VINCENT tI.l<piCOLN COUN1.'¥.
they should find for the defendant. In this, with no language of reference to. or connection with any other portions of the charge, we do not consider that sufficient weight was given. to that important provision of the contract providing for an inspection, but that the beneficial effects of alr'such supervision were eliminated from the case. In this we consider an error was committed, to the injury of the plaintiff. Nor do we consider the testimony would have justified the jury in finding such evidence of mala fides of the plaintiff in the representations regarding the brick, stone, cement, and tin as would have entirely defeated its claim, under the sixth article of the charge, which was excepted to. The judgment of the court below is reversed, and the cause remanded, with instructions to grant a new trial; and it is. so ordered.
VINCENT v. LINCOLN COUNTY.
(Circuit Court, D. Nevada. No. 577.
June 18, 1894.)
COUNTIES-PRESENTATION AND A.LLOWANCE OF OLAurs-J"UDGMENTfON BONDS PAYABLE FROM SPECIAL FuND.
Where the statute authorizIng the issuance of bonds provides for their payment by levying a special tax and creatIng a &pecial fund, the allowance by the county bonrd and audit of a claim on a judgment on such bonds, as payable out of the general fund, Is not an allowance in the manner and to the extent to which the holder is entitled, and he is not precluded from maintaining an action on the judgment because another remedy is prescribed by statute to enforce payment of claims allowed and audited.
Gen. St. Nev. §§ 1950,1964-1966, requiring presentatIon of claIms and accounts to the county commissioners llIIld county auditor for allowance and approval, apply only to unliqUidated claims and accounts, not to bonds and coupons, nor to a judgment upon bonds and coupons; and such presentation is not necessary before an action on such a judgment.
This was an action by O. D. Vincent against Lincoln county on a ,judgment against the county. The case was submitted to the court on an agreed statement of facts, and a jury was waived. Freeman & Bates, for plaintiff. Trenmor Ooffin and Geo. S. Sawyer, for defendant. HAWLEY, District Judge (orally). This is an action brought upon a judgment obtained in this court by the plaintiff against the defendant on the 8th of November, 1888. The judgment and the indebtedness evidenced thereby were founded and based upon certain bonds and coupons issued under and pursuant to an act of the legislature of this state entitled "An act to consolidate and fund the indebtedness of Lincoln county," approved February 17, 1873 (St Nev. 1873, p. 54). The constitutionality of this act was sustained by the supreme court of :Nevada in Bank v. Quillen, 11 Nev. 109. The jurisdiction of this court was upheld in Vincent v. Lincoln Oounty, 30 Fed. 749; and the judgment rendered by this court was sustained by the supreme court of the United States in Lincoln 00. v.62F.no.8-45
v··Ltinlug,:l:JS'U. S. Ct363.I ! :No either 6ftthe pl"fn(lipal or the interestdne thereon,hlls been This'cue was ti'ied thecoun, a jury having been waived, facts,l1$foUows:' ''', upon an agreed
