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grade, etc., and the easement taken for its construction. The expense attending its laying and construction is to be assessed upon the persons whose premises are drained by it, either by direct or indirect connection therewith. No power is given to assess such expense upon the property owners of the village generally. Whether assessment for the entire expense must be made immediately upon its construction, or whether a portion of it may be carried over, and assessed upon the owners of new premises, which subsequently become connected, directly or indirectly, therewith, need not be considered; nor need it be considered whether the petitioners were duly notified of the assessment made by the bailiffs. Upon the facts found the sewer or main drain which drains the premises of the petitioners was laid and constructed by the sewer association. The bailiffs only accepted it as laid and constructed by the association. The petitioner's grantor paid, as a member of that association, his proportionate share of the expense of laying and constructing this sewer. When, in laying and constructing the Elliott, Frost, and Flat street sewer, and connecting it with the Association sewer, the bailiffs found it necessary to lower and build over 100 feet of the Association sewer, that necessity arose from the connection of the the firstnamed sewer with it, and not because the Association sewer was, as originally laid, insufficient to do the work for which it was designed. The Association sewer was ample to accommodate all the premises, including those now owned by the petitioners, for whose benefit it was laid and constructed. The expense of lowering and relaying this 100 feet of the original Association sewer, and the $300 which the Elliott, Frost, and Flat street sewer cost more than was collected by way of assessment, could be lawfully assessed by the bailiffs, if at all, only upon the owners of premises which, directly or indirectly, connected with the Elliott, Frost, and Flat street sewer, even though that sewer should be treated as a subsequent extension of the Association sewer. The petitioners were in no way benefited by such extension. Rather the persons connecting with the Elliott, Frost, and Flat street extension were benefited by the sewer already laid and constructed by the sewer association. Without considering any of the other questions argued, on these views the judgment of the county court is affirmed.

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for ten days after request, to give the bond. his office shall be vacant, it is not necessary that the bond be delivered to the selectmen, but it is sufficient that it be delivered to the town clerk, as he is the custodian of the permanent files and records of the town.

Information for quo warranto on the relation of S. D. Allen against William H. Buchanan.

John W. Gordon, for relator. Barney & Hoar, for defendant.

THOMPSON, J. The defendant was elected first constable and collector of taxes of Barre at the annual town meeting in March, 1893. He immediately took the oath of office, had the same recorded, and at once entered upon the duties of these offices, and has since continued to exercise them. Pursuant to the requirements of R. L. § 2674, the selectmen of Barre, on the 27th day of March, 1893, requested him to give an official bond to the town in the sum of

$10,000, signed by himself and four or five sureties, whose aggregate property above their debts and liabilities should amount to at least $10,000. It is alleged that he has not given such a bond. In case of a neglect to give a bond within 10 days after request by the selectmen so to do, R. L. § 2674, declares that his office shall be vacant. In this respect this statute is mandatory, and, unless the defendant has complied with its requirements, it is the duty of this court to render a judgment of ouster against him. The defendant had until April 6, 1893, in which to give the bond, the day when he was requested to furnish it being excluded from the 10 days by section 26, R. L. It is conceded by the agreed case that on the 6th day of April, 1893, the defendant delivered to the town clerk of Barre, for the town, a bond in all respects such as the selectmen had requested him to give. The relator contends that this was not a delivery to the town, and that the only way the defendant could give the bond to the town, within the meaning of the statute, was by delivering it to one of the selectmen. We think this is too narrow and technical a construction of the statute. The law does not favor forfeitures. Waterman v. Clark, 58 Vt. 601, 2 Atl. Rep. 578; Palmer's Ex'r v. Ryan, 63 Vt. 227, 22 Atl. Rep. 574. The object of the law in requiring a bond is to protect the town against the possible misfeasance or nonfeasance of the officer in the exercise of the office. Neither the defendant nor his sureties could dispute their liability under this bond as delivered in case he were sued thereon for a breach of his official duty. Town of Weston v. Sprague, 54 Vt. 395. The town clerk is the custodian of the permanent files and records of the town, either by express law making him such custodian, or by the inmemorial usage in this state. While a delivery of the bond to the selectmen would

have been sufficient, we hold that the de- is sufficient, the judgment is correct, the livery of it to the town clerk for the town same is affirmed, and cause remanded for was also a compliance with the law, and trial. that, consequently, the defendant gave a bond to the town as requested within 10 days after request by the selectmen. Judgment that the defendant be allowed his offices of first constable and collector of taxes, and that he recover his costs.

