Betts v. S.ms. that the mortgage in favor of Charles Bidleman be declared in full force and virtue in favor of F. L. Sims by subrogation from September 1, 1880; that said mortgage be foreclosed as prayed, in favor of F. L. Sims for the amount now due thereon, which the court finds to be nineteen hundred and thirty-six 45 dollars, to draw eight per centum per annum from this date." The first point made in the brief of plaintiffs in error is that the order of this court modifying the decree in their favor did not include the so-called Patton claim; hence, the question whether the defendant should be subrogated to the rights of Patton with respect to money paid by the latter to Brown, his grantor, was not involved in the second hearing. It is not necessary to look to the order remanding the case for the issues, since the question of the defendant's right to offset the $1,000 paid by Patton to Brown at the special instance and request of the plaintiffs was distinctly raised by the pleadings in the supplemental proceeding. 2. The evidence before the district court was not preserved, hence the only question now open for consideration is whether the decree is warranted by the facts as found by the court. Of the right of the defendant to be subrogated to the equities of Bidleman there can be no doubt. From the findings of the court on the first hearing, which are set out at length in the opinion previously filed in the case, and which the court in this proceeding finds to be true, it appears that in the year 1876 the plaintiffs mortgaged the land in controversy to the New England Mortgage Security Company to secure the sum of $600, borrowed by them, which indebte.lness bore interest at the rate of ten per cent, and in the year 1877 they mortgaged said land to one R. S. Bentley to secure the sum of $500, borrowed by them, which indebtedness bore interest at the rate of twelve per cent. Both plaintiffs signed and acknowledged the said mortgages. In the year 1880 plaintiffs procured Betts v. Sims. said Bentley, to whom the land had in the meantime been deeded as security, for the $500 loan, together with other money advanced by him, to convey said land to Joseph Brown, who assumed said mortgages as part of the consideration therefor. Brown, after the conveyance to him, mortgaged the premises to Bidleman for $1,150, with the proceeds of which he paid off and satisfied the two mortgages executed by plaintiffs. The defendant, who subsequently purchased from Patton, Brown's grantee, paid in full and caused to be satisfied of record the mortgage to Bidleman. Plaintiffs having invoked the equitable powers of the court must, as a condition to relief, discharge the obligation which in equity they owe to the defendant. "The rights of subrogation," says Chancellor Kent, "is founded upon natural justice and is recognized in every cultivated system of jurisprudence.” (Cheesbrough v. Millard, 1 Johns. Ch. [N. Y.], 412.) The court, therefore, did not err in awarding a decree of foreclosure for the amount of the Bidleman mortgage and interest thereon. 3. It is urged finally that the defendant was not entitled to be subrogated to the rights of Patton as to any claim for the $1,000 paid by the latter to Brown, and that the district court erred in allowing that amount as an offset against the sum of $1,236, found due them on account of rents and for waste by the defendant. By reference to the finding, set out above, it appears that plaintiffs requested and induced Patton to purchase the premises from Brown and to pay the $1,000 for their benefit and by their direction. It is further found that Patton conveyed said property to the defendant "with all his right, title, interest, and claim that he held against George Betts and Eliza Betts, as to the lands above described," etc. The facts as found amount to an assignment by Patton of whatever cause of action he may have had against plaintiffs, and which is available to the defendant in this action. The next and only remaining question is that of the lia Betts v. Sims. bility of plaintiffs to Patton for the $1,000 paid to Brown as part consideration for the property. By reference to the tenth finding, accompanying the original decree, it will be observed that plaintiffs were beneficially interested in the purchase of the land by Patton, that they were desirous of securing a part of the premises, but not having the necessary money, induced Patton to purchase it, agreeing to purchase a part of it from him at the price paid therefor to Brown. Construing the several findings together, it is apparent that the $1,000 in question should in equity be treated as an advancement by Patton for plaintiffs and for their benefit, and for which they should account in this action. It is not contended that this claim could be made a lien upon the property, nor is there a prayer for judgment for the excess remaining in defendant's favor after allowing plaintiffs credit for the amount found in their favor. The claim for rents of the property and for waste committed thereon does not partake of the character of the homestead, and is not shown to be exempt on other grounds. The decree is right and is MAXWELL, CH. J., concurs. NORVAL, J., not sitting. AFFIRMED. State, ex rel. Christy, v. Stein. 35 848 35 866 35 867 35 848 36 95 37 311 35 848 d43 659 35 848 46 776 STATE OF NEBRASKA, EX REL. S. W. CHRISTY, v. HER- [FILED DECEMBER 20, 1892.] 1. Elections: RETURN OF POLL BOOK: CERTIFICATION. Under the provisions of section 20, chapter 26, Compiled Statutes, it is the duty of judges and clerks of election to return a true list of the persons voting at that election and certify the same. It is also the duty of the judges and clerks to certify the aggregate number of votes cast for each person voted for, but it is no part of their duty to certify that certain persons received a specified number of votes as a democrat and a certain number as people's independent, or otherwise, and such certification has no force or effect. 2. —: DUTY OF COUNTY CLERK: CANVASSING RETURNS: CERTIFICATE OF ELECTION: CLASSIFICATION OF VOTES. By section 46 of the above chapter it is made the duty of a county clerk, upon the reception of the returns from each election precinct, ward, etc., and within six days after the closing of the polls, together with two disinterested electors chosen by himself, to open the poll books and make abstracts of the votes cast * * * for members of the legislature from the county alone on one sheet, and "of votes for members of the legislature by districts comprising more than one county, on another sheet," and by section 48 the clerk is required to make out a certificate of election to the person having the highest number of votes. Held, That it was the duty of the clerk to issue a certificate to the person having the highest number of votes, and that he had no authority to classify the votes cast for a candidate as people's independent, democratic, or otherwise. ORIGINAL application for mandamus. L. G. Hurd, G. M. Lambertson, and A. W. Agee, for relator. Thomas H. Matters, and John M. Ragan, contra. MAXWELL, CH. J. This is an application for a mandamus to compel the defendant Stein to issue a certificate of election to the relator. State, ex rel. Christy, v. Stein. The cause of action, as set forth in the amended affidavit, is as follows: "S. W. Christy, the relator, being first duly sworn says and represents to the court, that he is a citizen of the United States, and of the state of Nebraska, and has been for more than two years last past, and continuously to the present time, a resident elector of the county of Clay, in said state, and is eligible to the office of state senator for the twenty-fifth senatorial district, in the state of Nebraska, which said senatorial district is composed of the counties of Clay and Hamilton and no others; that the respondent, Herman E. Stein, is, and has been for more than two years last past, the duly elected, qualified, and acting county clerk of the said county of Clay, which is the first county named in the law designating the said senatorial district. "That at the general election in said senatorial district held on the 8th day of November, 1892, the relator was a candidate for the office of state senator, from said senatorial district, and that the several election boards in the several precincts in the county of Clay duly made returns to the respondent as county clerk of Clay county, Nebraska, of all the votes cast in the several voting precincts respectively, in said county including those cast for state senator for said twenty-fifth senatorial district, and that within six days after the 8th day of November, 1892, the said county clerk, together with two disinterested electors and residents. in said county who were selected by him for that purpose, canvassed the votes of the several precincts in said county, which had been duly returned to him as such county clerk by the several election boards in said county, including the votes cast for state senator in said district, and made an abstract thereof as provided by law, and found that there had been cast in the several voting precincts in said county for state senator as follows: |