;'It i$ iltct1Qri jktton September ,1,ik93, the plaintiff .filed of· the, clerk of tMb'oard of county' ,commissioners of Lincoln county; iNeivada" hiai·verlfied claim:ahd demand against said county up<m. the jud&"menkmentioned:ln the complaint, and tJ:uttacopyof said judgm, h.,ed. to SlU. wh.en.".8.. 0:.,.filed., :T. ...,on 1893, at ,its regu,la.t', actionot said b08.rd taken in regard to said c1aimaI1i"f 'entered on'tlle lpl'nul:es' atidrecordOf said'board w.as in words and figures following, to wi'll: ; 'The di!tllll:ti.dl'i Of Chaa; Sutro, C; D. Vincent, and LUlling CO. tOl: :the :pln"ment of the fprincipal, interest, lind· accrued COl3ts oq, ju,dgrolln¥! the: b()1lli!' 't¥!Jihlig,ain,st Mnc:o.ln .was taken up' and read. ' Moved and seconded that the above demands be laId over for' one month. Carried.' That on the 2dday of October, 1893, at its regular monthly meeting, the action of slI'IdbOardtfiken In regard to said claim and entered on its record a.n,d .JAl,n:Q,t;es was i.u, )Vord!! and figures following, to wit: 'Moved and seconded that 'tl1e judgment' on bondslteld by C. D. Vincent against Lincoln Cl>AAty for <>f.'1l1',263.34j>e .aIlo,,!ed and audited. Carried. Ordered that the Clerk write tuning and Co., Chas. Sutro, and C. D. Vincent that their demands were allowed and audited and ready for liquidatlQn.' .That.tJ,wf<>regoing ,only Pfoceedings '. said b<>ard in regard to allOWing said claim. That thereafter, on November, the <>t Lincoln Cqunty did, underiwrection of said bQll:rd, of $111,263.84, an4: lY-ade,the same payable op,t Of the g¢J;l¢i'lilfun<l)4 cpUll-tY,t!:easHl'Y of said.LiJJPOln county. That tl;1erelU:ter, to.the:. of this action, amounl <.>t".money ,111 ,the of. sai(1 Lincoln CO'Ullty the sJUn of $8,80i.OO.iwd the tQtal amount of money in tlle general said treAAUJ:'Y did not exceed the!JUm of $183.45. Tuat sMd LincolD.' county now is, and for many years last past has been, greatly indebted (in addition to and prior to plaintiff's claim), which indebtedness. was, wheJl lllaitltiff's claim WaS. presented as aforesaid, and still Is, represented byunpa'id,'. of indebtedp.ess drawn on the general fund, in an am.,ount RPP r.i>Xi.IIf\\ting $3;1.,443. .."'. Tha.t all certificates. o.f .i.n .. . ..deb.tedneSs drawn on said genel.'al fund in said c9'l:mty treasury since tl1e,year:.1S80 are outstandto pay the siune. Th'll.t the revenues of ing and unpald for wal1t said Lincoln county for county purposes for the last five years have not exin one Year the SutD of $22,114.06, all of which 1).as been yearly cotJ;sumed anG expended in the yearly .current and lleGess.li.rY expenses of running the courity:government'of Lincoln county, exclusiVe ot said claims and said certifiClJ.;1;es· of indebtedness against '.said general fund;', That the total value of all taxable property in Lincoln county· for purposes of county taxais $576,349.10. The total tion and revenue, according to the last assessed valuation of all' taxable property'in LIncoln coUnty for the purposes of county taxation and revenue for the past five years has been as follows: For fiscal Year of 1893, $576;340.;10; ,foc the fiscal year ot 1892, $450,863.10; for the .fiscal yell],' of 1891, $415,926.1:;2; for t;J;1e fiscal year of 1890,$343,209.12; for the fiscal yeu ,,
The complaint in this case was filed October 9, 1893. The contentionof as shown by the stipulated facts, the claim of plaintiff was' allowed by the board of county commissionerS, a.nd audited by the county atiditor,of Lincoln county, before this action, was· commenced'j··.··tl;tat plaintiff is' pursuing a wrong remedy; that he must follow 'the course prescribed by the statutes of this state (Gen. StNef. §§ 1949....1951); th;a,t he cannot maintain any action in this:coun upon the judgment unless the board of county commissioners have refused to allow the claim, or some part there-'
YINCENT ,f1. LINCOLN COUNTY.