STATE v. EMERY.

(Supreme Court of Vermont. Orange. May 26, 1893.)

IMPEDING OFFICERS-ASSAULTING ASSISTANTSINFORMATION.

1. An information for impeding an officer charges that he was impeded in a direct manner, by alleging that he was impeded and hindered by an assault on his assistants.

2. Where the information alleged that respondent knew that the officer was serving process, and that the persons with him were assisting him, it was unnecessary to allege that the officer had asked them to assist him, or that it was necessary for him to have assistance, as respondent had no right to assault them, though their aid was unnecessary, and they were mere volunteers.

Exceptions from Orange county court; Tyler, Judge.

Harry Emery was charged by information with impeding an officer. A general demurrer to the information was overruled, and respondent excepts. Affirmed.

Geo. L. Stow, State's Atty. R. M. Harvey, for respondent.

TAFT, J. This is a demurrer to an information.

1. It is insisted that there is no allegation that Barron was in any direct manner interfered with, impeded, or hindered. It is alleged that he was impeded and hindered by an assault upon his assistants. This is an allegation of impeding him in a direct manner; in fact, as direct and forcible as can well be conceived.

2. It is insisted that the information is defective, for that there is no allegation that the respondent knew that Locke and Wallace (the assistants) were acting by Barron's directions, and no allegation that Barron had asked them to assist him, and no allegation that it was necessary for Barron to have assistance. If the respondent knew that Barron was serving the process, and that Locke and Wallace were assisting him, (and it is so alleged in the information,) he had no right to assault the latter, although their aid was unnecessary, and they were volunteers. An officer in the execution of process may take such assistance as he deems requisite, and if from overabundant caution he takes more than is necessary, no one, for that reason, has a right to assault the assistants. The information

MUSSEY v. BATES et al.

(Supreme Court of Vermont. Rutland. June 25, 1893.)

DEED ABSOLUTE AS MORTGAGE PAROL AGREEMENT-RES JUDICATA-STATUTE OF FRAUDS. 1. A complaint alleged an oral agreement by which defendants, at the time of taking title to land as security for a loan, undertook to pay plaintiff a further sum, to enable him to secure immediate possession of the property, to leave him in full possession of the same, to furnish him money for laying out streets thereon, and to convey at any time such portions of the land as plaintiff might sell, on payment to defendants for application on plaintiff's indebtedness of the avails of the sales. Damages were sought for breach of these stipulations. Held, that a plea stating that plaintiff had brought against defendants a suit, in which he had set forth the loan, conveyance, and undertakings, and prayed that the conveyance be decreed a mortgage, that an account be taken of moneys paid out by defendants, and that they be decreed to convey the land to plaintiff on payment of the sum found due; that the sum was ascertained, and a decree entered that defendants convey the property to plaintiff on payment thereof, did not show that the matters declared on in the action at law were necessarily embraced in the issues litigated in the equity suit.

2. The stipulations declared on in the action at law are not so related to the part of the contract by which the conveyance was taken as security for the money advanced that plaintiff's failure to put them in issue in the suit for redemption would waive his right to insist on them afterwards.

3. The stipulation providing for plaintiff's occupancy of the land, being but a mere recital of his rights as mortgagor, was not within the statute of frauds, as a contract for the sale of an interest in lands.

4. A parol agreement to execute a conveyance of land on payment of the amount for which the land had by deed absolute been taken as security is not an agreement, within the statute of frauds, for sale of an interest in lands.

Exceptions from Rutland county court; Start, Judge.

Assumpsit by George L. Mussey against Amos C. Bates and Samuel P. Curtis. Pleas: the general issue, and special pleas in bar. A general demurrer to the special pleas was overruled, and judgment given for defendants, to which plaintiff excepted. Reversed.

C. M. Willard, for plaintiff. J. C. Baker, for defendant.

MUNSON, J. The plaintiff declares upon an oral agreement by which the defendants, at the time of taking the title to certain premises as security for a considable loan, undertook to pay the plaintiff a further sum to enable him to secure immediate possession of the property, and to leave him in the full possession and control of the same, and to furnish him such sums of money as might be needed for laying out streets thereon, and to convey at any time

such portions thereof as the plaintiff might sell, upon payment to the defendants of the avails of the sales for application upon the plaintiff's indebtedness. The breaches assigned are the defendants' failure to perform these stipulations.

