text:
    A. M. HOLTER HARDWARE CO., Plaintiff, v. ONTARIO MINING CO., et al., Defendants. Continental Oil Co., Appellant. Merchants National Bank, et al., Respondents.
    [No. 1195.]
    [Submitted April 9, 1900.
    Decided May 14, 1900.]

      Mechanics’ Liens — Mining' Plant — Liendble Materials — Oil for Machinery.

    Illuminating oil, mica grease, lubricating oil, and gasoline for fuel used in a mining plant did not enhance tile value nor become part of the machinery, and hence were not iienable, within Code of Civil Procedure, Seo. 2130, providing that every person furnishing material for any machinery, fixture, or building, shall have a lien therefor.

      Appeal from District Court, Deer Lodge County/ Theo. BrantVy, Judge.

    Action by the A. M. Hotter Hardware Company against the Ontario Mining Company and others to enforce a mechanic’s lien. From a judgment denying a lien to defendant Continental Oil Company, it appeals.
    Affirmed.

      Mr. F. FT. McIntyre, for Appellant.
    We contend that the lubricating and illuminating oils and grease furnished in the account set out in our cross-complaint were necessary for the lighting of the mines and mill and running the machinery of said mill of the Ontario Mining Company in the working and developing of its mines, and this contention is fully sustained by the testimony of the witnesses. These articles are as clearly within the meaning of the Statute as anything we can conceive of as essential to the working of a mine. In the testimony of said witnesses they stated the illuminating oil (coal oil) was as necessary as candles for the lighting of The Ontario Mining Company’s mine and mill. Therefore we contend a lien will lie for it as well as candles, and that candles have been held to be a lienable material, we cite: Keystone Mining Co. v. Gallagher, 5 Colo. 27.

      Messrs. Me Connell <& Me Connell, for Respondents.
   PER CURIAM.

This action was brought to foreclose a material man’s lien against the defendant Ontario Mining Company; the Continental Oil Company, the appellant, being one of the defendants. This defendant sought to enforce a lien against the real property of the Ontario Mining Company for the price of sundry materials furnished to it between the 1st day of January, 1896, and the 16th day of June, 1896; the claim of lien having been filed on the 31st day of July, 1896. The supposed rights of the Continental Oil Company were contested by the Merchants’ National Bank and one Hershfield, claiming interests in the property of the mining company by virtue of attachments and executions against it. Upon trial the Continental Oil Company obtained ^a judgment against the mining company for the amount of its claim of $267.67, with interest, but only $22.68 of that amount, with interest from August 1, 1896, and attorney’s fees, was decreed to be a lien upon the real estate of the debtor. The court found that each month’s sales were separate and independent accounts, and that the appellant was not entitled to a lien for the value of any materials not furnished within 90 days next before the time when the statement of lien was filed, and that none of the articles are of a lienable nature, except the gasoline for fuel in the assay office in connection with the mill and concentrator. Some of the gasoline had been furnished more than 90 days before the statement of lien was filed. The appeal is from the order denying a new trial, and from so much of the judgment as fails to allow a lien for the whole account.

We find it unnecessary to determine whether or not the account in suit is made up of a series of independent contracts, or whether or not the purchases during each month constitute separate and independent accounts. The articles furnished for which a lien is claimed consist of coal oil for illuminating purposes, mica grease and oil for lubricating purposes, and gasoline used for fuel. We are satisfied that no one of these is of a lienable nature. Each is consumed in use; neither adding to the value, nor becoming parcel, of the property upon which it is used. Section 2130 of the Code of Civil Procedure does not, by any fair construction, include the materials for which a lien is sought to be enforced in the case at bar. The statute creating the right of the material man to acquire a lien is the outgrowth of the principle that he who furnishes that which becomes a constituent part of real property, and is intended to enhance its value, should be given security for the price or worth thereof. The doctrine is well stated by Mr. Justice Brewer in Central Trust Co. v. Texas & St. L. Ry. Co. (C. C.) 23 Fed. 703: “The language of the statute contains the word ‘fuel, ’ in addition to the words ‘labor and material;’ and it is claimed that the use of the word ‘fuel’ enlarges the meaning of the word ‘material, ’ and makes it broad enough to cover all supplies furnished. But for that word ‘fuel, ’ there would be no question. The idea which underlies these lien statutes is that because the labor and the material have gone into the building of the road or structure, and to that extent added to its value, therefore a lien for such labor and material should be given to him who does the one and furnishes the other. While we may be compelled to follow the language of the statute, and give for the fuel furnished a lien, yet I think in the construction of these statutes we should start from the underlying thought of giving security to him who adds to the value of the road, and that we should never carry the statute beyond that, unless imperatively demanded by the language used.” The Wisconsin statute provides that every person who furnishes any materials in or about the erection, construction, protection, or removal of any machinery which is or becomes a part of the freehold, shall have a lien for such materials. In Standard Oil Co. v. Lane, 75 Wis. 636, 44 N. W. 644, 7 L. R. A. 191, the court said: “The statute seems to go on the principle that materials used and labor performed on machinery, which enhance its value and become a part of such machinery, should be entitled to a lien. This appears to be the object of the statute. It is clear that it is not everything used in operating machinery, and which tends to preserve it, that is embraced within the meaning of the statute. Many things may serve to preserve machinery and make it operate more efficiently and easily, which do not protect it in the sense of the statute.” We affirm the doctrine announced in these cases, as based upon correct principle.

The judgment and order appealed from are affirmed.

Affirmed.

Mr. Chief Justice Brantly, being disqualified, takes no part in this decision.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    McGUIGAN, Appellant, v. HENNESSY, Respondent.
    [No. 1207.]
    [Submitted April 12, 1900.
    Decided May 22, 1900.]

      Deed — Description—Construction—Question for Jury.

    A deed of land described tlie tract conveyed as a lot situated in a certain town, country and state, “fronting 25 feet on” a certain road, “extending back east 120 feet, more or less, to the gulch, and lying about 25 or 30 feet south from the south side line” of a certain claim. Held, in a suit involving its construction, that the description was not so ambiguous as to authorize the submission of the case to the jury.

      Appeal from District Court, Silver Dow county; John Dindsay, Judge.

    Action by William McGuigan against John B. Hennessy. From a judgment for defendant, plaintiff appeals.
    Affirmed.

      Mr. John W. Cotter for Appellant.
    A motion for a non-suit having been sustained in this case, we invoke the rule established in this jurisdiction, “that all the facts that the evidence tends- to prove are proven, for the purpose of the motion.”, (Soyer v. Great Falls Water Co., 15 Mont., 1.)
    In this record the following facts are proven:
    First — That the United States of America conveyed to John E. Lloyd the ground in controversy, by a patent.
    Second — That Lloyd, by his deed of September 21st, 18.81, conveyed a lot of twenty-five feet on the main road from Butte to Walkerville, extending back east one hundred and twenty feet, more or less.
    Third — That Thomas went upon the ground and made improvements thereon upon a line corresponding with the north line of plaintiff’s property, as claimed in this action.
    Fourth — That Thomas conveyed to Youlten and others, and that the property finally came down by conveyance to Martin, and that, while Martin was in possession, Hennessy went upon the ground north of the ground claimed by plaintiff, and constructed some buildings, as shown on the plat, in conformity with the north side line as claimed by plaintiff.
    Fifth — That plaintiff and his predecessors in interest have been in continuous possession of the property, since 1881, up to the time of the trespass thereon by the defendant.
    Sixth — That Hennessy built in conformity with the line so claimed, and recognized the existence thereof some time prior to 1888 and up until June 5th, 1896.
    In the deed from Lloyd to Thomas, he describes a certain lot fronting twenty-five feet on the main road from Butte to Walkerville and extending back east one hundred and twenty feet, more or less, to the gulch, and lying about twenty-five or thirty feet south of the “Granger” Quartz Lode Claim. In plaintiff’s Exhibit “G,” it is shown that the main road or street runs directly north and south, and the word “east” being used, conveys a piece of ground twenty-five feet wide by one hundred and twenty feet, more or less, in length, at right angles with the main road, and not in a southeasterly direction. (Hoban v. Cable (Mich.), 60. N. W., 466.)
    The word ‘ ‘about’ ’ in the deed does not mean any precision of distance.. (2 Devlin on Deeds, Sec. 864, P. 154.)
    That is a sufficient description to convey a piece of. land twenty-five feet wide by one hundred and twenty feet, more or less, in length. (Ilarlcer v. Cain (Texas), 6 S. W., 637.)
    Where a description in a deed by metes and bounds conflicts with the plats of the property, the former description governs. {Waldin v. Smith (la.), 39 N. W., 82. Beombien v. Kellogg (Mich.), 37 N. W., 691, note.
    ‘ ‘East, ’ ’ as used in this deed, not being controlled or modified by any other language or any object, means due east. (2 Devlin on Deeds, Section 1035. Currier v. Kelson, 96 Cal., 505; 31 Pac., 531.)
    The evidence in the case shows that the parties gave the deed a practical construction, by the erection of improvements upon the ground in controversy, long prior to the time the controversy arose. The practical construction given this deed is significant, and entitled to the greatest consideration. (Raymond v. Wash, 57 Conn., 447; 18 Atl., 714. Stone v. Clark, 1 Mete., 378; 35 Am. Dec., 370, note. 2 Devlin on Deeds, Section 851, note 2.
    Where parties owning contiguous estates derive title from a common source, and a dispute arises as to the boundaries, the elder title must first be satisfied. (Keller v. Shelmire (La.), 7 Southern R., 587.)
    Where a deed contains, two descriptions, one general and the other specific, the grantee may rely on the one most beneficial to him. (Civil Code, Sec. 1473; Winter v. White, (Md.) 17 Atl. Rep. 84; Hager v. Sped, 52 Cal. 579, 582; Vance v. Fore et al., 24 Cal. 436; Silver Creek C. Co. v. U. L., etc., Co., 35 N. E. 125; 2 Devlin on Deeds, Sec. 848.)
    The words of a deed are taken most strongly against the party using them. (Douglass v. Lewis, 131 U. S. 75; L. Ed. 53; Homer v. Sohonfeld, 84 Ala. 313; 4 South Rep. 105.)
    In construing this deed, the court should have taken the starting point and measured twenty-five feet along the main road and extended parallel lines east from the two points to the gulch, and given the plaintiff a piece of ground twenty-five feet wide by one hundred and twenty feet, more or less, in length. (Warbel v. Knott, (Pa.) 18 Atl. Rep. 390.)
    The first clause of the deed, granting a parallelogram, is repugnant to the second clause of it, as construed by the court and defendant, inasmuch as, in the first clause the lines are to run east from the main road, while in the second clause, if defendant’s and the Court’s construction is correct, they should run southeasterly from the main road. If such repugnancy exists, which we do not admit, the first controls, and the ground is included within the plaintiff’s property. (Blair v. Muse, etal., (Ya.)2 S. E. Rep. 31, note.)
    Where there is repugnancy between a general and a particular clause in a deed, the latter will control. (Code Civ. Proc., Sec. 3413; 2 Devlin on Deeds, Sec. 1039; WhartonY.

