murrer to and dismissing the bill in a suit | 994; Gibson v. Chouteau, 13 Wall. 92, 20 to quiet title. L. ed. 534. Affirmed. See same case below, 121 C. C. A. 212,| 202 Fed. 854. Bolton v. La Camas Water Power Co. 10 Wash. 246, 38 Pac. 1043; Hall v. Hall, 41 Wash. 186, 111 Am. St. Rep. 1016, 83 Pac. 108; Cunningham v. Krutz, 41 Wash. 190, 7 L.R.A. (N.S.) 967, 83 Pac. 109; Teynor v. Heible, 74 Wash. 222, 46 L.R.A. (N.S.) 1033, 133 Pac. 1. To allow the states to ignore Federal land laws, to interpret the grants made by the Federal government and designate the persons who are the beneficiaries thereof according to their own local laws, brings about the anomalous situation of citizens of the United States holding different rights under grants issued by the Federal government in pursuance of the same and identical laws, simply because one happens to live in California and the other in the state of Washington. Thus California, also possessing the community property law, has uniformly held that the homestead becomes the sole and separate property of the entryman. Noe v. Card, 14 Cal. 577; Wilson v. Castro, 31 Cal. 421; Hood v. Hamilton, 33 Cal. 698; Lake v. Lake, 52 Cal. 428; Harris v. Harris, 71 Cal. 314, 12 Pac. 274; Morgan v. Lones, 80 Cal. 317, 22 Pac. 253. The rights of a grantee from the Federal government present a Federal question on which the decisions of the Federal courts are controlling, and in the administration of the Federal land laws the community system is unknown. Phoenix Min. & Mill Co. v. Scott, 20 Wash. 48, 54 Pac. 777; Cunningham v. Krutz, 41 Wash. 190, 7 L.R.A. (N.S.) 967, 83 Pac. 109; McCune v. Essig, 199 U. S. 382, 50 L. ed. 237, 26 Sup. Ct. Rep. 78; Hall v. Hall, 41 Wash. 186, 111 Am. St. Rep. 1016, 83 Pac. 108. Messrs. Frank T. Post and B. B. Adams submitted the cause for appellees. Messrs. John Salisbury and W. W. Zent were on the brief: It is the settled law of the state of Washington, where the property in controversy is situated, that the same is community property. Kromer v. Friday, 10 Wash. 621, 32 L.R.A. 671, 39 Pac. 229; Ahern v. Ahern, 31 Wash. 334, 96 Am. St. Rep. 912, 71 Pac. 1023; Cox v. Tompkinson, 39 Wash. 70, 80 Pac. 1005; Hall v. Hall, 41 Wash. 186, 111 Am. St. Rep. 1016, 83 Pac. 108; Krieg v. Lewis, 56 Wash. 196, 26 L.R.A. (N.S.) 1117, 105 Pac. 483; Cunningham v. Krutz, 41 Wash. 190, 7 L.R.A. (N.S.) 967, 83 Pac. 109; Teynor v. Heible, 74 Wash. 222, 46 L.R.A. (N.S.) 1033, 133 Pac. 1. The question has been settled in our favor by the decisions of the United States Supreme Court. Wilcox v. Jackson, 13 Pet. 516, 10 L. ed. 273; McCune v. Essig, 199 U. S. 382, 50 L. ed. 237, 26 Sup. Ct. Rep. 78; Bernier v. Bernier, 147 U. S. 242, 37 L. ed. 152, 13 Sup. Ct. Rep. 244. [161] Mr. Justice Holmes delivered the opinion of the court: This is a bill to quiet title, alleging that the plaintiff, a married man, made entry and acquired title to tue land in question under the homestead laws of the United States by patent issued December 17, 1903; that thereafter his wife died, and that the defendants, the children of the marriage, claim an interest in the land. By the laws of the state of Washington, in which the property is situated, it became community property unless the statutes of the United States forbid. Teynor v. Heible, 74 Wash. 222, 46 L.R.A. (N.S.) 1033, 133 Pac. 1. On Congress alone has the power to enact that point we follow the Washington delaws for the disposition of the lands belong-cisions. There was a demurrer, which was ing to the United States. No state can abridge that right nor interfere with the grantee's enjoyment or possession of the lands granted by the Federal government. Irvine v. Marshall, 20 How. 558, 15 L. ed. sustained by the district court (sub nom. Buchser v. Morss, 196 Fed. 577), and by the circuit court of appeals (121 C. C. A. 212, 202 Fed. 854). There is no doubt, of course, that until A. STRAUS, Appt., V. W. L. FOXWORTH. (See S. C. Reporter's ed. 162–171.) Pleading 20 the title is completed the laws of the No one would doubt that this title was admission by demurrer — conclusion of law. court 1. An allegation in a complaint attacking the validity of certain tax deeds, that the tax sales upon which they are based were "not sufficiently advertised," is a conclusion of law which is not admitted on demurrer, where no facts are set forth in the complaint to sustain it. [For other cases, see Pleading, 908-924, in Digest Sup. Ct. 1908.] Appeal from territorial supreme following decision below statutory construction. 