirements of the authorities, and the court properly decreed a partition of the premises, and the said decree will be affirmed, Decree affirmed.

Laws 1896, p. 868, c. 908, § 220, as amended by Laws 1897, p. 150, c. 284, § 2, imposes a tax on the transfer by will of any personal property within the state where decedent was a nonresident of the state at the time of his death. Held, that where, in good faith, a New York railroad corporation and a Massachusetts corporation consolidated, and the consolidated corporation was separately organized under the laws of each state, and there was but a single issue of capital stock representing all the property of the consolidated corporation, and onesixth of the track mileage was in New York and the remainder in Massachusetts, stock in such corporation belonging to a nonresident should be taxed by regarding the New York corporation as owning the property situate in New York, and the Massachusetts corporation as owning that situate in Massachusetts, and each as owning a share of any property situate outside of either state or moving to and fro between the two states.

Werner and Chase, JJ., dissenting.

Appeal from Supreme Court, Appellate Division, First Term.

Appeal by Charles P. Cooley and others, as executors of Francis B. Cooley, deceased, from an order of the Supreme Court (98 N. Y. Supp. 1006), affirming an order of the Surrogate's Court, fixing the transfer tax upon the estate of decedent. Reversed.

Charles P. Howland, for appellants. Charles M. Russell, for respondent.

HISCOCK, J. The appellants complain because in fixing the transfer tax upon certain shares of the capital stock of the Boston & Albany Railroad Company which belonged to the estate and passed under the will of the deceased, who was a nonresident, said stock has been appraised at its full market value as representing an interest in the property of said corporation, situate both in the state of New York and elsewhere. It is insisted by them that under the peculiar facts of this case the valuation placed for such purpose upon the stock should not have been predicated upon the idea that the latter represented an interest in all of the property of said corporation, but should have been fixed upon the theory that it represented an interest in only a portion of said property. I think that their complaint is well founded, and that the order appealed from should be reversed and the assessment corrected accordingly.

The Boston & Albany Railroad Company is a consolidation formed by the merger of one or more New York corporations and one Massachusetts corporation. The merger was authorized and the said consolidated corporation duly and separately created and organized under the laws of each state. It was, so to speak, incorporated in duplicate. There is but a single issue of capital stock representing all of the property of the con

solidated and dual organization. Of the track mileage about five-sixths is in Massachusetts and one-sixth in New York. The principal offices, including the stock transfer office, are situated in Boston, and there also are regularly held the meetings of its stockholders and directors. The deceased was a resident of the state of Connecticut and owned 426 shares of the capital stock, the value of which for the purposes of the transfer tax was fixed at the full market value of $252.50 per share of the par value of $100.

The provisions of the statute (Laws 1896, p. 868, c. 908, § 220, as amended Laws 1897, p. 150, c. 284, § 2) authorizing the imposition of this tax are familiar, and read in part as follows: "A tax shall be and is hereby imposed upon the transfer of any property, real or personal, of the value of five hundred dollars or over, or of any interest therein

in the following
following cases: *

2. When the transfer is by will or intestate law, of property within the state, and the decedent was a non-resident of the state at the time of his death." The present assessment is under the last clause, and, as already intimated, the sole question, stated in practical form, is whether the authorities of this state ought to levy a tax upon the full value of decedent's holdings, recognizing simply the New York corporation and regarding it as the sole owner of all of the property of the doubly incorporated New York-Massachusetts corporation, or whether they should limit the tax to a portion of the total value, upon the theory that the company holds its property in Massachusetts at least under its incorporation in that state. By seeking the aid of our laws and becoming incorporated under them the consolidated Boston & Albany Railroad Company became a domestic corporation. Matter of Sage, 70 N. Y. 220. The decedent, therefore, as the owner of Boston & Albany stock, may be regarded as holding stock in a domestic corporation, and it is so clearly settled that we need only state the proposition that capital stock in a domestic corporation, although held by a nonresident, will be regarded as having its situs where the corporation is organized, and is, therefore, taxable in this state. Matter of Bronson, 150 N. Y. 1, 44 N. E. 707, 34 L. R. A. 238, 55 Am. St. Rep. 632.

There is, therefore, no question but that the decedent, holding stock in the Boston & Albany Road, which was incorporated under the laws of this state, left "property within the state" which is taxable here. There is no doubt about the meaning of "property within the state" as applied to this situation, or that it justifies a taxation by our authorities of decedent's interest as a shareholder in the corporation created under the laws of this state. The only doubt is as to the extent and value of that interest for the purposes of this proceeding. For, although the tax is upon the transfer and not upon the property

itself, still its amount is necessarily measured by the value of the property transferred, and therefore we come to consider briefly the nature of the stock here assessed as property and the theory upon which its value should be computed. The general nature of a shareholder's interest in the capital stock of a corporation is easily understood and defined. In Plimpton v. Bigelow, 93 N. Y. 592, it is said that "the right which a shareholder in a corporation has by reason of his ownership of shares is a right to participate according to the amount of his stock in the surplus profits of the corporation on a division, and ultimately on its dissolution, in the assets remaining after payment of its debts." In Jermain v. L. S. & M. S. Ry. Co., 91 N. Y. 483, 491, it was said: "A share of stock represents the interest which the shareholder has in the capital and net earnings of the corporation." Therefore, since the shares of capital stock under discussion represented a certain interest in the surplus of assets over liabilities of the Boston & Albany Railroad Company, the value of that stock is to be decided by reference to the amount of property which said railroad company as incorporated in this state is to be regarded as owning for the purposes of this proceeding.

