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in a similar way he cites the case of Huffman v. Wilhelm, and these two citations are the only reference made to these cases in the entire brief, and no where is the court cited to where these cases may be found. Now it seems to us that common sense and reason would convince attorneys that it is not the duty of this court to run the gauntlet of the entire legal world and examine the Reports of all the states of the Union, and all of the courts of the world, to find cases referred to in briefs, where the counsel are too indolent to cite the volume and page where the case may be found to the court. It might as well be understood first as last that this court will not use or quote authorities cited in briefs of counsel, where the court, volume, and page is not cited, so the court may examine the original authorities and compare them with the quotation and determine its correctness. Now, we think, while the writer of the brief for defendant in error is devoting so much time to directing the Legislature in their line of duty, that he might put a little attention to his own conduct, and, before seeking to remove the mote from his brother's eye, that he cast the beam out of his own eye. We make this remark for the benefit of all attorneys practicing before this court, that they may understand, when they cite authorities to this court, they should cite the court, the volume, and page of the report, and, when they call the attention of the court to errors in the record, they should cite the court to the page of the record.

Having examined this entire record, and finding no reversible error therein, the action of the district court is hereby affirmed, at the cost of the plaintiff in error. All Justices concurring, excepting BURFORD, C. J., who, having tried the case below, took no part in this decision.

(31 Utah, 203)

GRAVES v. SEIFRIED et al. (Supreme Court of Utah. Nov. 10, 1906.) 1. LIMITATION OF ACTIONS-MORTGAGE FORECLOSURE AVAILABILITY TO THIRD PERSONS. Where a third person acquired an interest in mortgaged property under a tax deed, she could invoke the statute of limitations as against the mortgagee, though it may have been waived by, or not available to, the mortgagor.

2. SAME RIGHT UNDER DEFECTIVE TAX DEED.

The fact that the tax deed, under which defendant claimed an interest in mortgaged property, was so defective as to be inoperative to convey good title, did not prevent her from pleading limitation against the mortgagee; her equitable lien giving her suflicient interest in the property.

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when an association went into a receiver's hands, the statute of limitations began to run against an unmatured mortgage held by it.

Appeal from District Court, Weber County; J. A. Howell, Judge.

Action by Edward B. Graves, receiver. From against Flora I. Seifried and others. the judgment, plaintiff appeals. Affirmed. Henderson & Macmillan, for appellant. John E. Bagley, for respondents.

STRAUP, J. 1. The appellant, plaintiff below, brought this action on the 29th day of April, 1904, to foreclose a real estate mortgage dated March 1, 1892, and executed and delivered by the defendants Flora I. and Henry F. Seifried to the North American Savings, Loan & Building Company. The mortgage was given to secure the payment of a promissory note of even date in the sum of $400, and payable "in three years from date and before nine years from date. and at the time when stock No. 4129 of the North American Savings, Loan & Building Company of St. Paul shall mature, and each and every share of said stock be of the value of $100." There was a provision in the note that "after failure of three months to pay any installment of interest or monthly payments due on the stock, the whole note shall become due and payable." In the mortgage it was provided that, in default of such payments, the principal sum "shall, at the election" of the mortgagee, become due and payable. It was further provided by the mortgage that it was given "to secure a loan made on eight shares of stock in said North American Savings, Loan & Building Company. the monthly payments on which amounted to $4.80," which the Seifrieds promised to pay until the stock became fully paid. It was further provided that if the Seifrieds should pay the sum of $400 and interest as evidenced by the promissory note, or should pay the installments of interest due on th note and all fines and monthly payments due on the stock until it became fully paid and of the value of $100 per share, and should then surrender the stock to the company in payment of the note, then the mortgage was to be void, otherwise to remain in force.

In an action by the state of Minnesota on relation of the Attorney General of that state, the plaintiff, on January 8, 1898, was appointed receiver of the North American Savings. Loan & Building Company, and an adjudication had that it then was, and for a long time prior thereto had been, insolvent; that it had ceased to do business, and was no longer a going concern, and was unable to carry out the purposes for which it was organized; and it was thereupon prohibited from doing business. Thereafter the plaintiff was appointed receiver of the company in and for the district of Utah. The sum alleged to be due on the note was

$296.35, with interest due and payable since January 13, 1898. It was alleged that the defendants N. H. and S. L. Ives and Mary B. Crossley claimed an interest in the real estate, and they therefore were made parties defendant. The Seifrieds defaulted, the Iveses filed a disclaimer, and Crossley answered, pleading the statute of limitations, and asserting title to the real estate by virtue of a tax deed. On the trial, after plaintiff had introduced the note and mortgage and rested, the defendants Crossley, over plaintiff's objection, introduced in evidence the tax deed executed and delivered to her on the 16th day of May, 1902, by the county clerk and ex-officio county auditor of Weber county, conveying to her the real estate in question, a lot situate in Ogden city, which theretofore, and on the 28th day of December, 1897, had been soid to pay the sum of $12.57, general taxes and costs assessed and levied against the property for the year 1897, and assessed to Flora I. Seifried, in whose name the title to the property then stood.

