1874.] Opinion of the Court-Hoffman, J. set up either against the vessel in the hands of a purchaser at the judicial sale or against her proceeds when brought into court for distribution. Thus a wharfinger whose demand has accrued after seizure, can set up no lien on the vessel even if his possession could be considered such as to create one, but he must present his claim to the court for allowance, as part of the expenses of justice; and if he has obtained possession of the rem, or having become the purchaser, refuse to pay the whole purchase-money, the court will, by summary process, enforce a redelivery or payment. (The Phœbe Ware, 362.) Even where a party is in possession at the time of the commencement of the suit of some of the apparel of the ship (e. g. sails), which he has repaired, and on which he has a lien at common law, the court will order him to deliver them up and look to the court for the protection of his rights. (The Harmonie, 1 Wm. Rob. 178.) But the point under consideration is different from that presented in these cases. The inquiry here is, can the owner, after he has regained possession of the vessel, either by successfully defending the original suit or by paying or giving bonds for the payment of the demands for which she has been seized, defeat an otherwise valid lien, on the ground that the contract on which it is claimed was made, and the consideration for it rendered, before the release, and while the vessel was still in the custody of the law? Property in the possession of an officer of a court under lawful process is in the custody of the law, and the possession of the officer partakes of the inviolability of the law itself. It, and the rights growing out of it, will be firmly upheld against all interference which might obstruct the court in the fulfillment of its functions, or impair the rights of the suitors before it. But the effect and consequences of taking property into the custody of the court must be measured by the objects to be attained by it, and there would seem to be no reason to deprive the owner of any right, the exercise of which is Opinion of the Court--Hoffman, J. [March, consistent with the attainment of the objects of the seizure and the enforcement without hindrance or diminution of the rights growing out of it. If the owner of property so situated is incapable of making a contract which will give rise to a lien or privilege, he would be equally incapable of making an express hypothecation or mortgage, or even, so far as is perceived, making a valid bill of sale of the vessel; and yet these contracts, subordinated as they would necessarily be to the authority of the court, and the rights of the suitors before it, he might make, without in the least degree interfering with the one or impairing the other. The consequences of the principle contended for might be pernicious in the extreme. The owner would be deprived of all power of disposing of his property, or, on the faith of it, obtaining the means to make necessary repairs, supplies for a new voyage, or funds to enable him to satisfy the very demands for which she had been seized. He also might use this alleged incapacity as an instrument of fraud; for, by suffering the vessel to remain under attachment in the custody of the marshal's ship-keeper (a circumstance which might easily escape observation), he might, while she so remained, cause extensive repairs to be made or supplies furnished, and upon her release, deny all right of recourse against the vessel on the pretense that she was in custodia legis when the repairs were made, or the supplies furnished. I see, therefore, no reason for the principle contended for, either in the interests of the owner or those of commerce, or those of the administration of justice. It is said that liens are grounded upon the credit, express or presumed, given to the vessel, and that no such credit can be given to a vessel in the custody of the law, for such a credit is impossible. But this is obviously a statement of the position of the advocate of the claimant, not an argument in support of it. It is equivalent to saying that no lien was contemplated by the parties because none could, by law, be created, and Opinion of the Court-Hoffman, J. 1874.] that no lien was created by law, because none was contemplated by the parties. Where there is no proof of an exclusively personal credit, a party dealing with the owner of a vessel is presumed to look to the remedies which the law gives him. What those remedies are, is in this case the very question at issue. I am, therefore, of opinion, that the fact that the contract under which the lien is claimed, was entered into while the vessel was in the custody of the law, is no bar to a libel in rem, to enforce the lien against the vessel in the hands of the owner, to whom she has been restored on dissolution of the admiralty attachment. 