Statement of the Case.

submitted and decided at said Term, but in which there were no printed opinions.

"The questions involved in this case are precisely the same questions which were passed upon in those cases, and are:

"First. Whether under the constitution and general laws of Oregon a corporation, organized under the laws of that State, could, at the date of the execution of the indenture of lease in question, take a lease of the railroad of another company and operate the same for ninety-nine years?

"Second. Whether the laws of Oregon at said date conferred on a foreign corporation the right to make a lease of a railroad within the State for such a term?

"Third. Whether under the facts of the case the lessee was estopped from setting up the want of power of the lessor to make such a lease, or of itself to take such a lease?

"There is no controversy about the facts, and it is believed they can be sufficiently presented by a brief.

"The estimate of the Clerk of this court for printing the record is about $600.

"After the decision of the first case, reported in 130 U. S. 1, it was proposed by some of the attorneys representing the defendant in error to avoid the expense of printing the record by disposing of the remaining cases by stipulation; but the Oregonian Railway Company, limited, went into liquidation in Scotland, and the assignee or liquidator declined to enter into any arrangement about the matter for alleged lack of authority.

"In the three cases submitted at the October Term, 1889, the records were printed at a cost of over $1400.

"Said Oregonian Railway Company, Limited, has sold its railroad in Oregon and it has no property in that State out of which a judgment for costs against it can be satisfied.

"The attorneys who tried the case in the court below, fearing they are liable for the costs, under a statute of the State of Oregon, relating to the bringing actions by non-residents, are anxious to avoid the apparently unnecessary expense of printing the record in this case.

"J. N. DOLPH.

Counsel for Plaintiff in Error.

"UNITED STATES OF AMERICA,

"District of Columbia.

SS.

"I, Joseph N. Dolph, being first duly sworn, say that I am attorney for plaintiff in error in the above entitled action, and that the foregoing statement is true, as I verily believe.

"J. N. DOLPH.

"Subscribed and sworn to before me, this second day of December 1891.

[SEAL]

"JAMES H. MCKENNEY,

"Clerk Supreme Court, U. S.

"I think it right to state as amicus curia that I was counsel for the defendant in the cause in which the rights of the parties to that and to this cause were involved, and that, as I understand it, precisely the same questions existed and were determined in that cause that exist in this cause, and I think there is no good reason for printing the record.

"AIKEN, S. C., December 5, 1891.”

"GEORGE F. EDMUNDS.

The court thereupon made the following order, entitled in the cause, on the 21st day of the same December.

"On consideration of the motion for leave to submit this cause when the same is reached in regular call of the docket on a printed argument, without printing the record,

"It is now here ordered by the court that said motion be, and the same is hereby, granted."

The cause was reached in regular call on the 20th of April, 1892.

Mr. J. N. Dolph for plaintiff in error submitted on his brief.

No appearance for defendant in error.

THE CHIEF JUSTICE: The judgment is reversed and the cause remanded upon the authority of The Oregon Railway and Navigation Company v. The Oregonian Railway Compony, Limited, 130 U. S. 1.

Syllabus.

LEWIS v. BARNHART.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS.

No. 1211. Submitted November 3, 1891. — - Decided April 25, 1892.1

In 1838 R. L., a resident of Ohio, received a patent from the United States of public lands in Illinois. In 1842 he made his will in Ohio, where he continued to reside until his death in 1843. After disposing of other property he devised his Illinois lands and bequeathed the remainder of his personal estate to his wife J. N. L. and to the heirs of her body, to be equally divided between them, share and share alike, and he appointed her sole executrix of the will. He left no issue surviving him, (although he had had children,) but he left brothers and the issue of deceased brothers. His will was duly proved in Ohio, and the widow, who elected to take under it, qualified as executrix in 1843. In 1846 the Illinois lands were sold for nonpayment of taxes assessed in 1845. The county records show no judgment for the tax sale. The lands were purchased at the tax sale by a brother-in-law of the widow, who assigned the certificate to the widow, and the deed was made to her directly. She then, through her attorney in fact, made sales of various tracts of this land, at various times, until all were disposed of. The purchasers duly entered into possession, and took title, and they and those claiming under them continued in possession and paid all taxes on the lands occupied by them respectively for periods ranging from 29 to 33 years. In 1853 a deed of a part of the tract from the widow to one M. was put on record, in which it was recited that the land conveyed by that deed had been held by R. L. and had been devised by him. The county records also contained a copy of the Book of Land Entries, furnished by the auditor to the county clerk for the purpose of taxation: but, with these exceptions those records contained nothing pointing to the patent to R. L., or to his will, or to the interest devised by it to his widow, J. N. L., until 1866, when what purported to be a copy of the will was filed in the office of the recorder of the county. To this copy were attached copies of the affidavits of the subscribing witnesses to the will in proof of its execution, and a certificate signed by the judge and by the clerk of the probate court in Ohio that these were copies of the will and affidavits and order and proceedings taken from the originals in that court; but there was no copy of the

