author: MB. JUSTICE HOLLOWAY

text:
    In re McCABE.
    (No. 1,982.)
    (Submitted October 6, 1903.
    Decided October 26, 1903.)

      Criminal Law — Extortion-—Threat to Discharge Employe.
    Under Penal Code, Section 7, providing that the words “personal property” in the Code shall include money, goods, chattels, things in action, and evidences of debt, an employe’s right to work is not property; therefore a complaint ¿.charging a foreman with extorting money from an employe by a threat to discharge him did not charge the crime of extortion defined by Penal Code, Section 911, providing that fear such as will constitute extortion may be induced by a threat to do an unlawful injury to the person or property of the individual threatened.
    AppltcatioN by William McCabe for a writ of habeas corpus.

    Petioner discharged.

      Mr. J. H. Duffy, and Mr. J. II. Tolaai, for Petitioner.

      Mr. TP. II. Trippeiand Mr. J. J. McOajfery, for Respondent
   MB. JUSTICE HOLLOWAY

delivered the opinion of the court.

On July 16, 1903, a complaint was filed in the justice of the peace court of Thos. E. Murphy, in Anaconda township, Deer Lodge county, charging the petitioner, Wm. McCabe, with the crime of extortion, committed on July 10, 1903.

The complaint alleges, that one Louis. Stanesich was employed by the Anaconda Copper Mining Company to perform work and labor at $2.50 per day; that petitioner was employed by the same company as a foreman, under whose direction Stanesich was working; that while these parties were so engaged, the petitioner unlawfully obtained from the said Stanesich the sum of $10, and that such stun was obtained from Stanesich with Ms consent, induced by the wrongful use of a threat made by the petitioner to' do an unlawful injury to the property of Stanesich, to-wit, a threat by petitioner to1 discharge Stanesich, from his employment unless he paid to the petitioner the sum named.

To this complaint' the petitioner entered a plea of not guilty, and upon a preliminary examination he was held to answer the charge in the district court, and committed to the custody of the sheriff of Deer Lodge county. Thereafter the petitioner sued out a writ of habeas corpus, which was made returnable before this court. The return of the sheriff shows that the petitioner is detained by virtue of the commitment issued by the justice of the peace court upon the conslusion of the preliminary examination. The sheriff also attaches to and makes a part of his return a copy of the information filed in the district court charging the petitioner with the same offense as that charged in the complaint.

The causa was heard upon the petition, which contains a copy of the complaint, and also1 a copy of the testimony given before the committing magistrate, and the sheriff’s retan.

The prosecution was instituted under the provisions of Sections 910 and 911 of the Penal Code, wMch read asi follows:

“Sec. 910. Extortion is the obtaining property from another with his consent induced by wrongful use of force or fear or under color of official right.
“Sec. 911. Eear, such as will constitute extortion, may be induced by a threat either (1) to do an unlawful injury to the person or property of the individual threatened, or (2) to any relative of his,' or member of his family. * * *”

Upon the hearing it was conceded by counsel for both parties that the entire,matter is to be determined by the interpretation given to Subdivision 1 of Section 911, supra.

Wbat is meant; by tbe; expression, “to do an unlawful injury to' tbe property of tbe individual threatened” ? If the employment of Stanesich, or bis right to. work, is ¡pfroperty within tbe meaning of tbe1 term as; used above, -then there w;as probable cause to' believe; the petitioner guilty of tbe crime charged against him; if it is not property within tbe meaning of that team, then no crime is charged, in the complaint or information, .and tbe petitioner is entitled to be discharged.

Section 7 of the Penal Code reads as follows: “7 * * *

The following words, [also] have in this Code tbe signification attached to them in this, section, unless otherwise apparent from tbe context: * * * 10. The word ‘property’ includes both real and personal property. • 11. Tbe words Teal property’ are co-extensive with lands, tenements' and hereditaments: 12. The words ‘personal property’ include money, goods, chattels, things in action, and evidences- of debt. * * *”

However lamentable it is that our lawmakers saw: fit to so circumscribe the meaning of the term “property,” or to- omit to include in Section 911 above a threat against one’s employment, it is; sufficient-for us to say they did so, and declare tbe law; as we find it, not as- we-might wish it to> be.

Applying tbe definition given in Section 7, supra, to the facts of this case, and it becomes quite apparent that the lawmakers never contemplated that the term “property” should be made to include manual labor, or the right of an employe to; work. While the right to pursue one’s lawful occupation untrammeled, save only by tbe law of the land, is recognized by our constitution- as one of the inalienable rights of man, the same as bis right to the free exercise of his religious profession, or his right to join a peaceable assembly for the commjon good, and to apply to those invested with the power of government for redress of grievance, it cannot be said to constitute property within the definition of that term as used above.

Neither can we look beyond our Code for a definition of the term, or extend the scope of the meaning given it by reference to> adjudicated cases, in other jurisdictions where the term “property” lias been lield to be comprehensive enough to- include one’s employment or right to work. Our Codes establish the law of this- state respecting' the subjects to which they relate.

It is ordered that the petitioner he discharged.


source: Caselaw Access Project

author: MB. COMMISSIONER CLAYBEBO Pee Cubiam,

license: Public Domain

text:
    BABCOCK, Respondent, v. MAXWELL, Appellant.
    (No. 1,672.)
    (Submitted October 13, 1903.
    Decided October 26, 1903.

      Pleading — Counterclaim — Replication — Necessity — Assignment for Benefit of Creditors — Rights of Assignee — Appeal ■ — Harmless Error.

    1. In an action for the conversion of lumber, an answer tbat defendant claimed the property as assignee for the creditors of the original owner, and that plaintiff never made any demand on defendant, but stood by, with knowledge of defendant’s claim, and allowed and induced defendant to sell the property as assignee, did not state a counterclaim.
    2. under Civil Code, Section 4521, providing that an assignee for the benefit of creditors is not to be regarded as a purchaser for value, and has no greater rights than his assignor has, in respect to things in action transferred by the assignment, the assignee cannot attack a previous transfer by the assignor as in fraud of creditors.
    3. under Laws of 1899, p. 152, requiring a replication to all new matter alleged in the answer, plaintiff may have judgment without a replication if the new matter states no defense, or only such as might have been raised under a general denial contained in the answer.
    4. A transfer by a debtor of property not accompanied by change of possession is not void as against the assignee for the benefit of the debtor’s creditors, under Civil Code, Section 4491, declaring such transfer void as against any one on whom the deb'tor’s estate “devolves” in trust for the benefit of others, as the estate does not “devolve” by such assignment, but is granted by it.
    5. That a verdict is contrary to instructions which were inapplicable is not ground for reversal.
    6. In an action for the conversion of lumber, defendant, having alleged that he claimed as assignee for the creditors of the original owner, could not interpose the defense that he was a creditor of the assignor.
    7. A verdict on conflicting evidence will not be disturbed on appeal.
    8. . In an action for the conversion of lumber, a witness for plaintiff testified that the lumber was turned over to him as plaintiff’s agent by the original owner, and, in testifying, stated that a memorandum he then held in his hand showed the total amount received by him, that the different amounts ' were figured thereon, and that it was a correct statement of the amount of pieces and sizes of lumber. HeZd, that any error in admitting the memorandum in evidence was harmless, since, if it had heen excluded, witness would have been entitled to refer to it, and state the amount of lumber turned over to him.

      Appeal from District Court, Gallatin County; F. E. Armstrong, Judge.

    ActioN by W. II. Babcock against IT. A. Maxwell. From a judgment for plaintiff, defendant appeals.
    Affirmed.

      Mr. John A. Luce, for Appellant.

      Mr. B. 8. Thresher, for Bespondent.
   MB. COMMISSIONER CLAYBEBO

prepared the opinion for tlie court.

Action for the alleged conversion of bomber. To plaintiff’s complaint, defendant filed an amended answer, denying generally all the allegations thereof. Tie then alleged as new matter, “by way of counterclaim,” as is stated in the answer, that defendant claimed' the property as assignee for the benefit of creditors. of the original owner; that the plaintiff never made any demand upon defendant; that plaintiff stood by, with knowledge of defendant’s claim, and allowed and induced defendant to sell the property as assignee; that, if there ever was- any purchase by plaintiff, the same was. in fraud of creditors, and void. All these matters arc alleged as one counterclaim,, although the answer setting them forth is divided into paragraphs which are severally numbered. No replication was filed to this amended answer.

The suit was instituted by the filing of a complaint in May, 1896. At the date of filing the original answer the statute only required a reply to a counterclaim. The first answer filed set up many of the facts pleaded in the amended answer, not by way of counterclaim,, but by way of “equitable defense.” The allegations of additional matter in the amended answer are of identically the same purport. Judgment on the pleadings was entered in the court below in favor of defendant on his first answer, but on appeal the supreme court reversed sueli judgment, and held that defendant, not having- pleaded the. facts as a counterclaim, was bound by the designation he had given the allegations ini his answer (i. e. an “equitable defense”), and that a. replication- was not necessary. (Babcock v. Maxwell, 21 Mont. 507, 54 Pac. 943.) The legislature at the session of 1899 amended the section of the statute relative to replications, and required, a replication to all new matters- alleged in the answer. (Laws of 1899, p. 142.) Subsequent to- the passage of this amendatory act, and on May 23, 1899, defendant filed an amended answer, and pleaded this new matter as a counterclaim. The new matter pleaded in the. amended answer is not sufficient to. constitute a counterclaim, under the rules, laid down on the former appeal. (Babcock v. Maxwell, 21 Mont. 507, 54 Pac. 943.)

Did the facts alleged as a counterclaim constitute a defense to- the cause of action ? The assignment set forth in the amended answer, under which the defendant claims^ was one made for the benefit of creditors, pursuant to the provisions of Section 4510 et seqCivil Code. By this instrument defendant became the owner only' of such property and1 rights- as the assignor had at the time the assignment was made. If the assignor, prior to- the execution thereof, had parted with any property or rights, by a transaction binding upon himself, the defendant was equally'bound thereby. He became merely the agent of the assignor for the purpose of distributing the property which passed to. him'-'by the assignment among the creditors of the assignor.

