Page:North Dakota Reports (vol. 1).pdf/409

 The agreed statement in this case shows that the lands in question formed a portion of the original grant of lands by the general government to the Northern Pacific Railroad Company. This and similar grants have been held to pass to the grantee an estate in presenti, subject to be defeated by conditions subsequent, and that no patent or conveyance other than the grant was necessary to pass the title. Buttz v. Railroad Co., 7 Sug. Ct. Rep. 100; Railroad Co. v. Peronto, (Dak.) 14 N. W. Rep 103; Railroad Co. v. Smith, 9 Wall. 95; Railroad Co. v. U. S., 92 U. S. 741. The agreed statement repels the supposition of any failure on the part of the grantee to perform the conditions subsequent, and alleges that, prior to the assessment and levy of the taxes for which the land was sold, the Northern Pacific Railroad company had sold said lands to private parties and conveyed the same by deeds and contracts, and such parties were in possession. Now, we are bound to presume, in support of the action of the treasurer, that these transfers appeared of record. At the time of the assessment, § 5 of chapter 99 of the laws of Dakota Territory for 1883 was on the statute books. That section declared that these lands should be taxable as soon as sold, or contracted to be sold, by the railroad company. It is very evident from the agreed statement that the assessor of the defendant county, in perfect good faith, proceeded to assess the lands in controversy to the parties who appeared by the records of said county to hold the title to said lands, and were in possession of the same. This was clearly within his authority and clearly within his duty. The title of the purchaser at the tax-sale based upon this assessment fails, not because the proceedings were not regular and sufficient to pass whatever title the parties had in whose name the land was assessed, but because the title was not in such parties, and was in the United States. The respondent invokes for his protection the rule of caveat emptor as applied to sales on execution in so far as that rule relieves the purchaser of any duty to inquire into the jurisdiction of the court that rendered the judgment. But respondent misconceives the condition. There was no lack of jurisdiction in this case. Upon the ground of a common-law right of recovery, we