Page:North Dakota Reports (vol. 1).pdf/266

 v. Rockne, 115 U. S. 600, 6 Sup. Ct. Rep. 201, and Wisconsin Cent. R. Co. v. Price Co., 10 Sup. Ct. Rep. 341, the railroad company could have maintained this action had it not executed a deed of the property to the plaintiff, and that therefore the plaintiff can maintain the action because he has succeeded to the interest of the company in the property. In the case of Wisconsin Cent. R. Co. v. Price Co., it appeared that the plaintiff, at the time of instituting its action to set aside the tax-proceeding, was the owner of the legal title, although, when the tax proceedings were initiated, such title was still in the state in trust. The land grant of the plaintiff in that case was made by the United States to the state in trust, and, intermediate the levy of the tax and the commencement of the action to annul the tax proceedings, the state executed to the plaintiff a patent for the land in question. This patent was by a state statute prima facie evidence of title in the grantee, and the trial court found as a fact that the plaintiff was the owner of the legal title, and this finding was in no manner challenged. The fact, therefore, was undisputed that the plaintiff, when the suit was brought, was the absolute owner in fee of the land over which the cloud rested. In the Rockne Case, the court held, not that the legal title was in the railroad, but that the interest of the company, whether legal or equitable, was subject to a lien in favor of the United States for the unpaid survey fee, and that therefore the land was exempt from taxation by the state; that the tax proceedings, if valid, might result in the destruction of this lien by a sale of the absolute title should the taxes remain unpaid. It is apparent in this case that the court regarded the interest of the company in the land as equivalent at least to an equitable title. Said the court on this point: "The government was as to those costs in the position of a trustee in a conveyance to secure the payment of money.” And in Denny v. Dodson, 32 Fed. Rep. 899 Mr. Justice Field, speaking of the statute giving this lien, and of the decision in the Rockne Case, says: “The law was therefore, in effect, an assertion of a lien upon the title papers, and upon the lands, for expenses necessarily incurred for their identification and survey, and in the preparation of conveyances by the government; and the decision of the court