The property was purchased for the use of the county for a poor-house and farm. Possession of it was taken immediately by the county authorities, and it has been improved and used for that purpose continuously ever since. The title of Chapman as to the one hundred and sixty acre tract was perfect, but as to the ten acre tract has failed.

On Nov. 26, 1860, the notes and mortgage were assigned, for value, to Charles A. Ely, who having since deceased, his rights have devolved upon his legal representatives. On June 13, 1868, William A. Ely, a minor and the devisee of Charles A. Ely, by his next friend and guardian, commenced a suit in the District Court for Douglas County for the foreclosure of the mortgage, to which a demurrer was interposed, on the ground that the notes and mortgage were void, ab initio, for want of power on the part of the county to make them, and also because any action on them was barred by the Statute of Limitations. This demurrer having been sustained, the plaintiff dismissed the action on July 21, 1868, without prejudice. On Aug. 8, 1868, a similar suit, by bill in equity, was begun in the Circuit Court of the United States, which, on November 19, in the same year, was dismissed without prejudice; and, on March 15, 1869, a similar bill was filed in the same court, to which the same defences, as above stated, were raised upon a demurrer, which was sustained, and on Dec. 30, 1872, the bill was dismissed without prejudice.

The answer to the present bill admits that no part of the $5,000 of the original purchase-money has been paid, and that the rents, issues, and profits of the premises, since the county has been in possession of them, exceed the amount of the first instalment which was paid, and sets up the same defences as before, that the mortgage and notes are void for want of power on the part of the county to make them, and that any action accruing to the complainants is barred by lapse of time and the Statute of Limitations. It also admits "that both the said commissioners and the said Chapman believed that the said county had full power and authority to purchase said lands and execute the said notes and mortgage for the unpaid part of the purchase price, and that all the actings and doings of the said parties in that behalf were had, made, and done in

perfect good faith and for good and sufficient considerations, in all things conformable to equity and good conscience, save as is hereinafter stated." This saving is that "the sum paid by this defendant for said lands, to wit, $2,000, was the full, fair value thereof at the time of the said purchase and sale, and the amount of the said notes and mortgage was just so much in excess of the true value thereof. This defendant is informed and believes, and now here charges, that the said notes and mortgage were made between the said Chapman and the said commissioners, acting in the name of said county, with the full knowledge on the part of all of them that the full and fair value of the premises had been already paid therefor by the said county, and that the agreement to give the said notes and mortgage was unjust and oppressive toward the said county, and that, in fact, they were without consideration, and that the giving thereof was induced by some secret and fraudulent agreement or understanding between the said commissioners, or some of them, on the one side, and the said Chapman on the other." It also admits that during the delay of the complainants in bringing their suit "the evidences of the fraudulent, corrupt, oppressive, and unjust contract of purchase have disappeared." No evidence in support of the alleged fraud is, therefore, offered, and the defendant is constrained to rely upon the Statute of Limitations, if any cause of action ever existed. In reference to the allegation of the oppressive amount of the price agreed to be paid, in addition to the fact admitted in the answer, that the rents and profits accrued to the county since it has been in possession amounted in value to more than the payment made, it is also urged in argument by its counsel against a rescission of the contract, that "there has been such a change of circumstances that that mode of relief would be most oppressive. This land, purchased when the county was very sparsely settled, and situated very near to a town which has recently grown to great importance, must have greatly appreciated in value. Besides which fact, there is the further one already adverted to, that the county has improved it to the extent of thirty thousand dollars." It is, therefore, insisted that the county should be permitted to retain the land without paying for it.

On final hearing the bill was dismissed, and the decree, to that effect, is brought here for review by this appeal.

Mr. Charles C. Bonney and Mr. George Willey for the appellants.

Mr. John C. Cowin and Mr. James M. Woolworth for the appellee.

MR. JUSTICE MATTHEWS delivered the opinion of the court, and, after stating the case as above, proceeded as follows:

The statute in force at the date of the transaction in question, conferring power on the county commissioners over the subject, provides, "That the county commissioners in each county are authorized, whenever they see fit to do so, to establish a poor-house;" and that "they may take to the county, by grant, devise, or purchase, any tract of land, not exceeding six hundred and forty acres, for the purposes of said poorhouse." Sect. 17 and 18, Rev. Stat. Neb., c. 40. Sect. 19 of the same chapter declares that "said commissioners are hereby empowered to receive donations to aid in the establishment of such poor-house; and also empowered, from time to time, as they shall see fit, to levy and collect a tax, not exceeding one per cent, on the taxable property in the county, and to appropriate the same to the purchase of land, not exceeding the aforesaid six hundred and forty acres; and to erect and furnish buildings suitable for a poor-house, and to put into operation and to defray the actual expenses of said poor-house, should the labor of the inmates be inadequate thereto." By sect. 23 of the same act the commissioners are authorized, if they deem it to be for the interest of the county, to appropriate out of any other money belonging to the county any sum not exceeding $2,500 for the purpose of purchasing a farm and erecting thereon suitable buildings, as contemplated in the sections before referred to.

These provisions of the statute were construed by the Supreme Court of the State in Stewart v. Otoe County, 2 Neb. 177. It does not appear from the report when the decision. was made, but as the case arose upon a contract dated in January, 1870, it must, of course, have been long after the making of the contract, which is the foundation of the present litiga

tion. It was rendered in an action brought upon a similar contract to recover against Otoe County damages for its refusal to accept a deed and execute the note and mortgage contemplated. A judgment sustaining a general demurrer to the petition was affirmed, on the ground that the contract was illegal and void. The court said: "There is no authority of law for the county commissioners to bind the county in the manner contemplated. They cannot give a promissory note, nor can they mortgage the property of the county. Should they formally do so, their action would be a nullity. In the purchase of land for a poor-farm, the authority of the commissioners of a county is very clearly set forth. The mode of raising the money, and paying it over, are all definitely stated. These statutes set a limit beyond which they cannot go. They are a guide, not only to the commissioners, but equally so to all persons dealing with them, who must see to it that their contracts are within the boundaries thus described. Here we find the authority, and indeed the only authority, for the purchase and payment of money for a "poor-farm" by the county commissioners; and here, too, are specially designated the money that may be used for that purpose, together with the mode of raising it. But there is not one word about mortgaging the property of the county to secure the payment of the purchase-money at a given time. The statutes provide the only security that can be given. The public faith is pledged; and a tax, not exceeding one per cent, may be levied upon all the taxable property of the county annually, and, when collected, paid to the person entitled thereto by an order upon the treasurer of the county, payable out of that special fund."

This decision has been accepted by all parties to this suit, and we are not asked to consider any question as to its correctness, or as to our obligation to adopt it. We, therefore, assume it to be the law of Nebraska, applicable to the case, and the basis of further inquiry as to the relative rights of the parties to this litigation. It expressly declares that the county commissioners had power to purchase a poor-farm, but that the power does not extend to an agreement to pay at a definite time, or to give as security for payment a lien upon the land. The vendor must either receive the purchase-money on delivery

of the deed, or wait for its payment in the due course of administration, by the appropriation of the taxes levied, collected, and paid into the treasury applicable to that purpose.

If, in the present case, such had been the original understanding between the parties, and the deed had been delivered without payment, but upon orders drawn upon the county treasurer payable according to law, the vendor would have been obliged to wait during the reasonable delays of administration. "Whoever," said that court, in Brewer v. Otoe County, 1 Neb. 373, "deals with a county and takes in payment of his demand a warrant of the character of these, no time of payment being fixed, does so under an implied agreement that if there be no funds in the treasury out of which it can be satisfied, he will wait until the money can be raised in the ordinary mode of collecting such revenues. He is presumed to act with reference to the actual condition and the laws regulating and controlling the business of the county. He cannot be permitted, immediately upon the receipt of such warrant, to resort to the courts to enforce payment by judgment and execution, without regard to the condition of the treasury at the time, or the laws by which the revenues are raised and disbursed."

Accordingly, in that case, it was decided that the Statute of Limitations did not apply to cases of such claims against counties. The court, on that point, said: "But these warrants do not, nor was it the intention of the legislature that they should, fall within the operation of this act. . . . Nor can any action rightfully be brought on such warrant until the fund is raised, or at least sufficient time has elapsed to enable the county to levy and collect it in the mode prescribed in the revenue laws. That the legislature never intended that county warrants should be affected by the limitation act before referred to, is evident, I think, from the whole course of legislation respecting them. As late as the 12th of February, 1866, it was enacted that all debts heretofore incurred by the county commissioners of any county, acting in good faith, and duly recorded at the time on their books, shall be deemed valid and the county shall be held liable for the same.' Chap. 5, sect. 1, Rev. Stat. . . . From these, as well as numerous other enact