Ala. Ry. Co. v. Doe, 114 U. S. 353, 29 L. 141, 5 S. Ct. 876, holding right of way could not be severed from franchise and sold; Buncombe Co. Comrs. v. Tommey, 115 U. S. 135, 29 L. 309, 5 S. Ct. 1186, holding lien law of North Carolina did not extend to property of railroad; Steers v. Daniel, 2 Flipp. 317, 4 Fed. 599, collecting cases, and holding duty of sheriff to sell fixtures and leasehold together; Nat., etc., Works v. Oconto W. Co., 52 Fed. 45, holding pipe of water company could not be sold separately from remainder of plant; Kittel v. Augusta, etc., R. Co., 65 Fed. 861, holding fraudulent a sale of tools, materials, etc., of corporation; Farmers' L. & T. Co. v. Iowa W. Co., 78 Fed. 889, ordering sale of plant and franchise as entirety, without redemption; Eufaula W. Co. v. Addyston, etc., Co., 89 Ala. 560, 8 So. 28, collecting cases, and refusing to enforce mechanic's lien against water company's plant; Holland v. State, 15 Fla. 542, holding purchaser of franchise and other property of railroad, at execution sale, took nothing; Louisville, etc., Ry. Co. v. Boney, 117 Ind. 506, 20 N. E. 434, 3 L. R. A. 438, and n., reviewing cases and refusing to sell roadbed under statutory lien for construction; McColgan v. B. B. R. Co., 85 Md. 521, 36 Atl. 1027, enjoining sale under execution of land on which tracks were laid; N. P. R. Co. v. Shimmell, 6 Mont. 164, 9 Pac. 890, collecting authorities, and holding that office safe of railroad company could not be sold under execution; Seibert v. Minneapolis, etc., Ry. Co., 58 Minn. 67, 59 N. W. 827, holding that statute re foreclosures of mortgages on real estate did not apply to railroad mortgages; Overton B. Co. v. Means, 33 Neb. 859, 29 Am. St. Rep. 515, 51 N. W. 240, collecting cases, and restraining execution sale of bridge company's property; Williamson V. N. J. S. Ry. Co., 28 N. J. Eq. 283, holding mortgage covering rolling stock not subject to requirements of statutes re chattel mortgages; People v. O'Brien, 111 N. Y. 47, 7 Am. St. Rep. 701, 18 N. E. 702, 2 L. R. A. 263, and n., holding tracks and franchise of street railroad inseparable; Gooch v. McGee, 83 N. C. 63, 35 Am. Rep. 560, holding purchaser of canal bed, at execution sale, took no title; Yellow R. Imp. Co. v. Wood County, 81 Wis. 560, 561, 51 N. W. 1006, 17 L. R. A. 95, and n., holding dam, essential to franchise, must not be assessed as part of land on which built; Chicago, etc., R. Co. v. Milwaukee, 89 Wis. 514, 62 N. W. 420, 28 L. R. A. 254, and n., reviewing cases, and holding, under statute, track and right of way of railroad not subject to assessment for local improvements; State v. Anderson, 90 Wis. 563, 63 N. W. 749, holding franchise and property essential to its use must be assessed as an entirety. See note on this point in 76 Am. Dec. 223, 27 Am. Rep. 83, 35 Am. St. Rep. 390, 405, 406. Approved in dissenting opinion in Pipe, etc., Co. v. Howland, 111 N. C. 633, 16 S. E. 863, 20 L. R. A. 751, majority holding that statute gave material-man's lien on real property of water company. Cited generally as to jurisdiction of Federal court in auxiliary suit in Freeman v. Howe, 24 How. 460, 16 L. 752, and Stone v. Bishop, 4 Cliff. 597, F. C. 13,482.

Distinguished in City v. Detroit C. Ry. Co., 56 Fed. 882, holding that franchise may be separated from other property by expiration; Wheeling, etc., Co. v. Reymann B. Co., 90 Fed. 193, 61 U. S. App. 538, sustaining vendor's lien on right of way; Gardner v. Mobile, etc., R. Co., 102 Ala. 645, 48 Am. St. Rep. 89, 15 So. 274, refusing to set aside sale, made under execution, when franchise had been abandoned. Limited in Neilson v. Iowa E. R. Co., 51 Iowa, 188, 33 Am. Rep. 126, 1 N. W. 438, holding that rolling stock is not part of railroad company's real estate; Williamson v. N. J. S. R. Co., 29 N. J. Eq. 325, reversing S. C., 28 N. J. Eq. 283, and holding railroad mortgage covering rolling stock is within provisions of statute as to chattel mortgages; Syracuse W. Co. v. Syracuse, 116 N. Y. 182, 22 N. E. 385, 5 L. R. A. 552, holding grant of franchise to competing company was not a separation of indispensable property from franchise of water company. In note in 27 Am. Rep. 84.