The defendants plead that the plaintiff has heretofore brought against them a bill in equity, in which he set forth such loan and conveyance and the undertakings now declared upon, and prayed that the conveyance be decreed a mortgage, and that an account be taken of the money paid out by defendants, and that they be decreed to convey the premises to the plaintiff upon payment of the sum found due; that the sum due in equity was thereupon ascertained, and a decree entered that the defendants convey the property to the plaintiff upon the payment of such sum, and that, if the plaintiff should fail to pay the same by a certain day, the defendants should thereafter hold the premises discharged of the plaintiff's claim; that the plaintiff failed to make payment in accordance with this decree, and so became barred of all interest in the property. The plea is demurred to. The defendants thus seek to avail themselves of the well-established doctrine that matters which have once been determined by a court of competent jurisdiction cannot afterwards be contested by the parties to such prior adjudication; but the plea does not in terms allege that the matters declared upon were litigated in the chancery suit, and it cannot be said that they were necessarily embraced in the issues which are shown to have been litigated. The arrangement between the parties included both the transfer of this property to the defendants as security for a certain loan, and an agreement on the part of the defendants to give the plaintiff certain further aid as required. By his bill in equity, the plaintiff sought only to have the character of his conveyance determined, and the amount which he must pay to entitle him to a reconveyance ascertained. So far as the matters declared upon were stated in the bill, it was for the purpose of showing the exact nature of the transaction in which the title passed, and thereby establishing the complainant's right to have the absolute deed declared a mortgage. He did not pray to have the damages resulting to him from the defendants' failure to perform these stipulations ascertained and applied in reduction of the loan. As the bill was framed, none of these matters would come in issue, unless the defendants claimed that they had made the further advances provided for, and So had increased the amount for which the property was holden. So the plaintiff cannot be held to be concluded in these matters by the decree, unless upon the ground that he could and should have had them included in that adjudication. But we think his right to main

tain the present suit cannot be denied on this ground. The stipulations declared upon were not so related to the executed part of the contract that the plaintiff's failure to put them in issue in proceedings for re demption can be held a waiver of his right to insist upon them afterwards. They did not go to the merit of the defendants' claim. If the defendants had voluntarily treated the deed as a mortgage, and had brought their petition to foreclose it, the damages resulting to the plaintiff from their nonperformance of these stipulations would at most have been but matter of recoupment. But matters proper for recoupment may in some cases be withheld for independent adjustment. It was held in Davenport v. Hubbard, 46 Vt. 200, that one who had suffered judgment to pass against him by default in favor of a contractor for the full amount of the contract price for doing certain work was not thereby precluded from afterwards maintaining a suit to recover the damages arising from the contractor's failure to do the work within the time limited. The principle of this decision seems decisive in support of the plaintiff's right to maintain the present action, in the absence of anything to show that the matters declared upon were actually litigated in the former proceeding.

The pleadings raise the further question whether the agreement declared upon is within the statute of frauds as a contract for the sale of lands or of an interest there in. The only facts of the agreement that seem to require discussion in this connection are those which provide for the plaintiff's possession of the property, and for the convey. ance of such portions of it as he might dispose of by contract. In considering this branch of the case, it must be remembered that the suit in equity has conclusively determined that the deed held by the defendants, although absolute upon its face, was in fact a mortgage. So the provision relat ing to occupancy was not one giving the plaintiff a right to the possession of lands owned by the defendants, but a provision to indicate the character of the plaintiff's conveyance, and to secure to the plaintiff a mortgagor's right to retain the possession of his mortgaged premises. As a mortgagor, he would have been entitled to possession until condition broken, without any agreement to that effect. R. L. § 1258. Hooper v. Wilson, 12 Vt. 695. So, also, when the established relations of the parties are considered, the agreement to convey is seen to be no more than a mortgagee's agree ment to execute a deed of the mortgaged premises upon receiving payment of the sum secured. It appears from the declaration that the loan could be repaid in such sums as might be derived from the sale of portions of the mortgaged property, and that the payment of any such sum was to relieve the land disposed of from the incumbrance.

It appears from the plea that this was set forth in the bill upon which the plaintiff obtained the decree establishing his rights as a mortgagor; and, as this stipulation constituted the defeasance, it was a matter necessarily embraced in the adjudication. It also appears from the declaration that the agreement to release by deed in this manner was a part of the original undertaking; and if the plaintiff had declared upon the transaction as one established by the court of equity as a mortgage, and evidenced by its decree, he might perhaps have sustained his case without encountering a question involving the statute of frauds. But the facts alleged by the defendants cannot avail the plaintiff except upon the ground on which he has placed himself in his declaration. 1 Chit. Pl. 669. But, although the plaintiff

must stand upon the ground of a parol agreement to convey, he is entitled to the benefit of the pleas demurred to, as showing what the interest was which it was thus agreed to convey. The promise must be treated as if it were a subsequent agreement, upon sufficient consideration, to execute conveyances of the mortgaged property upon receiving payment in accordance with the terms of the defeasance.

