of the bridge company lying within the state was excessively valued, The board of equalization had, however, jurisdiction of the subjectmatter, and, as observed by Chief Justice Ryan, "had jurisdiction to commit the error"; and its determination, however erroneous, cannot be impugned collaterally. Jurisdiction existing, any order or judg ment is conclusive in respect of its own validity in a dispute concerning any right or title to be derived through, or anything done by virtue of, its authority. It is true that, with respect to these special tribunals for assessment of property, evidence of excessive valuation is sometimes admitted; but it is so received in connection with other testimony to establish a charge of fraudulent conduct on the part of the board. Railroad Co. v. Backus, 154 U. S. 421-435, 14 Sup. Ct. 1114. Here, however, there is not only no imputation of fraud, but any such suggestion is refuted by the assertion of the answer that the over-valuation was made through mistake or error.

The law of Indiana does not seem to afford a remedy to the property owner by review of the action of the board of equalization to avoid an assessment unjust because above the real value of the property. The board met at stated times, regulated by law, and all parties in interest had the right to appear before the board, and to be heard; and, as matter of fact, the bridge company appeared before the board, and was heard. This is sufficient to meet the constitutional requirement that one shall not be deprived of his property without due process of law. Paulsen v. Portland, 149. U. S. 30, 13 Sup. Ct. 750. It is not essential that a right of appeal to the courts should be provided.

We are of opinion that the decree appealed from must be affirmed.

SHOWALTER, Circuit Judge (dissenting). Appellee stated in his

petition:

"That there is due from said Kentucky and Indiana Bridge Company,

* for state and county taxes to said Floyd county and state of Indiana, $5,693.12. That said taxes were assessed against the following property of the Kentucky and Indiana Bridge Company within said Floyd county, to wit: For the years 1891, 1892, and 1893 on 35/10 100 miles of first main track, $175,000; on 12/100 miles of second main track, $30,000; on 35/100 miles of rolling stock, $1,050; and on improvements on right of way, $180.00,-the same being the property of said company, situated within the state of Indiana, said county, and north of low-water mark of the Ohio river. Said taxes are as follows [alleging $1,717.55 to be the amount for 1891, $2.140.12 for 1892, and $1,835.45 for 1893]."

Appellants filed an answer, consisting of 16 paragraphs. Of these, the first 8 were stricken out on appellants' motion; the remainder, by the court. At law, a defective declaration may be aided by adverse pleadings. In chancery, as I understand, the decree must be supported by the bill or petition. The order appealed from here must, in any event, therefore, be supported by the petition. If, in debt on a judgment, plaintiff should aver in his declaration that at a certain time he obtained a judgment against the defendant for a certain sum, without stating what court, or that any court or judicial officer, rendered such judgment, such declaration would be ill. Here it is averred that appellee is treasurer of Floyd county, but not that

the board of tax commissioners (called in the statement of facts the "State Board of. Equalization") or any authority known to the law made the assessment on the property described. I do not well see how, upon the document filed by appellee, as shown in this record, any decree against appellants can be supported.

In the averments of the answer stricken out by the court, appellants stated, in substance, that the property in question lay across the state line, very much the larger portion being in Kentucky. Their proposition is that a valuation or assessment by the Indiana board of tax commissioners upon a piece of real estate which crosses the territorial limit of Indiana is void. Assuming that part of the tract here in question is in fact in Kentucky, then there was no valuation or assessment on the other portion, and the alleged tax is void. On the other hand, while the taxing authority mu eftentimes, in order to identify a tract of land for purposes of assessm nt, determine for itself where the state line is, yet such determination is not, and from the nature of the case cannot be, conclusive. It is out of the ques tion to say that a taxing agent deriving authority from Indiana can fix a tax lien on land in Kentucky, or that the status of a piece of land, as being in one state or the other, is conclusively determined by the finding of any taxing agent in either state. The ruling of the board of tax commissioners upon its own jurisdiction is not conclusive. I think appellants were entitled to a hearing upon their averment that land on the southern side of the state line was considered in the assessment. Railroad Co. v. Backus, 154 U. S. 435, 14 Sup. Ct. 1114, seems to sustain this view of the case.

SULLIVAN v. COLBY.

(Circuit Court of Appeals, Seventh Circuit. January 6, 1896.)

No. 247.

1. RECEIVERS-INTERFERENCE WITH POSSESSION.

A court of equity may enter a rule requiring one to show cause why he should not surrender to a receiver appointed by it certain real estate, and may on the hearing determine and enforce the rights of the receiver against the party accused of interference with his possession or management, unless the answer should set up some right or title of which a trial by jury is claimed.

