'debt, the adoption of this course is a waiver | the officer as principal and by a guaranty, of the condition, and the sale becomes abso- surety, fidelity or bonding company as surelute. Fredrickson v. Schmittroth, 77 Neb. ty, or by two or more of such companies; but 722, 110 N. W. 653; 6 Am. & Eng. Ency. of only such companies as are legally authorized Law (2d Ed.) 480; Alden v. W. J. Dyer & to transact business in this state shall be Bro., 92 Minn. 134, 99 N. W. 784; Richards eligible to suretyship on the bond of a counet al. v. Scrieber, Conchar & Westphal, 98 ty, precinct or other local officer." Comp. Iowa, 422, 67 N. W. 569; Van Winkle v. St. 1909, c. 10, § 9. "That when a county Crowell, 146 U. S. 42, 13 Sup. Ct. 18, 36 L. treasurer, in giving the bond required by him Ed. 880. by law shall furnish a bond executed by a The judgment of the district court must be surety company, authorized by the laws of affirmed. HAASE v. COUNTY OF BUFFALO. (No. 15,933.) (Supreme Court of Nebraska. Feb. 26, 1910.) - - EXPENSE (Syllabus by the Court.) COUNTIES ($ 133*) — OBLIGATIONS OF COUNTY TREASURER'S BOND. The expense of a county treasurer's official bond, when legally executed by a qualified bonding company as surety and approved and accepted by the county board, is a binding obligation of the county. Comp. St. 1909, c. 10, $$ 9, 9a, 9b. [Ed. Note. For other cases, see Counties, Cent. Dig. §§ 200, 201; Dec. Dig. § 133.*] Appeal from District Court, Buffalo County; Hostetler, Judge. Action by Gilbert E. Haase against the County of Buffalo. Judgment for plaintiff, and defendant appeals. Affirmed. this state to execute such bond, and such bond shall be approved by the county board, then in each and every case the county may pay the premium for such bond, not in any instance to exceed one-half of one per cent per annum of the penalty in the bond so executed and approved." Comp. St. 1909, c. 10, § 9a. "Upon the execution and approval of any such bond the county board shall direct the county clerk to draw a warrant upon the county treasurer in payment of such premium against the general fund of the county such warrant to be signed by the chairman of the county board, countersigned by the county clerk and sealed with the county seal." Comp. St. 1909, c. 10, § 9b. The county attorney takes the position that the county may pay all or any part of the premium or reject its payment in toto, and argues that the statutes are permissive, and not mandatory. If this interpretation is adopted, it is perfectly obvious that the statutes will op J. M. Easterling, for appellant. Oldham & erate diversely in different counties according Sinclair, for appellee. ROSE, J. This is a suit by Gilbert E. Haase, county treasurer of Buffalo county, plaintiff, to recover from Buffalo county, defendant, a premium of $370 on an official surety bond for the term of office beginning in 1908. There is no dispute about the facts. Plaintiff was elected, took the oath of office, and gave bond in the sum of $100,000, with the Lion Bonding Company of Omaha as surety. The surety was duly authorized by law to execute the bond, and it was accepted and approved by the county board. Plaintiff paid the premium of $370, a lawful and reasonable charge, and filed with the county board a claim therefor, which was first rejected and afterward allowed to the extent of $185. From this order plaintiff appealed to the district court, where a judgment was rendered in his favor for $370, and defendant appealed to this court. to the varying convictions or motives of the officers comprising the county boards. Uniformity of operation under similar circumstances is the evident intention of the Legislature. Counties and compensation of officers are classified to that end. This purpose in a measure would be defeated by the adop tion of defendant's construction. By the section first quoted provision is made for the giving of a personal bond. Where this course is pursued by the county treasurer and the county board, both avoid the expense of a surety bond. Where the bond is executed by a surety company, howeyer, these provisions govern: "The county may pay the premium for such bond," and "upon the execution and approval of any such bond the county board shall direct the county clerk to draw a warrant upon the county treasurer in payment of such premium." In giving effect to these expressions, it should be observed that when the county The only question presented is whether un-board approved and accepted