2. If this general proposition be true, I do not perceive that the circumstance that the lien arises under the municipal, and not under the maritime law, will make any difference; provided this be a case where the State has legislative authority to create a maritime lien, and this court has jurisdiction to enforce it. On these points no objection was raised. The suggestion that the framers of the State statute could not have contemplated a lien or a remedy in rem against a vessel in the custody of this court, is answered by the observation that no such intention is attributed to the framers of the statute, and no such effect given to the law. The lien claimed in this case, though founded on services in part rendered while the vessel was in the custody of the law, attached to her only after she had been restored to the It is sought to be enforced against her, not in the hands of a purchaser at a sale ordered by the court, but in the hands of her orginal owner, by whom the contract to which the law annexes a lien was made. owner. The evidence with regard to the facts is irreconcilably conflicting. * * Decree for the libellant. * * * * Opinion of the Court--Deady, J. [April, CHARLES E. TILTON V. THE OREGON CENTRAL DISTRICT COURT, DISTRICT OF Oregon. 1. ASSESSMENT, WHEN VOID FOR UNCERTAINTY. - An assessment of real property should substantially comply with the requirements of the statute (Or. Code, p. 898) which requires each tract or parcel of land to be designated according to the United States surveys, if it be a subdivision of the same, or otherwise by specific metes and bounds or other certain description; therefore an assessment to the O. C. M. R. Co. of 196,008.99 of acres of land in Jackson county, in gross, without any other designation or description of the same, is void for uncertainty. 2. SAME SUBJECT.-An assessment of real property which contains no valuation of the same except this: "Total value of taxable property, 245,011," there being no mark or sign to indicate whether such figures were intended to represent eagles, dollars, cents or mills, or other thing capable of being numbered, is void for uncertainty. 3. COLLECTION OF TAX, WHEN RESTRAINED-A court of equity will restrain the collection of an illegal tax upon real property where the enforcement of the same will result in a cloud being cast upon the title thereof. 4. TAX DEED, A CLOUD ON TITLE.-Under the laws of Oregon (1865, p. 10),* a tax deed is primary evidence of title and the regularity of the prior proceedings, which evidence can only be overcome by the proof of certain facts dehors the deed; therefore the same casts a cloud upon the title of the property. Before DEADY, District Judge. MOTION for a provisional injunction heard and determined upon the bill-no one appearing for the defendants. Cyrus Dolph and E. C. Bronaugh, for the complainant. DEADY, J. It appears from the bill that the complainant is a citizen of New York. That the defendant, "The O. C. M. R. Co.," is a corporation formed under the laws of Oregon, with a capital stock of $100,000 divided into 400 shares of $250 each, and the defendant, McKenzie, is the sheriff of Jackson county, Oregon. That the O. C. M. R. Co. is the owner in fee of a large number of acres of land Compilation of 1874, p. 767. * Opinion of the Court-Deady, J. 1874.] in said county, in 300 and odd distinct parcels, particularly described by township, section and range, and the plaintiff is the owner of thirty-one shares of the capital stock of said company. That said company is assessed upon the assessment-roll of Jackson county for 1873 as the owner of 196,OC8.98 acres of land in said county, in gross, without any other designation or description thereof, and without any valuation of the same other than this: "Total value of taxable property, 245,011." That the taxes levied upon the lands so assessed to said company by the proper authorities of said county, amount to $4,410.20, and the same will be collected by the defendant McKenzie by the sale of said lands, or so much thereof as may be necessary for that purpose, and a cloud be thereby cast upon the title of said company, unless restrained by the order of this court; and that said assessment is illegal and void for want of certainty in the description and valuation of said lands. That this assessment is illegal and void, there is no room for doubt. The law prescribes that the assessor in making an assessment of real property shall set down in the assessment-roll, in separate columns, the following: 1. A description of each tract or parcel of land to be taxed, specifying, under separate heads, the township, range, and section in which the land lies; or, if divided into lots and blocks, then the number of the lot and block. 2. The number of acres and parts of an acre, as near as the same can be ascertained, unless the land be divided into blocks and lots. 3. The full cash value of each parcel of land taxed. 4. In case the land be other than a subdivision of the United States survey, or lots and blocks, it must be described by specific metes and bounds, or otherwise, so as to make the description certain. (Or. Code, p. 898.) In the case under consideration, the assessment-roll contains no description of the land whatever, except that there is in all 196,008.99 acres, situate somewhere in Jackson county. Neither the township, range, nor section, nor the metes and bounds of the tract, nor any parcel or portion of it, is given. |