Execution.- Equity will not permit a single creditor to destroy a fund to which other creditors have a right to look for payment, as by selling under execution the corporeal property of a canal company away from the incorporeal franchises and rendering both valueless, p. 263.

Approved and applied in Jackson v. Ludeling, 21 Wall. 623, 22 L. 495, refusing to allow bondholder to obtain advantage over associate holders; Krippendorf v. Hyde, 110 U. S. 281, 28 L. 147, 4 S. Ct. 29, sustaining bill to restrain marshal from distributing fund claimed by third party; McColgan v. B. B. R. Co., 85 Md. 521, 36 Atl. 1027, enjoining execution sale of railroad's property, where such sale would defeat rights of mortgagees; Marr v. Union Bank, 4 Cold. 477, 486, refusing to allow judgment creditor to defeat pro rata distribution of assets of insolvent bank. See note on this point in 76 Am. Dec. 223.

Corporations.- Where a party has a right to compel a sale of all the property of a corporation, including its franchise, his remedy is in a court of chancery, p. 264.

Cited and doctrine applied in Railroad Co. v. James, 6 Wall. 752, 18 L. 856, sustaining a sale, under decree of equity court, of a railroad; Nat., etc., Works v. Oconto W. Co., 52 Fed. 58, sustaining bill to foreclose lien on plant of water company.

Limited in note in 27 Am. Rep. 84.

24 How. 264-267, 16 L. 655, LEAGUE v. EGERY.

Public lands.- Under Mexican colonization laws of 1824 and 1828, the consent of the Federal executive of Mexico was necessary to the validity of a grant of lands within the littoral or coast leagues, p. 266.

Cited with approval and rule applied in Foote v. Egery, 24 How. 268, 16 L. 657, holding invalid a grant by State of Coahuila and

Courts.- Federal courts give binding force, almost equivalent to positive law, to that construction of local laws, respecting land titles settled by the State courts of locus rei sitæ, pp. 266, 267.

Cited with approval and rule applied in Suydam v. Williamson, 24 How. 434, 16 L. 745, adopting the opinion of local courts as to land title in New York; Christy v. Pridgeon, 4 Wall. 204, 18 L. 325, adopting rule of Texas courts as to the title to land there situate; Mitchell v. Lippincott, 2 Woods, 472, F. C. 9,665, reviewing authorities and following later decisions of State court as to validity of mortgage; Lamb v. Farrell, 21 Fed. 8, adopting local rule as to tax title, in Arkansas.

Distinguished in Burgess v. Seligman, 107 U. S. 34, 27 L. 365, 2 S. Ct. 22, collecting cases, and refusing to adopt ruling of State court made, first, after determination in United States court.

24 How. 267-268, 16 L. 656, FOOTE v. EGERY.

Public lands - Spanish grants.- The State of Coahuila and Texas could not, in 1829, nor in 1834, make valid grant of land within the littoral leagues, without consent of central government of Mexico, p. 268.

Not cited.

24 How. 268–278, GREER v. MEZES.

Public lands- California grants.- Until measurement and delivery of possession of land by proper officer, as required by Mexican grant, grantee acquired no legal title, p. 274.

Followed in De Arguello v. Greer, 26 Cal. 628, holding grantee and privies concluded by government survey.

Ejectment. In actions of ejectment, in Federal courts, the strict legal title prevails. If there are equities which would show the right to be in another they must be considered in chancery, pp. 275, 276.

Cited with approval and doctrine followed in Singleton v. Touchard, 1 Black, 345, 17 L. 50, holding equitable title would not avail defendant in ejectment; Burnes v. Scott, 117 U. S. 588, 29 L. 993, 6 S. Ct. 868, refusing to permit equitable defense to suit on promissory note; Lerma v. Stevenson, 40 Fed. 359, refusing to admit equitable defense to action in ejectment; Petty v. Mays, 19 Fla. 663, holding possession, under oral agreement to purchase, no defense to ejectment; Miller v. White, 23 Fla. 307, 2 So. 617, collecting cases, and holding that United States survey controlled between parties in ejectment; Buell v. Irwin, 24 Mich. 148, holding possession under agreement to sell no defense to ejectment. Approved in dissenting opinion in Sawyer v. Skowhegan, 57 Me. 513, majority holding de

fendant might set up equitable defense to a writ of entry. Cited generally in United States v. Sanchez, 27 Fed. Cas. 946, where injunction issued, under 9 Stat. 633, in favor of contestant claiming same grant as confirmee.