the surety bond der the facts stated the county is liable; the executed by the Lion Bonding Company, instatutory provisions applicable being as fol-dividual obligations or rights of plaintiff lows: "All official bonds of county, precinct, and other local officers, shall be executed by the principal named in such bonds, and by at least two sufficient sureties who shall be freeholders of the county in which such bonds are given; or any official bond of a county, precinct or local officer, may be executed by arose. If the county did not become liable for the payment of the premium, that burden rested on plaintiff individually. When the surety bond was approved and accepted, the funds of the county were protected by a modern, statutory method created for the public welfare. When the county board approved and accepted the surety bond, its discretion to enter upon the land, to take the corn, and as to incurring the resulting expense terminated. Afterward the county could not arbitrarily refuse to pay the premium. This is believed to be the logical result of a correct interpretation of the statutes. The word "may" in the sentence, "The county may pay the premium," and the word "shall" in the sentence, "The county board shall direct the county clerk to draw a warrant," in their relation to all the legislation on this subject, when applied to the facts of this case, are mandatory. People v. Buffalo County, 4 Neb. 150; Doane v. City of Omaha, 58 Neb. 815, 80 N. W. 54. The district court having taken this view of the law, the judgment below will be affirmed. COOPER v. KENNEDY. (No. 15,916.) CROPS (§ 6*) — EVIDENCE (§ 441*) - SALE OF Growing crops are "personal property," which pass by deed as appurtenant to the realty, but they may be severed therefrom by reservation, evidenced either by parol agreement or by instrument in writing. The vendor may show by parol evidence that such crops were reserved from the sale of the land. [Ed. Note. For other cases, see Crops, Cent. Dig. § 4; Dec. Dig. § 6: Evidence, Cent. Dig. 1726; Dec. Dig. § 441.* For other definitions, see Words and Phrases, vol. 6, pp. 5346-5358; vol. 8, p. 7753.] Appeal from District Court, Red Willow County; Orr, Judge. Action by Gilbert L. Cooper against Fernando Kennedy. Judgment for plaintiff, and defendant appeals. Affirmed. deprive the plaintiff of same, and that the defendant is insolvent and cannot be compelled to respond in damages. No trespass is shown other than as above admitted, nor are there any threats in evidence. In this state of the record the writer is of opinion that no facts have been shown sufficient to authorize the issuance of the extraordinary writ of injunction, but a majority of the court are of a contrary opinion, and it will therefore be necessary to consider the principal question in the case, which is whether parol proof may be made of a reservation of growing crops where no such reservation is made in the deed of conveyance. The authorities are irreconcilable on this question. A number of states hold that growing crops, being fructus industriales, are personal property, and do not necessarily pass with the conveyance of the land; that there is a distinction between such planted crops and such products of the soil as growing timber or grass, which are known as fructus naturales, and which pass with the soil, unless separated and reserved by instrument in writing. In this state, however, the question as to whether such crops will pass by deed was discussed in the case of Andersen v. Borgaard, 83 Neb. 8, 118 N. W. 1108, and it was held that, "until a crop is severed from the land upon which it has grown, it is such part of the real estate as will pass by a deed of conveyance or by a devise of land, unless reservation thereof is made in the deed, or there is evidence contained in the will of the testator that the devisee of the land should not be entitled to the crop." The question whether the reservation must be made in a deed was not involved in the case, so that this portion of the holding is obiter. The syllabus of the case is, as follows: "Unless Cordeal & McCarl, for appellant. Morlan, reserved, crops standing upon the ground, Ritchie & Wolff, for appellee. matured or not, pass to the grantee named in a deed of conveyance, or to a party to whom the land is devised." LETTON, J. On the 22d of July, 1907, the plaintiff sold his farm to defendant by In an early Indiana case (Turner v. Cool. warranty deed; at the same time by parol 23 Ind. 56, 