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and made payable and delivered to Crowley, as agent of the township, to as. sist it in passing away and transferring the bonds to raise money thereon for its use and benefit. In another series of counts (also six in number) the instruments are severally declared on as orders of the township, made by its authorized agents, Henderson, president, and McKean, clerk, of the township committee, and made payable to Crowley, as the agent of the township, to pass them away and raise money on them for the township. All the counts averred that Crowley indorsed and delivered the bonds or orders to the plaintiff. The defendant pleaded non est factum to the first six counts, (those in which the instruments were declared on as bonds,) and nil debet to the others, and the statute of limitations (of six years) to all of them.
At the trial, the plaintiff proved the execution of the bonds by Henderson, president, and McKean, clerk, of the township committee, and the indorsement of them by Crowley to the plaintiff; and also put in evidence a book, called the defendant's bond-book, produced by the defendant on the call of the plaintiff, and having the following heading: “Issue of bonds by the town. ship of Mullica in pursuance of a resolution adopted January 1, 1864." At page 7 plaintiff read the following list of bonds: Date of Bond. Number. Amount. To whom issued.
When due. Dec'r 31, 1864. 145
$ 500 Samuel Crowley. Dec'r 31, 1866. 146
1,000 147 1,000 148 1,000 149 1,000 150 1,000
To show that the bonds were executed by lawful authority, the plaintiff read two acts of the legislature of New Jersey. The first (approved March 4, 1864) was entitled “An act to legalize certain acts of the township of Mul. lica, in the county of Atlantic, relative to raising money to pay bounty to volunteers and to provide for the payment of the same," and recited and enacted as follows:
"Whereas, the inhabitants of the township of Mullica, in the county of Atlantic, did on the first day of January, Anno Domini eighteen hundred and sixty-four, vote to pay a bounty of two hundred and twenty-five dollars to each person volunteering to fill the quota of said township under the calls of the president of the United States, (the said quota being thirty-four;) and whereas, the said inhabitants having no authority, under the laws of the state, to offer said bounty or borrow money for the payment of the same; therefore: *“1. Be it enacted by the senate and general assembly of the state of New Jersey, that the said township of Mullica be authorized to provide for the payment of said bounties the sum of seven thousand six hundred and fifty dollars, and the interest thereon, by the issuing of their bonds, or township orders, bearing interest at the rate of six per centum per annum, and payable at such times as the township committee of said township may determine: provided, that not less than fifteen hundred nor more than twenty-five hun. dred dollars shall be raised for the purpose of paying said bonds or orders in any one year, including the interest thereon.
“2. And be it enacted, that the acts and doings of the township committee and of the inhabitants of the said township of Mullica, mentioned in the first section of this act, to raise seven thousand six hundred and fifty dollars, and the interest thereon, to pay bounties to volunteers as aforesaid, to fill the quota of the said township, are valid in all respects, and binding upon the inhabitants and taxable property of said township."
The other act is not material to the case and need not be recited. Upon the evidence thus presented the court below ruled out the bonds and directed a
verdict for the defendant, and the plaintiff excepted. The question raised by the bill of exeptions is whether this direction was erroneous; and this involves the question whether the officers who executed the bonds had any authority to do so. An examination of the organic laws of the state of New Jersey shows that the inhabitants of the several townships in the different counties are corporate bodies, being authorized, at their annual or special town meetings, “to vote, grant, and raise such sum or sums of money for the maintenance and support of the poor; the building and repairing of pounds; the opening, making, working, etc., of roads; the destruction of noxious wild animals and birds; for running and ascertaining the lines, and prosecuting or defending the common rights, of such township; and for other necessary charges and legal objects and purposes thereof as are or shall be by law expressly vested in the inhabitants of the several townships of this state by this or some other act of the legislature.” They are also authorized, at their annual meetings, to elect a clerk, assessors, collectors, commissioners of appeal in matter of taxes, chosen freeholders to represent the township in the county board, surveyors of highways, overseers of the poor, constables, and a judge of election; and in addition to these officers, all having their appropriate duties to perform, they are also, by special provision, authorized “to elect five judicious freeholders, resident within the township, who shall be denominated the township committee, a majority of whom shall be a quorum, and shall continue in office one year and until others are chosen in their stead, which committee shall have authority, and it is hereby rendered their duty, to examine, inspect, and report to the annual or other town meetings the accounts and vouchers of the township officers, and to superintend the expenditure of any moneys raised by tax for the use of the township, or which may arise from the balance of the accounts of any of the township officers.” Besides the duties here specified, the township committee is invested with certain other powers, such as, in certain cases, to fill vacancies in the other township offices caused by death, removal, refusal to serve, etc., and to call special town meetings when they may deem it necessary, but they have no general authority to act for the township. This must be conceded; and it is clearly shown by the cases cited by the counsel for the defendant.