2. ESTOPPEL BY RECORD-ADMISSIONS IN PLEADING.

Any confession or admission made in pleading in a court of record, whether express, or implied from pleading over without a traverse, will preclude the party from afterwards contesting the same fact in any subsequent suit with his adversary, though there is no adjudication upon the point.

3. ESTOPPEL BY PLEADINGS-INCONSISTENT POSITIONS.

Where one, in a pleading, bases his right to possession of land on the ground that a lease to him has not yet expired, and his adversary accepts this as an assurance that his possession will not become hostile to the latter's title, and that it cannot, except upon an open change of his attitude, become adverse, he cannot thereafter claim title by adverse possession. 4 ESTOPPEL-IGNORANCE OF FACTS.

Ignorance or mistake, if it arises from culpable negligence, will not prevent an estoppel.

5. WEIGHT OF EVIDENCE-WITHDRAWAL OF QUESTION FROM JURY.

When the truth of the matter is so manifest upon the entire evidence that it will be the plain duty of the court to set aside any verdict to the contrary, it is proper, by a peremptory instruction, to withdraw, the question from the jury.

6. DECLARATIONS AS TO TITLE-ESTOPPEL.

Where one's possession of a tract is of the whole, as a single body of land, so that an unqualified declaration or claim by him in respect to his possession or ownership of a part by necessary implication includes the whole, an estoppel in pais arising out of such declaration extends to the whole of the tract, in the absence of facts in evidence limiting its scope.

In Error to the Circuit Court of the United States for the Northern Division of the Northern District of Illinois.

This was an action by Charles L. Colby against Cornelius Sullivan. There was a judgment for plaintiff, and defendant brings error. Affirmed.

Richard Prendergast, for plaintiff in error.

J. L. High and H. W. Booth, for defendant in error.

Before WOODS, JENKINS, and SHOWALTER, Circuit Judges.

WOODS, Circuit Judge. The question presented by this appeal is whether the court erred in directing a verdict for the defendant in error, who was the plaintiff in the action. The oral argument left us in doubt, but a fuller study of the case has brought us to the conclusion that the instruction was justified. The action was in ejectment for the recovery of a tract of land, containing about 100 acres, in the S. of section 25, at Riverside, Ill., owned prior to March, 1872, by David A. Gage, and by him conveyed, with other lands, by deed, which was filed for record March 12, 1872, to the Riverside Improvement Company. That company caused the land to be platted, and the plat to be recorded, as the Third Division of Riverside, but it is agreed that the land has remained inclosed as a single tract, without marks upon the ground to indicate blocks, lots, or streets, and that streets have not been opened upon it. The Riverside Improvement Company, and its grantees, the Riverside Water & Gas Works Company and the Chicago & Great Western Railroad Land Company, executed to different parties trust deeds and mortgages of va rious lots of the division, including the lots constituting the land in controversy; and by sales upon foreclosure and other mesne conveyances, the title became duly vested in Charles L. Colby, the plaintiff in the action. Under the general issue the plaintiff in error, Cornelius Sullivan, endeavored to establish title in himself to the entire tract by reason of adverse possession for twenty years, and to a part of the land by proof of possession under color of title and payment of taxes for seven years or more before the action was brought. The action was commenced in December, 1892, and upon the proof, which upon this point is not without conflict, it seems probable that in the fall of 1872 Sullivan inclosed the land by building or rebuilding a fence upon one side of it,-the land being worth at that time from $1,500 to $2,000 per acre,-and that since that time he has been in possession, asserting, as a number of witnesses have testified, an un

defined ownership or interest in the land, though, upon his own testimony, the strong probability is that when he took possession he made no pretense of ownership, and had no intention of asserting or of acquiring any interest, unless it was a leasehold or mere license. He had no other right, and knew that the land had been sold by Gage to the improvement company. There is evidence, too, of an arrangement, or consent of that company, that Gage should remain in possession until the land was required for improvement in accordance with the company's scheme, and that he did continue to use the land in connection with an adjacent farm until August, 1872, when he surrendered control to Sullivan, who theretofore had been in his employ, and to whom he was considerably indebted. If there was not an actual transfer of possession by one to the other, it is certain that Sullivan's possession immediately followed that of Gage, and that, in constructing the fence put upon the land in dispute, he used lumber taken from fences on the adjacent farm leased of Gage, of which he obtained possession at or near the time when he assumed control of this land. Unless it was under or by permission of Gage, his entry upon the land was without justification or pretense of right. was vacant property, where cattle and horses-his own, with others-were wont to run; "and in order to keep my horses there straight," he testified, "and improve the country, I erected a fence there, because nobody claimed to own it. It was no man's property, and I thought I would take care of it, as long as I didn't see anybody else that wanted it." But as he also testified, and in some measure was corroborated by other witnesses, to the effect that he took possession under a claim of title, and ever since has asserted exclusive ownership, it is conceded that if the case turned upon the inquiry at what time, and under what assertion of right, he entered, the questions should have gone to the jury.