85 Am. Dec. 449) it was held that agreement he reserved the possession of the the crop passed with the deed, notwithstandland until the 1st of March, 1908, and also ing a previous written agreement expressly reserved all the growing crops upon the land. reserving the same, for the reason that the Afterwards he harvested a portion of the prior preliminary contract could not affect crops without objection by the defendant. It the terms of the deed into which the contract is admitted in the answer that in the latter was finally merged. To the same effect is part of August the defendant entered into a Brown v. Thurston, 56 Me. 126, 96 Am. Dec. field of corn on the premises, gathered a por- 438, as respects a parol reservation. Melltion of the crop, and that on August 27th, vaine v. Harris, 20 Mo. 457, 64 Am. Dec. 196; while the plaintiff was gathering corn, the Gibbons v. Dillingham, 10 Ark. 9, 50 Am. defendant went to the field, forbade the plain- Dec. 233; Chapman v. Veach, 32 Kan. 167, tiff from further gathering corn therein, and 4 Pac. 100; Garanflo v. Cooley, 33 Kan. 137, commanded the plaintiff to leave the prem- 5 Pac. 766; Kammrath v. Kidd, 89 Minn. ises, and now asserts that he is the owner 380, 95 N. W. 213, 99 Am. St. Rep. 603; Smith of the corn. On the same day the plaintiff v. Price, 39 Ill. 28, 89 Am. Dec. 284; Firefiled his petition alleging these facts, and baugh v. Divan, 207 Ill. 287, 69 N. E. 924. further alleging that the defendant threatens The later Indiana cases have adopted the contrary rule. Stoddard et al. v. Johnson, | v. Blazer Bros., 91 Mo. App. 564; Cannon Treasurer, et al., 75 Ind. 20; Hisey v. Trout- v. Matthews, 75 Ark. 336, 87 S. W. 428, 69 man, 84 Ind. 115. In Aldrich v. Bank of Ohiowa, 64 Neb. 276, 89 N. W. 772, 57 L. R. A. 920, 97 Am. St. Rep. 643, it was held that growing crops do not pass to the purchaser of the land at judicial sale, so as to defeat the rights of one holding a chattel mortgage on them, following Foss v. Marr, 40 Neb. 559, 59 N. W. 122; Monday v. O'Neil, 44 Neb. 724, 63 N. W. 32, 48 Am. St. Rep. 760. The decision in these cases is based upon Cassilly v. Rhodes, 12 Ohio, SS, and Houts v. Showalter, 10 Ohio St. 124, and the reasoning of the Ohio cases is based upon the premise that such crops are in law regarded as personalty. The language of the opinion might justify the thought that it was the idea of its writer that a deed would not carry growing crops where no mention is made of them by the parties either in the conveyance or by extraneous writing or parol contract; but this point was not involved, and we find no difficulty in holding as the Ohio court did in the case of Baker v. Jordan, 3 Ohio St. 438: "In the absence of any proof that any other valid disposition of them attended, or had preceded the deed, that instrument would certainly convey them." The whole subject is well considered in that case. While the Ohio statute as to emblements passing to the executor is mentioned, it is not made the basis of the decision. The following excerpt concisely expresses the view of the court: "A deed purports to convey the realty. But what is the realty? Growing corn may be a part of it, for some purpose, but it is generally to be considered as personalty. If the parties to a deed, either by words or their behavior, signify their understanding that as between them it is personalty, the law will so regard it, and will respect their intention in the construction of the deed. When the evidence of such understanding is produced, it is not to contradict the deed, for with that it is perfectly consistent; but it is to show that what in some instances would go with the lands as part of the realty was, in that case, converted into personalty by the will of the parties, and thus to hold the deed to its true meaning and effect." The Pennsylvania rule is that growing crops -fructus industriales--are personal property, but pass by conveyance with and as appurtenant to the realty, unless severed therefrom by reservation or exception; that the vendor may show such reservation by parol evidence, but that a reservation of the natural products of the earth-fructus naturalesmust be in writing. Backenstoss v. Shahler's Administrators, 33 Pa. 251, 75 Am. Dec. 592. This is substantially the view taken in the following cases: Flynt v. Conrad, 61 N. C. 190, 93 Am. Dec. 5SS; Bond v. Coke, 71 N. C. 97: Walton v. Jordan, 65 N. C. 170; Glass L. R. A. 827, 112 Am. St. Rep. 64. In New Jersey, in equity, a