Pope v. Durant.

power exercised by the trustee, that the contingency upon which the right to sell was to arise had not occurred. And especially so when the plaintiffs' petition contains copies of the notice and deed, of which notice due service was made upon them, and which recites in express terms that the land had been sold for taxes for the years 1859 and 1860.

If such sale for taxes had been averred by the mortgagee and based thereon he was asking affirmative relief, then, if denied, he would, of course, have to establish such breach. Here, however, the burden is upon the mortgagee, or those claiming under him. And as they would be required to prove, to defeat the sale on this ground, that there was no such breach, they must, of course, aver it in the petition. At least, upon demurrer, nothing should be presumed against the validity of the sale.

It is true that the notice to the heirs (the present plaintiffs) stated that the sale would be made for the purpose of making the amount mentioned in the note ($1,269) with interest from the first day of January, 1859. But it recited in clear and explicit terms the non-payment of the taxes, and that the right to sell was claimed to arise from such breach. And this we think is the fair and only reasonable construction of the language used. The duty to pay the taxes devolved by the express terms of the mortgage upon the mortgagor. It was not even provided as is usual in such instruments, that, upon the default of the mortgagor to pay taxes, the mortgagee might pay, having a lien for the same. But the parties agreed, that, if the taxes were not paid before sale, the mortgagee might then, and in that case, "lawfully sell the premises at public auction, make a deed, rendering the surplus, etc." This did not contemplate the payment to the mortgagee from the proceeds of the sale, the taxes

Pope v. Durant.

advanced or paid, rendering to the mortgagor the surplus over and above such advance; but by reason of such breach or failure the power to sell arose, and after paying the debt the surplus, if any, was to go to the mortgagor. If this is not so then the language used is without meaning, has nothing upon which to operate, nothing to which it can fairly or reasonably apply.

The power given was not to sell for sufficient to pay "what was due at the time of the sale."

If so, then we would concede, that a sale for an installment due, and one to become due, would be void. It is rather like the case where the trustee is authorized to sell in default of the payment of interest. There the sale is valid though the principal is not yet due. So held in Richard v. Holmes, 18 How. 143. Here the power to sell for the non-payment of taxes, was intended to cover more than accrued interest. The parties made their own agreement, and while the power to sell is derived from the instrument itself, it is equally true, that where it has been fairly made, the courts have no right to make another agreement for them. No power to say, that it would have been better if they had incorporated other terms and conditions. And nothing is clearer than that the object and design of the parties should be kept in view in determining the extent and nature of the power conferred. Holding, as we do, that they intended and contemplated that the trustee might sell for the non-payment of the taxes, that by their agreement the power could then be exercised precisely as though there was default in paying the principal debt at its maturity, we are forced to the conclusion, that plaintiffs have no right to redeem. We need hardly say, that what is said about notice to the purchaser (Hunter) and his grantee (Prussia) can only relate to knowledge of the defects of which appellants complain in their petition. They were bound of course

Pratt v. The Western Stage Co.

to know and understand the extent of the power under which the mortgagee acted, and to see that its terms were complied with. This rule is fundamental. But as we have seen that the power was complied with, there was no defect with or without notice, which could affect their title.

The demurrer was properly sustained.

Affirmed.

26 241 107 43

PRATT V. THE WESTERN STAGE Co.

1. Appeal: TO SUPREME COURT: PRACTICE: AFFIRMANCE OF JUDGMENT ON MOTION. Under sec. 3515 of the Rev., which provides that if the appellant fails to file the transcript which has been sent up, the appellee may file the same, and on motion may have the appeal dismissed or judgment affirmed, an appellee cannot have the judgment affirmed where notices of appeal were not served on the clerk and appellee until within fifteen days of the term, though the supersedeas bond was filed that length of time before.

2.

REQUISITES OF AN APPEAL EFFECT OF SUPERSEDEAS. An appeal is not perfected until service of notice thereof. Merely filing a supersedeas bond does not amount to the taking of an appeal; and the execution of a judgment should not be stayed unless in addition to the filing and approval of the supersedeas, there is also notice of appeal served, at least upon the clerk.

