And, in the third place, by section 475 of the Alaska Code it is declared that "any person in possession by himself or his tenant of real property, may maintain an action of an equitable nature against another who claims an estate or interest therein adverse to him, for the purpose of determining such claim, estate, or interest." Act June 6, 1900, 31 Stat. 410, c. 786.

Under such statutory provisions, it is clear that one who first makes a valid location of a mining claim and enters into its possession acquires a title thereto, not, it is true, the legal title, which remains in the United States until conveyed by it, but such a title as the laws of the United States recognize and will protect, as against an intruder such as the evidence embodied in the record shows the defendants in the present case to have been. And decisions to this effect are sufficiently numerous, we think, to put an end to the question. Thus, in the case of Parley's Park Silver Mining Company v. Kerr, 130 U. S. 256, 9 Sup. Ct. 511, 32 L. Ed. 906, which was an action brought in the District Court of the territory of Utah, founded upon a statute of the then territory of Utah substantially and almost exactly the same as section 475 of the Alaska Code, the Utah statute reading as follows: "An action may be brought by any person in possession by himself or his tenant of real property, against any person who claims an estate or interest therein adverse to him, for the purpose of determining such adverse claim, estate, or interest"-the court stated the pleadings of the parties as follows:

"The complaint sets forth the cause of action in the very terms of this section, alleging, in effect, that the plaintiff is owner, subject only to the paramount title of the United States, and in possession of the lands in question; that the defendant claims an adverse interest or estate therein; that the said claim is without legal and equitable foundation and void; and that it is a cloud on plaintiff's title, embarrasses him in the use and disposition of the property, and depreciates its value. Therefore he prays (1) that the defendant may be required to set forth the nature of his claim, and that all adverse claims of the defendant may be determined by a decree of the court; (2) that by said decree it be adjudged that the defendant has no interest or estate whatever in said land, and that the title of the plaintiff is valid and good; (3) that the defendant be enjoined against asserting any adverse title to said land or premises. The defendant in his answer denies the plaintiff's ownership and possession, and sets up a paramount title in himself based upon a patent to him from the United States embracing the land in question." After so stating the issues the court said:

"The first issue to be determined is whether the complaint is sufficient to authorize the admission of evidence impeaching the validity of a patent or to sustain a judgment annulling it. This question was directly presented in the case of Ely v. New Mexico & Arizona Railroad Co. (recently decided by this court) 129 U. S. 291, 9 Sup. Ct. 293, 32 L. Ed. 688. That was an action commenced in a territorial court under the statutes of that territory, almost literally the same as the statutes of Utah under which this action arose, and the prayer for relief was precisely the same in both complaints. The court held in that case that the rule in force in the Circuit and District Courts of the United States, that a bill in equity to quiet title or remove clouds must show a legal and equitable title in the plaintiff, and set forth the facts and circumstances upon which he relies for relief, does not apply to an action in the territorial court founded upon territorial statutes which unite legal and equitable remedies in one form of action. The complaint in the present case, in compliance with the practice act of Utah territory, states in concise language the two ultimate facts upon which the claim for relief depends, that 122 F.-50

the plaintiff is in possession of the property, and that the defendant claims an interest or estate therein adverse to him. These are sufficient to require the nature and character of the adverse claim on the part of the defendant to be set up, inquired into, and judicially determined, and the question of title finally settled."

The case of Pralus v. Pacific G. & S. M. Co., 35 Cal. 30, was an action to quiet title to a quartz mining claim upon the public lands, and the court there said:

"The plaintiffs, as appears by the complaint, claim only a possessory title in or upon the public lands of the United States, and the first question presented is whether such a claim or title is sufficient to authorize an action by the party in possession under the same to determine the adverse title or claim of a party out of possession. This has been frequently decided by this court in the affirmative, and we think correctly. Merced Mining Company v. Fremont, 7 Cal. 319, 68 Am. Dec. 262; Smith v. Brannan, 13 Cal. 107; Boggs v. Merced Mining Company, 14 Cal. 279; Curtis v. Sutter, 15 Cal. 259; Head v. Fordyce, 17 Cal. 149."

The case of the Niagara Consolidated Gold Mining Company v. The Bunker Hill Consolidated Gold Mining Company, 59 Cal. 612, was an action to quiet title to certain mining ground in which the plaintiff recovered judgment. The case was taken to the Supreme Court on three bills of exceptions, and in the course of its opinion the court said:

"The third bill of exceptions presents two or three points, the first of which relates to the admission in evidence of the deed under which plaintiff claimed to have derived its title. The deed did not describe the land in dispute, and was therefore inadmissible as a muniment of title. But the plaintiff's right to the property did not depend upon the deed, and was as good without it as with it. The title was purely a possessory one, and the plaintiff, having proven possession of the mining ground, made out all the title required by the law to entitle it to the relief demanded. The admission of the deed in evidence did not, therefore, injure the defendant in any possible manner."