Public lands - California grants.-The act of March 3, 1851, makes it the duty of surveyor-general to cause all confirmed private claims to be surveyed, and to decide between parties with regard to all such claims as may be in conflict; but this may not preclude a legal investigation by proper tribunal, p. 276.

Cited generally in United States v. Sanchez, 27 Fed. Cas. 946, where injunction to restrain issuance of patent issued in favor of contestant.

Ejectment. Although Circuit Court may have adopted the mode of instituting ejectment by petition and summons, it is still governed by common-law principles of pleading and practice, pp. 276, 277.

Ejectment. Plaintiff in ejectment will not be allowed to join in one suit, distinct parcels of land, in possession of defendants, each claiming for himself, but is not bound to bring separate actions against several trespassers on his single, separate and distinct parcel of land, p. 277.

Approved in Gibbons v. Martin, 4 Sawy. 208, 211, F. C. 5,381, holding misjoinder could, under Oregon code, be pleaded in abatement.

Ejectment.-Plaintiff in ejectment need not show how each defendant claims, nor how much, p. 277.

Cited with approval and doctrine applied in Hays v. T. & P. Ry. Co., 62 Tex. 399, holding trespass to quiet title lay against one claiming right of way.

Ejectment. Several defendants in ejectment may each defend specially, but if any plead the general issue only, and be found in possession of any part of the land, they will be considered as taking defense for the whole, p. 277.

Approved and applied in Bell v. Foxen, 14 Sawy. 500, 42 Fed. 756, holding defendants, who had pleaded general issue only, liable for costs of all; Andrews v. Carlile, 20 Colo. 372, 38 Pac. 466, defendants, not having demanded separate trials, were not entitled to separate judgments. Approved in Gibbons v. Martin, 4 Sawy. 208, 211, F. C. 5,381, where, under Oregon code, defendants were allowed to plead misjoinder in abatement.

Ejectment. Defendants in possession, having pleaded general issue only, there being no proof of the particular portions which they severally occupied or claimed, are not entitled to separate verdict as to each, p. 278.

24 How. 278-284, 16 L. 637, FROST v. FROSTBURG C. CO.

Corporations.- Where an act provides that certain persons are hereby incorporated, conferring on them the corporate powers, the charter takes effect immediately upon acceptance, and subsequent steps are merely in perfecting organization; purchase of realty prior to such steps, is valid, pp. 281, 283.

Cited with approval and doctrine followed in New C. C. Co. v. George's C., etc., Co., 37 Md. 555, holding that acceptance took place at once, though nothing was done under charter for some time; Hammond v. Straus, 53 Md. 12, reviewing cases and holding that question of acceptance was one for jury; Hawes v. Anglo-Saxon, etc., Co., 101 Mass. 393, collecting cases and holding parties liable as stockholders for debts incurred before issue of stock; McGinty v. Athol Res. Co., 155 Mass. 184, 29 N. E. 510, holding there was corporate existence, though no stock had ever been issued; Haas v. Bank, 41 Neb. 758, 60 N. W. 86, citing cases and holding evidence of filing articles and acting under them, sufficient proof of incorporation.

Distinguished in Franklin F. Ins. Co. v. Hart, 31 Md. 64, where power was not conferred upon incorporators, and corporation had no existence till subscription for certain stock.

Corporations. A statute providing, as a penalty for concentration of stock, that all corporate powers, etc., shall cease and determine, provides for a forfeiture, p. 283.

Cited in Wallamet F. Co. v. Kittridge, 5 Sawy. 47, F. C. 17,105, construing" its corporate powers shall cease," to be equivalent of forfeiture.

Corporations. An irregularity in the organization of a corporation, although sufficient to work forfeiture of corporate powers, may not be set up by a private party dealing with the corporation, p. 283.

Approved and applied in Andrews v. Nat., etc., Works, 77 Fed. 778, 46 U. S. App. 619, 36 L. R. A. 154, and n., where existence de facto was not denied, party could not question corporate existence de jure; Humphreys v. Mooney, 5 Colo. 284, where third party could not object that articles had not been properly filed; Hammond v. Straus, 53 Md. 12, 15, collecting cases and holding party on stockholder's liability; Hawes v. Anglo-Saxon, etc., Co., 101 Mass. 393, citing cases and holding stockholder liable for debts incurred before the issue of stock; M. & F. Bk. v. Stone, 38 Mich. 782, collecting numerous authorities and refusing to permit one dealing with corporation de facto, to charge stockholder as partner; Haas v. Bank, 41 Neb. 758, 60 N. W. 86, refusing to permit legal existence of corporation to be questioned in action on note; Elizabethtown G. Co. v. Green, 46 N. J. Eq. 122, 18 Atl. 846, refusing, at suit of