Beadle v. Beadle.

and to reconvey upon final settlement any interest of complainant's remaining in the land. This question has been to some extent anticipated in what has been said. We have seen that the deed was executed for the purpose of facilitating the conveyance of portions of the property to purchasers by vesting the legal title fully in respondent. The quotations already made from the contemporaneous correspondence between the parties shows this.

This conclusion is confirmed by the acts and declarations of respondent subsequently to the execution of the quit-claim deed. He did not assume to be the owner of the property. He did not claim possession nor deny the right of the complainant. On the contrary, he went on assuming that the two were still jointly interested. Perhaps the most conclusive proof upon this point will be found in the letter of the respondent which is in evidence, marked Exhibit "R," in which he says:

"This satisfaction piece and your quit-claim being recorded, there will be no question in my giving a warranty deed; and just as soon as we can sell and pay some of the debts resting on me, we can settle and divide, or hold it together, just as we are a mind to. I see nothing to hinder if you are satisfied to do so."

It is clear that the execution of the quit-claim deed under the circumstances developed in the proof did not divest complainant of his interest in the lands devised under the will, but said interest was vested in respondent only in trust, and he was bound in equity to account to complainant therefor.

3. It remains only to consider the effect of the contract, a copy of which is attached to the answer, dated June 20, 1877. By this instrument the respondent agreed to furnish “good and sufficient warranty deeds" for the land in question, when called upon by complainant to do so, as he should sell or dispose of lands. Complainant was to pay respondent $11,000 for his interest, the whole amount to be paid within five years; and to pay at least $600 per annum, together with all money

Burr v. Chariton County.

or securities received for the sale of said real estate. Whenever $2,000 was paid the complainant was to have a deed for the house and block upon which he resided. By reference to the pleadings it will be seen that neither party is seeking in this suit to enforce this contract. It seems to be assumed that it has been abandoned and rescinded by the parties to it. It seems pretty clear that it was repudiated by the respondent as early as the fifteenth of March, 1878; for on that day he wrote to complainant that he was resolved to sell the land and the buildings and would want possession when he made a deed. The time for carrying out the contract had not expired, and this notice could have been given only upon the theory of an abandonment of the contract.

It is, however, enough for the present to say that the court is not asked to specifically enforce it. It is offered in evidence only as tending to establish the claim of the respondent to the entire ownership of the real estate. It contains a reference to the land as "now owned by " Mishael Beadle; but this recital is not, in my judgment, sufficient to overcome the proof already referred to establishing the fact that he did not, in fact, own the whole of said land.

Upon the whole case my conclusion is, that all the exceptions to the master's report, by both parties, should be overruled; and that the said report should be confirmed and decree rendered as recommended. It is accordingly so ordered. The case will be recommitted to the master to state an account in accordance with his findings, and with power to take further testimony touching the matter of the account between the parties.

BURR v. CHARITON COUNTY.

(Western District of Missouri. November, 1880.)

1. MUNICIPAL BONDS-VALIDITY — CHARTER-SPECIAL ACT.- Where the charter of a railroad company authorized it to receive subscriptions to its stock from a county without a vote of the people, held, that a prior

Burr v. Chariton County.

special act of the legislature, requiring a vote of the taxpayers as a condition precedent to such subscription, did not affect the validity of bonds in the hands of innocent purchasers.

2. INNOCENT HOLDER OF MUNICIPAL BONDS.-The bonds having passed into the hands of innocent holders, it is enough if the power to issue them existed either under the charter or special act. The question whether the statute has been complied with, is for the authorities of the county to determine.

Henderson & Shields, for plaintiff.

C. W. Bell and C. L. Dobson, for defendant.

of

KREKEL, District Judge.-The legislature of Missouri, on the twentieth day of February, 1865, granted a charter to the Mississippi Railroad Company, to which defendant county in 1869 issued bonds in payment of a subscription of stock made thereto. This suit is brought on due and unpaid coupons said bonds. The bonds issued are made payable to said railroad company or bearer. It appears that at the time of granting the charter and at the time of issuing the bonds, there existed a special act applicable to the defendant county, providing that whenever the county of Chariton wishes to subscribe to the capital stock of any railroad company, the county court shall cause an election to be held, and if a majority of all the resident taxpayers of said county shall vote for the subscription, the county court shall subscribe. The county court is prohibited by the act from taking stock unless the subscription was voted for by a majority of all the resident taxpayers.

