Tomboy Gold Mines Co. v. Brown

74 F. 12, 20 C.C.A. 264, 1896 U.S. App. LEXIS 1884

Opinion

CALDWELL, Circuit Judge.

Tbe appellant, the Tomboy Gold Mines Company, filed its bill in equity in tbe court below against tbe appellees, I. E. Brown and John B. Frasber, as treasurer of San Miguel county, Colo., seeking tbe cancellation of certain tax certificates of sale issued by tbe treasurer of San Miguel county, Colo., for certain real property sold for taxes, belonging to tbe appellant’s grantors, and praying that tbe assessment of the property upon which the tax sale rested, and tbe tax sale and certificate thereof, be annulled, and tbe treasurer of the county perpetually enjoined from issuing tax deeds to tbe bolder of tbe tax certificates. In tbe lower .court a demurrer to tbe bill was sustained, and tbe suit dismissed, and the complainant appealed. In this court a motion has been filed to dismiss tbe appeal upon tbe ground that the appellant has, since taking this appeal, paid tbe taxes, tbe collection of which the bill seeks to enjoin, and that tbe tax certificates of the sale of tbe property for tbe taxes have been canceled. These facts are fully established by affidavits, and are not disputed. The motion to dismiss must be sustained. It is well settled that the payment, whether voluntary or compulsory, of a tax, to prevent tbe payment of which a bill in equity has been filed, leaves no issue for the court of equity to pass upon. Tbe equitable ground, whatever it may have been, for tbe relief prayed, ceased upon tbe payment of tbe tax, Little v. Bowers, 134 U. S. 547, 10 Sup. Ct. 620; Manufacturing Co. v. Wright, 141 U. S. 696, 12 Sup. Ct. 103. Tbe motion to dismiss is sustained.