parol reservation of crops was allowed and enforced, but this was as a reformation of a deed. Hendrickson et al. v. Ivins, 1 N. J. Eq. 562. From a consideration of these cases and of the previous decisions of this court, we are satisfied to declare that, though growing crops are personal property, they pass by deed as appurtenant to the realty, but they may be severed therefrom by reservation evidenced either by parol agreement or by instrument in writing, and that the vendor may show by parol evidence that such crops were reserved from the sale of the land. Such crops may be sold upon execution as personal chattels, or they may be conveyed by a verbal contract. In the absence of a reservation, such crops pass by the deed, but a reservation is a collateral contract which may exist at the same time as a contract to convey the real estate. Of course, in case of a dispute written evidence of such a contract would be of a much more satisfactory nature; but in this case, where the undisputed evidence shows that the vendor remained in possession of the land and crops, and harvested the small grain upon the same without objection or interference by the defendant, that defendant admitted the plaintiff's right to the crop to others, and that it was only after he had become dissatisfied in some respects that he claimed the right to the crops, there is no room for doubt or controversy as to the rights of the parties. Adopting this rule, the plaintiff is entitled to retain the crops, and the judgment of the district court is affirmed. SCHNEIDER v. PLUM et al. (No. 15,925.) (Supreme Court of Nebraska. Feb. 26, 1910.) (Syllabus by the Court.) MUNICIPAL CORPORATIONS ($ 465*)-PUBLIC IMPROVEMENTS-ASSESSMENT-VALIDITY. ment levied upon village lots to pay for a sideIn litigation concerning a special assesswalk constructed in a street adjacent to such real estate, if it appears that the village board in levying the assessment did not take into ac the construction of the sidewalk, but levied the count the benefits and damages resulting from total cost thereof without regard to such benefits or damages, the tax is void, and its collection may be enjoined. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1108; Dec. Dig. § 465.*] Appeal from District Court, Boone County; Hanna, Judge. Action by Charles T. Schneider against Or. an F. Plum and others. Judgment for defendants, and plaintiff appealed. Reversed and remanded. H. C. Vail, for appellant. J. A. Price, for | Plaintiff argues that the copy of the resoluappellees. ROOT, J. This is an action to enjoin the trustees and clerk of the village of Petersberg and the county treasurer of Boone county from collecting a special assessment levied upon plaintiff's lots in said village to defray the cost of constructing a concrete sidewalk adjacent to said property. Defendants prevailed, and plaintiff appeals. tion delivered to his wife at their home did not give the trustees jurisdiction over his property. The statute under which the assessment was made does not require notice to be given the lot owner before a sidewalk may be constructed. Sections 8916 to 8919, both inclusive, Cobbey's Ann. St. 1909. Notwithstanding the statute, village trustees have authority to prescribe by ordinance the jurisdictional steps to be taken by them in such cases. Ives v. City of Omaha, 51 Neb. 136, 70 N. W. 961. Having exercised that power, the trustees would be bound by the ordinance. State v. Cosgrave, 122 N. W. 885. The ordinance does not require that the copy of the resolution to be delivered to the lot owner shall be signed by the clerk or attested by that officer, nor certified nor sworn to by the marshal. The copy describes plaintiff's lots with sufficient certainty, and, among other things, recites: "Be it resolved by the board of village trustees of Petersberg, Nebraska," etc. Plaintiff could not have been and was not misled, and we think the trustees acquired jurisdiction to make the improvement and by a proper procedure to assess a tax upon plaintiff's lots for the net benefits thereby accruing to them. 1. The facts are practically undisputed. Petersberg is a municipal corporation containing less than 800 inhabitants. Plaintiff is, and during the times hereinafter mentioned was, the owner of lots 4 and 5, in block 12, in said village. About 1895 a board sidewalk was constructed contiguous to said lots, and in 1907 it was somewhat out of repair. In April, 1907, the village trustees enacted an ordinance requiring