Section 4521, Civil Code, provides, “An assignee for the benefit of creditors is not to be regarded as a purchaser for value, and has no- greater rights- than his: assignor has^ in respect to things in action, transferred by the assignment.” The Supreme Court of California, in the case of First Nat'l Bank v. Menke, 128 Cal. 103, 60 Pac. 675, in considering Section 3460, Civil Code of California, which is identical with our Section 4521, above quoted, says.: “This section seems to- adopt the common-law rule, and under that rule the assignee could not assert any claim to the property which could not have been asserted by the assignor.” The assignee therefore “stands in the shoes” of the assignor, and cannot attack any previous transaction of the assignor, unless the assignor could have done so, and then only for the same causes.

Creditors’ rights to' maintain suits against the assignor to. set aside his previous transactions', on. the ground of fraud as against them, belong to them, and' not to the assignor, and he therefore cannot assign or transfer the same. An assignee does not become clothed, by virtue of an assignment, in the absence of a statute so. providing, with the'power or right to. question previous transfers of the assignor, on the ground of fraud as against creditors. The following authorities are conclusive on this proposition: Housel v. Cremer, 13 Neb. 298, 14 N. W. 398; Rumsey v. Town (C. C.), 20 Fed. 558; Estabrook v. Mes sersmith, 18 Wis. 551; Hawks v. Pritzlaff, 51 Wis. 160, 7 N. W. 303; Warner v. Jaffray, 96 N. T. 248, 48 Am. Rep. 616; Flower v. Cornish, 25 Minn. 473; Bouton v. Dement, 123 Ill. 142, 14 N. E. 62; Brown v. Deford, 83 Md. 297, 34 Atl. 788; Francisco v. Aguirre, 94 Cal. 180, 29 Pac. 495; First Nat’l Bank v. Menke, 128 Cal. 103, 60 Pac. 675.

It must be remembered that defendant only seeks, by the new matter alleged in the answer*, to interject the question as to whether the alleged transfer from Wilkinson to Babcock was fraudulent and void as to creditors. We have seen that he cannot raise any such question. Therefore the allegations amounted to nothing more in the case than mere waste paper, and the plaintiff might have admitted them all to be true, and yet be entitled to recover. Again, it appears that plaintiff alleged his title generally, and that defendant’s' answer contained a general denial. Under the-decisions of Gallick v. Bordeaux, 22 Mont. 470, 56 Pac. 961, and Kipp v. Silverman, 25 Mont. 296, 64 Pac. 884, the defendant could have given in evidence under such denial facts constituting any legal defense, and therefore the allegations of. the new matter in the answer, if by way of defense, would have been mere redundancy.

The defendant insists that, by Section 4491 of the Civil Code, any transfer by Wilkinson to Babcock, if “not accompanied by an immediate delivery, and followed by an actual and continued change óf possession of the things transferred,” is fraudulent and void as against Wilkinson’s creditors, and against any person, on whom his estate “devolved in trust for the benefit of others than himself.” His counsel insists that defendant is a person on whom the estate of Wilkinson “devolved in trust for the benefit of others than himself.” The Supreme Court of California has had the same question before it in the case of Francisco v. Aguirre, 94 Cal. 180, 29 Pac. 495, and First Nat’l Bank v. Menke; 128 Cal. 103, 60 Pac. 675, and, in our judgment, conclusively settled the matter adverse to defendant’s contentions. In Francisco v. Aguirre, supra, in construing the section of the California Civil Code which is identical with our Section 4491, the court says: “An estate is said to ‘devolve’ upon another when by operation of law, and without any voluntary act of the previous owner, it passes from one person to another; but it does not devolve from one person to another as the result of some positive act or agreement between them. The word is itself of intransitive signification, and does not include the i*esult of an act which is intended to produce a particular effect. It implies a result without the intervention of any voluntary actor. Instances of its appropriate use are fóund when speaking of the succession of estates, upon death, or upon a change of official incumbents,; also* in proceedings in bankruptcy or insolvency, where by' the act or operation of law the estate of the bankrupt devolves upon his, assignee.” In the case of First Nat'l Bank v. Menke, supra, the same court, in construing the section of the California Code identical with our Section 4490, says.: '“If the transfer in this case should bo held void as to appellant, it would have to be upon the ground that the estate of Menke has devolved upon him in trust for the benefit of creditors. The, estate of Menke was granted to appellant, and did not ‘devolve upon him.’ An estate ‘devolves’ upon another when by operation of law, and without any voluntary act of the previous owner, it piasses from one person to another.” We adopt these decisions as stating the proper construction of our Sections 4490 and 4491.

The court below, in its charge to the jury, gave instructions Nos. 6, 7, 8 and 9, applying the provisions of Section 4491 to the case^ and defendant now urges that the verdict is against these instructions. From the foregoing it will appear' that Section 4491 had no applicability to this case at all, and1 therefore it must follow that these instructions given by the court were-also inapplicable, and we do not feel that it is the duty of this court to reverse a case because the court below gave inapplicable instructions which were not followed by the jury.

Defendant, further claims that he was a creditor of Wilkinson. It is sufficient to* say in regard to thisi contention that he did not make his defense as a creditor of Wilkinson, and did not allege any facts1 in his answer tending to show such condition. lie based his entire defense, in so far, at least, as the new matter is concerned, upon the proposition that the alleged transfer by Wilkinson to Babcock was. fraudulent as. against creditors, and1 that he, as assignee for the benefit; of creditors, stood in their place, and could make that defense. Again, the only evidence that defendant was a creditor of Wilkinson is found in the assignment executed by' Wilkinson. This would not be sufficient proof to warrant a jury in finding him such creditor, and was not introduced for that purpose.

Defendant further urges that the evidence was. insufficient to' justify the verdict, in certain particulars.. The following rule has. been announced by this court upon questions of this character: “The credibility and weight to be given to the testimony of witnesses: is a question exclusively within the province of the jury, and the appellate court, in case of substantial conflict, has no power to disturb the findings thereon. This court cannot try. the case de novo, and thus invade the province of the trial court by passing upon disputed questions, of fact and the credibility of witnesses.” (Nelson v. Great Northern Ry. Co., 28 Mont. 297, 72 Pac. 642, citing numerous Montana cases;

It must be remembered tliat tbe princip|al question for trial before the court below was whether the plaintiff was the owner of the property. The record discloses that the plaintiff sold' to Wilkinson a certain sawmill, tools^ and appurtenances for the price of $3,000 ; that Wilkinson went into the possession of the mill, and that he had sawed prior to the 11th day of September, 1895, over 300,000 feet of lumber. The contract provided that, in case he failed to make payment of the purchase price in accordance with the terms of the! contract, the mill should revert to Babcock, who should be entitled to one-tliird of all the lumber sawed, as the reasonable rental of the mill. Wilkinson failed to pay for the mill according to the contract. On the 11th d'ay of September, 1895, Babcock sent one Howard, Stone to the mill to take possession of all the lumber then, on hand. Stone had been appointed Babcock’s agent by an indorsement on the original contract at the time it was executed. Stone testifies that he went to the mill, and that Wilkinson turned over to him, as Babcock’s agent, the lumber in question in this suit. This Wilkinson denies. So that upon the main point in issue there is a substantial conflict of testimony.

Counsel further alleges that the court erred in allowing Exhibit B to' be read to the jury. Exhibit B was merely a list of the property which witness Stone testified was turned over to him, as argent for Babcock, on the 11th day of September. Stone testified: “The memoranda I have in my hand shows the total amount I received1. [Plaintiff’s Exhibit B.] I do not know as the total amount is added up-. I think not. The different amounts are figured up here, I believe. This is a correct statement of the amount of pieces and sizes, of' lumber.” If it was error to admit this exhibit in evidence, it was without injury to defendant. The witness was on the stand, and, if the exhibit had been excluded, might properly have refreshed his memory, and given in detail the different pieces of lumber turned over, and the size of each piece. This would have only delayed the trial, without affecting the result, and we cannot reverse the case on such alleged error.

Tlier0 is no m¡erit in the otter errors assigned and argued. We therefore advise that the judgment and order appealed from be affirmed.

Pee Cubiam,

Por the reasons stated in the foregoing- opinion, the judgment and order appealed from are affirmed.

IVIe. Justice Holloway, being disqualified, takes no part in this decision.


author: ME. COMMISSIONER CLAYBEBG Pee CueiaM.

text:
    CONKLIN, Appellant, v. CULLEN, Respondent.
    (No. 1,657.)
    (Submitted October 9, 1903.
    Decided October 28, 1903.)

      Taxation — Delinquent Taxes — Statement of Gounty Treasurer —Sale—Redemption—Publication of Delinquent Tax List in Newspaper — Assessment of Taxes — Validity.
    1. An owner of land which had been sold for taxes was not entitled to relief from the tax deed merely because subsequent to the sale he requested the county treasurer to give him a statment of the laxes due on the premises, but without saying anything with reference to redeeming the land from any sale, and the treasurer failed to inform him of the tax sale.
    2. A contract between a county and a newspaper for the county printing, made pursuant to the statutes, is a direction to the county treasurer from the board of county commissioners, within Political Code, Section 3874, to publish the delinquent tax list in such newspaper.
    3. Political Code, Section 3874, requires the publication of the delinquent tax list once a week for three successive weeks. Section 3877 provides that the time of sale must not be less than 21 nor more than 28 days from the first publication. The notice of sale published with a delinquent tax list was published December 30, 1895, and January 6 and January 13, 1S96. The sale took place January 27, 1S90. 1-Iehh that the publication was for a sufficient time.
    4. The failure of the county clerk to make and file a duplicate assessment roll does not affect’the validity of the taxes assessed.
    5. One who pleads in a suit to obtain relief from a tax deed, a tender of the amount paid by a purchaser for his tax deed, cannot contest the validity of the tax for the nonpayment of which the premises were sola.

      Appeal from District'Gourt, Lewis and Glarhe County; Henry C. Smith, Judge.

      ActioN by S. L. Conklin against W. E. Cullen. Eroni a judgment for defendant, plaintiff appeals.
    Affirmed,

      Mr. Albert I. Loeb, for Appellant.
    Citing: Black on Tax Titles, Secs-. 362, 267; Blackwell on Tax Titles, 717, 398; Corning Town v. Davis, 44 Iowa, 628; Gould v. Sullivan, 20 L. B. A. 487; Price v. Mott, 5 Pa. St. 315; Eastman v. Linn, 26 Minn. 215 ; Blackwell v. First Nafl Bank, 63 Pac. 43; Early v. Doe, 16 How. 610; Roberts v. First NatT Bank, 79 N. W. 1051.)

      Messrs. Cullen, Day & Cullen, for Respondent.
   ME. COMMISSIONER CLAYBEBG

prepared tbe opinion for the court.