2. The construction given by the territorial supreme court to the words "in accordLaws 1899, chap. 22, § 25, restricting the ance with this act," contained in N. M. grounds on which "the title to any property sold at tax sale in accordance with this act" may be attacked, as meaning "under this act," is not so clearly erroneous as to justify the Federal Supreme Court on appeal in rejecting such interpretation. [For other cases, see Appeal and Error, VIII. m, 1; Courts, VII. d, in Digest Sup. Ct. 1908.] sales cannot be attacked on the ground Digest Sup. Ct. 1908.] [No. 191.] gins v. Central New England & W. R. Co. Decree affirmed. vember 17, 1913. Decided No NOTE. As to review by the United States Supreme Court of territorial decisions-see note to Miners' Bank v. Iowa, 13 L. ed. U. S. 867. As to who may raise objection that a statute contains an unconstitutional discrimination-see note to Pugh v. Pugh, 32 L.R.A. (N.S.) 954. A PPEAL from the Supreme Court of the Territory of New Mexico to review a decree which affirmed a decree of the District Court for the County of Quay, in that territory, sustaining a demurrer to and dismissing the complaint in a suit to quiet title. Affirmed. Hartwell, 126 Cal. 443, 58 Pac. 920; Maguiar v. Henry, 84 Ky. 1, 4 Am. St. Rep. 182; Larson v. Dickey, 39 Neb. 463, 42 Am. St. Rep. 595, 58 N. W. 167; Roberts v. First Nat. Bank, 8 N. D. 504, 79 N. W. 1049; Dever v. Cornwell, 10 N. D. 123, 86 N. W. 227; Simpson v. Meyers, 197 Pa. 522, 47 Atl. 868; Salmer v. Lathrop, 10 S. D. 216, 72 N. W. 570; Virginia Coal Co. v. Thomas, 97 Va. 527, 34 S. E. 486; Clarke v. Mead, 102 Cal. 519, 36 Pac. 863; State cause for appellant. Mr. James M. Hervey 90 Me. 107, 37 Atl. 866; Soper v. Lawrence v. Dugan, 105 Tenn. 245; Bennett v. Davis, See same case below, 16 N. M. 442, L.R.A. (N.S.) - 117 Pac. 881. The facts are stated in the opinion. Mr. William C. Reid submitted the was on the brief: A tax deed cannot be made conclusive evidence of the grantee's title to the land. Marx v. Hanthorn, 148 U. S. 172, 37 L. ed. 410, 13 Sup. Ct. Rep. 508, 30 Fed. 579; 1 Cooley, Taxn. 3d ed. pp. 518, 519; Taylor v. Deveaux, 100 Mich. 581, 59 N. W. 250; Bros. Co. 201 U. S. 370, 50 L. ed. 788, 26 The essential or jurisdictional steps provided by statute were not complied with. 2 Cooley, Taxn, 3d ed. p. 918; Games v. Stiles, 14 Pet. 322, 10 L. ed. 476; Martin v. Barbour, 34 Fed. 701, 140 U. S. 634, 644, 35 L. ed. 546, 549, 11 Sup. Ct. Rep. 944; Rustin v. Merchants' & M. Tunnel Co. 23 Colo. 351, 47 Pac. 300; Salinger v. Gunn, 61 Ark. 414, 33 S. W. 959; Martin v. Allard, 55 Ark. 218, 17 S. W. 878; Coit v. Wells, 2 Vt. 318; 1 Cooley, Taxn. 3d ed. pp. 518, 519. Where property is sold for more than is due, whether the excess is due to an illegal levy or illegal penalties and costs, the of ficer has no jurisdiction to sell, and it is void, notwithstanding curative statutes. Lufkin v. Galveston, 73 Tex. 340, 11 S. W. 340; Treadwell v. Patterson, 51 Cal. 637; Huse v. Merriam, 2 Me. 375; Case v. Dean, 16 Mich. 12; Eustis v. Henrietta, 91 Tex. 325, 43 S. W. 259; Alexander v. Gordon, 41 C. C. A. 228, 101 Fed. 91; Ensign v. Barse, 107 N. Y. 329, 14 N. E. 400, 15 N. E. 401; Harper v. Rowe, 53 Cal. 233; Warden v. Broome, 9 Cal. App. 172, 98 Pac. 252; Dever v. Cornwell, 10 N. D. 123, 86 N. W. 227. McKinnon v. Meston, 104 Mich. 642, 62 N. W. 1014; Weeks v. Merkle, 6 Okla. 714, 52 Pac. 929; Wilson v. Wood, 10 Okla. 284, 61 Pac. 1045; Kelly v. Herrall, 10 Sawy. 161, 20 Fed. 364; Bannon v. Burnes, 39 Fed. 895; McCready v. Sexton, 29 Iowa, 356, 4 Am. Rep. 214; Northern P. R. Co. v. Galvin, 85 Fed. 811; Cairo & F. R. Co. v. Parks, 32 Ark. 131; Little Rock & Ft. S. R. Co. v. Payne, 33 Ark. 