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the Sioux City Company all its rights and interests in and to all lands granted by congress to aid in constructing its road lying within the original six-mile limits of the grant, from a point 20 miles west from the west side of range 31-being all the lands in place westerly from that point. The Sioux City & St. Paul Company agreed to construct and equip for business about 45 miles of the line in 1871, and the remainder to the Iowa state line in 1872, and also to fully complete and equip the entire line of the Sioux City & St. Paul Company, from the Minnesota state line to a junction with the Iowa Falls & Sioux City Road, by the end of 1872; and the companies agreed to connect their lines at St. James, and run the same so as to form a continuous line from St. Paul to Sioux City. It is claimed on the part of the county that this transfer was a sale and conveyance of the lands, within the meaning of the act of May 22, 1857, so as to extinguish the exemption.

The general purpose of that act, as also of the act of March 4, 1864, was to secure the construction of the road with the lands granted by the act of congress for that purpose. It was contemplated that the road, if constructed at all, would from necessity be constructed mainly, and perhaps for a time maintained from, the proceeds of sales of the lands; that the lands would not produce any revenue except from sales; that it might be a considerable time before they could be sold, and that if in the meantime they should, by being subject to assessment and taxation, be a source of expense to any company holding them, the company to which the lands were offered would be less likely to accept the grant and undertake the construction of the road. As an inducement to the company to enter upon the enterprise the exemption from taxation was created.

All the acts of the legislature, from first to last, show it was intended that this exemption should exist in favor of any company which, in consideration of the land grant, should assume the construction and maintenance of the line to which it was applicable.

It is so expressed in the act of May 22, 1857, in respect to the Root River Valley & Southern Minnesota Company, and in the act of March 4, 1864, in respect to the Minnesota Valley Company; and in the act of 1869 the authority given to the latter company to transfer to the Sioux City and St. Paul Company not the lands merely, but "so much of the

land and land grant," implies that the company so authorized might pass to the other all the benefits, together with the burden of the grant of land made by the state.

Although the act making the grant operated as a grant in præsenti, so far as vesting the nominal legal title, it did not pass an absolute, unconstitutional title.

The title was liable to be defeated by the failure of the company to comply with the conditions annexed to the grant. The absolute, unconditional title was to be earned by construction of road.

The grant to the company mentioned in the act of 1857, and the transfer of that grant by the act of 1864 to the Minnesota Valley Company, vested, it is true, the naked legal title, but the substantial right vested was the right to earn the lands by construction of road. This is what the agreement under the act of 1869 passed to the Sioux City & St. Paul Company; that is, the right to construct and maintain the part of the line west of St. James, and to earn the lands applicable to that part of the line. That act authorized this to be done, and there can be no doubt the legislature intended that the Minnesota Valley Company, if it should transfer to the other a part of its line and land grant, might transfer just what itself held, subject to the same conditions, liabilities, privileges and exemptions, and that when transferred the part of the line and land grant should be held by such other company just as it was held by the company transferring.

The lands are not subject to taxation, and the decision of the court below was correct.

GEORGE H. BROWN and another, Respondents, vs. HENRY C. BRACKETT, Appellant.

Filed December 4, 1879.

Proceedings for restitution under chapter 84, Rev. St. 1878, cannot be maintained against a tenant who has been in possession of the premises more than three years under a lease, his term not having ended.

Appeal from order of municipal court, city of Minneapolis. C. J. Bortleson, for appellant.

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GILFILLAN, C. J. Section 12, c. 84, Rev. St. 1878, entitled "Forcible Entries and Unlawful Detainers," reads: "No restitution shall be made, under the provisions of this chapter, of any lands or tenements of which the party complained of, or his ancestors, or those under whom he holds the premises, have been in the quiet possession for three years next before the entering of the complaint, unless his estate therein is ended."

It is contended by the respondent that the quiet possession for three years here referred to, means a possession adverse to the title of the party seeking restitution, and that consequently the section does not apply to the proceedings provided for in section 11 of the chapter, by a landlord against a tenant, for restitution for non-payment of rent.

Prior to 1866 section 16, for which section 12 was in the Revision of that year substituted, read: "The preceding section shall not extend to any person who has or shall have continued in possession three years after the termination of the time for which the premises were demised or let to him or her, or those under whom he or she claims, or after the sale thereof, as aforesaid, or to any person who continues in possession three years quietly and peaceably by disseizen, anything contained in this chapter to the contrary notwithstanding.