This is an action to obtain relief from a tax deed to lot 1, block 25, Hauser Addition to the city of Helena. The plaintiff alleges that his agent applied to the county treasurer in 1899 to redeem the lot from tax sale and pay all delinquent taxes thereon, and that the county treasurer’s office informed him that the taxes of 1896, 1897 and 1898 were all that were delinquent, giving the amounts due for taxes for those years; that as a matter of fact the taxes for 1895 had not been paid, and a sale of the lot had been made for the taxes of that year, and a certificate of sale had been given to. the defendant, Cullen; that, after the deed had been given by the county treasurer to. said Cullen, the plaintiff tendered to him $250 in gold, the amount, paid by him in purchasing said- lands^ together with interest, and also the amounts paid by him for taxes‘on the property subsequent to the year 1895. The defendant denied the allegations, of this complaint generally, except that the tax deed had been delivered to him, and that there had been tendered to him $250, which he admitted. The case was heard, and the court below entered a decree in favor of defendant, from which this appeal is taken. The appeal is from the judgment, and all the-record contains is the judgment roll.

.Counsel for appellant presents to tbis court three propositions which he insists are conclusive that the court erred. They are as follows: First, that it was the duty of the county treasurer’s office, upon inquiry, to state truthfully the condition of affairs-, and that, by the mistake of that office,,plaintiff was not informed of the fact that the property had been sold for taxes for the year 1895 ; second, that under the requirements of the'Political Code the county commissioners must designate the paper in which the delinquent tax notice and notice of sale must be published, and that the commissioners never made such designation, and, further, that the publication of the notice was not for a sufficient length of time; third, that a duplicate assessment book was. not made during* that year, and therefore the assessment was absolutely void', and no jurisdiction existed to sell the property. We shall discuss these propositions seriatim.

Was the appellant correct in his first contention? The decree entered contains findings of fact made by the court below upon the trial of the ease. These findings disclose that on January 1, 1899, the agent for plaintiff presented to the county treas*-urer’s office a written request for a statement of taxes due on the premises; that the deputy county treasurer after a, time wrote on the back of the written request that taxes were due upon the premises for 189G, 1891 and 1S98, giving the amounts. Nothing was said of the taxes of 1895. The court also found that the agent of plaintiff, when he made the above request/ did not say anything with reference to redeeming the projierty from any sale, and that such agent did not tender the county treasurer any money for paying the particular tax involved in the case, before the- property had been sold at tax sale.

Counsel for plaintiff, as to the first proposition, cites Black on Tax Titles, Sec. 862, where we find the law upon this subject laid down in the following language: “But when a party, in redeeming from a tax sale, claims to have- paid all charges* demanded by the officer, it must appear, in order that he may be relieved as to any not demanded, that the fault was with the treasurer exclusively. The party must have demanded a search for all sales, and not allowed the treasurer to believe that. a. particular sale only was inquired for. Indeed, we may lay it down as a general rule that the whole responsibility must be cast upon the officer, and the redemq¡tioner must. show his own hands to be entirely clear of any share in the misunderstanding’. * * lienee, if the officer exactly carries out the instructions of tlio owner, the latter has no ground for relief, although, through his own inadvertence, the result is entirely different from that which lie supposed he was about to accomplish.”

Counsel also cites Corning Town Co. v. Davis, 44 Iowa, 622. An examination of that case discloses the following state of facts: After a, tax sale the plaintiffs applied1 to the treasurer of the county in which the land was situated “to pay all taxes due or delinquent upon the property of plaintiffs there assessed, and to redeem! from, all tax sales that might have been made of such lands.” A long list of property ivas given the officers, for the purpose of allowing them to make a careful examination of the hooks of the county and ascertain delinquent taxes and tax sales. A sum of money deemed sufficient, was paid to the officers for the purpose of paying the taxes and redeeming from sales. An examination was made, certain taxes! were paid., and a sunn of money returned to plaintiffs with the report that no further amount was. due for taxes, or required to redeem the land. The treasurer and cleric assured the plaintiffs that all taxes were paid, and all lands redeemed from tax sales. Tha officers did not discover the sale under which defendant’s deed was made until the time for redemption had expired, and prior thereto made no. report to plaintiffs that such sale had been made. -The amount, of money they received from plaintiffs and repaid to them was sufficient to redeem' from the tax sale under which defendant claimed title. The Supreme Court of Iowa correctly decided the point in the following language: “The other point, that, as it was the duty of the treasurer and clerk to- impart correct information to the agent of plaintiffs, applying to them to redeem the lands from tax sales and to pay all delinquent, taxes thereon, he was justified in relying upon their representations, and their mistake, error or neg’ligence is sufficient ground to support the right of redemption after th© tax deed waa executed.” It is very apparent that the above authority is not in point in this case. Plaintiff’s! agent only asked the county treasurer for a “statement of taxes due” upon the property in question, andl made no inquiry as to whether the land had been sold for taxes previous to that time, and made no; attempt to redeem from any sales.

Counsel also cites in support of this proposition the case of Could v. Sullivan, 84 Wis. 659, 54 N. W. 1013, 36 Am. St. Rep. 955, 20 L. R. A. 487. An examination of that case disr closes that plaintiff gave the taxing officer a list of land upon which he desired to pay taxes for 1884. The officer received payment, and delivered a receipt for all lands in the list, except one description, and indorsed on the .receipt, as to that descripu tion, “Not on the roll.” The plaintiff paid all the taxes levied and assessed upon the other lands according to' the tax receipt. It afterwards turned out that the land, the description of which the county treasurer had informed plaintiff was not on the roll, had been assessed and eventually sold for taxes, and a deed therefor given. The court properly held that the plaintiff offered to pay all taxes assessed against him, and relied upon the information of the treasurer that no taxes were assessed against this particular parcel of land, and was therefore in the same position as though he had paid all the taxes, and might contest the deed. ' It is equally apparent that this authority is not in point in this case.

The correct doctrine, in 'our judgment, is. announced by the Supreme Court of Iowa in the case of Moore v. Hamlin, 38 Iowa, 482, citing Bolinger v. Henderson, 23 Iowa, 165, and Noble v. Bullis, 23 Iowa, 559, 92 Am. Dec. 442. The plaintiff testified: “Soon after I had bought the lot I.ascertained that Mr. Iiockwood had a tax title; on it. I went there to ascertain how the matter stood. After doing this I was told perhaps there might be some back taxes on it, on which I went toi the treasurer, Mr. Cobb, and asked him.' if there were any hack taxes upon the lot in question, He took down his book and looked through several years, and told' me there was no- back taxes on the lot; and, thinking I was getting* a warranty deed from this party, I thought from this time forward the land would be clear.” The land had been sold for taxes befóte plaintiff applied to the treasurer. The court say: “It does not appear that he made the slightest effort, before his purchase, to ascertain the condition of the title. When he applied to the treasurer he inquired after back taxes, and not after tax sales. Nor aught that appears', the statements made by the treasurer were in every respect true, for* the taxes of 1868 had been satisfied by sale^ and it does not appear that the taxes of any other year were unpaid. Nor does it appear that Morris went to the treasurer prepared to pay the taxes or redeem from tax sales, or with the purpose of doing so.” ■

The case of Lamb v. Irwin, 69 Pa. 436, is also. in point against the contention of plaintiff. The court usesi the following language: “Undoubtedly the failure to find the sale which was, overlooked must have been the fault of the treasurer exclusively, and therefore the party must have distinctly and clearly called his attention to the demand for a search for all sales. He must- not permit him to rest under the supposition that a particular sale only is. asked for in order to redeem.”.

Judge Cooley, in his work on Taxation (3d Ed., page 1049), says: “If by the mutual mistake of the officer and of the party the redemipjtion has failed, or if it is left in doubt whether the officer was. in fault at all, the case presents, no. other ground of equity than would exist in any case where, through inadvertence or misapprehension, the party has failed to. assert his right in due season; and he will be left by the law where his own negligence or inattention hasi placed him.”

We think these authorities conclusively settle the first proposition against plaintiff’s contention.

As to the designation of the newspaper in which the notice of sale was to be published, and the sufficiency of the time of publication: Section 38Y5 of the Political Code requires that tbe publication of the delinquent tax list “must be made once a week for three successive weeks in such newspaper published in the county as the board of county commissioners directs.” Although the statute requires the treasurer to: publish the delinquent tax list notice (Section 3874, Political Code), it. must be published in such newspaper as the board of county commissioners directs. This is a part- of the county printing, which, must be arranged for by the board. The findings disclose that at the time the notice in question was published there' was in existence a contract between the paper in which the notice was published and the county, made pursuant to the statutes of this state. This: contract being in existence- and binding upon the county commissioners, its execution may be treated as an absolute direction to the treasurer to publish the notice in that paper. The statute does not require the commissioners to designate a paper for publication, but to direct the publication to be made in a certain paper.

Plaintiff further insists that’ the ¡publication was not for a sufficient time. Section 387.7 of the Political Code provides: “The time of sale must not be less than than twenty-one nor more than twenty-eight days from the first publication, and the place must- be in front, of the county treasurer’s office.” The findings of the court are as follows.: “That notice was duly published under dates of December 30, 1895, January 6, 1896, and January 13, 1896, and that the sale took place January 27, 1896.” It thus appears that the publication was for three successive weeks, and that the time of sale was not less than twenty-one nor more than twenty-eight days from the first publication,' so that the plaintiff’s contention must be decided adversely to him.

Did the failure of the county clerk to prepare a duplicate assessment book for the year 1895 affect the validity of the tax in question ? Elven though the duplicate assessment roll should have been made and filed, the omission to do so- does not aid plaintiff’s contention in the least. The making and filing of the duplicate assessment roll have nothing whatever to do with the validity of taxes assessed. It is simply a copy of tbe original assessment roll as finally completed, made by tbe clerk for tbe (purpose of allowing binr to keep on file in bis office, for reference, tbe original assessment roll. Its omission was a mere irregularity. Besides, plaintiff: does not contest tbe validity of tbe tax by tbe allegations, of bis complaint, but pleads a tender of tbe amount paid by defendant for bis tax deed. We therefore do not consider or decide whether tbe provisions of the law of 1891 or tbe Political Code apply to this question.

Wo find no merit in appellant’s contentions, and. advise that tbe judgment, appealed from be affirmed.

Pee CueiaM.