      Brick et al., (N. J.) 8 Atl. Eep. 529; Carters. Chevalier, (Ala.) 19 South Eep. 798; Silver Creek C. Co. v. TI. L., etc., Co., 35 N. E. 125.)
    The witness Pennington, a surveyor, testified that he found the lot by the descriptions given in the deeds. Where the description is sufficient to enable a surveyor to ascertain and locate the land, this is a full and sufficient description. (Black v. Pratt C. <& C. Co., (Ala.) 5 South Eep. 89, 93; Campbell v. Carruth et al., (Fla.) 3 South Eep. 132; 2 Devlin on Deeds, Sec. 1012.)
    Where adjoining owners erect buildings or improvements with reference to the supposed line, as in this case, this is a practical location of the boundary, more especially where it has been recognized as the true boundary for a great number of years, as in this case. (Ford v. Schlosser, 31 N. Y. S. 12.)
    Where coterminous proprietors agree upon a dividing line (as the evidence shows that Lloyd and Thomas did, in this case, agree upon the north line of the property in conflict, as established by Thomas), and if they afterwards follow up such agreement by the construction of a dividing fence, or other improvements, up to that line, as defendant did, and occupy the same to the fence or improvements, the possession is adverse, and they are estopped from afterwards disturbing it. (1 Am. and Eng. Ency. of Law, 2nd Ed., 793; 2 Devlin on Deeds, Sec. 1036; Silvarer v. Hanson et al., 17 Cal. 579; 7VhiteY. Spreckels, 75 Cal., 610; Helm v. Wilson, 76 Cal., 176.)

      Mr. Thompson Campbell, for Eespondent.
   PER CURIAM.

Action to recover possession of a piece of ground described in the complaint by metes and bounds, and for damages, rents and profits. Defendant denies that plaintiff is the owner of the ground in controversy, or any part thereof, and that without right or title he went upon any portion thereof or ousted or ejected plaintiff therefrom, or that he has withheld possession thereof, to plaintiff’s damage. Upon close of plaintiff’s evidence, defendant’s motion for a nonsuit was granted, and judgment ordered for defendant for costs. Plaintiff appeals.

Tbe main question in this case involved a construction of a certain description in an original deed of conveyance from one Lloyd to one Thomas. The tract was described as “a parcel or lot of land situate, lying, and being in the town of Center-ville, Silver Bow County, Montana territory, to wit: That certain lot fronting twenty-five feet on the main road from Butte City to Walkerville, extending • back east one hundred and twenty feet, more or less, to the gulch, and lying about twenty-five or thirty feet south from the south side line of the Granger quartz lode claim.” After considering the evidence of plaintiff, the court held that there was no such ambiguity ■in the description as authorized the submission of the case to the jury. We affirm the ruling as correct, deeming it unnecessary to'recite the facts.

Judgment and order affirmed. Affirmed.

       Note. — In sustaining the motion for a nonsuit, the trial court ruled as follows: “It occurs to me that there is no ambiguity In the description contained in the deed from Lloyd to Thomas. That it was the intention of the parties, the one to sell and the other to buy a lot of land embraced within a tract 25 feet in width by 120 feet, more or less, in depth. It can hardly be said, under the circumstances, that the word ‘east’ as contained in the conveyance aforesaid, restricts the defendant, as has been contended, to a plot less in area than that evidently transferred. I believe it to have been the intention of the grantor, as heretofore indicated, to sell a tract of land 25 feet fronting on Main street in Centerville, and extending back parallel with the southboundary line of the ‘Granger’ lode a distance of 120 feet, more or less. I do not believe that the fact that the de. fendant erected a building to conform to the north and south line of the said street in any way precludes him from claiming what manifestly he was entitled to by virtue of his deed.” — O. T. G.


author: MR. JUSTICE PIQOTT,

text:
    VINCENT, Respondent, v. VINEYARD et al., Appellants.
    [No. 1295.]
    [Submitted April 25, 1900.
    Decided May 22, 1900.]

      Homestead — Declaration■—■Excess of Value — Docketing Judgments — Mortgage of Homestead — Precedence of Mortgage— Judgments Hot Liens — Enforcement— Mortgaging Homestead— Waiver.

    1. Civil Code 1895, Sec. 1670,provides that the homestead consists of the dwelling house in which the claimant resides and the land on which such house is situated. Section 1693 declares that a homestead shall not exceed $2,500 in value. Section 1701 requires a declaration of homestead to contain a statement that the person making it resides on the premises, with a description, and an estimate of the actual cash value. Section 1703 provides that, where such declaration is filed for record, the premises described constitute a homestead. Held that, where a declaration of homestead was filed, the homestead attribute was impressed on all the property described in the declaration, although its value exceeded $2,500.
    2. Code of Civil Procedure 1895, See. 1197, provides that a judgment shall be a lien on all realty of the judgment debtor not exempt from the time that it is docketed. Civil Code 1895, Sec. 1674, declares that a homestead is subject to execution in satisfaction of judgments obtained before the declaration of the homestead is filed which constitute liens on the property, but that no judgment obtained prior to July 1, 1895, shall constitute a lien on such property. Held, that a judgment docketed in 1892 was not a lien on the homestead subject to execution under section 1674, whatever its value, hence a mortgage of the homestead given in 1895 took precedence to the 1892 judgment.
    3. Civil Code 1895, See. 1693, declares that a homestead shall not exceed $2,500 in value. Section 1674 provides that a homestead shall be subject to execution in satisfaction of judgment obtained before the declaration of homestead was filed, which constitutes a lien on the property’, but that judgments obtained prior to July 1, 1895, shall not constitute such liens. Section 1678 authorizes judgment creditors who have not liens under section 1674 to apply to the district court or a judge thereof for the appointment of appraisers. Held, that judgments not constituting liens could be enforced under section 1678, and that, after notice to the claimant, and a report of the appraisers that the value of the homestead exceeds $2,500, and that the property can be divided without material injury, the execution canbe enforced against such excess, but that, if the property cannot be divided, a sale will be ordered, and the execution paid from the excess over $2,500.
    4. Civil Code 1895, Sec. 3772, provides that one who has a lien on several things on which others have subordinate liens on some, but not all, of the same things, shall resort to payment, where possible, as therein provided. Section 1674 declares that a judgment obtained prior to July l, 1895, shall not constitute a lien on homestead property. Plaintiff’s assignor was given a note and mortgage on homestead property. The pro. perty was sold by execution sale under a judgment docketed in 1892, and the creditor was paid excess over the homestead exemption, and the exemption was paid in court. Held, in an action by plaintiff to recover of such creditor, that plaintiff would not be required to satisfy his mortgage debt out of the sum paid in court, as the mortgage operated solely as a waiver of the homestead exemption in favor of the mortgagee and his assigns, and did not inure to the benefit of other persons.

      Appeal from District Court, De&r' Lodge County; Theo. Drcmtly, Judge.