816, 34 Am. Rep. 55; Wambole v. Foote, 2 Dak. 1, 2 N. W. 239; | Dickerson v. Acosta, 15 Fla. 614; White v. Flynn, 23 Ind. 46; Corbin v. Hill, 21 Iowa, 70; Powers v. Fuller, 30 Iowa, 476; Taylor V. Miles, 5 Kan. 498, 7 Am. Rep. 558; Baumgardner v. Fowler, 82 Md. 631, 34 Atl. 538; Groesbeck v. Seeley, 13 Mich. 329; Case v. Dean, 16 Mich. 12; Dawson v. Peter, 119 Mich. 274, 77 N. W. 997; Abbott v. Lindenbower, 42 Mo. 162, 46 Mo. 291; Roth v. Gabbert, 123 Mo. 29, 27 S. W. 528; Wright v. Cradlebaugh, 3 Nev. 349; Young v. Beardsley, 11 Paige, 93; East Kingston v. Towle, 48 N. H. 57, 97 Am. Dec. 575, 2 Am. Rep. 174; Sheets v. Paine, 10 N. D. 103, 86 N. Illustrative of the principle that a curaW. 117; Strode v. Washer, 17 Or. 50, 16 tive statute does not aid a tax deed or cerPac. 926; Mather v. Darst, 13 S. D. 75, 82 N. tificate which, on the face thereof, shows W. 407; Harness v. Cravens, 126 Mo. 233, a violation or noncompliance with the stat28 S. W. 971; Bettison v. Budd, 21 Ark. ute relative to sale, are the cases which hold 578; Watt v. Gilmore, 2 Yeates, 330; Shim- that, notwithstanding the curative statmin v. Inman, 26 Me. 233; Castillo v. Mc-ute, tax certificates or deeds which show upConnico, 168 U. S. 674, 42 L. ed. 622, 18 Sup. Ct. Rep. 229; Alvord v. Collin, 20 Pick. 418; Workingmen's Bank v. Lannes, 30 La. Ann. 871; Martin v. Barbour, 34 Fed. 701; Tracy v. Reed, 2 L.R.A. 773, 13 Sawy. 622, 38 Fed. 69; Doe ex dem. Davis v. Minge, 56 Ala. 121; Oliver v. Robinson, 58 Ala. 46; Radcliffe v. Scruggs, 46 Ark. 96; Townsend v. Martin, 55 Ark. 192, 17 S. W. 875; Cooper v. Freeman Lumber Co. 61 Ark. 36, 31 S. W. 981, 32 S. W. 494; Ramish v. on their face that the county was a competitive bidder, or that the property was struck off to the county on a day when it was not authorized to purchase it, contrary to the statute, are void. Reckitt v. Knight, 16 S. D. 395, 92 N. W. 1077; Rush v. Lewis & Clark County, 37 Mont. 240, 95 Pac. 836; Hanenkratt v. Hamil, 10 Okla. 219, 61 Pac. 1050; Magill v. Martin, 14 Kan. 67; Dyke v. Whyte, 17 Colo. 296, 29 Pac. 128. Mr. Harry H. McElroy submitted the | Ontario Land Co. v. Wilfong, 223 U. S. 543, cause for appellee. Mr. Harry M. Dougher- 56 L. ed. 544, 32 Sup. Ct. Rep. 328. ty was on the brief: It is not even necessary, in order to constitute due process of law, to have had any sale whatsoever. The state could, if it saw fit, have forfeited the property to the state immediately upon the failure to pay the taxes. The plaintiff has no interest to assert that the statute is unconstitutional because it might be construed so as to cause it to violate the Constitution. His right is limited solely to the inquiry whether, in the case which he presents, the effect of applying the statute is to deprive him of his property without due process of law. Castillo v. McConnico, 168 U. S. 674-680, 42 L. ed. 622-624, 18 Sup. Ct. Rep. 229. King v. Mullins, 171 U. S. 404, 43 L. ed. 214, 18 Sup. Ct. Rep. 925; King v. West Virginia, 216 U. S. 92, 54 L. ed. 396, 30 Sup. Ct. Rep. 225; Fay v. Crozer, 217 U. Where directions upon the subject might S. 456, 54 L. ed. 837, 30 Sup. Ct. Rep. 568. originally have been dispensed with, or The construction of the statute as to the executed at another time, irregularities arissteps required by law are for the state courts, |ing from neglect to follow them may be provided they do not encroach upon con- remedied by the legislature, unless its action stitutional provisions. in this respect is restrained by constituTurpin v. Lemon, 187 U. S. 51-57, 47 L. tional provisions, prohibiting retrospective ed. 70-73, 23 Sup. Ct. Rep. 20. legislation. The owner of property is bound to take notice of the time and place provided for tax proceedings. He knows that his property is subject to tax. Ontario Land Co. v. Yordy, 212 U. S. 152– 157, 53 L. ed. 449–452, 29 Sup. Ct. Rep. 152. It is not the province of this court to interfere with the policy of the revenue laws of the states, nor with the interpretation given to them by the courts. Castillo v. McConnico, 168 U. S. 684, 42 L. ed. 626, 18 Sup. Ct. Rep. 229; Spencer v. Merchant, 