For tbe reasons stated in the foregoing opinion, tbe judgment appealed from is affirmed.


author: ME. JUSTICE HOLLOWAY

text:
    BAIR, Respondent, v. STRUCK, Appellant.
    (No. 1,666.)
    (Submitted October 12, 1903.
    Decided November 2, 1903.)

      Animals — Quarantining for Inspection — Dipping Sheep — State Officers — Ministerial Acts — Quasi Judicial Acts — Negligence-Liability — Evidence—Offer of Proof.

    1. Political Code, Section 3034, provides that when the governor, by proclamation. Quarantines sheep for inspection, the deputy inspector must immediately inspect the same, under such section the proclamation was issued, providing that certain sheep imported into the state were liable to convey the disease known as “scab,” and ordering that on arrival in the state they should be quarantined and dipped by a deputy sheep inspector in some recognized and reliable dip known to be efficient in the cure, of “scab.” Held, that a deputy sheep inspector, in selecting and using a dip under such proclamation, acted ministerially, and not in a quasi judicial capacity, and was- therefore liable for damages arising from negligence.
    2. Where, in an action against a deputy sheep inspector for negligently dipping plaintiff’s sheep in an improper dip, plaintiff claimed that by reason thereof a large number of the sheep died, and others were so affected that they were worthless for breeding, an offer of proof that other ship were dipped in a similar mixture, under like circumstances, and that no “fatal” results ensued, was properly denied.

      3. when an offer of proof as a whole contains objectionable matter, no error can be predicated upon the ruling of the court in excluding it.

      Appeal from. District Court, Yellowstone County; C. II. Loud, Judge.

    AotioN by Charles Af. Bair against Henry Struck. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals.
    Affirmed.

      Mr. James R. Qoss, and Messrs. Nolan & Loeb, for Appellant.
    The appellant is a publics officer charged with the performance of a public duty for the public good. By express provision of law, it was made his duty to determine the proportion and mixture of materials used for dipping purpjoses. In determining these facts he acted in a quasi-judicial capacity. The proportion of the materials and the character of the materials to be employed in the preparation, depended, upon his judgment and discretion. The instrumentalities to> be employed were determined by the exercise of his judgment.. Acting, thus, he .did not assume responsibility for negligent conduct. Such responsibility could only attach where he acted intentionally, willfully and corruptly. (Am. & Eng. Ency. of Law, 2d Ed., Yol. 23, p. 16; Shearman & Bedfield on Negligence, 5th Ed., Sec. 310; Mechem on Public Officers, Sec. 638; Fath v, Koeppel, 12 Wis. 293; Raymond v. Fish, 51 Conn. 80; Downer v. Lent, 6 Oal. 94; Flmore v. Overton, 104 Ind. 548; Ballerina v. Mason, 83 Cal. 447; Forbes v. Board of Health, 9 So. Hep.. 862; Donahue v. Richards, 38 Ale. 379; Burton v. Fulton, 49 Pa. 155; Edwards v. Ferguson, 73 Alo. 686 ; State v. Hastings, 37 Neb. 96.)
    The court erred in excluding the evidence offered. (Burns v. Sennett, 99 Cal. 363; Standard Oil Go. v. Tierney, 92 Ky. 367; Rand v. Johns, 15 S. W. 200; Bridger v. Ashville & S. R. Co., 27 S. C. 456; Calhins v. Hartford, 33 Conn. 57; Fields v. Davis, 27 Kan. 400; Dougany. Champlain T. Co., 56 N. Y.l.)

      Mr. O. F. Goddard, and Mr. M. S. Gunn, for Respondent.
    Merely because a ministerial officer has. a discretion to exercise as to the methods and instrumentalities! to be employed in the discharge of a duty imperatively imposed upon him by law, he is not possessed of the immunity of' a judicial officer. (23 Am. & Elng\ Ehcy. of Law, 2d Ed. p. 377; Mecliem on Pub. Officers, Secs. 642, 653, 657, 664, 782; McGord v. High, 24 Iowa, 336; Hieles v. Dorn, 42 N. Y. 47; Hatcher v. Dunn, 66 N. W. 905; Cubit v. O’Dett, 51 Mich. 347; Johnston v. Dist. of Columbia, 118 IT. S. 19; Chicago v. Beben, 165 Ill. 371; Aaron v. Broiles, 64 Texas, 316; Olmsiead x. Dennis, 77 N. Y. 378.)
    Whenever a public officer delegated to exercise the police power of the state, through negligence or an error in judgment, exceeds the authority conferred by the statute, and injures or destroys property, he is a naked trespasser and liable to the injured party. (Pearson v. Zehr (HI.), 29 N. E'. 854; Miller v. Horton (Mass.), 26 N. E. 100; People v. Board of Health, 140 N. Y. 1; Newark, etc. Co. v. Hunt (N. J.), 12 Atl. 697; Markham x. Brown (Gu.), 92 Am. Dec. 73.)
    The.evidence offered was not competent. (Greenleaf on Evidence, Sec. 52; Medsker v. Pogue, 27 N. E. 432; Atkinson v. Transportation Co., 31 N. W. 164; Branch v. Libbey, 57 Am. Pep. 810; Clark v. Willett, 35 Cal. 534, 544; Burgess v. Ore Co. (Mass.), 42 N. E. 501; Lucia v. Meech (Vt.), 34 Atl. 695 ; Cleveland, etc. B. Co. v. Wynant, 5 Am. St. Pep: 644; Hudson v.,Chicago, etc. B. Co., 59 Iowa, 581; Parker v. Portland Pub. Co., 69 Me. 173; Mathews v. Cedar Bapids, 20 Am. St. Pep. 436.)
   ME. JUSTICE HOLLOWAY

delivered the opinion of the court.

This action was commenced by the plaintiff, Bair, to recover damages from the defendant for injury to personal property. The complaint alleges that in August, 1899, the plaintiff was the owner of 150 head of Merino bucks, which had lately been imported into- this state from the state of Oregon; that the defendant was deputy sheep, inspector for Yellowstone county, and as such took the sheep from the possession of the plaintiff, and subjected them to certain quarantine regulations ; that none of the sheep were diseased; that the defendant wrongfully and negligently prepared the materials; used for dipping the sheep, and put therein carbolic acid or other poisonous matters in such quantities that 69 head of said sheep were killed, and the remaining 81 so badly injured as to render them, unfit for breeding purposes, for which they were purchased. The prayer of the complaint was for $-2,100 damages.

The defendant admitted in his answer that he was deputy sheep inspector, and that as such he dipped the sheep- in question on August 20, 1899, and denied the; other material allegations of the complaint. By way of an affirmative defense the defendant alleged that the dipping of the sheep in question was done by him under and by virtue of a quarantine proclamation issued by the governor of Montana on April 15, 1899. The cause was tried to- a jury, which returned a verdict in favor of the plaintiff for $1,055.50, and from the judgment entered for the amount of the verdict and costs, and from an order denying the defendant a new trial, these appeals are taken.

In the appellant’s brief only two- propositions are argued: (1) Does the complaint state a cause of action? And (2) did' the court err in excluding a, certain offer of proof made by the defendant and in sustaining objections, to- certain questions asked the defendant?

It is earnestly contended that the complaint shows on its face- that in the discharge of his- duties the defendant acted as a quasi judicial officer, and therefore is not liable for damages arising from his negligence, and would only be liable for such damages- as, were occasioned by his, willful or wanton misconduct, and no such misconduct is alleged. Such portions of the Political Code as are applicable to the facts of this case read as follows:

“Sec. 3034. Whenever the governor, by proclamation, quarantines for inspection as provided in the next section any sheep brought into' Montana, the deputy inspector of the county in which such sheep may come, must immediately inspect the same, and if lie finds that they are infected with scab, or any other infectious disease, he must cause the same to- be held within a certain limit or place in¡ his said county, to be defined by him, until such disease has been eradicated, as provided in the next preceding section.
“Sec. 3035. Whenever the governor has' reason to .believe that any disease mentioned by this'article has' become epidemic in certain localities in any other state or territory, or that conditions exist that render sheep likely to convey disease, he must thereupon by proclamation, designate such localities and prohibit the importation from them of any sheep' into' this state except under such restrictions as he, after -consultation with the veterinary surgeon, may deem proper. * "

Acting under the authority of these sections, the governor of Montana, on April 15, 1899, issued a proclamation, the pertinent portions of which read as follows: “Whereas, I have reason to believe that conditions exist which render the class of sheep herein designated rams, or bucks, or stock sheep-, when brought into this state, liable to convey the disease known as 'scab/ it is hereby ordered that all rams-, or bucks, or stock sheep-, imported into the state of Montana, from any other state- or territory of the United States or foreign countries- whatsoever, must when shipped be loaded at point of starting into- properly disinfected car or cars, and shipped in such properly disinfected car or cars into this state, where, upon arrival at the state line of Montana, or the closest available point thereto where the sheep' are to- be unloaded to be driven to destination in the state, and before being turned upon the public domain or upon private premises, and all rams, bucks-, or stock sheep- driven into or through any portion of this state from any adjoining state or country, avoiding all "quarantine yards and areas, shall be held at such point or points as may be hereinafter designated and there, clipped under the supervision of the state vetenarian through the deputy sheep inspector' of the county into which the sheep are to remain, and said sheep shall be dipped in some recognized and reliable dip known to be efficient in the cure of scab, twice, the second dip* to occur within ten days or between ten and twelve days after the first dipping.”

Under the foregoing provisions it was made the duty of the governor to determine what sheep^ not themselves diseased, should be quarantined, and to> prescribe the quarantine regulations. In doing so he doubtless acted in a quasi judicial capacity, and, having once determined that fact, and having pre-' scribed such regulations in his proclamation, the only duty devolving upon the defendant was to carry such regulations into effect.

But it is contended that under the provisions of the governor’s proclamation — “said sheep' shall be dipped in some recognized and reliable dip* known to- be efficient in the cure of scab” —the defendant was called upon to exercise his judgment and discretion in determining the material to be used and the method of its. application, and in this he acted in a, quasi judicial capacity. -With this contention we cánnot agree. The law contemplates that only men who, by their skill and experience, are competent, shall be appointed such deputies, and invested with the duty of carrying into execution this police power of the state. The mere fact that such officers are called upon to: exercise some discretion or judgment in selecting materials to- be used and the manner of their use does not change the character of their acts from; ministerial to judicial or quasi judicial ones. E'xpterience teaches that, few, if any, ministerial officers are not called- upon to1 exercise some judgment or1 discretion in the performance of their official duties. But, if the contention of the appellant be sustained, the distinction between ministerial and quasi judicial acts is practically abolished.