There is a diversity of opinion upon the question whether a mortgagee's interest is one that may be transferred or discharged by parol. In Massachusetts and in Maine it is held that this interest is within the statute of frauds; that it will not pass by a parol assignment; and that an oral promise to relinquish it cannot be enforced. Warden

v. Adams, 15 Mass. 236; Hunt v. Maynard, 6 Pick. 489; Mitchell v. Burnham, 44 Me. 302; Leavitt v. Pratt, 53 Me. 147; Phillips V. Leavitt, 54 Me. 405. On the other hand, it is held in many states that the interest of the mortgagee is not within the statute, and that it may be transferred or discharged by oral contract. Southerin v. Mendum, 5 N. H. 420; Ackla v. Ackla, 6 Pa. St. 228; Howard v. Gresham, 27 Ga. 347; Green v. Hart, 1 Johns. 580. So there is authority for holding that a mortgagee's interest may be both transferred and discharged by parol. It is said by some text writers that the tendency of the decisions is decidedly in favor of this holding. Browne, St. Frauds, § 65. It would doubtless be inconsistent with the views adopted in this state to hold that a parol transfer of a mortgagee's interest could avail the transferee in a suit at law. It has indeed been held, but without discussion, and in reliance upon the decision of a court whose holdings on this subject are not entirely in harmony with ours, that an oral agreement to release a portion of the mortgaged premises upon a payment of a portion of the debt secured cannot be enforced because of the statute. Merrill v. Pease, 51 Vt. 556. But in the case under consideration the security was apportionable by the terms of the defeasance; so that the agreement to convey

that part of the property apportioned to the amount of the debt to be paid was simply an agreement to discharge a mortgage by deed upon tender of satisfaction. It thus appears that the question for decision is whether an agreement to execute a deed of the mortgaged property upon the payment of the mortgage debt is a contract for the sale of an interest in lands. It is certain that the mortgagee's interest, whatever name may be given it, is terminated by the payment of the debt secured, without action on the part of the mortgagee. When the debt is paid, the right of the mortgagee is extinguished, and the land becomes free by operation of law. No conveyance from the mortgagee is necessary to perfect the mortgagor's estate. There is nothing in the mortgagee to be reconveyed to the mortgagor. Whatever is done by way of discharge or release is done to furnish evidence of what has already been fully accomplished by the payment. The methods specially provided by statute for the discharge of mortgages are not treated as exceptions to the provision regulating the conveyance of estates in land, for they are not regarded as passing an interest in land. An unconditional deed having been given in this case, it was essential that the discharge be by deed; but the agreement to execute a deed upon payment was an agreement to give the mortgagor the proper evidence of his having extinguished the mortgagee's interest, and not an agreement for the conveyance of an interest in land. Judgment reversed, demurrer sustained, second and third pleas adjudged insufficient, and cause remanded.

FARMERS' MUT. FIRE INS. CO. OF DUG HILL v. HULL.

(Court of Appeals of Maryland. June 20, 1893.) MUTUAL FIRE INSURANCE-WAIVER OF FORFEITURE-ASSESSMENT AFTER NOTICE OF FORFEIT

URE.

assess

1. The levy and collection of an ment by a mutual fire insurance company on the premium note of a member after the forfeiture of his policy, and knowledge of such forfeiture by the company, does not constitute a waiver thereof, where such assessment is made to pay losses occurring prior thereto.

2. The fact that such assessment realized more than enough to pay such losses is insufficient evidence of an intention to waive such forfeiture, where it appears that, from the beginning of the investigation of the loss under such member's policy, the company denied all liability, because of such forfeiture.

Appeal from circuit court, Carroll county. Action by George W. Hull against the Farmers' Mutual Fire Insurance Company of Dug Hill, Carroll county, Md., on a fire insurance policy. From a judgment for plaintiff, defendant appeals. Reversed.

Argued before ALVEY, C. J., and ROBINSON, BRYAN, McSHERRY, and FOWLER, JJ.