125 U. S. 345, 31 L. ed. 763, 8 Sup. Ct. Rep. 921; Huling v. Kaw Valley R. & Improv. Co. 130 U. S. 559, 32 L. ed. 1045, 9 Sup. Ct. Rep. 603; Hagar v. Reclamation Dist. 111 U. S. 710, 28.L. ed. 572, 4 Sup. Ct. Rep. 663; Witherspoon v. Duncan, 4 Wall. 210, 18 L. ed. 339; Paulsen v. Portland, 149 U. S. 30, 37 L. ed. 637, 13 Sup. Ct. Rep. 750. The laws for the assessment and collection of general taxes are construed with the utmost liberality, sometimes even to the extent of holding that no notice is required. Turpin v. Lemon, 187 U. S. 51, 47 L. ed. 70, 23 Sup. Ct. Rep. 20. If this case is only appealable under § 2 of the act of March 3, 1885, no question as to the construction of the statute will be considered, but only whether the statute, as construed by the supreme court of New Mexico, was within the power of the legislature to pass, in view of the requirements of the Constitution of the United States. New Mexico ex rel. McLean v. Denver & R. G. R. Co. 203 U. S. 38-48, 51 L. ed. 7885, 27 Sup. Ct. Rep. 1. The court will not consider, as has been suggested, what are the "essentials under the territorial statute." Castillo v. McConnico, 168 U. S. 674, 683, 42 L. ed. 622, 625, 18 Sup. Ct. Rep. 229; Williams v. Albany County, 122 U. S. 154-164, 30 L. ed. 1088-1090, 7 Sup. Ct. Rep. 1244; Castillo v. McConnico, 168 U. S. 674-682, 42 L. ed. 622-625, 18 Sup. Ct. Rep. 229. Laws which undertake to provide that in future proceedings, errors or irregularities shall not be fatal, come also under the same restrictions upon legislative authority; they cannot, for instance, cure a total want of power to tax, nor can they relieve against jurisdictional defects. But such laws would seem entitled to liberal consideration, since the parties concerned would be apprised in advance that they were not to rely upon an exact compliance with the law, and would be under greater obligation to watch the proceedings. Cooley, Taxn. 521, 522. It may not be altogether easy in a particular case to determine whether the defects are jurisdictional or not, but certain irregularities in the personal conduct of the officers in making the sale would not be so regarded; and it is at least exceptionally doubtful whether the failure to preserve the auditor's list of delinquent lands, or the evidence of publication and posting of the statutory notice, would vitiate a deed made by the clerk after a lapse of twelve years. Turpin v. Lemon, 187 U. S. 51, 47 L. ed. 70, 23 Sup. Ct. Rep. 20. this court for construction, and not a statute If this was an original question before which has already been charged with a construction by the state of New Mexico, still we feel that the Supreme Court of the United States has made an original construction of a similar statute in the case of DeTreville v. Smalls, 98 U. S. 517, 25 L. ed. 174. See also Keely v. Sanders, 99 U. S. 441, 25 L. ed. 327; Sherry v. McKinley, 99 U. S. 497, 25 L. ed. 330; Springer v. United States, 102 U. S. 586, 26 L. ed. 253. Mr. Justice Van Devanter delivered the preserve" any such proofs; and (e) that the opinion of the court: amount of the delinquency sought to be satisfied by the sales was in one instance 16 cents, and in another 24 cents, more than the taxes levied on the particular tract. This was a suit to quiet the title to three tracts of land in Quay county, in the territory of New Mexico. In the court of first instance a demurrer to the complaint was sustained, and the plaintiff declining to amend, a decree of dismissal was entered, which subsequently was affirmed by the supreme court of the territory. 