As distinguishing between acts quasi judicial and acts ministerial in their character, the following 'definitions Ave think correctly state the laA?: “Quasi judicial functions are .those which, lie midway between, the judicial and ministerial ones. The lines separating them from: such as are thus on their two sides are necessarily indistinct; but, in general terms, when the law, in words or by implication, commits to any officer the duty of looking; into facts, and acting upon them, not in a Avav which it specifically directs, but after a discretion in its nature judicial, the function is termed quasi judicial.” (Mechem on Public Officers, Sec. 637; Bishop on Non-Contract Law, Secs. 785, 786.)

“Where a power rests in judgment or discretion, so that it is of a judicial nature or character, but does, not involve the exercise of the functions of a judge, or is conferred upon an officer other than a judicial officer, the expression used is generally 'quasi judicial.’ * * * The officer may not in strictness be a judge; still, if his powers, are discretionary, to be exerted or withheld according to his own view of what is necessary and proper, they are in their nature judicial.” (Throop on Public Officers, Secs. 533, 534.)

“A ministerial act may perhaps be defined to be one which a person performs in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to or the exercise of his oavia judgment upon the propriety of the act done.” (Throop on Public Officers, Sec. 537; Flournoy v. City of Jeffersonville, 17 Inch 169, 79 Am. Dec. 468; Pennington x. Streight, 54 Ind. 376.)

In the same line, a ministerial act has also been defined as an act performed in a prescribed manner, in obedience to the laAA" or the mandate of legal authority, AvithoxAt regard to, or the exercise of, the judgment of the individual upon the propriety of the acts being done.” (Mechem on Public Officers, Sec. 657.)

An act is not necessarily taken out of the class styled “ministerial” because the officer performing it is nevertheless Arested Avitli a discretion respecting the means or the method to be employed. Such is not the judgment or discretion AA’hicli is an essential element of judicial action. (McCord v. High, 24 Iowa, 336; Grider v. Tally, 77 Ala. 422, 54 Am. Rep. 65; Mechem. on Public; Officers, Sec. 658; Ency. Law, 2d. Ed. 377.) Tbe same doctrine is announced in Hicks v. Dorn, 42 N. Y. 47. In this case tbe plaintiff, Hicks, was tbe owner of a canal boat, and tbe defendant was tbe superintendent of repairs in charge of one section of tbe Erie canal. Along this canal was a. dry dock, into which plaintiff’s boat had been taken for' repairs. In May, 1865, there was a violent spring rain, which raised the water in the canal to’ such an extent that in some .peaces it ran over the banks, and it became necessary toi open the waste gates connected with- the dry dock to let off the surplus' water. The captain eommienced moving the boat into the canal, and when about half way through the gates in the canal, the water having run rapidly out of that compartment of the dry dock, the boat was left resting upon the sill of the lock gates, about one-half of the boat extending, into the canal and the other half into the dry dock. In order to> render the canal navigable, it became necessary to move the boat; and several methods for the accomplishment of this purpose were open to the superintendent, one of which was cutting upi and removing the boat so¡ as to close the gates, and this method he pursued as the most expeditious for accomplishing his purpose. An action having been brought against him by the owner of the boat, among other defenses set up was that in performing, his duties the defendant had acted in a quasi judicial capacity, and could not be held liable except for wanton misconduct on his part.

In disposing of the contention the court said: “It is claimed that the defendant, in determining to¡ remove this boat, and in the removal of it, had a judicial discretion to> exercise; and hence that he is not liable, in a civil action, for the manner in which he fexercised this discretion. I am unable to. see in what sense the defendant, as to this transaction, acted judicially. The law made it his duty to put this canal in repair, and it was not left to' his discretion to' determine whether be would discharge that duty or not. The law made it an imperative duty, and, if he had neglected to perform it, he would have been liable civilly for damages sustained by any person from liis neglect of duty. In the discharge of this duty, thus imperatively imposed upon him by law, he acted ministerially. It is true that he was bound to- exercise his discretion as to- the methods and instrumentalities to be employed, and this is true of all ministerial officers; and yet it has never been held that, merely because ministerial officers have a discretion to exercise, that gives them the immunity of judicial officers. In this case, then, the- defendant was bound to- discharge his ministerial duties in a prudent, careful manner, without infringing upon the rights of private individuals, or unnecessarily injuring them, and for an improper discharge of his duty the law makes him liable to the individual injured.”

The question involved in this controversy is not whether the policy adopted was wise, but whether a wrong was done in the details of its execution. Wc are of the opinion- that in the discharge of his duty the defendant acted in a ministerial capacity only.

Upon the trial the defendant in his own behalf made the folloAving offer of proof, which, under objection, was excluded: “We desire to show by this witness that no different character of dip is used in which to dip- Merino bucks as contradistin-guished from ewes or wethers; that the dip- in question is a staple in the'market for the purposes for which it is used, and is sold in the open market for such purposes, and sold under a certain specific name and brand; that before and after the month of August, 1899, the defendant, as deputy sheep inspector, used the same character of dip> so far as he could tell by brand and selling mark, in which to- dip sheep generally; that he used this dip- so- purchased in proportions such as were used in the instance of the Bair bucks, and that in the admixture of the same with water he substantially did. in those other cases as he did in this instancé; that the dipping of those other sheep- was in the vat in which the bucks in question were dipped; and that no fatal results followed from the dipping of those sheep- in substantially the same- manner and in the dip- made in the same proportions as was used in this instance.”

Afterwards tbe following questions were asked tbe witness, abd objections to t-liein were sustained: “Q. Was tbe dip' tbat was used in- tbe dipping of Mr. Bair’s sbeep tbe same dip- as was used in tbe dipping of those other sheepi?” “Q. You may state if tbe dip' and tbe water used in the dipping of these sbeep of Hilling’s and William Clinton’s just prior to tbe dipping of tbe Bair sbeep- were in tbe same relative proportions.”

Consideration of tbe offer of proof and of tbe questions referred to may be bad together, as they are treated as one error by tbe appellant in bis brief.

The evident purpose of tbe defendant was to show tbat be bad used tbe same material, mixed with water in tbe same proportion, in dipping other sheepi as in tbe case of tbe dipping of the sheep in question, and tbat no- serio-us or damaging results bad followed. If the offer of proof bad fairly presented this-matter, it would have been competent. It is contended by tbe respondent tbat tbe offer is- fatally defective in many respects; that tbe offer must show tbat the dipping’was done under like circumstances-, with like conditions prevailing as to the character of tbe sbeep, tbe conditions o-f tbe weather, and numerous other conditions to- which it is- not now necessary to- refer.

In our judgment, the offer was fatally defective in one particular at least. Assuming tbat tbe questions asked and tbe offer made fairly show that the other sheep' were dipped! in the same material, mixed in water in the same proportion, under like- circumstances and surroundings, still the offer only seeks to- show' that in tire other instances fatal results- did- not follow. In submitting this- offer counsel, in effect, stated to tbe court tbat they desired to- make this proof, and none other, with reference to that- particular subject. Tbe offer is made as a- whole-. It is not for tbe court to separate tbe admissible from the nonadmis-sible, and admit the one and rej ect tbe. other. If the offer as' a whole contains objectionable matter, no error can be predicated upon the ruling of the court- in excluding it. (Yoder v. Reynolds, 28 Mont. 183, 12 Pac. 417; Farleighv. Kelley, 28 Mont. 421, 72 Pac. 756.) The defect in tbe offer becomes very apparent when we consider the fact that the complaint in this instance alleges that G9 head of sheep1 were killed, and that the remaining 81 were so materially injured as to- render them unfit for breeding purposes. It may be that in the other instances no fatal results followed, but that such damage was caused as to render those sheep likewise of no value for the purpose for which they were kept; in other words, the offer is so pregnant with the admission that serious or damaging results may have followed that it could have no- evidentiary value; and in its exclusion we cannot say that the court committed error.

The judgment and order denying defendant a, new trial are affirmed.

Affirmed.


author: MIL COMMISSIONED POOPMAN Pee, Cueiam.

text:
    EMPIRE STATE MINING COMPANY, Appellant, v. MITCHELL, Executrix, Respondent.
    (No. 1,665.)
    (Submitted October 10, 1903.
    Decided November 2, 1903.)

      Executors and Administrators — Decedents’ Estates — Creditors’ Claims — Aff.dar.it.
    The provision of Code of Civil Procedure, Section 260+, that tile affidavit supporting- a claim against a. decedent’s estate, when made by another than claimant, shall set forth the reason why it is not made by claimant, is satisfied by an affidavit, made by one of claimant’s attorneys, stating that claimant is a corporation, and none of its officers except its said attorneys reside in the county.
    Mn. Justice Mii.buex dissenting.

      Appeal from District Court, Deer Lodge County; Frank IS. Woody, Judge.

    Action- by the Empire state Mining Company against Mary E. Mitchell, executrix of Armistead II. Mitchell, deceased. Judgment for defendant. Plaintiff appeals.
    Reversed.

      Messrs. Cullen, Day & Cullen, for Appellant.
    The authority of an attorney to make an affidavit for bis client is presumed, and neither offer nor proof of authority is necessary. (Miller v. Adams, 52 N. T. 4-09.)
    An affidavit which shows that the party making it is the agent, of the plaintiff is presumptively made in behalf of the plaintiff. (Smith v. Yiciorin, 56 N. W. 4Y; Seising Machine Go. v. Betting, 53 Mo. App. 360.)
    The failure of the defendant to require any further proof ivas a. waiver of the defect in those produced. (Shelton v. Berry, 19 Texas, 134, Y0 Ann Dec. 326, and cases cited in note.)
    The objection that the affidavit was taken before one of the attorneys as notary, is of no, force in this state, for the reason that that fact does not disqualify the notary. (Kuhland v. Sedg-u'ick, 1Y Cal. 123; Revis v. Cowell, 55 Cal. 588; Note to 95 Am. Dec. 3Y8; Code of Civil Procedure, Sec. 2604.)
    Section 2603, Code of Civil Procedure, requires the presentation of claims arising upon contracts^ and as this is a claim arising from tort, no presentation1 of it was necessary. (Hardin v. Sinclair, 4-Y Pac. 363.)