In Benson Mining Co. v. Alta Mining Co., 145 U. S. 428, 430, 12 Sup. Ct. 877, 36 L. Ed. 762, the Supreme Court quotes with approval this language of the Secretary of the Interior:

"At the outset it is proper to remark that by the mining laws of the United States three distinct classes of titles are created, viz.: (1) Title in fee simple; (2) title by possession; (3) the complete equitable title. The first vests in the grantee of the government an indefeasible title, while the second vests a title in the nature of an easement only. The first, being an absolute grant by purchase and patent without condition, is not defeasible; while the second, being a mere right of possession and enjoyment of profits without purchase and upon condition, may be defeated at any time by the failure of the party in possession to comply with the condition, viz., to perform the labor or make the annual improvements required by the statute. The equitable title accrues immediately upon purchase, for the entry entitles the purchaser to a patent, and the right to a patent, once vested, is equivalent to a patent issued."

See, also, Crown Point Gold Mining Co. v. Crismon (Or.) 65 Pac. 87; Wilson v. Triumph Consolidated Mining Co. (Utah) 56 Pac. 300, 75 Am. St. Rep. 718; Aurora Hill Con. Min. Co. v. 85 Min. Co. (C. C.) 34 Fed. 515; Lindley on Mines, § 535.

The judgment is affirmed.

PYLE, Sheriff, v. BRENNEMAN.

(Circuit Court of Appeals, Fourth Circuit. May 5, 1903.)

No. 465.

1. TAXATION-BANK DEPOSIT-SITUS.

A deposit in a bank to the credit of the depositor, and subject to his check, is a debt, and not property, and its situs for the purpose of taxation is in the state of the depositor's domicile.

2. SAME EQUITY JURISDICTION-ENJOINING COLLECTION OF ILLEGAL TAX.

A court of equity has jurisdiction to enjoin the collection of an illegal tax where the person against whom it is assessed has no adequate remedy at law, as under the laws of West Virginia, where he is compelled to submit to the decision of a special tribunal, whose decisions are not subject to judicial review, and where, if he pays the tax under protest, it can only be recovered back by separate actions against each of the municipalities among whom it is distributed, and as to so much as is collected for state purposes he would be without remedy.

Appeal from the Circuit Court of the United States for the Northern District of West Virginia.

This is a bill in equity brought by the appellee, Louis A. Brenneman, against Stephen G. Pyle, sheriff of Tyler county, W. Va., to restrain the collection of certain taxes assessed against Brenneman by the authorities of said county, and which were sought to be collected by the appellant as sheriff. For the year beginning April 1, 1900, Brenneman was arbitrarily assessed upon the personal property books of Tyler county, W. Va., for taxes upon the sum of $250,000, alleged to be on deposit to his credit in the Farmers' & Producers' National Bank and the First National Bank of Sistersville, both in the town of Sistersville, in Tyler county. The total amount of tax assessed against Brenneman on the said deposits, and sought to be collected from him, is $5,626; and there was a further tax of $115.32 on land in Sistersville valued at $5,125 included in the said assessment. The appellant, Pyle, had the tax bill in hand for collection, and was proceeding, by process of garnishment, to compel the banks named to pay to him the amount of said taxes; and thereupon, on the 12th of April, 1901, Brenneman filed his bill of complaint in the circuit court of the United States for the Northern District of West Virginia, praying for injunction. In substance, the bill of complaint sets forth that on the 1st of April, 1900, the beginning of the taxing year under the laws of the state of West Virginia, Brenneman was not a citizen of the said state, but was a citizen and resident of the state of Pennsylvania, and that the money which he had deposited in the two banks named, subject to his check, was not taxable in West Virginia; that he did not have the sum of $250,000 on deposit in the banks at the time, but that he did have deposited to his credit and subject to his check in the Farmers' & Producers' National Bank the sum of $105,514.13, and in the First National Bank of Sistersville $1,206.97, making together the sum of $106,721.10. The bill further alleges, in substance, that the said assessment was not made upon property returned by the complainant for taxation, but was made arbitrarily, without the consent of complainant, and without warrant of law. The bill of complaint was subsequently amended, and demurrers were filed, which were overruled; and on the 27th of February, 1902, Pyle filed an answer, in which he states that previous to the 19th of March, 1900, complainant had been a resident, for several years, of Tyler county, W. Va., and denies that on the 19th of March, 1900, he removed from the state of West Virginia to the state of Pennsylvania, with the intention of becoming a citizen of the latter state. The answer admits that Brenneman was assessed for the year beginning April 1, 1900, upon the personal property books of Tyler county, for the sum of $250,000 personal property, and for the sum of $5,125 on land in Sistersville; the aggregate amount of the tax on both being $5,741.32. The answer denies the illegality of the assessment, and avers that the property was subject to taxation, and that the tax is legal. In the

testimony it is shown that the amount of money which Brenneman had on deposit in the two banks in Sistersville was as stated by him, and that the two amounts named stood to his credit in the banks the 1st of April, 1900, subject to his check. Brenneman himself testified that on the 19th of March, 1900, he removed from West Virginia to Pennsylvania, and established a domicile there, and has since been a citizen and resident of that state. There was some other evidence to corroborate this testimony, and none to contradict it. The Circuit Court granted the prayer of complainant, and entered a decree for injunction, and Pyle appealed to this court.