16 N. M. 442, -L.R.A. (N.S.), 117 Pac. 831. An ap peal from the decrce of affirmance brings the case here, under the act of March 3, 1885, 23 Stat. at L. 443, chap. 355, U. S. Comp. Stat. 1901, p. 572. Plainly, the allegation that the sales were "not sufficiently advertised" was purely a conclusion of law, and must be disregarded. No facts being set forth to sustain it, the statement of the conclusion was merely an empty assertion, and, under the rule that a demurrer admits only facts well pleaded, the conclusion was not admitted. The charge that the delinquency sought to be satisfied by the sales was in excess of the taxes levied must be read in connection with the fact, otherwise appearing in [169] the complaint, that the taxes were delinquent, and in connection with the statutory provisions augmenting the delinquency by designated penalties and costs. When this is done it is quite evident that the amount sought to be collected was not excessive. The complaint purported to state four causes of action. In the first, embracing all the tracts, it was alleged that the plaintiff was the owner in fee simple, and that the defendant was making some adverse claim, not described. In the others, each embracing a single tract, the plaintiff's ownership was reiterated, and it was alleged that the defendant was claiming title under tax deeds issued in consummation of tax sales which were characterized as void The remaining objections advanced in for designated reasons. But, notwithstand the complaint are founded upon a failure to ing its form, the complaint, as the record comply with local statutory provisions didiscloses, was treated in both of the terri-recting the making and preserving of proofs torial courts, with the acquiescence of the parties, as intended to challenge the valid ity of the tax deeds only upon the grounds designated in the last [168] three causes of action; that is, as if the general charge in the first cause of action was intended to be restrained and limited by the more specific charges in the others. We therefore treat the complaint in the same way. It was not alleged that the lands were not subject to taxation, or that the taxes on account of which the sales were had were in any wise invalid, or that the taxes or any part of them had been paid or tendered, or that they had not been delinquent for such a period as justified their enforcement by a sale of the lands, or that the sales were in any wise tainted with fraud, or that there had been any attempt to redeem the lands, or any of them, within the three years allowed therefor, or that that period had not elapsed after the sales and before the deeds were issued. On the contrary, the sole grounds on which the complaint assailed the tax title were (a) that the sales were "not sufficiently advertised;" (b) that proof of publication of the notice of sale was not transmitted by the printer to the county collector "immediately after the last publication;" (c) that the collector did not cause to be made an affidavit of the public posting of the notice of sale, and did not cause proof of publication or of posting to be deposited with the probate clerk; (d) that the probate clerk did not "carefully of the publication and posting of the notice of sale. The supreme court of the territory held, in effect, that compliance with these statutory provisions was not essential in a constitutional sense to the validity of tax sales, and therefore that the territorial legislature was free to declare that noncompliance should not render the sales invalid; and with this as a premise the court further held that the objections could not prevail, because the statute under which the sales were had contained a provision that "no bill of review or other action attacking the title to any property sold at tax sale in accordance with this act shall be entertained by any court, nor shall such sale or title be invalidated by any proceedings, except upon the ground that the taxes, penalties, interest, and costs had been paid before the sale, or that the property was not subject to taxation." Laws New Mexico, 1899, chap. 22, § 25. The appellant assigns error upon this ruling, and insists that the provision just quoted (a) is in terms restricted to sales made "in accordance with this act," and so cannot be applied to any sale wherein some requirements of the act were not followed, and (b) is epugnant to the due process of law clause of the 14th Amendment as applied to the territory by the organic act. The supreme court of the territory construed the words "in accordance with this act" as meaning "under this act," and we think this was right. At least, we cannot |