    Action by Peter Vincent against Gordon C. Vineyard and others to recover as assignor of a homestead mortgage. From a judgment in favor of the plaintiff, defendants appeal.
    Affirmed.
    Statement of the Case.
    This appeal is from a judgment entered in an action upon a note and mortgage made by the defendants Vineyard to one Carroll, and by him assigned to the plaintiff. The following facts appear: On the 1st day of April, 1892, a judgment for 02,170 and costs in favor of Dellinger, one of the defendants, against the defendants Vineyard, was docketed in the office of the clerk of the district court of Deer Lodge county, so as to constitute it a lien upon the nonexempt real property of the Vineyards. When the judgment was docketed, the Vineyards were, and ever since have been, occupying as a homestead the east half of lot 3 of block 37 in the city of Anaconda in Deer Lodge county. The property was never of a value exceeding 02,000 until after the 13th day of July, 1895, on which date the Vineyards made a mortgage thereon to Carroll to secure the payment of a note for 02,000. On the 11th day of December, 1895, the Vineyards, who are husband and wife, filed for record in the office of the clerk and recorder of Deer Lodge county their declaration selecting and claiming the real estate in question as their homestead. On the 9th day of J anuary,. 1896, a writ of execution was issued on the judgment docketed in favor of Dellinger on the 1st day of April, 1892. Upon the application of Dellinger the district judge of the county appointed appraisers to appraise the value of the homestead. They reported that the property could not be divided without material injury, and that the value was 01,650. The judge thereupon made an order directing the sale of said real estate under the execution, and on the 19th day of March, 1898, by virtue of an alias execution, a sale was made to Del-linger for 05,500, Dellinger paying the money to the sheriff, who paid into court §2,500 for the Vineyards as representing their homestead exemption, and the remainder to Dellinger. Thereafter, and on the 4th day of April, 1898, the plaintiff, to whom Carroll had assigned the mortgage, commenced the present action, Dellinger and the sheriff who made the sale being joined as defendants. These defendants pleaded the foregoing facts. The court awarded judgment against the Vineyards for §1,277.14, the amount remaining unpaid of the debt mentioned in the mortgage, together with an attorney’s fee and costs, and found that Dellinger was the owner of the real estate, subject to the right of redemption in the Vineyards, and to these parts of the judgment there is no objection. The court further decreed that Dellinger’s ownership of the property was subject to the mortgage lien in favor of Vincent, and that Dellinger was entitled to the whole of the surplus arising from the sale of the property above the homestead exemption of §2,500 and the mortgage lien of §1,277.14, attorney’s fees, and costs. The appellants, who are Dellinger and the sheriff, assert that this part of the judgment is erroneous.

      Mr. ’William II. De Witt and Mr. T. Bailey Lee, for Appellants.
    We contend that the lien of the Dellinger judgment attached to the land (Sec. 1197 Code Civil Procedure 95 and laws of 87, p. 139, 307) on the 1st day of April, 1892, and that that lien continually adhered to the land, subordinate however to the homestead claim.
    For example, if one owns a house worth §50,000.00, and a judgment is entered against such person, we assert that the judgment lien attaches to the land for all value over §2500.00, the amount of the homestead claim, (Civil Code, Sec. 1693, Sub. Div. 2.)
    This statement makes necessary a definition of what a homestead is (Civil Code 1693, Sub. 2.) We contend that the homestead is not the 160 acres of a farm with the buildings, or the J acre in a town with the house; but that it is the 160 acres with bioildings or the -J- acre with the house to the extent of $2500 in value; that the homestead is simply $2500 worth of realty; that realty consisting of the homesteader’s dwelling and out houses, together with the land limited by statute.
    If this be true, then the Vineyards $2500.00 worth of the premises was exempt as a homestead, and the Dellinger judgment attached to the land for its value in excess of $2500.00. Even grant that the homestead was not worth the limit of $2500.00 at the date when the judgment was docketed, April i, 1892; still if the value afterwards reached and passed the homestead limit, the judgment lien attached to the excess value when the excess value accrued, for the reason that a lien attaches to all property owned by the judgment debtor at the date of the docketing, and that which he afterwards acquires until the lien is satisfied or expires. The application of that statute is that this excess value was acquired after docketing, and the lien must attach to all value so added to it.
    It should not be held that one may own a $2500.00 homestead, and a judgment be docketed against him, and if by the building of a city, or the discovery of a mine or by some other cause, the'property increases in value and becomes worth $100,000.00, that such increase in value can be exempt from the judgment lien. The statute itself clearly indicates the contrary, and, in effect, declares that only the $2500.00 worth is exempt, because the statute (Secs. 1678-1693) provides in detail a method for enforcing an execution so as to reach the surplus over $2500.00. We therefore assert that the judgment lien being upon the premises when the Carroll-Vincent mortgage was given, that that mortgage must be inferior to the judgment, and that the judgment must rank next to the $2500.00 worth of homestead exemption.
    The matter seems to us to be clear if we regard it from another view-point; that is to say, when the Vineyards executed the mortgage, they mortgaged their homestead right, and not our judgment lien right; because they did not own our judgment lien right.
    Again the operation and effect of the mortgage could not vary from that of a deed. If the Vineyards had deeded the premises, it never could be contended that they had deeded subject to a homestead reservation; in other words, if they had deeded, they deeded away their homestead; and, on the same principle, when they mortgaged, they mortgaged their homestead.
    For example again: if one loaned money and received as security a mortgage on a homestead, could it ever be urged that on foreclosure and sale the homestead $2500.00 should first be taken out of the proceeds of the sale and given to the mortgagor? In such a case, suppose the property were worth and realized only $2500.00, must that go to the homesteader and the mortgagee take nothing? It seems to us not. The fact is that when the Vineyards mortgaged, they mortgaged their homestead, and Vincent, the assignee of the mortgagee, must realize out of the homestead money, and when this money was paid-into court in this case, and Vincent had notice of this fact as he did, it was his duty to secure this homestead money, and he cannot now claim any further lien on the premises, for the reason that that portion of the premises upon which he had his lien, to-wit: the $2500.00 worth, has been converted into money and paid into court for the homesteaders or their assignee Vincent. This seems to us the reason of the situation.
    We understood at the time that this judgment was rendered against us, that it was based upon what was considered by the court to be the authority of California decisions upon similar statutes. Barret v. Simms, 59 Cal. 619, states that Cal. doctrine about as clearly as any of the cases. But the later case of Beaton v. Uezd, 111 Cal. 486, held the contrary.
    Freeman on Judgments in Volume II, Sec. 355, discusses the principle and criticizes the California decisions in the following language:
    “As this excess may be taken under execution, it would seem to be subject to judgment, attachment, and execution liens; and this is the conclusion of the courts of Illinois. The Supreme Court of California on the other hand in a series of cases supported by no reasoning whatever, and in onr judgment incapable of being supported by any reason, has determined that, however great the value of a homestead, judgment liens cannot attach to it, nor to the excess in quantity or value which the judgment debtor is not entitled to retain.”
    See also: Stubblefield v. Graves, 50 111. 110; Hayworth v. Travis, 67 111. 305; Kldridge v. Pierce, 90 111. 481; Moriarity v. Galt, 112 111. 373; Black v. Ourran, 81 U. S. 463; Knight v. Paxton, 124 U. S. 552; Waples on Homesteads, Sec. 9 and Sec. 10, Subdivision 13; Van Story v. Thornton, (N. C.) 34 Am. St. Rep. 483; Tillotson v. Millard, 7 Minn. 513; Smith v. Brackett, 36 Barb. 571; Rankin v. Shaw, 94 N. O. 405; McHugh v. Smiley, 17 Neb. 405; In re Woodard, 95 Fed. 260; Pittsville Bank v. Howe, 4 Allen 347; Clarke. Shannon, 1 Nev. 477; Richards v. Chase, 2 Gray 385. -

      Mr. H. R, Whitehill, for Respondents.
   MR. JUSTICE PIQOTT,

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

The error assigned is that the district court adjudged the mortgage of Vincent to be a lien superior to the judgment of Dellinger, whereas the judgment should have been ranked superior to the mortgage and next below the homestead exemption of $2,500. The single question,^ therefore, is whether the lien of the docketed judgment attached to the land selected as a homestead for its value over $2,500, the amount of the homestead exemption. Dellinger contends that the judgment became a lien upon the land on the 1st day of April, 1892, when it was docketed, and remained such lien ever thereafter, subordinate only to $2,500 worth of the land, and this contention is founded upon section 307 of the First Division of the Compiled Statutes of 1887, and section 1197 of the Code of Civil Procedure of 1895, which are, in substance, the same, each providing that “from the time the judgment is docketed it becomes [or “it shall become”] a lien upon all [or “the”] real property of the judgment debtor not exempt from execution in the county, owned by him at the time, or which he may afterward acquire, until the [or “said”] lien ceases [or “expires”]. The lien continues [or “shall continue”] for six years, unless the judgment be previously satisfied.3 ’ Prior to July 13, 1895, the value of the homestead did not exceed the amount of the homestead exemption, and counsel on both sides invoke the provisions of the Civil Code of 1895 and agree that the statutory enactments in force in 1892, when the judgment was docketed, are (with the exception of section 307, supra) not necessary to be considered. No objection is made to the application of the homestead law of 1895 to the judgment docketed in 1892. We quote the following sections of Title V, Part IV, Division H, of the Civil Code of 1895:

“Sec. 1670. The homestead consists of the dwelling house in which the claimant resides, and the land on which the same is situated, selected as in this title provided."