of (Id. §§ 1964:-1966); that if the board, witbout justification, refuse to allow a claimbasetl upon a judgment regularly obtained against the county, the proper and only remedy is by mandamus to compel the.board to allow the claim. In support of this contention, defendant cites and relies upon the following authorities: Alden v.Couqty of Alameda, 43 Oal. 270; Rhoda v. Alameda Co., 52 Cal. 350; McFarland v. McCowen, 98 Cal. 329, 33 Pac. 113; Bank v. Quillen, supra; State v. Board of County Com'rs of Lander Co. (Nev.) 35 Pac. 300. If it was necessary to present the claim to the' board before bringing this action, it is apparent that the board did not allow the same to the full extent that plaintiff was entitled to. When the claim was presented, it included the full amount due upon the principal and interest. Action on the claim was, however, laid over for one month; ,and, when the claim was allowed, it did not include the accruing interest for that mO,nth. This was doubtless a mere inadvertence upon the part of the board, as it allowed the claim just as it was presented. But, independent of that fact, it affirmatively appears that the board did not allow the claim in the manner and to the extent that entitle<l to, because the allowance was qualified by directing the payment of' tl1e claim out of the general fund of the county. This was a limitation of the rights and remedies to which plaintiff is entitled under and by virtue of the statute authorizing the issuance of the bonds and interest-bearing coupons, and providing for their payment by' the levying of a special tax, and creating a speC"ial fund, etc. St. Nev. 1873, p. 54. The judgment originally obtained in' this case, and upon which this action is brought" is that the bonds and coupons upon which the judgment was rendered were binding obligations, which entitled plaintiff to payment of the same out of the funds created by law for that purpose, or out of any fund that could be lawfully created for the payment of the same. And it is not within, the power of the board to limit this right so as to deprive plaintiff of the remedy to which he is entitled under the law Ralls Co. Ct. v. U. S., 105 U. S. 733, and note; Lincoln Co. Ct. v. U. S., Id. 739, note. But there is another view of this case which furnishes a conclusive answer to the contention of defendant, and renders it unnecessary to review the authorities cited in its behalf. The questions presented are virtually settled by the decision of the supreme court of the United States in Lincoln Co. v. Luning, where the court, in answering a similar contention, said:
"It is further objected that the complaint was defective in not showing that the bonds and coupons had been presllnted to the county commissioners and county auditor for allowance and approval, as provided by sections 1950 and. 1964-1966 of the General Statutes of the state. Those sections, referring to claims and accounts, have application only to unliquidated claims and accounts, and do not apply to bonds and coupons. This question was presented in the case of County of Greene v. Daniel, 102 U. S. 187, 194, in which the court observed, speaking of bonds and coupons, that 'the claim was, to all intents and purposes, audited by the court wh,en the bonds were issued. The validity and amount of the liability were then definitely fiXed, and on the treasury given, payable at a. future day.'''
,:1 _lOt 'opin.on that this pllinciple is as, applicable to an action onirfhe as to the action upon the bonds and coupons, which l'eluUed:ln obtaining the judgment. It, was not therefore necessary fOl'the plaintiff to present his claim to the Goard, or await its actionthet'eon, in order to maintain this action. Thie'clerlt.will enter judgment in favor of plaintiff,as prayed for in: his, complaint.
SUTRO v. LWCOLN COUNTY. LUNING CO. v. SAME. (Olrcu,it Court, D. Ne:v:ada. June 18, 1&».) Nos. 578 and 582. 'these were two actlons--one by Charles Sutro, the other by the Luning Compliily-agalnst Lincoln county, each on a judgment against the county. Each,casewas submitted t.o'the court on an agreed statement of facts, and a jury '\Vas w.aived. Freeman & Bates, for plaintitrSutro. Langhorne, for plaintitr Luning ,Co. , Trenmor Ootlin and S. Sawyer, for defendant.
HAWLEY, District ;rudge. The principles announced in Vincent v. Lincoln Co., 62 Fed. 705. are declsiyeiof the questions raised in these cases. Upon the authoritY of that case, judgment is hereby directed to be entered in favor of the herein, as for in the respective complaiilts.
HENDERSON et aI. v. SMITH. , (Circuit Court. of Appeals, Fifth Circuit. No. 2ll.
TESTAMENTARY POWERS-ExEOUTION-DEED 01'
May 8, 1894.)
TRUST. A married woman's will gave llll her property to her husband. "'during his natural life, to be by him managed and disposed of in whatever way mils to him seem just and rillht;" and' directed' that all remaining at his death undisllosed of by him should be divided among their children. Land which had belOnged to their community estate was conveyed by him. after he had married, again, his second wife joining, by a deed of trust to secure' payment of money advanced to him, making no reference to the' will. but particularly describing the land with habendum to the trustee, his $Uccessor.or SUbstitute, forever. and covenant of warranty. Held, that the trust deed was a sufficient execution of the power declared in the will, and passed the entire title. and not alone the husband's estate in the land.
In Error to the Circuit Court of the United States for the Western District of Texas. This was an action of trespass to try. title to land, brought by Francis Sijl.ith against James W. Henderson and others. On trial by the court without a jury, judgment was rendered for plaintiff. Defendants brought error. Sam.. Stre.l?t.man and T. S. Henderson, for plaintiffs in error. H. P. Drought, for defendant in error.