Upon other facts, now to be stated, the court below deemed Mr. Sullivan estopped to assert adverse possession or ownership of the property. In 1874 Alpheus C. Badger brought, in the circuit court of Cook county, a bill for the appointment of a receiver of the Chicago & Great Western Railroad Land Company, which then held the title to the premises conveyed by Gage to the Riverside Improvement Company, subject to various mortgages and trust deeds, for the foreclosure of which suits were instituted about the same time in the same court. William D. Kerfoot was appointed receiver, upon Badger's bill, which was brought for the protection of mortgage bondholders, to whose rights Colby, the defendant in error, succeeded by purchase. The bills for foreclosure and the Badger bill were consolidated by order of the court, and heard, in 1877, as one cause, under the title of "Peck et al. v. The Chicago and Great Western Railroad Land Company et al."; and, under the decrees of foreclosure therein rendered, the lots comprising the land in controversy were sold by a special commissioner, Clarence I. Peck purchasing most of them in behalf of the complainants in the Peck suit. In October, 1880, when the period of redemption from the sale was about to expire, the receiver, Kerfoot, at the instance of Peck, filed in the court a petition

against Sullivan, describing the portions of the land in controversy covered by Peck's certificate of purchase, and alleging that Sullivan had taken possession thereof, and had fenced and was holding the same, notwithstanding a demand by the petitioner for possession, which, it was charged, was an interference with the receiver in the discharge of his trust. Upon this petition the court granted a rule upon Sullivan, October 4, 1880, to show cause on the next Monday why he should not surrender to the receiver the real estate described in the petition. The petition was entitled, and the rule was entered in the case of, "Badger v. The Chicago and Great Western Railroad Land Company;" and under that title Sullivan, at the required time, filed a sworn answer, setting up: (1) That he had not been served with process, or in any way made a defendant, and was advised that the court had no jurisdiction to enter the rule, or to pass upon the question between him and the parties or the receiver. (2) That the receiver has no title to the premises. (3) That none of the parties has title thereto. (4) "That in the year 1873, prior to the commencement of this suit, one David A. Gage was the owner of the land in question, and at said time said Gage was indebted to this respondent in a large sum of money ($2,000 or thereabouts), and, being unable to pay said debt, the said Gage gave to this respondent a lease of the property in question at a reasonable rent per annum,-said rent to be applied to the extinguishment of said indebtedness,-and the lease was to continue until said indebtedness was fully paid." "This respondent says that he is ignorant of the exact amount of land claimed by said receiver, but that at a reasonable rent per annum for the same, to wit, $100 per annum, said debt has not been paid. Respondent further says that said lease above mentioned was accepted by him from said Gage, and in pursuance of the same he entered into possession of said premises at the time, and has been in undisputed possession of the same ever since." And (5) "that said receiver has never been in possession of said property, and has not laid claim to the same, to his knowledge, until within the last few weeks." The matter was disposed of by an order of the court entered October 20, 1880, of the tenor following: "On reading and filing the answer of Cornelius Sullivan, it is ordered that the rule on him to show cause, heretofore entered herein, be, and the same is hereby, discharged."

In behalf of the plaintiff in error, it is insisted that these proceedings do not constitute an estoppel of record, for the reasons-First, that the court had no jurisdiction to entertain the petition of the receiver; and, second, that it does not appear but that, the lack of jurisdiction being conceded, the court discharged the rule without considering the merits of the petition, or of the fourth clause of the answer, and that there is no estoppel in pais, because the answer was filed under the mistaken belief that the petition described and had reference to another tract of land, known as the "Badger Farm," of which he was in possession at the time. We entertain no doubt of the power or jurisdiction of a court of equity to enter such rules, and upon the hearing to determine and enforce the rights of the receiver, against a party accused of interference with the receiver's possession