.“Sec. 1693. Homesteads may be selected and claimed: (1) Consisting of any quantity of land not exceeding one hundred and sixty acres used for agricultural purposes, and the dwelling house thereon and its appurtenances, and not included in any town plot, city, or village; or, (2) a quantity of land not exceeded in amount one-fourth of an acre, being within a town plot, city or village, and the dwelling house thereon and its appurtenances. Such homestead, in either case, shall not exceed in value the sum of two thousand five hundred dollars."

“Sec. 1701. The declaration of homestead must contain: * * * (2) A statement that the person making it is residing on the premises and claims them as a homestead. (3) A description of the premises. (4) An estimate of their actual cash value. "

“Sec. 1703. From and after the time the declaration is filed for record the premises therein described constitute a homestead. Upon the death of the person whose property was selected as a homestead, it shall go to his or her heirs or devisees, subject to the use of the widow during her life, - if the property selected as a homestead, before selection, belonged to the husband; and subject to the use of the husband during his life, if the property selected as a homestead before selection belonged to the wife. And in no case shall the homestead be held liable for the debts of the owner, except as provided in this title. ’ ’

By subdivision 3 of section 1679 the petition for an appraisement of the homestead levied upon for the enforcement of certain judgments must show that “the value of the homestead exceeds the amount of the homestead exemption.”

From these sections it is clear that the homestead consists of the real property described in the declaration of homestead, although its value exceeds $2,500, — in other words, the homestead attribute or character is impressed upon all the property described in the declaration. Section 1673 declares that the homestead is exempt from execution or forced sale-except as is provided in Title V, Part IV, Division II, of the Civil Code. Under what circumstances may it be subjected to sale on execution? Section 1674 provides that the homestead is subject to execution or forced sale in satisfaction of judgments obtained before the declaration of homestead was-filed, and which constitute liens upon the property therein described, but that no judgments obtained before July 1, 1895, shall constitute liens upon the property. By this section the homestead may be sold under an execution issued upon a judgment rendered and docketed after July 1, 1895, and before the filing of the declaration of homestead, and the entire proceeds must, if necessary for that purpose, be paid in or toward the satisfaction of the judgment lien; in such case there is no homestead exemption, for the section do.es not-recognize its existence. Express language excludes from the benefit of this section judgments obtained prior to July 1, 1895; though docketed, they are not liens upon the real property described in the declaration of homestead, whatever its-value. This inevitably results from the fact that the property so described is, regardless of its value then or afterwards, the-homestead. The homestead is not $2,500 worth of the realty described in the declaration; on the contrary, it is the realty so described. The only limit is in respect of the area, which must not exceed the statutory size. (Yerrick v. Higgins et al., 22 Mont. 502, 57 Pac. 95.) The judgment, having been obtained prior to July 1, 1895, was not a lien upon the homestead; consequently the latter is not liable, by virtue of anything contained in section 1674, to execution sale in satisfaction of the former.

Judgments other than those constituting liens upon the homestead may be enforced by a compliance with sections 1678-1689. In these sections the homestead exemption is recognized, and provision made whereby the excess in value of the homestead in fact may be subjected to the demands of creditors. Section 1678 provides: “When an execution for the enforcement of a judgment obtained in a case not within the classes enumerated in section 1674 is levied upon the homestead, the judgment creditor may apply to the district court of the county in which the homestead is situated, or a judge thereof, for the appointment of persons to appraise the value thereof.’ Upon an application, supported by a verified petition to the district court or its judge, showing that an execution has been levied upon the homestead, the name of the homestead claimant, and that the value of the homestead exceeds the amount of the homestead exemption, the judge, after proof of notice to the claimant, and of the facts stated in the petition, must appoint appraisers to value the homestead; if from their report it appears that the land can be divided without material injury, the judge must order the appraisers to allot the claimant so much of the homestead as will amount in value to the homestead exemption, and the execution may then be enforced against the remainder of the , land. But if it appears that the land exceeds in value the amount of the homestead exemption, and that it cannot be divided, the judge must order its sale under execution, at which sale no bid less than §2,500 shall be received, and the proceeds to the amount of the exemption must be paid to the claimant, and the remainder applied on the execution. Until the value of the homestead is so ascertained to be in excess of $2,500, the entire property covered by the declaration of homestead, whatever its worth, remains exempt from sale on execution, and therefore the lien of a docketed judgment cannot attach. The levy of execution initiates the right to maintain proceedings for an appraisement and sale under the statute.

The foregoing interpretation is in harmony with that announced in Barrett v. Sims, 59 Cal. 615; Lubbock v. McMann, 82 Cal. 226, 22 Pac. 1145; and in Sanders v. Russell, 86 Cal. 119, 24 Pac. 852. The legislative assembly of Montana adopted sections 1670-1703 of the Civil Code of 1895 from California, in whose Civil Code they appear as sections 1237-1265. (Yerrick v. Higgins, supra.) In transplanting the homestead law of California to Montana, reference to community property was eliminated, the value of the homestead exemption was reduced to $2,500, and a limit upon area fixed; and section 1241 of the California Civil Code was changed by the addition of the words, “but no judgment obtained before this Code takes effect shall constitute such lien, ” so that section 1674, supra, differs in this respect from the last named section of the Civil Code of California, of which it is otherwise a copy. In Barrett v. Sims, supra, the supreme court of California interpreted the sections under consideration before the adoption of them by this state. That interpretation is conformable to the intent of the statutes.

The case of Macke v. Byrd, 131 Mo. 682, 33 S. W. 448, 52 Am. St. Rep. 649, is also in point. In that state the lien of judgment impresses the “lands, tenements, and hereditaments liable to be sold upon execution;” and the homestead act declares that real property coming within its protection is exempt from attachment and execution. After deciding that, as between a judgment creditor and his debtor in possession of a homestead within the statutory size and value, the judgment is not a lien on the homestead property, the court inquires whether the lien reaches the surplus value. The court holds that, if the property claimed as a homestead exceeds in value the homestead exemption, the excess must be ascertained, and the true homeatead set apart, before the excess can be subjected to sale on execution; and, therefore, that the lien of a judgment cannot attach to the surplus value of the homestead until ascertained by admeasurement of the homestead exemption.

We are aware that the courts of several states have decided that judgment liens impress the value of the homestead in excess of the homestead exemption. Most of the decisions have been upon statutes so different from those contained in the Civil Code of Montana that we do not regard them as persuasive in this jurisdiction.

A suggestion is made that the plaintiff should have been required to satisfy the amount of his mortgage debt out of the $2,500 paid into court as representing the homestead exemption of the Vineyards. A sufficient answer to this suggestion seems to be that the mortgage operated as a waiver of the homestead exemption in favor of the mortgagee and those claiming under him, which waver did not inure to the benefit of other persons. The mortgagors did not agree that the debt owing to Dellinger might be satisfied out of the exemption. The willingness to secure the payment of Vincent’s demand by mortgaging the homestead, and thereby waiving the exemption, cannot be deemed to evince a like disposition in respect of Dellinger. The entire homestead is subject to sale in satisfaction of judgments obtained on debts secured by mortgages on the premises recorded before the filing of the declaration of homestead (subdivision 4, Sec. 1674); the Vincent mortgage is within this statute but the homestead exemption of $2,500 is beyond the reach of such a judgment as Del-lingers. Vincent had the right to release the homestead exemption from the lien of his mortgage, and retain it upon the surplus of the homestead; had he done so, no right of Del-linger would be invaded, for all Dellinger could have seized by his execution was the remainder of the surplus after the satisfaction of Vincent’s mortgage debt. To compel Vincent to resort first to the homestead exemption would be to subject it indirectly to the payment of Dellinger’s judgment, and thus, contrary to the intent of the parties to the contract embraced in the mortgage, the waiver would practically be construed as having been made in favor of Dellinger. Section 3772 of the Civil Code does not confer upon Dellinger the right which he asserts.

The mortgage of Vincent having been executed and recorded prior to the acquisition by Dellinger of any lien upon the real estate selected as a homestead, it follows from the views expressed that the judgment of the district court must be affirmed, and it is so ordered.

Affirmed.

Mr. Chief Justice Brantly, being disqualified, took no part in the foregoing decision.


text:
    DELLINGER, Appellant, v. VINEYARD et al., Respondents.
    [No. 1,232.]
    [Submitted April 25, 1900.
    Decided May 22, 1900.]
    (For syllabus see Vincent y. Vineyard et al., ante p. 207.)

      Appeal from District Court, Deer Lodge County; Theo. Brantly, Judge.

    Action by Daniel N. Dellinger against Gordon C. Vineyard and others, to determine the priorities between incumbrances upon real property. From a judgment in favor of defendants, plaintiff appeals.
    Affirmed.

      Mr. William H. De Witt and Mr. T. Bailey Lee, for Appellant.

      Mr. LI. B. Whitehill, for Respondents.
   PER CURIAM.

— This appeal is from a judgment entered in favor of the defendants and against the plaintiff on the 23d day of February, 1898.

The questions presented in the case at bar have been decided by the opinion just handed down in Vincent v. Vineyard, ante, p. 207. Upon the authority of that case the judgment is affirmed.

Mr. Chief Justice Brantly, being disqualified, took no part in the foregoing decision.


author: MR. CHIEF JUSTICE BRANTLY, Me. Justice Pigott.

text:
    JAY, Respondent, v. SCHOOL DISTRICT No. 1 OF CASCADE COUNTY, Appellant.
    [No. 1,519.]
    [Submitted April 4, 1900.
    Decided May 29, 1900.]