lot owners in said village, when requested by a resolution of the trustees, to construct, reconstruct, or repair sidewalks adjacent to their respective lots. The form of the resolution to be adopted in such cases is set forth in the ordinance. Upon the adoption of such a resolution, the village marshal is directed to deliver a copy to the owner of the lot or lots affected, or to leave it at such owner's usual place of residence. If the 2. It is contended that the trustees did not sidewalk is not constructed or repaired, as the ascertain the benefits and damages, if any, recase may be, within 30 days after such serv- sulting to the property from the construction ice, the village is authorized to make the im- of the sidewalk, and exceeded their power by provement, and levy an assessment against arbitrarily assessing the cost of the improvethe property to defray the expense incurred. ment to plaintiff's lots. There is merit in On the 5th day of June, 1907, a resolution this contention. The vital principle underlywas duly passed commanding plaintiff to ing special assessments is that the value of construct a sidewalk along said lots, and on the property taxed has been increased in a the 12th of that month a copy of the resolu- sum at least equal to the assessment levied. tion, neither signed nor certified to by the To levy a tax without a corresponding inclerk, was delivered to plaintiff's wife upon crease in value is to take private property for the premises in question. Plaintiff was away public use. Hanscom v. City of Omaha, 11 from home at the time, but the notice was Neb. 37, 41, 7 N. W. 739; Cain v. City of delivered to him about the 20th or 23d of the Omaha, 42 Neb. 120, 60 N. W. 368; Section 6, month. Plaintiff failed to construct the side- art. 9, Const. The Legislature, recognizing walk, and the village authorities proceeded its limitations and the rights of the citizen, under the ordinance to make the improve- provided with reference to special assessment. Thereafter the trustees notified plain- ments by village authorities: "Such assesstiff they would meet at a definite time for the ment shall be made by the council or board purpose of levying an assessment upon his of trustees at a special meeting, by a resolulots to pay the expense of constructing said tion fixing the valuation of such lot assessed, sidewalk. At the time fixed in the notice the taking into account the benefits derived or invillage board passed the following resolution: juries sustained in consequence of such con"Be it resolved by the chairman and village templated improvements, and the amount board of the village of Petersberg that lots charged against the same, which with the 4 and 5 of block 12 of the original town vote thereon by yeas and nays shall be of Petersberg be valued at $1,400.00 for the spread at length upon the minutes," etc. Secpurpose of assessment and that there be lev- tion 8919, Cobbey's Ann. St. 1909, supra. ied against said lots a special tax amounting The burden is on plaintiff to prove that the to $80.00, said amount being a total expense trustees were without authority to levy the in building the cement sidewalk along the assessment under consideration, and the proof south side of Rae street and along said lots; upon this issue is the record of the village further that the village clerk be instructed to board. That record is before us, and demfile a certified copy of this resolution, togeth-onstrates that the statute was ignored. The er with a certified copy of the notice served trustees did not find that the lots were or upon the occupants of said lots of this special meeting with the county clerk of Boone were not benefited by the construction of the sidewalk, but they arbitrarily assessed upon ment. The market value of lots may or may | ment was according to the foot-front rule, but not, according to the circumstances of a par- the taxing board had found that the properticular case, be increased by the construction ty thus assessed had been benefited to the of a sidewalk adjacent thereto, and the cost amount of the levy, and the assessment was of the improvement does not necessarily held valid in an action to enjoin its collecmeasure that increase. The trustees were not tion. That these cases do not control the vested with power to ascertain and then as- instant one is evident from the failure of sess the cost of the sidewalk, but the benefits this court to mention them in Smith v. City accruing to plaintiff's lots by reason