      Mr. T. J. Walsh, for Respondent.
    Nothing is sworn to in an affidavit. except what follows the word “says” or “deposes,” and the characterization of the affiant in language preceding these words is mere descripiio personae. (Steinbach v. Lease, 2Y Cal. 298; Bx parte Banls of Monroe, Y Hill, 1YY, 42 Am. Dec. 61; Cunningham v. Goelet, 4 Denio, Yl; Willis v. Lyman, 22 Texas, 268; People v. Sutherland, 81 N. Y. Y.)
    Whenever a- statute requires that an affidavit be made by a person occupying a. certain relation,, — as, for instance, the agent or attorney of another, or the publisher or1 ptrinter of a newspaper, the affidavit is fatally defective unless the existence of the relation, is sworn to' in the affidavit. (Steinbach v. Leese, 21 Cal. 298; Miller v. Railway Co., 58 Wis. 312; Hill v.
      Hoover, 5 Wis. 370; State r.. Board of Co. Coinrs, 5 Nevada, 320; Ex parte Shumivay, 4 Denio, 258; White v. ■ Miles, 11' How. Pr. 40; Wiley v. Aultman, 53 Wis. 560; Lanigan v. Worth-, 63 S. W. 62; Davis v. Huston, 54 Ind. 212; Kingsbury v. Borland, 31 N. W. 620; Bonnet v. Hope, 26 \rt. 685; Leo-poZd v. Silverman, 1 Mont. 266 ; Baker v. Power, 7 Mont. 326.)
    The statute permitting an attorney to verify a pleading under certain circumstances, is, limited to the particular matter of verifying pleadings. (Jolmsonv. Laughlin, 7 Ivan. 359; Boston v. Wright, 3 Ivan. 221.)
   MIL COMMISSIONED POOPMAN

prepared the opinion for the court.

This is an action for damages alleged to have been caused by the decedent, A. H. Mitchell, in wrongfully and forcibly taking from, the possession of plaintiff one quartz mill. Plaintiff filed a claim with the executrix, which was disallowed, a copy of which claim was attached to plaintiff’s complaint as a part thereof. Defendant filed a, general demurrer to the complaint, which Avas sustained, and', plaintiff refusing to amend his complaint, judgment Avas entered for the defendant for costs. Erom this judgment the plaintiff appeals.

The creditor’s claim filed against the estate is in the usual form of such claims, and states that the claimant is a foreign corporation. The name of the corporation appears in the body of the claim, and is signed thereto' as folloxvs,: “Empire State Mining Company, by Cullen Day & Cullen, Its Attorneys, Claimant.” The affidavit thereto, is the folloAving:

“State of Montana, County of Lewis and Clarke, — ss. E'. C. Day, one of the attorneys for the Empire State Mining Company, AA'hose foregoing claim is herexvith presented to the executrix of the last xvill and testament of the said deceased, being duly sworn, says: That the Empire State Mining Company is a corporation, and none of its officers except its said attorneys reside within the County of Lexvis and Clarke; State of Montana, xvherein its said attorneys reside, and that the amount
thereof, to-Avit: the sum of ten thousand dollars-, is justly due to said claimant; that no payments have been made thereon AA'hich are not credited, and that there are no- offsets to the same to the ImoAAdedge of said affiant. E. 0. Day.
“Subscribed and SAVorn toi before me this 13th day of Sepitem-bér, 1899. W. El Cullen, Jr., Notary Public in and for LeAAÜs and Clarke County, State of Montana. [Notarial Seal.]”

It is claimed by respondent that this affidavit is fatally defective. Section 2604, Code of Civil Procedure, provides that every claim Avhicli is due, Avhen presented to the executor or administrator, must be supported by the affidavit of the claimant, or some one in his behalf: (1) That the amount is justly due; (2)_ that no' payments have been, made thereon AA'liich are not credited; and (3) that there are no offsets to- the same to the knowledge of affiant. If the claim be not due AAThen presented, or be contingent, (4) the particulars of such claim must bo stated. When the affidavit is made by a person other than the claimant., he must set forth in the affidavit (5) the reason Avhy it is not made by the claimant. The oath may be taken before any officer authorized to administer oaths. The executor or administrator may also require satisfactory Amuchers or proofs-to be produced in support of the claim. Section 2609, Code of Civil Procedure, provides that Avlie-n a claim is presented to a judge for his alloAvance he may, in his discretion, examine the claimant and others on oath, and hear any legal evidence touching the validity of the claim.

This claim, if a claim at- all, Avas due Avhen presented, and Avas not contingent. The fourth requirement does not, therefore, apply. This affidaAdt complies directly Avith all the other specific requirements of the section, except the fifth, and Avh ether it meets this requirement must be gathered from the portion of the statement made by affiant under oath, omitting the recital preceding the Avord “says.” Under- a strict construction of this section, this omission AAnuld be fatal. It aauII be noticed that the section does not, in specific terms, require the relationship betAveen the affiant and the claimant to be stated. It is further proper to note that- tbe claimant Ire-rein is a corporation, which can act only through its officers and agents.

These sections of our Code were copied from the laws of California, and the supreme court of that state, in Griffith v. Lewin, 129 Cal. 596, 62 Pac. 172, says, with reference to the sufficiency of an affidavit to a creditor’s claim', “A substantial compliance with the statute is all that is required”; citing Hall v. Superior Court, 69 Cal. 79, 10 Pac. 257; Davis v. Browning, 91 Cal. 604, 27 Pac. 937; Warren v. McGill, 103 Cal. 155, 37 Pac. 141; Landis v. Woodman, 126 Cal. 455, 58 Pac. 857.

In In ra Estate of Swain, 67 Cal. 637, 8 Pac. 497, this language is- used: “The affidavits verifying these claims were irregular. Each was made by a person, other than the claimant, styling himself as ‘agent and attorney of the claimant.’ In one no reason is stated why the affidavit was not. made by the1 claimant. In neither does the affiant state that there were no payments or offsets to the claim, except what are credited, to his own knowledge; although it is stated that there were no payments or offsets against the claimant to' the knowledge of the claimants. These omissions, made the verifications, of the claims defective. * * * But, although neither of the claims was verified in all particulars as required by law, and the statement of each is not as clear as it might have been, we think each was substantially sufficient for presentation and allowance under the law.”

In Hanna v. Fisher, 95 Ind. 383, the court says: “The affidavit was made by Alfred Eisher, but it is not stated that he was the agent or attorney of the claimant, and it is insisted that it is, therefore, insufficient, and that the appellee is bound for all costs. The statute provides that the affidavit shall be filed by the claimant, his agent or attorney, but it does not provide that the relationship' of affiant shall be stated. The object of the statute is to secure a verification of the claim, and when the1 claim is, verified we do not feel satisfied that the failure to state in the affidavit that the person who made it was the agent or attorney of tire claimant should cast upon the latter the burden of costs.”

Respondent cites Cope v. Minnesota Type Foundry Co., 20 Mont. 67, 4-9 Pac. 387, and insists that the construction given the law relative to the affidavit to1 a chattel mortgage should govern in this case. The office to be performed by an instrument is proper to take into account in construing the law relating thereto. Chattel mortgages are. purely statutory. They had no existence at the common law, and are in derogation thereof. The law which provides for them also, provides that they are void as. to certain third persons, unless the prolpier affidavit is made thereto'. The affidavit gives vitality to the mortgage as to creditors and subsequent purchasers; and as to them it has, in effect, no existence.without the affidavit. A valid mortgage segregates the property of the mortgagor from the claims of all creditors except the mortgagee. Third persons cannot require vouchers or proofs to be produced, or examine the parties under oath.

Creditors’ claims against an estate are not in derogation of common law. They are not created by statute, but arise from the relations or business transactions, of the parties. They were valid subsisting claims prior to' the death of decedent. Their presentation, to the estate is only a procedure. The affidavit is only a verification. The administrator or executor may “require satisfactory vouchers or proofs to be produced in support of all the claims,.” The judge “may * * * examine the claimant and others on oath, and hear any legal evidence touching the validity of the claim.” As was stated in Landis v. Woodman, supra, “the administrator or executor may investigate to the lowest dregs the validity and honesty of all claims.”

It is apparent from the affidavit itself that affiant did not verify this claim in his own behalf. We think it also apparent that the verification was made in behalf of the claimant corporation for the reason that the officers of the corporation were absent.

While this affidavit is not a model to be recommended, yet under the liberal construction given to' this law, taking into account the purpose to be subserved by the affidavit, we conclude that the affidavit 1x> this claim, under all the circumstances, sufficiently complies with the law.

It is further claimed by appellant that, this being a demand arising out of tort, it is not necessary that any claim be filed with the executor prior to the bringing of suit; but, inasmuch as the claim filed sufficiently complies with the law, it is unnecessary to consider this question.

■We recommend that the judgment in this cause be reversed.

Pee, Cueiam.

Por the reasons stated in the foregoing opinion, the judgment appealed from is reversed, and the cause remanded.

Me. Justicie MtdbueN dissenting.


author: ME. CHIEF JUSTICE! BEANTLY,

text:
    DAVIDSON, Respondent, v. WAMPLER et al., Appellants.
    (No. 1,675.)
    (Submitted October 14, 1903.
    Decided November 4, 1903.)

      Guardian and Ward — Power of Guardian to Contract Debts for Ward — Mortgage of Ward’s Beal Estate — District Courts ■ — Probate Jurisdiction — Void Judgments — Curative Statutes — A.ppeal—Transcñpt—Clerk’s Certificate — Mortgages.
    1. under Code of Civil Procedure, Section 1739, requiring a certificate of the clerk attached to the transcript that the undertaking on appeal has been properly filed, a certificate of the clerk omitting the word “properly” and inserting the date of the filing of the undertaking is sufficient, it appearing the undertaking has been filed in time.
    2. under the Territorial Organic Act (Act Cong. May 26, 1864, c. 95, 13 Stat. 85), providing that the powers of probate courts shall be limited by law, and tbe Probate Practice Act (Comp. St. 1887, div. 2), enacted pursuant <40 the authority conferred, and fixing the powers of probate courts, such courts possessed no powers other than those expressly conferred.

      5. upon the adoption of the state constitution, the district courts, — when sitting in probate matters, acquired only such probate jurisdiction as was possessed by the territorial probate courts.
    4. A guardian has no power to contract debts binding upon his ward personally.
    5. District courts, sitting as probate courts, have no power to authorize a guardian.to mortgage the land of his war'd, to secure a debt contracted to perfect title thereto.
    G. Session Law's 1899, p. 145, authorizing the disregard of certain irregularities in sales by guardians, does not apply to a mortgage by a guardian of his W'ard’s land grren to secure debts contracted for the perfecting of the ward’s title to the same.
    7. No act of the legislature can give life and force to a judgment void for want of jurisdiction at the time of its rendition.
    S. In Montana, a mortgage possesses none of the characteristics of a sale; it is a mere lien, fixed upon property by contract of the parties, to secure the payment of a particular obligation, or the performance of a particular act.