At the same time, it must be admitted that, in view of the peculiar functions and duties of the township committee, they are altogether the most appropriate officers of the township for the performance of such a duty as the issuing of township bonds, whenever such bonds are authorized to be issued, since the township itself has no permanent presiding officer, or head, but only a temporary chairman, called a moderator, who simply presides over the town meeting by which he is appointed. The question then arises, did the act of March 4, 1864, give the township committee authority to issue the bonds in question? If the act is carefully examined it will be seen that it not only ratified the proceedings of the town meeting held on the first of*January, 1864, voting a bounty of $250 to each person volunteering to fill the quota of the township, but that it authorized the township to provide for the payment of said bounties by issuing its bonds at 6 per cent. interest, payable at such times as the township committee might determine. It ratified what had been resolved by the town meeting, and authorized the issue of township bonds to carry that resolution into effect. The question then arises, who were the proper persons to issue the bonds? The town meeting itself certainly could not do it. Is it not the plain inference of the statute that the bonds should be issued under the direction and supervision of the township committee, as they were to fix the time of payment, and were the only body which had the general superintendence of the township finances? And here it is proper to notice that the proceedings of the town meeting on the first of January, 1864, were not given in evidence. Of course, the defendants had them in their possession, and could have produced them. We only know so much
of said proceedings as is recited in the act of the legislature. It is possible that the town meeting, besides voting the bounties referred to in the act, directed the township committee (as would be natural) to issue the obligations of the township for the purpose of raising the money requisite to pay such bounties. On this point, the bond-book of the township may be entitled to much weight. It professes to exhibit the “Issue of bonds by the township of Mullica in pursuance of a resolution adopted January 1, 1864;" and it enumerates in that category the bonds in question in this suit. That is to say, the township book declares and shows that the bonds in suit were issued in pursuance of a resolution adopted January 1, 1864; and this declaration stood there on the book from 1864, when the bonds were issued, until the trial of the suit in 1871. The resolution thus referred to must, of course, have been part and parcel of the proceedings relating to bounties to be paid to volunteers, which were ratified by the act of March 4, 1864.
Taking all these things together, we are satisfied that, by the said act, which ratified the said proceedings, expressly including (as it does) “the acts and doings of the township committee," as well as of the inhabitants of the township, and authorizing the issue of bonds to carry out their intentions, with such time of payment as the township committee should determine, it was the intention of the legislature to authorize the execution and issue of such bonds by the township committee. There can be little doubt that this conclusion is in accordance with the justice of the case. Money was raised on these bonds. The plaintiff testified that he purchased them for value of Crowley (the payee) and received them from Crowley, or Henderson, or McKean, he could not recollect which. Evidently the township officers were concerned in the transaction. At all events, the plaintiff purchased them and paid for them; and they were duly entered in the township bond-book as bonds of the township, and there can be little doubt that the township reaped the benefit of the transaction. We have no doubt that they are the valid obligations of the township, and that the court below erred in ruling them out, and in directing a verdict for the defendant. They ought, at least, to have been given to the jury under the evidence in the case.
The judgment of the circuit court is reversed, and the case is remanded, with directions to award a venire facias de novo.
(112 U. S. 423)
RICHARDSON O. TRAVER.
(December 8, 1881.) 1. VENDOR AND VExter-PURCHASE OF SECURITIES_PAYMENT_DISCHAROE OP Lien.