3. If the supersedeas bond is filed, and no notice of appeal is served, at least upon the clerk, he should not recall the execution, if one has been issued, nor issue an order to stay proceedings thereunder.

4.

AFFIRMANCE OF JUDGMENT ON NOTICE TO CLERK. It seems that, under sections 3514, 3515 of the Revision, an appellee may, in proper cases, have an affirmance by showing that the clerk has been served in time with notice of appeal, without showing that the party has also been served with such notice.

Appeal from Appanoose District Court.

WEDNSDAY, DECEMBER 16.

DILLON, Ch. J.-This is a motion by the appellce, made under section 3515 of the Revision, to affirm the VOL. XXVI. — 31

1. APPEAL: to

Supreme

Court: affirm ance of judg

ment on motion.

Pratt v. The Western Stage Co.

judgment below. The appellant resists the motion, because, as he claims, the appeal was not taken and perfected in time for the pre

sent term. Rev. § 3513. The record shows that the supersedeas bond (Rev. § 3527-28) was filed more than fifteen days before the first day of the present term of the Supreme Court. But it also shows that the notices of appeal to the clerk and appellee (Rev. § 3509) were served on both of them within fifteen days.

2.

sites of an ap

By the statute, an appeal is not perfected until service of a notice of appeal. Rev. §§ 3509, 3511, 3513. Merely requi- filing a supersedeas bond does not amount to peal: effect of the taking of an appeal. If such bond is filed, and no notice of appeal is given, at least to the clerk, the latter officer should not recall an execution, or issue an order to stay proceedings thereunder.

supersedeas

bond.

In other words, the execution of a judgment should not be stayed unless a supersedeas bond is filed and approved, and unless also notice of appeal is served, at least upon the clerk. As clerks have been in the habit, to some extent, of staying proceedings upon the mere filing of a bond, and as a number of cases similar to the present, have been before the court, in which by filing the bond and delaying to serve notices of appeal until within fifteen days of the first day of the term of this court, the appellants (in consequence of the misunderstanding of the law by the clerk) have succeeded in securing delays to which they are not entitled, we have thought it important to point out, as we have done, the duty of the clerks.

It may also be remarked, that we have several times held, on motion, that under sections 3514 and 3515, of the Revision, an appellee may, in proper cases, ance of judge have an affirmance by showing that the clerk to clerk. has been served in time with notice of appeal,

8. -affirm

ment on notice

McClure v. Owen.

and without showing that the party has also been served

with such a notice. Motion denied.

Amos Harris for the motion.

J. M. Elwood, contra.

MCCLURE et al. v. OWEN et al.

1. Constitutional law: OBLIGATION OF CONTRACTS. The constitutional prohibition against laws impairing the obligation of contracts, is not infringed by a judicial decision declaring a contract void which the parties had no legal or constitutional power to make.

2. —

3.

4.

5.

6.

COUNTY BONDS FOR RAILROADS. Our State Constitution confers no power upon the legislature to authorize counties to become stockholders in railroad corporations, nor to borrow money upon their bonds for the purpose of payment upon such stock; and such bonds are, therefore, void. Following The State ex rel. v. The County of Wapello, 13 Iowa, 389, and other prior decisions of this court.

CONSTRUCTION OF STATE LAWS AND CONSTITUTIONS: FEDERAL COURTS. The Supreme Court of the United States is not the final arbiter upon questions arising purely upon the construction of the statutes or Constitution of a State.

The binding authority of a decision of the Supreme Court of the United States, disregarding the construction which the highest judicial tribunal of a State has placed upon one of its statutes, or its Constitution, not admitted, but, in substance, denied.

CONFLICT BETWEEN THIS AND UNITED STATES SUPREME COURT. The history and grounds of the conflict between the Supreme Court of this State and that of the United States, growing out of the construction of our laws and Constitution, involving the validity of county railroad bonds, reviewed and stated by BECK, J.

RULES OF CONSTRUCTION BY FEDERAL COURTS: STATE LAWS. The decisions of the Supreme Court of the United States establishing the following principles governing the construction of State laws, cited by BECK, J.:

1. The settled construction of a State statute by the Supreme Court of that State, is a part of the statute, and will be followed by the federal courts.