      Statutes — Construction—School Districts — Teacher’s Employment — • Certificate — Term—Annual Reports — Salary—Failure to Pay — Judgment—Indebtedness—Power of Board— Mandamus.

    1. In construing a statute the court must elicit the purpose and intent of the statute from the terms and expressions employed, if this is possible, calling to its aid the ordinary rules of grammar.
    2. Under Political Code, Sec. 1756, as amended by Sess. Laws 1897, p. 129, providing that the school trustees or school board of any district who shall employ any teacher for a period of more than three months, or who shall not hold a legal certificate in full force, shall be deemed guilty of a misdemeanor, the board has no authority to contract with a teacher who has not a certificate, or to employ a teacher holding a certificate for more than three months. Hence a contract for the employment of a teacher holding a certificate for a school year of nine months is of no effect.
    3. It is not for the courts to say whether the provision of a statute is wise or not; their duty is to require the inforcement thereof as they find it.
    4. An .admitted claim is as available as a foundation for a mandamus proceeding as is a judgment.
    5. The fact that Political Code, See. 1756, as amended by Sess. Laws 1897, p. 129, prohibits the employment of teachers holding certificates for a period exceeding three months, does not obviate the necessity of teachers making annual reports to the county superihtendent as is required by Political Code, See. 1841, or, if the employment be for only three months, at the end of such term.
    6. Political Code, Sec. 1803, providing that the board of trustees of any school district shall be liable, in the name of the district, for any judgment against the district for any salary due any teacher on contract, and that they shall pay such judgment out of any moneys to the credit of such district, does not authorize the entry of a judgment against the school district for unpaid salary of a school teacher, where the district admits the claim, and the only reason that it does not pay it is that it has no funds applicable to the purpose, since, until it has funds on hand with which to pay, failure or refusal to pay is in violation of no duty.

      7. A court will not enforce an invalid contract of employment of a school teacher by a school board merely because its failure to do so will result in the closing down of the public schools of a school district.
    8. School district officers, not having power to levy taxes, have no power to incur indebtedness for the purpose of keeping the schools open beyond the time for which funds are provided.

      Appeal from District Court, Cascade county/ J. B. Leslie, Judge.

    Action by G. H. Jay, as assignee of a teacher’s claim for services, against School District No. 1 of Cascade county. From a judgment overruling a demurrer to the complaint, defendant appeals.
    Reversed.
    Statement of the Case.
    Action by plaintiff, G. H. Jay, as assignee of one Helen Edgerton, to recover the sum of $120 for the services of said Helen Edgerton as teacher in the public schools of School District No. 1, Cascade county, Mont. The complaint, after alleging the corporate capacity of the defendant, proceeds:
    (2.) “That on the 1st day of June, 1899, the board of trustees of the defendant district, by a written order made and entered at a regular meeting of said board had and held in the city of Great Falls, in said district, county, and state, entered into an agreement and contract with one Helen Edgerton, who possessed and still possesses a good and legal certificate as teacher, by which the said board employed and hired the said Helen Edgerton as a teacher in the public schools of said district for the term of nine and one-half months, to begin at the beginning of the ensuing school year, to wit, on the first Monday, September, 1899, and at a salary of one hundred and twenty dollars per month.”
    (3.) “That the said Helen Edgerton entered into the said contract with the said board of trustees, and accepted, in writing, said employment as teacher for the time so agreed upon, and that she entered upon the discharge of her duties as such teacher on the first Monday of September, 1899, and has continuously performed her duties in all respects as such teacher since that date; that said board has had full knowledge of the performance of said services by said Helen Edgerton, and has accepted the same and consented thereto, though no express contract or agreement has ever been entered into between said board and said Helen Edgerton, save and except on the 1st day of June, 1899, as aforesaid; that said boai'd has further certified and acknowledged that the sum herein sued for, to wit, one hundred and twenty dollars, is due and owing said Helen Edgerton for such services as teacher for the month ending December 22, 1899.”
    (4.) ‘ ‘That at the time of the employment of said Helen Edgerton by said board as aforesaid, on the 1st day of June, 1899, the money on hand and available to the credit of said defendant district amounted to the sum of fourteen thousand four hundred and forty-six and - dollars; that out of said sum were paid the salaries of teachers and other expenses of the school for the balance of the school year after said contract was made, leaving on hand the sum of seven thousand eight hundred and ninety five and dollars on the first Monday of September, 1899, the date of the beginning of the current school year, and that this said last-named sum was fully used and exhausted in paying the salaries and other school expenses for said month of September.”
    (5.) “That since said date there has been no other money to the credit of said district wherewith to pay the salaries of any of the teachers employed in the schools of said districts, but that the salaries of all the teachers employed in the schools of said district for the months of October and November have been paid by a local bank, to which said teachers have assigned their claims against said district; that there is no money to the credit of, or available for, said district at the present time; that the general levy for school purposes made by the board of commissioners for the year 1899 under and by virtue of section 1940 of the Session Laws of 1897 was three and one-half mills on the dollar, and had the commissioners made a levy of five mills for such purpose, the additional sum of $8,758.89 could and would have been collected as taxes for the use of said school district No. 1, and such sum would thereby have been sufficient to pay all expenses of running the schools of said district up to the--day of February, 1900.” '
    (6.) ‘ ‘That said district has not paid said Helen Edgerton her salary for the month ending December 22, 1899, or any part thereof, but that her said month’s salary, to-wit, one hundred and twenty dollars, is wholly unpaid, and has been due and owing to her from said district since the 22d day of December, 1899.”
    (7.) ‘ ‘That in the employment of the corps of teachers for the present school year, including the said Helen Edgerton, for the term of nine and one-half months, as hereinbefore stated, and at the time hereinbefore stated, to-wit, on or about June 1st of the year, the board of trustees of the defendant district have acted as has been usual and customary with the board of trustees of said district, and as the educational and school interests of said district require. ’ ’
    (8.) “That the total number of teachers employed for the current school year in said district is 43, their salaries aggregating $3,700 per month, and that the average number of children residing in said district and attending the public schools thereof for the current school year is 1,500; that a well-equipped high school is embraced in the public school system of said district, and that the educational and school interests of said district require that the said schools should be kept open and maintained for at least nine and one-half months of each and every school year. ’ ’
    (9.) “That the electors of said school district did on the 8th day of September, 1899, vote a special tax by which the sum of $27,125.40 would have been collected in order to continue and maintain said schools for said periods of nine and one-half months, but that, on account of the decision of the Supreme Court declaring inoperative the law under which said tax was voted, no part of said taxes has or can be collected. ’ ’
    (10.) “That unless the contract heretofore made by the board of trustees of said district with the teachers in said public schools, including the contract with said Helen Edger-ton, can be enforced by a good and valid judgment against said district, to be paid by moneys that may hereafter come into the treasury of said district, that it -will be necessary that the schools of said district should forthwith be closed, and the educational and school interests of said district will accordingly be seriously crippled and impaired.”
    (11.) “That the total indebtedness of every kind against said district does not exceed the sum of §182,500, nor has it exceeded that sum at any time mentioned in this complaint; that the total assessed valuation of the property of said district is §8,315,276.”
    After alleging the assignment of the claim to plaintiff, the complaint concludes with a demand for judgment for the sum of §120 and costs of suit.
    To this complaint the defendant interposed a general demurrer, and on the 9th day of January, 1900, the court, after consideration of the questions presented by the demurrer, overruled the same. Thereupon, the defendant having refused to plead further, judgment was rendered against it for the amount claimed. The defendant appeals from this judgment.

      Mr. G. B. Nolan, Attorney General, and Mr. Thomas N. Brady, for Appellant.

      Mr. A. G Gormley, for Respondent.
   MR. CHIEF JUSTICE BRANTLY,

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

Counsel for appellant argues that the judgment is void because founded upon a contract made in contravention of an express prohibition of section 1756 of the Political Code, as amended “by the Session Laws of 1897, p. 129. This section, as it originally stood, provided that no school district should be entitled to receive any apportionment of school money unless all the teachers employed in the schools therein during the three month next preceding the apportionment held certificates of fitness for teaching. As amended it provides: “The school trustees or school board of any district who shall employ any teacher in the public schools of their district for a period of more than three months or who shall not hold a legal certificate of fitness for the occupation of teaching, in full force and effect, shall be deemed guilty of a misdemeanor.” The obvious purpose of this provision, counsel says, is not only to prohibit altogether the employment of teachers who have not certificates of fitness, but also, in ail cases, to limit the term of employment to three months. Counsel for respondent assumes the position that the intent and purpose of the section is to prohibit only the employment for a period longer than three months of teachers not holding the required certificate; leaving the trustees to make the term of employment of qualified teachers to suit their own notions of their duty, and the necessities of their particular district. The argument is that a reading of the section according to its obvious grammatical sense requires the conjunction “or” to be considered as properly connecting the two relative pronouns, ‘ ‘who’ ’ making them both refer to the same antecedent, viz. trustees or board; thus showing the manifest absurdity that a trustee not holding a certificate of qualification is guilty of a misdemeanor. To avoid this absurdity, he says, we must omit entirely the connective ‘ ‘or, ’ ’ as surplusage. The latter relative, ‘ ‘who, ’ ’ will then grammatically refer to the word “teacher” and thus it will appear that it is the purpose of the section to punish trustees who assent to the employment of teachers for more than three months when they have no certificate. The suggestion is also made that under the old section the moneys apportioned to a district were withheld as a punishment to the district, when its trustees failed to observe the law in employing teachers, while the sole purpose of the amended section is to shift the punishment to the trustees personally. Any other view of the statute, it is argued, will seriously impair the efficiency of the school system of the state.