It is claimed that because the proceedings which led to the subscription and issuing of the bonds were not had under this special act, but under the provisions of the charter, the bonds are therefore void for the want of power in the county court to make the subscription and issue the bonds. The bonds on their face recite that they were issued under the authority conferred by the charter of the company. The question whether this special act of March 12, 1859, relating to defend

Burr v. Chariton County.

ant county, was in force at the time of the issuing of the bonds, I shall not stop to discuss, holding that even if it was in force it does not affect the legality of these bonds. The charter of the Mississippi Railroad Company granted to it the privilege to obtain county subscription, and the defendant county could avail itself of the opportunity to subscribe either under this power or the power granted by the special act, assuming that the latter was in force. It can scarcely be doubted that the legislature of Missouri had the power to except this railroad company out of any limitation which might have existed by virtue of the special act. Aside from all this, it has been held that the issuing of the bonds raises the presumption that all preliminaries, including the election required, have been complied with, and a bona fide holder is not bound to look beyond the question of power. City of Lexington v. Butler, 14 Wall. 283; Flagg v. Palmyra, 33 Mo. 440. There is an abundance of power, as claimed by either party, to issue bonds. The recital in the bonds that they were issued under authority granted by the charter might be erroneous, yet if the special act authorized the issuing of them, that is sufficient. The question is, did power exist? Whether the source thereof was correctly pointed out can make no difference. But it is said that the provisions of the special act define who shall vote, and that these have not been complied with. The answer is, that the tribunal, the county court, was by law made the judge of such matters, and when they issued the bonds innocent holders had a right to presume that all preliminary requirements had been complied with. The objections urged against the validity of the bonds are not that there was no power to issue them, but that no power existed under the charter, because the special act limits the power there granted. The defendant county urging this objection can only do so on the assumption that the special act is in force. If so, there existed power to issue the bonds, and the same having been issued, the law will attribute the exercise of the authority to the true source in the furtherance of justice and good faith. Eight years of interest have been

Merriam v. Lapsley.

paid on these bonds, thus affirming their validity and curing irregularities, so far as such acts tend in that direction. The law of the case arising upon the facts is with the plaintiff, and judgment accordingly.

MERRIAM V. LAPSLEY.

(Western Division Western District of Missouri. October, 1880.) 1. CONTRACT BY CORRESPONDENCE-ACCEPTANCE OF PROPOSITION.Where it was alleged that a contract for exchange of property had been consummated by correspondence, and it appeared that the final letter of complainant, in which he claims to have accepted the proposition of respondent, contained a condition to which respondent never assented, held, that there was no consummated contract; that, though the condition might have been of small importance, yet the respondent had a right to an unconditional acceptance of his proposition before being bound.

The facts are stated in the opinion.

KREKEL, District Judge.- Bill for specific performance. This case comes here by change of venue from Cass county, Missouri; and in a controversy between Merriam, a resident of Pleasant Hill, Cass county, Missouri, and Lapsley, a resident of the state of Kentucky, plaintiff Merriam claims that he agreed with defendant Lapsley to exchange certain improved real estate in Pleasant Hill, Cass county, Missouri, owned by defendant, for improved real estate in the state of Kansas, owned by Merriam. The transaction commenced by Merriam writing to Lapsley, offering to exchange his Kansas lands for Lapsley's Pleasant Hill house and lot. A correspondence is thereupon had, and it is claimed by Merriam in his bill that an agreement was reached, under which he took and now holds possession of the Pleasant Hill property. All the information Lapsley ever had regarding the Kansas lands of Merriam came from Merriam through letters in evidence. It seems that Lapsley, under an erroneous impression regarding the location of the land as to railroad improvements, expressed