      Appeal from District Court, Beaverhead County; M. H. Par-leer, Judge.

    ActioN by Milton L. Davidson against Reese B. Wampler and others. From a judgment for plaintiff, and an order denying a. motion for a new trial, defendants appeal.
    Reversed.
    STATEMENT OE THE CASE.
    Action by tlie plaintiff to foreclose a mortgage upon certain real estate situate in Beaverhead county. The court entered judgment in accordance with the prayer of the complaint. Defendants have appealed from the judgment and from an order denying a new trial.
    The facts necessary to an understanding of the controversy are the following: Some time prior to March 20, 18S6, John B. Wampler died intestate in Beaverhead county, leaving surviving him, his widow, Minnie A. Wampler, and two minor children, May and Walter Wampler. On March 20, 1886, the said Minnie A. Wampler was, by the probate court of Beaverhead county, duly appointed guardian of the minor children, and, after qualifying, acted in that capacity until her death. At the time of his death, John B. Wampler was the owner of the equitable title to certain lands in. Beaverhead county by virtue of desert land and pre-emption entries thereof under the laws of the United States. To secure the legal title thereto for the benefit of the estate, it was necessary thát final proof of a compliance with the law be made. In order for the guardian to be able to do this* it was necessary that she should make certain expenditures upon the lands in irrigating, cultivating and reclaiming' them. She therefore arranged with the plaintiff for a loan of $1,200, to be repaid within thirty days, upon an express stipulation that, in case of default in payment, she would obtain an order from the probate court permitting her to mortgage the lands to secure the loan. If the mortgage should be authorized by the court,’ the loan was to be repaid in three years at 12 per centum per annum, it being the purpose of the guardian to secure in the meantime patents from the United States government. The patents- were issued, but the loan was not repaid. Tliereupqn, in order to carry out her agreement, the guardian applied to the district court for authority to' execute the mortgage. The court, after notice, granted the order on November 26, 1890, and the guardian was, by its terms, authorized “to execute in her representative capacity a mortgage” upon all the lands to which she had secured patent. She thereafter, on May 8, 1891, executed to the plaintiff her promissory note' “to the use and benefit of May and Walter Wampler, minors,” for the entire sum of $1,200, due in three years, at the agreed rate of interest, and to secure its payment executed a mortgage upon the interests of the minors only. It appears that the money thus secured was expended for the benefit of the estate generally, the guardian being entitled in her own right to a one-third interest therein under the laws of succession, and each of the minors to a like interest. After the death of Minnie A. Wam-pler, Meese B. Wampler was- appointed guardian of the minors, and was. acting as such at the commencement of this action. He appeared' and made defense for the minors. The district court directed in its decree a sale of the entire tract of land, and authorized the docketing of a judgment against the. minors personally for any deficiency found to exist after appropriating the proceeds of the sale to the payment of the debt and the expenses of foreclosure. Presumably the decree embraced all the land upon the theory that the minors became owners of the one-third interest of their mother at her death under the law of succession, the complaint containing an allegation that such was the fact.

      Mr. Henry A. Melton, and Messrs. Pemberton, & Maury, for Appellants.
    A mortgage is a sale upon condition. (Battle v. Torrey, 65 N. T. 297; Atkins v. Kvnnan, 20 Wend. 241; Sharp v. ppier, 4 Hill, 76.)
    Every requisite of the statute having semblance of benefit to an infant, must b„e strictly complied with, or title will not pass, or be incumbered. (Atkins v. Kvnnan, supra; Sharp v. Spier, supra; Striker v. Kelly, 2 "Denio-, 323 ; Battle v. Torrey, supra; Stillwell v. Swartout, 81 N. T. 109; Ency. PI. & Pr. Yol. 10, p. 739, and cases there cited.)
    The respondent was charged with notice of all matters and defects appearing in the record of these proceedings to mortgage. (Nleber on Void Judicial Sales, Par. 464; Roberts v. Hughes, SI Ill. 130, 25 Am. Pep. 270.)
    A court, whether its jurisdiction be limited or general, lias no power to order a ward’s lands to be mortgaged, to. pay what appears on the face of the petition to mortgage, to be not the debt of the ward, but the debt of the guardian. (Waoren v. Union Bank, 157 N. Y. 259, 43 L. E. A. 256, and cases cited.)
    Enough facts must be alleged to bring the case within the statute, or else the court will have no power to make the order of sale. (Kleber on Yoid Judicial Sales, Par. 230, and cases there cited; A thins v. Kinnan, supra.)
    A guardian has no power to make a contract binding upon a ward or his property, however proper and beneficial the contract may be. Contracts made by him impose a personal liability upon himself, and his protection from loss lies in his right to charge the expenditures, if proper, to the ward’s estate, in his accounts. (Andrews v. Blazzard, 63 Pac. 888; Am. & Eng. Ency. of Law, 2d Ed. Yol. 15, p. 70, and cases there cited.)

      No deficiency decree can be taken on a bond and mortgage given by a guardian. (Wood v. Truax, 39 Mich. 628.)
    The legislature has no power to validate, by retroactive legislation, a judicial sale of real estate which' was void for want of jurisdiction in the court to make it; at least not without a provision for compensating the owners of the property. (Roche x.' Waters■, 72 Md. 264, 7 L. E. A. 533; In re Christiansens Estate, 41 L. E. A. 504; Freeman on Void Judicial Sales, Par. 58 ; Constitution of Montana, Art. V, Sec. 26; Art. Ill, Sec. 27.)

      Mr. John Q. Willis, for Eespondent.
    Cited: Northwestern Loan Go. v. Smith, 15 Mont. 101; Jackson v. Talbot, 21 Ch. Div. 786.
   ME. CHIEF JUSTICE! BEANTLY,

after stating the case, delivered the opinion of the court.

Suggestion was made at the hearing that this court has no jurisdiction of this appeal, because it does not appear from the certificate of the clerk attached to the- transcript that the undertaking on appeal has been “properly” filed as required by Section 1739 of the Code of Civil Procedure, and a motion was made to dismiss the appeal on that ground. The word “properly” is omitted from the certificate, and in lieu thereof is inserted the date of the filing of the undertaking. The term, as used in the statute, has reference to the time of the filing of the undertaking; and if it appears by fair1 intendment from the wording of the certificate, or by a comparison of the date of its filing with that of the filing of the notice of appeal, that the undertaking has. been filed in time, this is sufficient. In this case the notice was served and filed on April 12, 1901. The certificate states that the notice was filed on the same day. In other respects the certificate conforms to the requirements of the statute. The motion to dismiss must, therefore,.be overruled.

Many questions are raised and discussed in the briefs of counsel up,on the merits of this appeal. We shall notice but one of tliem, as we deem it the fundamental question involved, and a correct solution of it conclusive against tlie decree of the district court.

Counsel for1 defendant challenge tlie validity of the: note and mortgage on tlie ground that a probate court had no power to authorize the guardian to incumber the estate at all; hence, the note and mortgage executed under authority granted by the order are void, and furnish no foundation for thei decree. At the time the order was made and the note and mortgage were executed, jurisdiction of all matters of probate and. of the administration and control of estates of minors, was vested in the district courts of the respective counties of the state, such jurisdiction having been transferred, under the Constitution, to these courts from the probate courts1 established under the Acts of Congress creating the territory. (U. S. Stat. Vol. 13, page 85; Id. Vol. 14, page 426; Constitution, Art. VIII, Sec. 11, and Schedule, Sec. 4.) It was provided in the former of these Acts 'that the powers of the probate courts should be limited by law. Under this charter, commonly known as the “Organic Act,” the legislature of the territory was authorized to enact laws defining and limiting the powers of these courts, or granting them additional powers, so long as these laws did not conflict with the express provisions of the Organic! Act itself and the Constitution and General Laws of the United States. (Ferris v. Higley, 87 U. S. 375 (20 Wall.), 22 L. Ed. 383.) In pursuance of the authority so conferred, the legislature of the territory enacted the Probate Practice Act, which was. in force at the time the order in question was made. (Comp. St. 1887, Second Division.) These provisions of lawi were regarded by the supreme court of the territory as limitations1 upon the powers of probate courts, and that court declared the rule to be that probate courts were courts of special and limited jurisdiction, possessing no powers other than those expressly conferred by statute. In other words, the Acts of Congress and the Legislature in pursuance thereof were the only authority under which those courts could proceed, and, if the particular power sought to be invoiced was not therein granted, tlie court could not proceed. This is the effect of the decision in Chadwick v. Chadwick, 6 Mont. 566, 13 Pac. 385, and the rule thus established is recognized distinctly in the subsequent cases of In re Higgins' Estate, 15 Mont. 502, 39 Pac. 506, 28 L. R. A. 116, State ex rel. Bartlett v. District Court, 18 Mont. 481, 46 Pac. 259, and State ex rel. Shields v. District Court, 24 Mont. 1, 60 Pac. 489. These latter cases also recognize the rule that when, under the Constitution, the jurisdiction of these courts was transferred to the district courts, it was not enlarged, but it was the same as theretofore, though exercised by courts of general jurisdiction. If, therefore, there Avas no* authority conferred by the statute to grant the order under whioh the note and mortgage were executed, they are rnid, and the decree cannot stand; for, independently of authority granted by a court of competent jurisdiction, a guardian has no porver to incumber the estate of his AA-ard, or to bind the ward personally upon any undertaking entered into in the Avard’s behalf. (Wood v. Truax, 39 Mich. 629; Trutch v. Bunnell, 11 Ore. 58, 4 Pac. 588, 50 Am. Rep. 456 ; Hunt x. Maldonado, 89 Cal. 636, 27 Pac. 56; Fish v. McCarthy, 96 Cal. 484, 31 Pac. 529, 31 Am. St. Rep. 237; 15 Am. & Eng. Ency. Law, 2d Ed. 70.)