of the of Omaha, Hutchinson v. City of Omaha, improvement, not to exceed its cost. We do Harmon v. City of Omaha, Henderson v. City not intimate that the trustees' record must be of South Omaha, John v. Connell, and Trepfaultless, but it must at least show that those hagen v. City of South Omaha, supra. In officials acted within their jurisdiction and Hutchinson v. City of Omaha, supra, we held substantially complied with the law. It fol- that the levying of a special assessment was lows that the assessment under consideration not a judicial act, and that the district is void. Smith v. City of Omaha, 49 Neb. 883, courts should not, where the assessing au69 N. W. 402; Hutchinson v. City of Omaha, thority had acted without jurisdiction in cas52 Neb. 345, 72 N. W. 218; Harmon v. City es of special assessments, attempt to make of Omaha, 53 Neb. 164, 73 N. W. 671; Hen- that levy by directing the plaintiff to pay derson v. City of South Omaha, 60 Neb. 125, any part of the void charge as a condition 82 N. W. 315; John v. Connell, 64 Neb. 233, precedent to relief. See, also, Harmon v. 89 N. W. 806; Id., 71 Neb. 10, 98 N. W. 457; | City of Omaha, supra. Trephagen v. City of South Omaha, 69 Neb. 577, 96 N. W. 248, 111 Am. St. Rep. 570. Defendants cite Barker v. City of Omaha, 16 Neb. 269, 20 N. W. 382, and Darst v. Griffin, 31 Neb. 668, 48 N. W. 819. Other reasons are advanced by plaintiff to sustain his contention that said assessment is void. They have all been considered and have been found insufficient to justify us in extending this opinion by a specific mention of each argument. While we agree with plaintiff that the village board did not have power to make the assessment levied upon plaintiff's lots, we do not think the trustees are without power to eventually levy and collect the amount of the net benefits, if any, accruing to said lots by reason of the construction of the sidewalk in question. Neither the statute nor the village ordinance fixes any limitation of time subsequent to the completion of a sidewalk within which the trustees may levy special assessments for benefits bestowed. The trus tees may, therefore, by retracing their steps and giving proper notice, sit as a board of equalization, and assess whatever net benefits accrued to plaintiff's lots by reason of the construction of the sidewalk in question. In Barker v. City of Omaha, supra, no constitutional limitations were suggested by counsel. At the time the assessment considered in the Barker Case was made the Omaha charter limited special assessments to 5 per cent. of the value of the lot or tract of land benefited. Section 53, p. 126, Gen. St. 1873. The plaintiff in the Barker Case asserted that the assessment exceeded 5 per cent. of the value of his property, and urged that he had not been notified of the meeting of the taxing board. Upon the trial of the case, no proof was made that plaintiff had not been notified, or did not have knowledge of said meeting, but he introduced evidence to prove the levy was excessive. The principle of law urged in the case at bar was not considered in the Barker Case. In Darst v. Griffin, supra, the power of the Legislature The judgment of the district court, thereto vest county commissioners with authority fore, is reversed, and the cause remanded, to construct ditches for the drainage of lands with directions to enter a judgment restrainand to assess a special tax upon real estate ing the collection of the tax in dispute withfor benefits accruing by reason of such im- out prejudice to a subsequent levy for the provement was challenged. The statute was net benefits accruing to plaintiff's lots by the upheld. The plaintiff in that case also urged construction of the sidewalk under considthat, if the statute was valid, certain irregu-eration, but not to exceed the cost of such larities in the procedure leading up to the construction. levy of the assessment rendered the tax void. None of those irregularities were found to be jurisdictional and the plaintiff was refused relief. The application in each of the cited cases of the principle that he who asks equity must do equity should be considered with reference to the fact that the assessing board was held to have had jurisdiction to levy some part of the tax assessed. Redick v. City of Omaha, 35 Neb. 125, 52 N. W. 847, is another case where the equitable principle was applied. In that case the assess A. A. COOPER WAGON & BUGGY CO. v. ments to recover from a retail agent the bal |