Why the change in the law was made by the substitution of section 12, in the Revision of 1866, for section 13 in the statute prior to that time, is not apparent, but the intention to change the law is unmistakable. It stood up to that time just as the respondent claims it is now, and the legislature saw fit to change it. There is no rule of construction by which we can hold the new section to mean the same as the old one, for which it was substituted. It could be done only by inserting or implying in it language which was rejected by the substitution.

SUPREME COURT OF IOWA.

J. C. STRONG and others, Appellants, vs. M. V. BURDICK and others, Appellees.

Filed December 12, 1879.

Priority of certain liens determined, and the rule that "He who asks equity must do equity" applied. Where a mortgagee purchases the premises at a tax sale, and procures a treasurer's deed, he is entitled to claim the amount so paid from one seeking to redeem from him, the same as if he had paid the taxes.-[ED.

Appeal from Winneshiek district court.

Action in equity to foreclose a mortgage, and to have the same decreed to be the prior lien, and also to set aside a decree and judgment under which the defendant Gill claims certain rights. Judgment for the defendants, and plaintiffs appeal.

E. E. Cooley, for appellants.

Willett & Willett, for appellee.

SEEVERS, J. The facts are that in November, 1868, John T. Clark, being the owner of the premises therein described, executed a mortgage to O. J. Clark. This mortgage was assigned to the defendant Gill. In 1869 John T. Clark sold the mortgaged premises to Burdick and Patterson, subject to the payment of the O. J. Clark mortgage, the payment of which they assumed. To secure the payment of the purchase money, Burdick and Patterson executed a mortgage on said premises, which has become the property of the plaintiffs, and which they seek to foreclose in this action and have declared the prior lien.

In 1874, Burdick and Patterson conveyed the premises to. Sacket, who executed to them a mortgage to secure the purchase money. Burdick and Patterson transferred to Gill a portion of the indebtedness secured by this mortgage, and stipulated that any payments made thereon should apply as payment of the O. J. Clark mortgage. Afterwards Gill commenced an action against Sacket, Burdick, and others, to foreclose both of said mortgages in the same proceeding. Judgment was entered against Burdick and others for the amount due on the O. J. Clark mortgage, and foreclosing the same. There was also rendered a judgment against Sacket for the amount of the indebtedness secured by the mortgage executed by him, which had been transferred to Gill, and also foreclosing said mortgage. A sale of the premises was

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directed, and that after the O. J. Clarke mortgage was satisfied the balance of the Sacket judgment, if realized, it was directed should be paid into court for the use of Burdick and Patter

son.

An execution was issued which recited the judgment against Burdick and others, and also the judgment against Sacket, and directed the sheriff to sell the mortgaged premises, or so much thereof as was necessary to satisfy the latter judgment. The premises were sold under said execution, and Gill became the purchaser, and at the proper time the premises were conveyed to him by the sheriff. The plaintiffs were named as defendants in the foreclosure proceeding brought by Gill, and the decree and sale cut off their rights under their mortgage. This is the decree they ask to have set aside, and the relief asked was granted, because they had not been served with notice of the action. But the court held that the plaintiffs' mortgage was junior to the O. J. Clark mortgage, and required them to redeem therefrom. The court also held the plaintiffs must pay certain taxes paid by Gill. Of so much of the decree as requires them to redeem, and charging them with the payment of taxes, the plaintiffs complain. In relation to which we have to say:

1. The mortgages when executed were liens in the following order: First, the O. J. Clark mortgage; second, that under which plaintiffs claim; and, third, the Sacket mortgage. The first and third liens were the property of the defendant Gill, the last lien being held as collateral security for the payment of the first. As the third lien held by Gill was larger than the first, the payment of either operated as a discharge or payment of the first lien. If, therefore, the sale of the premises under the circumstances under the third mortgage operated as a payment of the first, the second mortgage from that time became the prior lien. As Gill was the purchaser at the sale he did not receive the purchase money, and the effect of the sale was to discharge the first lien. Although it is true that Gill purchased at the sheriff's sale under the third mortgage, yet, as the effect of such purchase was to satisfy the first lien, the plaintiffs, as the holders of the second lien, must redeem from Gill, and should pay the amount of the first lien.

The effect of the sale and purchase by Gill is the same, so far as the plaintiffs are concerned, as if said purchase had been made under the first lien. The plaintiffs are not entitled to have the decree and sale set aside if the effect of so

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