The section in question is not very skilfully drawn. Nevertheless, we must elicit the purpose and intent of it from the terms and expressions employed, if this is possible; calling to our aid the ordinary rules of grammar. This is the elementary rule applicable to all statutes. Other rules may be invoked only when this fails. (Endlich on Interpretation of Statutes, Sec. 4.) ‘ ‘The moment we depart from the plain words of the statute, according to their ordinary and grammatical meaning, in a hunt for some intention founded on the general policy of the law, we find ourselves involved in a ‘sea of troubles.' Difficulties and contradictions meet us at every turn.” (Dame, Seymour & Co.’s Appeal, 62 Pa. St. 417. See, also, Endlich on Interpretation of Statutes, sec. 7; Hamilton v. Rathbone, 175 U. S. 419, 20 Sup. Ct. 155, Adv. S. U. S. 155, 44 L. Ed. —; Smith v. Williams, 2 Mont. 195; Carruthers v. Commissioners of Madison County, 6 Mont. 482, 13 Pac. 140.) Applying this rule of interpretation, whatever may have been the actual intention of the legislature, it is clear that the latter relative refers for its antecedent to the word ‘ ‘teacher, ’ ’ and that the author of the section, in stating the other alternative, omitted a repetition of it, as unnecessary. This clause would then properly read, “or any teacher who shall, ’ ’ etc. This reading does no violence to the rules of grammar, and does not require the omission of any (Word. It entirely avoids the absurdity suggested by respondent’s counsel, and makes the section denounce as a misdemeanor the doing of either of the acts mentioned in the clauses connected by the conjunction. There is nothing in the section as it stood before the amendment to suggest that the intention of the legislature was otherwise. Under it the employment of a teacher without a certificate could not cover a period of more than three months. Under the amended section this employment cannot be made at all, nor can any contract of employment endure longer than three months. What purpose was had in view by this change, it is not our province to inquire. It is not for us to say whether it is wise. Nor do we think it incumbent upon us to seek for a construction of this section which would bring it in harmony with other provisions touching the duties enjoined upon teachers in regard to annual reports to the county superintendents. Every teacher is required to make a report to this officer on or before September 10th next after the close of the school year. (Political Code, Sec. 1841.) This provision, it is argued, necessarily implies at least an annual employment. It may be conceded that it does. Still, if the plain intent of the section in question cannot be harmonized with other sections regulating the duties of teachers, its provisions must control upon the subject with which it deals. The amended act containing this section was passed after the other Code provisions, as a revision of them in many particulars. It expressly repeals all other provisions of the Code which are in conflict with its own provisions. The intention being clear, the older provisions must yield to the explicit requirements of the new provision. The section cannot be construed, under any recognized standard, to mean anything but what it says. The word “or” may have crept into it by inadvertance, yet it does not appear so. The engrossed bill, (which we have examined) shows no evidence of such inadvertance. We are not justified, therefore, in making the assumption that such is the case. A careful examination of all the other sections of the statute, as it originally stood and as amended, fails to show anything to justify such a conclusion.

The ultimate purpose to be accomplished by the provision is not clear. It may be to require a quarterly renewal of contracts with teachers; thus leaving the trustees in position to terminate the employment of those whose services are not entirely satisfactory, but for whose removal there exists no statutory cause justifying a disregard of an existing contract. It may be, also, to enable the trustees to close the school upon the happening of epidemics, without having to continue the payment of salaries beyond a limited time, which they would otherwise be compelled to do under annual contracts; or to shorten the term upon an unexpected failure of funds from unforseen causes, and thus avoid involving the district in debt. But, whatever may have been the purpose in the mind of the legislature, such legislation is entirely within its power; and, whether the provision be wise or not, our duty is to require the enforcement of it as we find it. We do not think the contract such a one as the board of trustees could make, and therefore conclude that it cannot be sustained.

It is not necessary to conclude, however, that the section in question dispenses with the requirement of annual reports by teachers under section 1841, supra. Teachers in the employment of the board must still make these annual reports as directed. At any rate, they are required under the latter part of the section to report at the end of the term for which they are employed.

It appears from the order of the district judge directing judgment for the plaintiff that he was of the opinion that, though it be conceded that the contract set forth in the complaint is void under the statute, there are still sufficient substantial allegations in the pleading to sustain a judgment for services for the month of December, of the reasonable value of $120, rendered with the consent of, and accepted by, the defendant. This view was entertained upon the authority of State ex rel Northwestern Nat'l Bank v. Dickerman, 16 Mont. 278, 40 Pac. 698. In this case this court quoted with approval from Brown v. City of Atchison, 39 Kan. 37, 17 Pac. 465, as follows: “From the authorities, we think the following principle may be deduced: Where a contract is entered into in good faith between a corporation, public or private, and an individual person, and the contract is void, in whole or in part, because of a want of power on the part of the corporate make it or enter into it in the manner in which the corporation enters into it, but the contract is not immoral, inequitable, or unjust, and the contract is performed, in whole or in part, by and on the part of one of the parties, and the other party receives benefits by reason of such performance over and above any equivalent rendered in return, and these benefits are such as one party may lawfully render and the other party lawfully receive, the party receiving such benefits will be required to do equity toward the other party, by either rescinding the contract and placing the other party in statu quo, or by accounting to the other party for all benefits received for which no equivalent has been rendered in return; and all this should be done as nearly in accordance with the terms of the contract as the law and equity will permit. ’ ’ Conceding this to be the general rule, appellant asserts that, as the complaint in this case discloses the fact that there is no dispute between itself and the plaintiff as to the fact and amount of the- indebtedness involved in this suit, and also that the failure to pay is due entirely to a want of funds to meet the claim, no judgment may be rendered against it in this case. This argument proceeds upon the assumption that, as the trustees have no power to levy taxes for current school purposes (Hilburn v. St. Paul M. & M. Railway Co., 23 Mont. 229, 58 Pac. 551), and as they are prohibited by statute from drawing a warrant to pay any outstanding claim unless there is money in the county treasury to the credit of the district, (Political Code, Sec. 1737), the trustees are guilty of no breach of duty until they refuse to properly apply funds subject to their order to the payment of the particular claim. Let us see if this assumption is justified. The funds provided by law for the maintenance of schools are derived in the first place from interest on the state school fund, rents of school lands, escheats, and other sources mentioned in section 1940 of the Political Code. Beside the revenues from these sources, the commissioners of each county are required to levy every year, for current scoool expenses, a tax upon all the property in the county, of not less than three nor more than five mills upon each dollar of assessed valuation, as fixed by the county assessment. (Laws of 1897, p. 134.) The amounts of all fines remaining after the payment of costs in the cases in which they are imposed are also paid into the county treasury, and are set apart for school purposes. (Laws of 1897, p. 134; Political Code, Secs. 1891, 1892.) The moneys derived from the interest on the state school fund, and other sources, controlled by the state, are apportioned to the various counties by the state superintendent not later than February 10th each year, and the amount failing to each county is then made available for school purposes. (Political Code, Sec. 1714). The county superintendent from time to time apportions the whole fund thus accumulated in the county treasury to the various districts, and the apportionment falling to each district is the only fund upon which the local trustees can draw for the payment of salaries and other current demands. The school year opens on September 1 (Political Code, Sec. 1864), but none of the funds mentioned, except those derived from fines, can be made available for the year earlier than the first Monday in December, on which date the time for the payment of county taxes expires. As the amount derived from fines is generally insignificant, and as the funds belonging to the various districts are usually exhausted at the end of the current year, or nearly so, it is clear that the local boards must frequently withhold payment until the apportionment falling to their districts becomes available; for, as we have already seen, the trustees can draw no warrant until there is money to the credit of the district. (Section 1737, supra.) If the trustees were permitted to anticipate their apportionment and issue warrants against it, persons holding such warrants could dispose of them, and thus obtain their money. Under plaintiff’s view of the law, though the trustees cannot do this, yet he may pursue the district by suit, and recover a judgment. To support this claim he cites and relies upon section 1803 of the Political Code, which provides that the board of trustees of any district shall be liable, in the name of the district, for any judgment against the district for any salary due any teacher on contract, and for all debts legally contracted, and they shall pay such judgment out of any moneys to the credit of such district. Manifestly, if a judgment be recovered against the district when there is no fund available out of which to pay it, the plaintiff is in no better condition than before It was rendered, except that he has an established claim. He cannot be paid until the apportionment is made. Even then he can be paid only by warrant. It would seem clear, therefore, that, if there is no dispute as to the validity and amount of the claim, the only difficulty being that there are no funds, no judgment should be permitted, for the reason that no breach of duty is shown on the part of the district.