On or about the nineteenth of December, 1870, H. T. and M. T. purchased of D. a tract of land in the city of Chicago, which they afterwards caused to be laid off into blocks and lots. The blocks were numbered 1, 2, and 3. A part of the purchase money was paid by them in cash, and for the balance they executed four joint notes, each for the sum of $5,373.674, payable at different times, with interest, secured by a deed of trust on the property to A. as trustee. Prior to September, 1872, M. T. sold some of the lots, partly for cash and partly on credit. On the fifth of Septeniber, 1872, an oral agreement was made, by which M. T. was to take all the cash and notes that had been received from sales, and all the unsold parts of block 2, and all but eight lots of those unsold in block 3, pay the debt to D., and give II. T. all of block 1, and eight lots in block 3, clear of the incumbrance of the trust deed to A. In part execution of this agreement, M. T. at the time conveyed to H. T. his interest in block 1, and in the eight lots in block 3. H. T. did not convey to M. T. until December 20, 1872. On that day, for the consideration of $100, as expressed in the deed, he released and quitclaimed to M. T. in fee-giniple all his title and interest in the unsold lots in block 2, and in block 3, except the eight lots which had been conveyed to him by M. T., and at the same time transferred to M. T. all his interest in the moneys and securities which had been received for the lots sold. M. T., finding himself unable to pay the note to D., which became due
in December, 1872, and the interest on the other notes, entered into an agreement with H., by which H. was to take the property off his hands, as he took it from H. T., pay the debt to D., and relieve the premises conveyed to H. T. from the lien of the trust deed to A. Under this agreement, M. T. conveyed the part of the property to which he held the title to H., by deed, for the expressed consideration of $16,000, and transferred to him all debts due for lots sold. This deed was dated December 28, 1872. H. at the same time orally assumed the payment of the debt to D., that being the only consideration for the transfer. At the time of this transfer, H. borrowed from R., through H. & B., his agents, $10,000, for which he executed two notes, payable three years from date, one for $6,000 and the other for $1,000,--and secured them by two deeds of trust to H., one of the agents, as trustee, each upon different parts of block 2. Together these deeds covered the whole of the block. H. & B. were only authorized to make loans for R. on unincumbered property. They knew at the time they paid the money over to H. that block 2 was incumbered by the deed of trust to A., but H. promised to pay the past-due note and the past-due interest to D. out of the money be borrowed, and obtain a release from A. of that block. H. did pay the note and the interest past due, and also the note falling due in December, 1873; but, instead of getting a release from A. of block he, without the knowledge of H. & B., took one of block 3, thus leaving block 2 still under the incumbrance of a lien, prior to that for the benefit of R., to the extent of the two notes to D., falling due four and five years from date. When the note maturing in December, 1874, fell due, H. was unable to meet it, but in January, 1875, he sold 19 lots in block 2, for which he received $6,000 in cash. With this, and other moneys advanced by H. & B., B. went to the bankers, to whom both the rernaining notes due to D. had been sent for collection, and paid the money for them, and took them away uncanceled, they having been previously indorsed in blank by D. One payment of $6,000 was made on the fifteenth of January, and the other, being $5,611.87, on the 29th. On the day the last payment was made, and after the notes had been taken up, B. went to A. with theni, and requested him to release block 2 from the lien of the trust deed to him. He stated to A. that he was the owner of the notes, and thereupon A. executed a release of block 2, which B. signed and acknowledged with him. In this release B. is described as the “legal holder of the unpaid notes." After this H. paid H. & B. the money they had advanced to take up the notes from the bank. Held, that R. was not a purchaser of the notes due to D., but that said notes were paid by H. with his own money, according to the agreement made with M. T., and that when said notes were taken up from the bank with the money of H., they
were, in legal effect, paid, and from that time the lien on block 1 was discharged. 2, SAME-DEED-PAROL EVIDENCE-ORAL AGREEMENTS-CONSIDERATION.
That parol evidence of oral agreements is adınissible to prove any other consideration not mentioned in a deed, provided it be not inconsistent with the consid
eration expressed in it. 3. SAME-PRACTICE-SUBROGATION.
Where relief has been asked in a bill on some other different and distinct ground, equity will not relieve by way of subrogation. The doctrine of subrogation held
not applicable to the facts of this case. Appeal from the Circuit Court of the United States for the Northern District of Illinois.