We must, therefore, look to the Probate Practice Act in force at the date, of the order to determine what power the court had in the premises. Under this Act the court hadi ample p|OAArer to order a sale of the Avard’s estate upon application of the guardian, when the necessary jurisdictional facts were made to appear, for the purpose of raising funds to pay debts or to support and educate the Avard. (Comp. St. 1887, Second Division, Secs. 367, 369, 370, 376, el seq.) But nowhere do we find any provision granting the power, either in terms -or by implication, authorizing the incumbrance of the property or the incurring of debts for the benefit of the Avard for any pur!plose.' It must fol-1oa\t, therefore, that the decree of the district court was. AAdiolly unauthorized. •

But counsel for respondent say that the statute conferred upon tbe court power to authorize a sale; that a mortgage is only a conditional sale; and that, it appearing that the proceedings were regular, and ‘manifestly to' the benefit of the estate, of the wards, it should be sustained. Counsel overlook the wide distinction which exists under our system between a sale and a mortgage. Under the statutes of the territory and of the state, a mortgage has never possessed any of the characteristics of a sale. It has always been considered a mere lien,’ fixed upon property by contract of the parties', to secure the payment of a particular obligation ox the performance of a particular act. (Comp: St. 1887, First Division, Sec. 371; Gallatin County v. Beattie, 3 Mont. 173; Fee v. Swingly, 6 Mont. 596, 13 Pac. 375; First Nat’l Bank v. Bell S. & C. Mining Co., 8 Mont. 32, 19 Pac. 403; State ex rel. T. C. Savings Bank v. Gilliam, 18 Mont. 94, 44 Pac. 394, 45 Pac. 661, 33 L. R. A. 556; Bennett Brothers Co. v. Tam, 24 Mont. 457, 62 Pac: 780; Holland v. Board of Commissioners of Silver Bow County, 15 Mont. 460, 39 Pac. 575, 27 L. R. A. 797; Civil Code, Sec. 3810.) Title does not pass under it. A sale passes title to the property. The power of the probate court to authorize the guardian to sell the property of his ward, is1 virtually a power in the court to sell and pass title, while the power to fix a lien upon the property and authorize a sale of it by the sheriff through foreclosure proceedings in the district court would' be a wholly different power. Furthermore, the latter power would also* imply power to authorize the guardian to enter into' contracts binding the ward personally, for a mortgage to secure a debt presupposes the existence of a debt. The guardian may not contract debts for his ward. Debts contracted by him in the course of his administration are binding upon him personally, and the only method by which he may be reimbursed is upon a proper showing to the court to be allowed credit for them in his accounts, to be paid as other debts due from the trust estate, by payment out of the fund© of the estate in the hands of the guardian or by a sale of the property. (Comp. St. 1887, Second Division, Sec. 367.)

Counsel also, cite the case of Northwestern Guaranty Loan Co. v. Smith, 15 Mont. 101, 38 Pac. 224, 48 Am. St. Rep. 662, in support of tbe decree, and contend' that this court has declared the mortgaging of a. property by a guardian as equivalent to a sale, and that the power of the court to authorize the one, in the light of other provisions: (Section 422) requiring the guardian to safely keep| the property and deliver it to the ward upon the expiration of the trust, implies the power to authorize an incumbrance of it for this purpose. The facts of that case were peculiar. There the property was deeded to the ward after it had been incumbered. The mortgage was over due, and was about to be foreclosed. The probate court granted an order authorizing the guardian to obtain a renewal of the debt for a term of three years at á lower rate of interest, and to secure it by a mortgage. By this transaction no> new debt or encumbrance was created. It was the exchanging of one creditor for another' in an effort to preserve the estate. Under these circumstances this court was of the opinion that the general rule against the mortgaging of the ward’s estate did not apply, and that the mortgage should be upheld. The decision is, no doubt, justified by the general principles of justice and equity under the circumstances of the case; but we do not think the principle underlying it should extend to' cases not substantially identical, especially since the manifest policy of the statute is that> if there are debts properly chargeable against the estate, a portion of the property should be sold in order to raise funds to pay them, and not that the whole of it should be hypothecated, and thus put in peril of loss by foreclosure proceedings.

Counsel cite the Act of the legislative assembly of 1899 (Sess. Laws 1899, p. 145), and contend that, though the order of the district court authorizing the action of the guardian was void, yet under this provision the proceeding wias cured, and that for this reason the decree should stand. The third section of this Act declares: “Sec. 3. All sales by executors and' administrators of their decedent’s real and personal property, and all sales by guardians of their wards’ real and personal property in this state to purchasers for a valuable consideration, which has been paid by such purchasers to such executors or administrators or guardians of [or] their successors in good faith, and such sales shall not have been set aside by the district or probate court, shall be sufficient to sustain an executor’s or administrator’s or guardian’s deed or conveyance to such purchaser for such real or personal property; and in case such deed or conveyance shall not have been given shall entitle such purchaser to such deed or conveyance and the same shall be sufficient to convey to such purchaser all the title that such decedent or ward had in said real or personal property; and all irregularities in obtaining the order of the court-for such sale, and all irregularities in making or conducting the same by such executor, administrator or guardian, shall be disregarded.”

It is manifest that the contention of counsel has no merit for two- reasons: The Act does not in terms cover such a transaction as the one under consideration. It refers to sales by guardians, and not to mortgages, nor sales effected through foreclosure proceedings. As we have already seen, the power to sell does not include the power to mortgage. Furthermore, these curative Acts cannot be held to ap.ply to- proceedings which were, under' the law at the time at which they took place, wholly void. A judgment or decree which is void for want of jurisdiction at the time of its rendition is void for all time, and no Act of the legislature can give it life or force. It is-, in effect, no judgment. No> rights can be acquired under it. All acts performed under its authority and all claims founded upon it are void. A purchaser under it obtains no title, and in attempting to- assert a-claim under it findis himself without redress. (1 Freeman on Judgments, Secs. 117, 120; In the Matter of Christiansen, 17 Utah, 4l2, 53 Pac. 1003, 41 L. R. A. 504, 70 Am. St. Rep. 794; Freeman on Void Judicial Sales, Sec. 58.)

If the Act is to- be construed as applicable to the order of the court in question, then it must be regarded as an attempt on the part of the legislature to- give life to that which had no life; and by the exercise of judicial power to render a decree the effect of which would be to-take the property of the minors and subject it to the claims of another without due process of law.

The motion to dismiss the appeal is denied'. The decree is reversed and the cause is remanded to thei district court, with directions to dismiss the action and enter judgment for the defendants for their costs.

Reversed and remanded.


author: ■ ME. COMMISSIONER CLAYBEEG Pee, Cueiam.

text:
    POWELL, Appellant, v. MAY et al., Respondents.
    (No. 1,683.)
    (Submitted October 16, 1903.
    Decided November 4, 1903.)

      Appeal — Record, on Appeal ■ — ■ Judgment Roll — New Trial— Denial — Statement—Certificate—Appeal from Order Denying a New Trial — Time—Dismissal.
    1. Under Code of Civil Procedure, Section 1196, a statement on motion for a new trial is no part of tlie judgment roll.
    2. Where the statement on motion for a new trial is not certified by the clerk of the trial court to be a correct copy of the original, it cannot be considered on an appeal from an order denying the motion for a new trial.
    3. Where the record discloses that more than sixty days had elapsed from the entry of the order overruling a motion for a new trial to the giving of the notice of appeal therefrom, such attempted appeal will be dismissed.

      Appeal from District Court, Ravalli County; F. II. Woody, Judge.

    ActioN by Pees. Powell against Albert May and others. Erom a decree in favor of defendants, and from an order denying a new trial, plaintiff appeals.
    Affirmed.

      Rees Powell, in propria persona.

   ME. COMMISSIONER CLAYBEEG

prepared the opinion for the court.

This is an appeal from a decree settling certain water rights, and from ata order overruling' appellant’® motion for a new trial.

In appellant’s brief we find tbe following' statement: “The only question presented for considleration by the record is the sufficiency of the evidence to sustain the findings as made. There is no question of law presented for consideration.” The evidence which appellant claims is insufficient is contained in what purports to be a statement on motion for a new trial, which is not in any way or manner certified to this court. The clerk’s certificate to the transcript is in the following language: “I, J. P. Cone, clerk of the district court of the Fourth judicial district of the state of Montana, in and for the county of Ravalli, do hereby certify that the transcript on appeal herewith submitted, wherein Rees Powell is appellant and Albert May et al. are respondents, to be a true, full and correct copy of the judgment roll in said action as it appears on file in my office.”

Section 1196, Code of Civil Procedure, pirovides that “the pleading's, a copy of the verdict of the jury, or finding of the court, or referee, all bills of exceptions taken and/filed, all orders, matters and proceedings deemed excepted to without bill of exceptions, and a copy of any order made on demurrer, or relating to a change of parties, and a copy of the judgment” constitute the judgment roll. The statement on motion for a new trial is therefore no part of the judgment roll at all.

Section 1738, Code of Civil Procedure, provides that “on an appeal from an order granting or refusing a newi trial, the appellant must furnish the court with a copy of the notice of appeal, of the order appealed from, and of the papers designated in Section 1176 of this Code.” Section 1176 provides: “The judgment roll, and the affidavits, or bill of exceptions or statement, as the case may be, used on the hearing, with a copy of the order made, shall constitute the record to be used' on appeal from the order granting or refusing a new trial.” Section 1739, Code of Civil Procedure, provides: “The copies provided in the last three sections must be certified to be correct by the clerk or the attorneys.”

The statement on motion for a new trial, not being certified to this court by the clerk of the coiirt below to be a correct copy of the original on file in said court, cannot be considered by this court, on this hearing. This leaves a record consisting only of the judgment roll, which contains no evidence at all. We therefore are unable to consider the point raised as to the sufficiency of the evidence.

Again, the. record discloses that the order overruling the motion for a new trial was made on the 3d day of December, 1900. Notice of appeal from this order was served on the 6th day of April, 1901. Appeals fromi orders granting or refusing new trials must be taken within sixty days from the date of the order appealed from. (Section 1723, Code of Civil Procedure, Laws of 1899, p. 147.) Inasmuch as more than sixty days had elapsed from the entry of the order to the giving notice of appeal, appellant’s appeal from the order refusing the motion for a new trial must stand dismissed.

The respondents in the case have not appeared in this court, and therefore we have considered it our .duty to investigate the record, and ascertain whether the case is properly before us for hearing.

No errors in law being charged or asserted, and the record presenting an appeal only from the judgment, we advise that the same be affirmed.

Pee, Cueiam.

For the reasons, stated in the foregoing opinion the judgment appealed from is affirmed.