Under the allegations of the complaint, when this suit was brought there were no funds in the treasury of Cascade county against which the trustees of defendant could draw. The trustees say to the plaintiff: “Your claim is just, but our hands are tied until the apportionment is made to our district. As soon as this is done, we will draw the warrant, but we may not violate the law.” To render a judgment against the district under these circumstances would be to adjudicate the fact that it has violated its contract, in that it has, through its officers, refused to violate the law; and, because of this refusal on their part to violate the law, the district must- be mulcted in costs, and pay interest until the funds are provided by the authorities of the state and county to meet the demand.

We think it the policy of the whole system of our school law that all persons dealing with school officers are presumed to do so, not only with full knowledge of the power of these officers to bind their corporations under the particular contract, but also with reference to the mode of payment, and the means at their disposal for this purpose. (Union School Township v. First Nat'l Bank of Crawfordsville, 102 Ind. 464, 2 N. E. 194.) If there is a disputed claim against the district, it can be determined only by means of an adjudication under section 1803, supra. If, however, there is no dispute as to the claim, the trustees standing ready to perform their duty as soon as they may, the district cannot be subjected to the needless vexation and embarrassment of suits because other officers of the government have not done their duty in providing funds to make payment. The purpose of a suit is to redress a wrong or to protect a right. What wrong has been done in this case that may be redressed by this suit? The liability is not disputed. The defendant says: “I will pay as soon as the law permits. I cannot pay until there is a fund out of which to pay. ’ ’ The j udgment, if granted, cannot be enforced until the fund is available. No execution may issue. (Constitution, Article XII, Sec. 8.) True, if the trustees, admitting the indebtedness, willfully refuse to issue a warrant, mandamus would lie. (State ex rel. Great Falls Water Works v. City of Great Falls, 19 Mont. 518, 19 Pac. 15; Greeley v. Cascade Co., 22 Mont. 580, 57 Pac. 274.) But, there being no funds, they cannot be compelled to issue the warrant. The judgment would therefore amount to nothing more than an admitted claim. If the trustees had power to levy taxes to pay the claim, or to raise moixey in any other way for this purpose, it would be their duty to do this, and a. failure to act would be a breach of duty. But this power is not conferred by the statute. If it were the ultimate purpose to compel the commissioners of the county, by mandamus, to levy a tax to pay the debt of the district, the admitted claim would be as available as a foundation for this proceeding as a judgment.

There is nothing in the case of State ex rel. Shapley v. Commissioners of Yellowstone Co., 12 Mont. 503, 31 Pac. 78, to controvert this view. It is not there held that a judgment is a necessary basis of a mandamus proceeding to compel the levy of taxes to pay such a claim as the one under consideration.

Whether Helen Edgerton rendered the service under an express or implied contract, they were, in contemplation of law, to be paid for when funds became available. This suit was instituted on December 29, 1899. For aught that appears in this case, there xvould have been funds enough to meet the claim as soon as the taxes for that year were apportioned by the county superintendent. It is nothing to the point that the school term in Cascade county will be shortened if this judgment be not sustained. It is the fault of the legislature or the taxing authorities that ample means are not provided to continue the schools.

The propriety of a money judgment against a county upon a warrant was fully discussed in Greeley v. Cascade Co., supra. It was there held that a suit for this purpose does not lie. W'e think the discussion found in the second paragraph of the opinion in that case directly applicable to the question raised here, and that the judgment herein cannot be sustained upon the ground stated by the district court.

And this brings us to the consideration of the last point made by the appellant, viz.: That the trustees of a school district have no authority to contract debts for the purpose of continuing a school, without reference to the amount of funds provided by law from year to year. This contention, we think, is correct. The school-district officers cannot levy taxes for current school purposes. This is done by other officers of government, under the law. If the school trustees may incur debts, without reference to the amounts thus raised, so long as the constitutional limit is not overstepped (Constitution, Article XIII, Sec. 6), then, though they are denied the power to levy taxes for any purpose, they are by implication clothed with the power of imposing the burdens of debt upon the district, for the payment of which the authorized taxing officers must provide, which is more extensive than a limited taxing power. It is clearly the. duty of the trustees to confine their expenditures to the limits of the funds provided by law. They may reasonably anticipate the funds before they become available, but they may not embark generally upon a course of expenditure not measurably within this limit. In each case where a debt is contracted by them which overreaches this limit, recourse must be had to the attendant facts and circumstances, and the liability of the district, if any, must be determined accordingly. School districts are public corporatibns (Political Code, Sec. 1759), but their powers are very limited. They can exercise none except such as are conferred by the law creating them, either expressly or by fair implication. (Dillon’s Municipal Corporations, Secs. 22, 24, 25, and note; 21 Am. & Eng. Enc. Law, 779, and note.) Not having the power, under the statute, either with or without a vote of the electors, to levy taxes for current purposes, they may not extend the term of school beyond the time for which there are funds provided. (Morley v. Power, 2 Am. & Eng. Corp. Cases, 354 S. C. 10 Tenn. 219; Weatherly v. Mayor, etc., of City of Chattanooga, (Tenn. Ch. App.) 48 S. W. 136.)

Respondent cites many cases in support of his contention that the judgment herein should be sustained, but they are based upon different statutory provisions, and cannot be deemed controlling under the provisions of our statute.

Nothing we say here, however, is to be construed as an adjudication that the claim involved in this case is not a just liability of the defendant. It does not appear that there would not be ample funds in the county treasury to meet this claim under the apportionments made by the state and county superintendents since this suit was instituted, and to be made by the county superintendent hereafter during the present school year. Nor does it appear from the facts stated in the complaint that the trustees of the defendant, in contracting the debt, have done more than attempt to anticipate the funds which would presently be apportioned to the district by the county superintendent. The question as to whether the defendant may be ultimately liable in any event for the plaintiff’s claim does not, therefore, properly arise.

For the reasons stated, the judgment must be reversed, and the cause remanded, with directions to the district court to sustain the demurrer.

Reversed and remanded.

Me. Justice Pigott.

I concur in the decision upon the first two grounds discussed. . 1 think the third ground is an obiter.

Me. Justice Hunt, being absent, does not participate in the foregoing opinion.


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    RAMSEY, Respondent v. BURNS et al, Appellants.
    [No. 1429.]

      On Motion to Dismiss Appeals.

    [Decided May 29, 1900.]

      Appeal — Time for Appealing — Service of Notice — -Undertalcing an Appeal — Ambiguity—Dismissal of Appeal— Practice — Stare decisis.

    1. Under Code of Civil Procedure Sec. 1723, providing that an appeal from a final judgment may he taken within a year after entry; and section 1724, providing that it shall be taken by filing a notice with the clerk, and serving a copy on the adverse party, — an attempted appeal from a judgment will he dismissed where the notice is not served on the respondent, or filed in the office of the clerk of the court, until after one year from the date of the judgment.
    2. An undertaking on appeal, where defendant appeals on one record both from the final judgment entered against him, and from an order refusing a new trial, conditioned that appellant will pay all costs and damages awarded against him on the appeal or on a dismissal thereof, is not void for the reason that it cannot he determined therefrom to -which appeal it applies, or is to be referred. (Watkins v. Morris, 14 Montana 354, disapproved but followed.)

    3. Decisions upon mere matters of practice should neverbe disturbed unless it he apparent that injustice would result from adherence thereto.

      Appeal from District Court, Silver Bow County; John Lindsay, Judge.

    Action by Cora E. Ramsey against P. JEL Burns, as justice of the peace, and others. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendants appeal.
    Appeal from j udgment dismissed. Motion for dismissal of appeal from order denying motion for new trial denied.

      Mr. John N. Kirie, for Appellants.

      Mr. M. J. Cavancmgh, for Respondent.
   PER CURIAM.

— This case is now before the court upon the respondent’s motion for a dismissal of the appeals taken or attempted to be taken from the judgment and-an order refusing a new trial. The motion to dismiss the supposed appeal from the judgment is based upon two grounds: First, that the judgment was entered more than one year prior to the filing and serving of the notice of appeal; and, second, that the undertaking on appeal is so ambiguous as to be void. The motion to dismiss the appeal from the order refusing a new trial is based upon the second ground urged in support of the motion to dismiss the appeal from the judgment.

An inspection of the transcript discloses that the judgment was entered on the 23d day of May, 1898, and that the notice of appeal was served on the 24th day of May, 1899, and filed in the office of the clerk of the district court on the 29th day of May, 1899. The attempted appeal from the judgment, not having been taken within one year from its entry, must be dismissed. (Sections 1723, 1724, Code of Civil Procedure; Gallagher v. Cornelius, 23 Mont. 27, 57 Pac. 447.)