In the majority of cases at least, a corporation has but a single corporate creation and existence under the laws of one state, and by virtue of such single existence owns all of its corporate property. There is no difficulty in determining in such a case that a shareholder under such an incorporation has an interest in all of the corporate property, wherever and in how many different states situated. I shall have occasion to refer to that principle hereafter in another connection. Even in the case of a corporation incorporated and having a separate existence under the laws of more than one state, the stockholder would for some purposes be regarded as having an interest in all of the corporate property independent of the different incorporations. In the present case the decedent, by virtue of his stock as betweeen him and the corporation, would be regarded as having an interest in all of its property and entitled to the earnings thereon when distributed as dividends and to his share of the surplus upon dissolution and liquidation proceedings independent of the fact that there were two separate incorporations.

But, as it seems to me, different considerations and principles apply to this proceeding now before us for review. Our jurisdiction to assess decedent's stock is based solely and exclusively upon the theory that it is held in the Boston & Albany Railroad Company as a New York corporation. The authorities are asserting jurisdiction of and assessing his stock only because it is held in the New York corporation of the Boston & Albany Railroad Company. But we know that said company is also incorporated as a Massachusetts corporation, and presumably by virtue of such

latter incorporation it has the same powers of owning and managing corporate property which it possesses as a New York corporation. In fact, the location of physical property and the exercise of various corporate functions give greater importance to the Massachusetts than to the New York corporation, and the problem is whether for the purpose of levying a tax upon decedent's stock upon the theory that it is held in and under the New York corporation we ought to say that such latter corporation owns and holds all of the property of the consolidated corporation wherever situated, thus entirely ignoring the existence of and the ownership of property by the Massachusetts corporation. It needs no particular illumination to demonstrate that, if we take such a view, it will clearly pave the way to a corresponding view by the authorities and courts of Massachusetts that the corporation in that state owns all of the corporate property, wherever situated, and we shall then further and directly be led to the unreasonable and illogical result that one set of property is at the same time solely and exclusively owned by two different corporations and that a person holding stock should be assessed upon the full value of his stock in each jurisdiction. Whether we regard such a tax as is here being imposed a recompense to the state for protection afforded during the life of the decedent, or as a condition imposed for creating and allowing certain rights of transfer or of succession to property upon death, we shall have each state exacting full compensation upon one succession and a clear case of double taxation. And, if the corporation had been compelled for sufficient reasons to take out incorporation in 6 or 20 other states, each one of them might take the same view and insist upon the same exaction until the value of the property was in whole or large proportion exhausted in paying for the privilege of succession to it. While undoubtedly the legislative authority is potent enough to prescribe and enforce double taxation, it is plain that, measured by ordinary principles of justice, the result suggested would be inequitable and might be seriously burdensome. Double taxation is one which the court should avoid whenever it is possible within reason to do so. Matter of James, 144 N. Y. 6, 11, 38 N. E. 961. It is never to be presumed. Sometimes tax laws have that ef fect, but if they do it is because the Legislature has unmistakably so enacted. All presumptions are against such an imposition. Tennessee v. Whitworth, 117 U. S. 139, 6 Sup. Ct. 645, 29 L. Ed. 833. The law of taxation is to be construed strictly against the state in favor of the taxpayer as represented by the executor of the estate. Matter of Fayerweather, 143 N. Y. 114, 38 N. E. 278. It seems pretty clear that within the principles of the foregoing and many other cases

which might be cited we ought not to sanction a course which will lead to a tax, measured by the full value of the decedent's stock, in each state upon the conflicting theories that the corporation in that state owns all the property of the consolidated company, unless there is something in the statute or decisions under the statute which compels us so to do. I do not think there is in either place such compelling authority.

No doubt is involved, as it seems to me, about the meaning and application of the statute. The decedent's stock was "property within the state," which had its situs here as being held in the New York corporation, and the transfer of it was taxable here. There can be no dispute about that. The question is simply over the extent and value of his interest as such stockholder, in view of the other incorporation in Massachusetts. I see nothing in the statute which prevents us from paying decent regard to the principles of interstate comity and from adopting a policy which will enable each state fairly to enforce its own laws without oppression to the subject. This result will be attained by regarding the New York corporation as owning the property situate in New York and the Massachusetts corporation as owning that situate in Massachusetts, and each as owning a share of any property situate outside of either state or moving to and fro between the two states, and assessing decedent's stock upon that theory. That is the obvious basis for a valuation if we are to leave any room for the Massachusetts corporation and for a taxation by that state similar in principle to our own without double taxation. Some illustrations may be referred to which by analogy sustain the general principles involved. Where a tax is levied in this state upon the capital or franchises of a corporation organized as this railroad was, the tax is levied upon an equitable basis. Thus by the provisions of section 6 of chapter 917, p. 2403, of the Laws of 1869, under which the Boston & Albany Railroad was organized, the assessment and taxation of its capital stock in this state is to be in the proportion "that the number of miles of its railroad situated in this state bears to the number of miles of its railroad situated in the other state," and under section 182 of the general tax law of the state of New York (Laws 1896, p. 856, c. 908) the franchise tax of a corporation is based upon the amount of capital within the state. Again, assume that for purposes of dissolution or otherwise receivers were to be appointed of the Boston & Albany Railroad, there can be no doubt that the receivers of it as a New York corporation would be appointed by the courts of that state, and the receivers of it as a Massachusetts corporation would be appointed by the courts of that state, and that the courts would hold that