F. C. Ingalls, for appellant. A. McCoy, for appellee.
WAITE, C. J. The facts, as shown by the testimony in this case, are these: On or about the nineteenth of December, 1870, Henry J. Traver, the ap'pellee, and Michael Traver, his brother, bought of John* Dickson a tract of land in the city of Chicago, containing about 16 acres. They paid to Dickson at the time a small part of the purchase money in cash, and for the balance gave their four joint notes, each for the sum of $5,373.67), payable respectively in two, three, four, and five years from date, with interest semiannually at the rate of 8 per cent. per annum. The notes were secured by a deed of trust of the property to Enos Ayres, trustee. After the purchase they laid the property off into blocks and lots, making three blocks, numbered 1, 2, and 3, respectively, and subdividing each block into lots. Previous to September, 1872, Michael Traver, who lived in Chicago and had the immediate charge of the property, sold some of the lots, partly for cash and partly on credit. On the fifth of September, 1872, an oral agreement was entered into between the two Travers by which Michael was to take all the cash and notes
that had been received from sales, and all the unsold parts of block 2, and all but eight lots of those unsold in block 3, pay the debt to Dickson, and give Henry all of block 1, and eight lots in block 3, clear of the incumbrance of the trust deed to Ayres. In part execution of this agreement Michael at the time conveyed to Henry his interest in block 1 and in the eight lots in block 3. Henry did not convey to Michael until December 20, 1872. On that day, for the consideration of $100 as expressed in the deed, he remised, released, sold, conveyed, and quitclaimed to Michael, in fee-simple, all his “right, title, interest, claim, and demand" in the unsold lots in block 2 and in block 3, except the eight which had been conveyed to him by Michael, and at the same time transferred to Michael all his interest in the moneys and securities wbich had been received for the lots sold. In his deed making the conveyance he covenanted that he had “not made, done, committed, executed, or suffered any act or acts, thing or things, whatsoever, whereby, or by means whereof, the above-mentioned premises, or any part or parcel thereof, now are, or at any time hereafter may be, impeached, charged, or incumbered in any way or manner whatever.” Michael, finding himself unable to pay the note to Dickson which fell due in December, 1872, and the interest on the other. notes, entered into an oral agreement with James C. Hyde by which Hyde was to take the property off his hands as he took it from Henry, and pay the debt to Dickson, and relieve the premises conveyed to Henry from the lien of the trust deed to Ayres. Under this agreement Michael conveyed the part of the property to which he held the title to Ilyde by deed, with full covenants of warranty expressing a consideration of $16,000, and transferred to him all debts due for lots sold. This deed was dated December 28, 1872, but the transaction was not finally ended until some days after that date. IIyde at the same time assumed orally the payment of the Dickson debt, that being the only consideration for the transfer. At the time of this transfer Hyde borrowed from Richardson, the appellant, through Hammond & Bogue, his agents in Chicago, $10,000, for which he executed two notes, payable three years from date, one for six thousand and the other for four thousand dollars, and secured them by two deeds of trust to Haminond as trustee, each upon different parts of block 2. Together these deeds covered the whole of the block. Hammond & Bogue were only authorized to make loans for Richardson on unincumbered property. They knew at the time they paid the money over to Hyde that block 2 was incumbered by the deed of trust to Ayres, but Hyde promised to pay the past-due note and the past-due interest to Dickson out of the money he borrowed, and obtain a release from Ayres of that block. Hyde did pay the note and the interest past due, and also the note falling due in December, 1873, but, instead of getting a release from Ayres of block 2, he, without the knowledge of Hammond & Bogue, took one of block 3, thus leaving block 2 still under the incumbrance of a lien prior to that for the benefit of Richardson to the extent of the two notes to Dickson falling due four and five years from date.
When the note maturing in December, 1874, fell due, Hyde was unable to meet it, but in January, 1875, he sold 19 lots in block 2, for which he received $6,000 in cash. With this and other moneys advanced by IIammond & Bogue, Bozue went to the bankers to whom both the remaining Dickson notes had been sent for collection, and paid the money for*them and took theme a way uncanceled, they having been previously indorsed in blank by Dickson; that falling due in 1875 being “without recourse.” One payment of $6,000 was made on the fifteenth of January, and the other, being $5,641.87, on the 29th. On the day the last payment was made, and after the notes had been taken up, Bogue went to Ayres with them and requested him to release block 2 from the lien of the trust deed to him. Ile stated to Ayres that he was the owner of the notes, and thereupon Ayres executed a release of block 2, which Bogue signed and acknowledged with him. In this release Bogue is described