Jas. A. C. Bond, C. T. Reifsnider, and J. M. Reifsnider, for appellant. Wm. P. Maulsby and Harry M. Clabaugh, for appellee.

ROBINSON, J. The simple question in this case is whether the plaintiff is entitled to recover on a fire policy issued by the defendant the damage sustained by him in the loss of his barn and its contents by fire. The defendant denies its liability because of the breach or forfeiture of the policy by the plaintiff. About a year before the fire the plaintiff bought a portable steam engine, and stationed it within 30 feet of the rear or west end of the barn. The engine was connected by means of a strap and pulley to a chopper inside of the barn, and was used for the purpose of chopping and threshing grain. The fire was discovered about 4 o'clock in the afternoon in some fodder stacked against the side of the barn. The plaintiff had used the engine till about 1 o'clock of the day of the fire in chopping grain for his cattle, and the fire in the grate of the engine was still burning when the neighbors got to the premises. It was conceded in the argument, or, if not conceded, the use of the engine, under the circumstances, without the permission of the de fendant, was, beyond all question, a forfeiture of the policy. But the plaintiff's contention is that the forfeiture was waived by the defendant. It was waived, he says, because the defendant subsequently, and with full knowledge of the forfeiture, levied an assessment on his premium note, and this assessment was paid by him. It has been held in some cases, and properly held, that an assessment made on a premium note, with knowledge of the forfeiture of the policy, and the payment of the assessment by the insured, will be considered as an implied waiver of the forfeiture. It will be so considered because an assessment thus made is altogether inconsistent with an intention on the part of the insurer to treat the policy as being forfeited, and, relying upon this implied intention, the insured was induced to pay the assessment, and which otherwise he would not have paid. The insurer cannot treat the policy as a valid and binding contract for one purpose, and invalid for other purposes. The whole theory of implied waiver, so far as it applies to cases of this kind, is based upon some act or conduct on the part of the insurer inconsistent with an intention to insist upon or claim whatever rights he may have acquired by reason of the forfeiture, and the insured, relying upon this implied intention, has been induced to do some act to his prejudice or injury. But it does not seem to us that the assessment made by the defendant, considering all the circumstances under which it was made, was in any manner inconsistent with an intention on its part to rely upon the breach or forfeiture of the policy, nor does it seem to us

that the plaintiff was in any manner induced to pay the assessment upon the faith that the defendant did not mean to rely upon such forfeiture. We are dealing with a policy issued by a mutual insurance company, the business of which was, by its charter, confined to the limits of Carroll county. Instead of the annual payment of premiums, the defendant relied solely upon assessments to be made upon the premium notes of its policy holders for the means with which to pay its losses, and such assessments were made from time to time as the necessities of the company might require. Now, be fore the fire in question, and before the forfeiture of the plaintiff's policy, the defendant had become liable to other policy holders for losses to the amount of $4,000, and to pay these losses it was necessary to make assessments on the premium notes of its members. Accordingly, on the 19th March, 1892, an assessment of 3 per cent. was made on all premium notes held by the company; the amount realized therefrom being $880.09, and the amount paid by plaintiff on his premium note being $9.57. The liability of the plaintiff on his premium note for losses sustained by the defendant before the forfeiture, and its right to make an assessment thereon to pay such losses, was not, and could not be, questioned. So the mere fact that an assessment was made by the defendant on the premium note of the plaintiff cannot, in itself, be considered as an act inconsistent with an intention on its part to rely upon the breach or forfeiture of the policy, even though the assessment was made subsequently to such forfeiture.

But the argument is that the assessment made by the defendant was in excess of what was actually necessary to pay the losses for which it was liable at and before the forfeiture of plaintiff's policy, and that this excess was used by the defendant in the payment of subsequent losses and expenses. Now, the plaintiff was not liable on his premium note, it is true, for losses which occurred subsequently to the forfeiture, but the mere fact that part of the assessment made by the defendant was applied to the payment of such losses cannot, in itself, be held to constitute a waiver by the defendant. All the proof shows that, from the time the committee appointed to investigate as to the cause of the fire made their report, the defendant denied all liability under the policy, and so informed the plaintiff, and denied its liability, too, on the ground that the fire had been caused by the use of the fire engine by the plaintiff in violation of the express terms of the policy. And, having the right to assess the premium note of the plaintiff to cover losses prior to the forfeiture, the fact that the assessment on the premium notes realized a sum more than was sufficient to pay such losses cannot fairly be considered as evidence of an intention on the part of the defendant to waive the for

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