W. N. Miller, for appellant.

T. P. Jacobs, for appellee.

Before GOFF, Circuit Judge, and PURNELL and BOYD, District Judges.

BOYD, District Judge (after stating the facts). It was admitted. that this assessment was made by the authorities of Tyler county arbitrarily and without the consent of the complainant, and he has therefore waived no legal right to contest it. There was nothing in the evidence taken in the case to controvert the testimony of Brenneman that he was on the 1st of April, 1900, a citizen and resident of the state of Pennsylvania. Upon his examination he stated that prior to that time he had sold out his oil property in West Virginia, had shipped part of his personal effects, and on the 19th of March, 1900, had abandoned his residence in Tyler county, W. Va., and had become a citizen and resident of Pennsylvania; residing awhile at Titusville, and latterly at Pittsburg. Other testimony and circumstances were corroboratory of this statement. The judge in circuit was therefore, in our opinion, fully warranted in treating the nonresidence of the complainant as a fact established. The principles of law relating to domicile are well settled, that, when one domicile is definitely, abandoned and another selected, the change takes place. The length of time intervening is not material. "A change of domicile is consummated when one leaves the state where he has hitherto resided, avowing his intention not to return, and enters another state, intending to permanently settle there." Bradley v. Lowry, Speer, Eq. 1, 39 Am. Dec. 142. This is an elementary principle, and authorities in support of it are so numerous and harmonious that it is not deemed necessary to cite them here. This question being eliminated, it only remains to be considered whether or not Brenneman's deposits, subject to his check, in the banks at Sistersville, in Tyler county, are liable to personal property tax under the laws of the state of West Virginia, and whether the powers of a court of equity can properly be invoked, under the circumstances of the case, for his relief.

In dealing with the first question, it is necessary to determine the character of the property upon which the assessment is based. Is it tangible, personal property, of concrete form, such as to be taxable wherever found, or is it a credit-a debt due by the banks to the depositor which has its situs at the domicile of the creditor? A deposit in bank to the credit of the depositor, and subject to his check, is not a bailment. It is a loan. The depositor does not retain a property in any particular funds, but the money which he

deposits goes into the funds of the bank. The bank owes him the amount, and the relation of debtor and creditor is created by the transaction. Morse on Banks & Banking, vol. 1, § 289; Am. & Eng. Enc. Law, vol. 2, p. 93. This is the law as it is declared by both the federal and the state courts in this country, and in obedience to it we hold that the deposits of Brenneman in the banks of Sistersville are debts due him by the banks, and that the situs of the property is the domicile of the creditor. "It is undoubtedly true that the actual situs of personal property which has a visible and tangible existence, and not the domicile of its owner, will in many cases determine the state in which it may be taxed. * * * But other personal property, consisting of mortgages and debts generally, has no situs independent of the domicile of the owner. Case

* * *""

of the Taxation of Foreign-Held Bonds, 15 Wall. 300, 21 L. Ed. 179. "The general rule is that debts follow the person of the creditor, and are to be taxed at his domicile." Am. & Eng. Enc. Law. vol. 25, p. 146. "A nonresident creditor of a state cannot be said to be, in virtue of a debt which a resident owes him, owner of property within its limits. The credit is not within the state's jurisdiction, and no value to the debtor, and is not property within the state, but property of the creditor, taxable at his place of residence." Liverpool & London & Globe Insurance Co. v. Board of Assessors (La.) II South. 91, 16 L. R. A. 56. "For the purposes of taxation a debt has its situs at the residence of the creditor, and may be taxed there." Kirtland v. Hotchkiss, 100 U. S. 491, 25 L. Ed. 558. "Debts are not property. A nonresident creditor of a city cannot be said to be, by virtue of a debt which it owes him, a holder of property within its limits." Murray v. Charleston, 96 U. S. 432, 24 L. Ed. 760.

Diverse citizenship and the amount involved in this case give the Circuit Court of the United States jurisdiction. This being so, is it the province of the court, sitting as a court of equity, to entertain complainant's bill, and grant the relief prayed for? It is true that a court of equity will not interfere to restrain the collection of taxes, ordinarily, on the ground that the tax is erroneous or illegal. This rule is based upon the reasonable ground that the exercise of such powers by the courts of equity may result in stopping the collection of taxes, to the extent of destroying the means of carrying on the government; but there are exceptions where there are special circumstances bringing the case under some recognized head of equity jurisdiction, such as that the enforcement of the tax would lead to a multiplicity of suits or produce irreparable injury, or where there is not a full, complete, and adequate remedy at law. The statute of West Virginia provides that any person claiming to be aggrieved by an assessment on property for taxes may apply for relief to the court of the county in which the assessment is made, and, if the county court refuse to make the correction asked for, the applicant may have the evidence taken thereon certified by the county court, and an appeal may be taken, as in other cases, from the order of refusal, to the circuit court of the county. The Supreme Court of West Virginia, in the case of P., C. & St. L. Ry. Co. v. The Board of Public Works, 28 W. Va. 264, has interpreted the meaning of the appeal provided for as above stated, and has said: