Opinion of the Court.

of deeds; but as no such objection was made upon the trial of the case it is unnecessary to discuss it here.

The fourth assignment of error is founded upon the rejection of a deed, called a declaration of trust, made by Still Manning and William Wright, which was offered by the defendant. This instrument was signed and acknowledged in the month of November, 1855, and covered the land now in controversy. The deed from Manning and Wright to Wilder, referred to in the second assignment of error, was executed in July, 1860, nearly five years after this declaration of trust. The object of the defendant in offering the latter was to show that the legal title had passed out of Manning and Wright and that Wilder did not get the title by the deed which was made to him. Upon the objection of the plaintiff to the introduction of this deed it was rejected by the court, to which ruling the defendant excepted.

The proposition upon which the defendant sought to introduce this instrument is founded upon certain statutes of the State of Michigan, of a character similar to those common in other States, found in Howell's Statutes, $$ 5563 to 5573 inclusive. They comprise the usual provisions for abolishing uses and trusts, and enact in substance that the use shall vest in the cestui que trust as a legal title, except when otherwise provided. Most of these statutes, however, have relation to implied trusts, and it is not necessary here to go through all of them, nor to enter upon their critical discussion at this time. It is sufficient to say that the paper presented in this case is not a conveyance to anybody, but it purports to declare in express terms that the parties executing it hold the property in trust for themselves and two other persons. It is, therefore, an express trust, and comes within the language of $5578, which reads as follows:

"5578. Every express trust, valid as such in its creation, except as herein otherwise provided, shall vest the whole estate in the trustees in law and in equity, subject only to the execution of the trust; and the person for whose benefit the trust was created shall take no estate or interest in the lands, but may enforce the performance of the trust in equity."

Opinion of the Court.

This declaration of trust evidently contemplated that the legal title remained with the trustees, and that they had the power and authority to sell and convey the property, the profits or proceeds to be divided according to the interest which was declared in the instrument creating the trust. We think the legal title remained in Manning and Wright, until by the deed to Wilder they transferred to him the strict legal title. The deed was therefore properly rejected.

The next and last assignment of error which we propose to consider relates to the production of various deeds conveying the lands in question to persons under whom the defendant claims on account of sales for taxes. These deeds were offered in evidence and rejected by the court, to which ruling the defendant excepted.

The principal ground upon which they were held to be invalid was, that the tax levy under which they were sold included an illegal allowance for extra compensation to Goodwin and Eddie, who were judges of the state court which included within its jurisdiction the county of Marquette. It appeared that the supervisors of that county allowed and paid to them, out of the tax levies, an additional compensation of $400 per annum in excess of their salary. It does not seem to be controverted that, by the law of Michigan, if this sum was included in the assessment and levy of taxes, on account of which the sales were made that these deeds represent, the title based upon them is void. Both parties admit this proposition in argument, and certain authorities referred to in the briefs establish it as the settled doctrine of that State. Lacey v. Davis, 4 Mich. 140; Case v. Dean, 16 Mich. 12; Edwards v. Taliafero, 34 Mich. 13.

In Hammantree v. Lott, 40 Mich. 190, the court said: "A tax deed is void if a portion of the tax for which it was given was excessive and invalid." In the recent case of Silsbee v. Stockle, 44 Mich. 561, the whole subject was very elaborately reviewed by Judge Cooley, of that court, and the principle here stated fully established. The strength of the opinion in that direction may be seen by the following extract from the syllabus of the case:

Opinion of the Court.

"The statutory provisions that no sale for delinquent taxes shall be held invalid unless it be made to appear that all legal taxes were paid or tendered, and that all taxes shall be presumed to be legally assessed until the contrary is affirmatively shown (Comp. L., § 1129), are unconstitutional so far as they sustain sales for taxes which are in part illegal."

Counsel for plaintiff in error deny the sufficiency of the evidence produced in regard to the increase of salary by the county, above what the State allowed to the judge, or that the fact is established by competent testimony; and it is urged with much force that this attempt to show now, some fifteen or twenty years after the transaction, that the tax levy for the particular years in question did include this increased compensation, cannot be accomplished by parol testimony. We think, however, that there is enough in the bill of exceptions which is not parol, but matter found in the records of the boards of supervisors who made the tax levy, to establish the fact without any parol testimony. The records of the proceedings of this body for Marquette County were read in evidence for each of the years 1861, 1865, 1866, and 1867, the same being all that appeared therein relative to the equalization of the assessment rolls of the several townships and the action by which the rate of apportionment of the State and county taxes for each of those years was fixed. This is spread in full upon the record in the bill of exceptions. It appears that the aggregate valuation of the taxable real and personal property of the county in 1861 was determined to be $1,285. 965.50, and we then find this entry.

"The subject of additional compensation to Judge Goodwin being under consideration, on motion of it was resolved that all former action of the board on this subject be rescinded and that the sum of four hundred dollars be paid to Judge Goodwin in orders on the treasurer of this county, upon his signing a receipt in full of all demands against the county on such account, up to the first day of January, A.D. 1862, such receipt to be filed with the clerk before such orders are issued."

Then immediately follows the rate of taxation:

Opinion of the Court.

"On motion it was resolved that a tax of six and one-half mills on the dollar be raised on the taxable property of Marquette and Schoolcraft Counties for the contingent fund, to defray the general expenses of the county."

The only parol evidence introduced which seems to have had any influence upon the decision of this question was the testimony of a witness that Judge Goodwin received this $400 from the county treasury at a time when it must have been paid out of the levy made at this time. We think that was competent, and that the date of the receipt of the money being shown the inference that it was paid out of the tax levy, which we have already recited, is sufficient.

It is also shown by the records of the board of supervisors, in regard to the levies of other years, that for the years 1865, 1866, 1867 and 1868, an illegal sum of the same character, being $350 per annum, was included in the assessment and paid over to Judge Eddie. The court left it to the jury to determine, under all the evidence which was introduced, whether, in pursuance of such resolutions, these sums were levied as a tax and for the purpose, as claimed by the plaintiff, of paying salaries to these judges. Although he refers in this connection to the additional evidence of two witnesses, Healy and Maynard, as having some influence upon the determination of this question, it is quite obvious that the proposition was established of the payment of additional compensation to these judges out of an unlawful levy of taxes, so far as the lands in question are concerned. And while the parol testimony was not necessary to show that the amount paid for that purpose was included in the tax levy for the years under which these sales were made, it was competent to show by oral testimony that these judges actually received the money out of the taxes collected under those assessments.

These are the only assignments of error which we are called to consider, and as we do not find that there was error in the matters alleged, the judgment of the Circuit Court is

VOL. CXXVII-22

Affirmed.

Statement of the Case.

UNITED STATES v. BEEBE.

APPEAL FROM THE CIRCUIT COURT OF THE

UNITED STATES FOR

THE EASTERN DISTRICT OF ARKANSAS.

No. 180. Argued February 10, 13, 1888. - Decided April 30, 1888.

The Attorney General has authority, under the Constitution, to file a bill in equity in the name of the United States to set aside a patent of public land alleged to have been obtained by fraud or mistake, when the government has a direct interest in the tract patented, or is under an obligation respecting the relief invoked by the bill.

The United States are not bound by any statute of limitations, nor barred by laches of their officers in a suit brought by them, as sovereign, to enforce a public right, or to assert a public interest; but where they are formal parties to the suit, and the real remedy sought in their name is the enforcement of a private right for the benefit of a private party, and no interest of the United States is involved, a court of equity will not be restrained from administering the equities between the real parties by any exemption of the government, designed for the protection of the rights of the United States alone.

THIS was a suit in equity brought by the Attorney General on behalf of the United States to set aside and cancel certain patents issued in favor of Roswell Beebe, in 1838 and 1839, for about 480 acres of land upon which the present city of Little Rock, Arkansas, is partly built. Roswell Beebe having died many years ago, this suit is prosecuted against his heirs and legal representatives. It was brought in the United States Circuit Court for the Eastern District of Arkansas, the bill having been filed on the 31st of January, 1883. The ground upon which it was asked that said patents might be set aside and cancelled was, that at the date of their issue, and for a long time prior thereto, the United States did not own the land embraced in them, but that, on the contrary, said land was legally appropriated by other persons, and was therefore segregated from the public domain; that said Roswell Beebe and others fraudulently conspired together for the purpose of securing said patents, and by false representations, pretences, and undue influence persuaded and "coerced