The undertaking on appeal recites that, whereas, the defendants having appealed to the supreme coui’t from the judgment entered against them, and also from the order overruling their motion for a new trial: Now, therefore, in consideration of the premises and of such appeal, we, the undersigned, residents of Silver Bow county, Montana, do hereby jointly and severally undertake and promise on the part of the appellants that the said appellants will pay all damages and costs which may be awarded against them on the appeal, or on a dismissal thereof, not to exceed three hunured dollars, to which amount we acknowledge ourselves jointly and severally bound.” The respondent insists that the undertaking is void because it cannot be determined therefrom to which appeal it applies or is to be referred. In Watkins et al. v. Morris, 14 Mont. 354, 36 Pac. 452, where a similar undertaking had been filed, the same point was made and argued, as appears from the briefs on file, but the court held that the bond was valid. The question raised and determined in that case is the question presented in this case. It was decided on the 23d of April, 1894, and has never been overruled; nor has the legislative assembly seen fit so to change the statute law as to require a different form of undertaking. Decisions upon mere matters of practice, or interpretations of what may, perhaps, not improperly be called “adjective law,” should never be disturbed unless it be apparent that injustice would result from adherence thereto. Parties and their counsel for more than six years past, in perfecting appeals to this court, have presumptively relied upon and been guided by the rule announced in Watkins v. Morris, supra. An abrogation of that rule at this time would be an arbitrary infliction of hardship upon litigants who have appeals pending in this court. The doctrine of the Watkins Case is not in conflict with anything held in Grage v. Paulson, 23 Mont. 337, 59 Pac. 1, or m the cases there cited. It is, on principle, in conflict with Baker v. Butte City Water Co., 21 Mont. 31, 113, 60 Pac. 817, 818. The latter case is, in our opinion, based upon correct reasoning, reaches the proper result, and is approved. In the facts, however, there is a distinction between the Watkins case and the Baker case; for in the Baker case the undertaking on appeal was to the effect that the Appellant would pay all costs and damages on the “appeals,” while in the Watkins case the word “appeal” is used. The intimation in the Baker case that an undertaking such as the one here attacked is void for ambiguity was by way of argument, and was unnecessary to a decision, for the reason that such an undertaking was not before the court for consideration. The intimation is not to be understood as a holding that in this jurisdiction such undertaking is defective or void, although such is the rule laid down by the supreme court o,f Idaho in Kelly v. Leachman, 51 Pac. 107, referred to in the Baker case. The rule of the Watkins case is, as we have said, an illogical one, and should not be extended in its application so as to apply to undertakings not in the form of the one there approved. If the question now under consideration were before us for the first time, we should hold that the undertaking is void for ambiguity. The importance of having the practice settled and known prevents us from overturning the rule established by the Watkins case.

The motion to dismiss the appeal from the judgment is granted; the motion to dismiss the appeal from the order refusing a new trial is denied.

Mr. Justice Hunt, being absent, takes no part in the foregoing decision.


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    COLEMAN, Respondent, v. PERRY et al, Appellants.
    [No. 1506.]

      On Motion to Dismiss Appeals.

    [Decided May 31, 1900.]

      Appeal — Undertaking on Appeal — Sufficiency—Dismissal of Appeal.

    1. Where appellant appeals from a judgment and from an order denying a new trial, an appeal bond conditioned that it shall be void if appellant pays all damages awarded against him on such appeals, without alternative conditions referring to each separately, is insufficient, as the sureties assume no liability unless both appeals are decided against Appellant.
    2. Under Code of Civil Procedure, Sec. 1740, providing that no appeal shallbe dismissed for insufficiency of the undertaking, if a sufficient one, approved by a justice of the Supreme Court, is filed before the motion to dismiss the appeal is heard, where a sufficient undertaking is so filed a motion to dismiss for insufficiency of the bond must be denied.

      Appeal from District Court, Silver Bow County/ John Lindsay, Judge.

    Action by Elizabeth Coleman against Oliver N. Perry and others. From a judgment for plaintiff, and an order denying
    his motion for a new trial, defendant appeals.
    Motion to dismiss appeal denied.

      Messrs. Hamilton dc Thresher, for Appellants.

      Mr. Cuy L. Reed, Mr. Peter • Breen, and Mr. Robert McBride, for Respondent.
   PER CURIAM.

— This cause was brought into this court upon appeals from the judgment, and an order denying defendant’s motion for a new trial. A motion has been submitted by Respondent to dismiss the appeals on the ground that the undertaking is void for ambiguity. This instrument is identical in form with that considered in Baker v. Butte City Water Co., 24 Mont. 31, 113, 60 Pac. 488, 817. It was not held in that case, as respondent contends, that such an undertaking is void, but only that it is merely insufficient or imperfect, in that, though it refers to both appeals, it does not contain alternative conditions referring to each separately, so as to bind the sureties to meet all the contingencies which may arise in the disposition of the case by this court. The appellants having filed with the clerk of this court a good and sufficient undertaking, approved by the chief justice, before the motion to dismiss was heard, the motion must be denied. (Code of Civil Procedure, Sec. 1740; Woodman v. Calkins, 12 Mont. 456, 31 Pac. 63, cited in Greeks. Bozeman Waterworks Co., 22 Mont. 327, 56 Pac. 362.)

Denied.

Mr. Justice Hunt, being absent, takes no part in the foregoing decision.


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    STATE ex rel. BAKER, Relator, v. SECOND JUDICIAL DISTRICT COURT, et al., Respondents.
    [No. 1,558.]
    [Submitted May 31, 1900.
    Decided May 31, 1900.]

      Certiorari — Beview of Judgment — Presentation of Application.

    1. Certiorari will not lie to correct errors committed within the court’s jurisdiction, though relator avers inability to furnish an appeal bond.
    2. The parties or their counsel, and not the Clerk of the Supreme Court must present application for writs of certiorari to the Supreme Court.
    Application for certiorari by the state, on relation of B. L. Baker, against the Second Judicial District Court for Silver Bow county, and William Clancy, the judge thereof.
    Denied.

      Mr. J. E. Healey, for Relator.
   PER CURIAM.

— This is an application for a writ of certiorari to review the proceedings of the district court of Silver Bow county in an action wherein one W. G. Pfouts is the plaintiff, and the relator herein the defendant. The affidavit in support of the application shows that on the 21st day of December, 1896, a complaint was filed in the action mentioned, stating that the defendant was indebted to the plaintiff in the sum of §449.40, the balance of an account for goods, wares, and merchandise, sold and delivered by tne plaintiff to the defendant between the 21st day of December, 1889, and the 29th day of December, 1891, which remained unpaid; and the answer contains a plea of the statute of limitations, which was put in issue by the reply; that at the trial the defendant moved the court for judgment upon the ground that the cause of action alleged was barred by the provisions of subdivision 1 of section 514 of the Code of Civil Procedure; that the motion was denied, and that the court rendered judgment for the plaintiff; that the relator “has attempted to appeal from said judgment, but has been unable to furnish the necessary bonds or security on appeal, the said W. G. Pfouts excepting to the sufficiency of the sureties of relator. ’ ’ The purpose of the present application is to set aside the judgment, the relator asserting that the district court was without jurisdiction.

The relator contends that the district court exceeded its power when, as is alleged, it refused to follow the decision of this Court in Guiterman et al. v. Wishon, 21 Mont. 458; 54 Pac. 566. That the district court had jurisdiction of the subject matter of the action and of the person of the defendant is apparent; it possessed the right to hear and determine the cause, and to render the judgment now attacked. Although, the court may have erred, yet it regularly pursued its authority. The right to hear and determine necessarily carries with it the power to decide wrong as well as right. It did not exceed its jurisdiction. The inability of the relator to furnish an undertaking on appeal with sufficient sureties does in no wise affect or impair the authority of the district court or make void the judgment. Certiorari may not be used to correct errors committed within the jurisdiction of the court. These principles have been often enunciated by this court. The application in the case at bar has not even the semblance of merit.

The application is brought to the attention of this court by its clerk, who does so at the request of the relator. This is improper practice. Parties or their counsel, not the clerk,, should present applications for writs. Hereafter we shall refuse to entertain such motions when made through the medium of the clerk. The application is denied, and judgment, ordered dismissing the proceeding.

Denied.

Mr. Justice Hunt, being absent, takes n,o part in the foregoing decision.


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    HELENA & LIVINGSTON SMELTING AND REDUCTION CO., Appellant v. LYNCH et al., Respondents.
    [No. 1,345.]

      Messrs. Cullen <& Day, for Appellant.

      Messrs. McMatton & Cotter, for Respondents.


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    MAHONEY, Respondent, v. BUTTE HARDWARE CO., Appellant. BOUCHER, Respondent v. BARSALOU et al., Appellants. TEAGUE, Respondent v. JOHN CAPLICE CO., Appellant.
    [No. 1,364.]
    [No. 1,411.]
    [No. 1,501.]

      Mr. F. T. McBride, and Mr. B. Noon, for Appellant.

      Messrs. McHatton & Cotter, for Respondent.

      Mr. Robert McBride and Mr. W. J. Naughten, for Appellants.

      Messrs. McHatton <& Cotter, for Respondent.

      Mr. Jesse B. Roote, for Appellant.

      Mr. W. W. Dixon and Messrs. McHatton c& Cotter for .Respondent.

      On Motions to Dismiss Appeals.

      Denied.

    [Decided June 7, 1900.]
    For Syllabus see, Ramsey v. Burns et al ante p. 234.
   PER CURIAM.

— The respondents in each of these cases move a dismissal of the appeals upon the ground that the undertaking in each is void for ambiguity. The appeals are from judgments and orders refusing new trials. Each undertaking is in form and substance like the undertaking considered in Watkins v. Morris, 14 Mont. 354, 36 Pac. 452, and Ramsey, v. Burns, 24 Mont. 234, 61 Pac. Rep. 129. Upon the authority of Watkins v. Morris, and Ramsey v. Burns, supra, the motions must be denied, and it is so ordered.

Denied.