1 With this case were submitted at the same time, and on the same briefs, No. 1212, LEWIS v. PHILLIPS; No. 1213, LEWIS v. JOHNSON; No. 1214, LEWIS v. DIRKS; No. 1215, LEWIS v. DYE; No. 1216, LEWIS v. BONER; and No. 1217, LEWIS v. BONER, all brought up by writs of error to the Circuit Court of the United States for the Northern District of Illinois. The opinion of the court is entitled in all the cases.

Syllabus.

order and of the proceedings admitting the will to probate. The widow died in 1888, not having married again, and leaving no issue. Up to that time no one of the several purchasers, nor any one claiming under them had actual notice that R. L. had been seized of these lands through a patent from the United States, or of his will, or of its provisions, nor any constructive notice thereof other than is to be implied from the public records of the United States and of the county. On the death of the widow the direct descendants of the brothers of R. L., being his only heirs at law, brought these actions of ejectment against the several persons occupying and claiming title to said several tracts of land, to recover possession of the same, maintaining that, the tenancy of the widow and of all claiming under her was a life estate for the term of her life, and that the statute of limitations did not begin to run against the remaindermen until the expiration of the life estate. Held,

(1) That the sheriff's deed for the land sold for taxes, being regular on its face, and purporting to convey the title to the land described in it, was sufficient color of title to meet the requirements of the statute of limitations of the State of Illinois, without proof of a judgment for the taxes;

2) That the book of land-entries in the county clerk's office furnished by the auditor to the county clerk for the purposes of taxation was not constructive notice of the issue of the patent for the public lands to R. L.;

(3) That the will of R. L. was not authenticated and certified by the officers of the probate court in Ohio in a manner to entitle it to record under the statutes of Illinois, and that the record of it there, without proper proof of its probate in Ohio, was not constructive notice of it and of its contents;

(4) That the recital in the deed from J. N. L. to M. in 1853 was at most notice of the facts recited in it to the grantee and those claiming under him;

(5) That, by the law of Illinois, the actual possession of the several defendants, for more than seven successive years prior to the commencement of these actions, of the lands in controversy, under claim and color of title made in good faith, that is, under deeds purporting to convey the title to them in fee, and the payment of all taxes legally assessed on them, without notice, actual or constructive, during that period, of any title to or interest in the lands upon the part of others that was inconsistent with an absolute fee in their immediate grantors, and in those under whom such grantors claimed, entitled them to be adjudged the legal owners of such lands according to their respective paper titles, even as against those, if any, who may have been entitled by the will of R. L. to take the fee after the death of his widow without heirs of her body.

(6) That, in iew of the foregoing, it was unnecessary to pass upon the

nature of the estate devised to J. N. L.

Statement of the Case.

EJECTMENT. The court stated the case as follows:

These actions of ejectment were brought in the year 1889. The lands in controversy are parts of a larger tract of sixteen hundred acres in Woodford County, Illinois, entered by Romeo Lewis, in the year 1838 at the Land Office in Springfield, in that State, and of which he was seized in fee, by a patent from the United States, at the date of his will, January 8, 1842, as well as when he died, at his residence in Oxford, Butler County, Ohio, on the 24th day of June, 1843.

The parties, in writing, waived a jury, and the cases were severally tried by the court, which made a special finding of facts on which judgment was rendered for the respective defendants. Each action was held to be barred by the statute of limitations of Illinois protecting the actual possession, continued for seven successive years, of land or tenements, under claim and color of title made in good faith, and accompanied by the payment, during that period, of all taxes legally assessed on them. The principal contention of the plaintiffs in error, who were the plaintiffs below, upon this point, is, that limitation did not commence to run against them until shortly before these actions were instituted, and, consequently, the statute has no application.

In case 1211, Lewis v. Barnhart, the facts upon which the judgment was based were, substantially, as follows:

By his will, which was admitted to probate and recorded in the county of his residence in Ohio, the testator directed his interest in lands in the Territory of Florida, and in the States of Arkansas and Mississippi, to be sold, and the proceeds, together with moneys that might be derived from other sources, applied to the payment of his just debts. After making certain bequests of money to his, mother, nieces, and others, the will proceeds: "I further give and devise to my dearly beloved wife, Jane N. Lewis, and to the heirs of her body, my houses and lots in the town of Oxford, Butler County, Ohio, and all the residue of my lands in the States of Indiana and Illinois, and all the rest, residue, and remainder of my personal estate, goods and chattels of every kind and description whatsoever