The deed, among other things, recited the assessment and levy of taxes by the proper officers; that the treasurer furnished each taxpayer, whose residence or place of business or post-office address was known, a notice of the amount of the tax assessed against him, when and where payable, and that such tax would become delinquent on the 15th day of November next thereafter; that the tax remained unpaid, and became delinquent; that the treasurer thereafter published in a newspaper printed and published in Weber county, state of Utah, and having a general circulation in that county, for the period required by law, a list of delinquent taxes showing the amount of taxes assessed against the land in question, and the party assessed therewith, for the fiscal year ending December 31, 1897. The deed further recited that the property assessed, levied upon, and advertised (fully described) was, by the treasurer, on or after the third Monday in December, 1897, to wit, on the 28th day of December, 1897, offered for sale to pay the taxes, with the costs and charges thereon, at public auction in front of the county courthouse in said county, and that M. H. Ives bid the amount of the taxes, and costs, assessed against the property, amounting to $12.57, and that the land was thereupon sold to him, and a certificate of sale issued, which was thereafter assigned by him to the defendant Crossley; and that the real estate was sold subject to redemption, and that no redemption had been made. The deed was executed by the proper officer, and properly acknowledged. In appellant's printed abstract, where a copy of the deed appears, the face of the deed shows that the property was assessed to Flora I. Seifried; in the transcript, where a typewritten copy of the deed appears, it shows Flora J. Sig

fried; and in other portions of the transcript, where the deed is referred to, it shows Flora I. Siegfried. The defense also put in evidence the certificate of sale showing that the property was assessed to Flora I. Seifried. The certificate appears to be regular on its face, and in compliance with the statute. There was also admitted in evidence the delinquent tax list as published, showing the property assessed to Flora I. Sigfried. Evidence was also given that the property was assessed to Flora I. Seifried, and that the tax notice was mailed to her. It was further shown that the defendant Crossley paid the taxes on the property for the years 1898 to 1904, both inclusive, amounting to something like $84. It was also shown that she was in the actual possession of the property. Upon findings made by the trial court, plaintiff's action was held barred by the statute of limitations. It was also held that the tax deed was valid, and that the defendant's title thereunder was superior to plaintiff's mortgage lien. To reverse this judgment, the plaintiff has prosecuted this appeal.

2. It is claimed (1) that the court erred in holding the action barred; (2) in admitting in evidence the tax deed; (3) in admitting in evidence the publication of the delinquent tax list; and (4) in holding the tax title good. Holding, as we do, that plaintiff's action is barred by the statute of limitations, it is unnecessary to pass on the questions relating to the alleged irregularities of the tax proceedings, or as to whether the tax deed was sufficient to operate as a conveyance of title, and, therefore, such questions are not decided by us.

Section 2855, Rev. St. 1898. provides that civil actions can be commenced only within the periods prescribed after the cause of action shall have accrued. Section 2875 provides that an action upon any contract, obligation, or liability founded upon an instrument of writing shall be brought within six years. Section 3498 provides that there can be but one action on any debt or for the enforcement of any right secured by mortgage upon real estate, which action must be in accordance with the provision for foreclosure of mortgages. The claims made by appellant are (1) that the defendant Crossley is not in position to invoke the aid of the statute; (2) that the tax title, being fatally defective, she cannot take advantage of the running of the statute; (3) that the cause of action did not accrue until the principal sum was due as specified on the face of the note, or until the mortgagee elected to declare the principal sum due because of the default in the monthly or interest payments, which election was not made until the suit was commenced. The first and second propositions may be discussed together under the question: Who may invoke the aid of the statute? The position taken by appellant, that to entitle one to invoke such aid he must be a party to the

written contract, is not tenable. Nor, confining the inquiry to the case before us, is it essential that the defendant Crossley should show a perfect title under her tax deed. To so assert, is, in effect, to say that the statute can be interposed only by one who has otherwise a complete defense to the action. In case of foreclosure of mortgage, the statute may be invoked by any person who has an interest in and to the real estate sought to be foreclosed. The argument is made that the right to interpose the statute is a personal privilege of the Seifrieds, the mortgagors, which could have been waived, and was waived by them by their failure to plead the statute; and, further, that they could not successfully have interposed the statute, because of their absence from the state, which caused a suspension of the running of the statute; and that. therefore, the defendant Crossley could not invoke the aid of the statute. This argument has often been made before the courts, and has been answered adversely to appellant's contention. In speaking of the question, in a case where a judg ment lienor was invoking the aid of the statute against a prior mortgage, the Supreme Court of California said: "But it is the settled doctrine of this court. as will be seen from the authorities above cited, that when third persons have subsequently acquired interests in the mortgaged property they may invoke the aid of the statute as against the mortgagee, even though the mortgagor, as between himself and the mortgagee, may have waived this protection; and we see no difference in principle between a suspension of the running of the statute, resulting from an express waiver, and one caused by his voluntary act in absenting himself from the state." Upon a review of the cases, the court further observed: "The theory of all the cases above cited is, that while the general rule is that the plea of the statute of limitations is a personal privilege, the rule does not extend to subsequent property rights over which he has no control." Brandenstein v. Johnson, 140 Cal. 29, 73 Pac. 744.

Also, in a case where a judgment lienholder interposed the plea of the statute of limitations against a prior mortgage, it was held by the Supreme Court of Washington that statute could be invoked by him. DeVoe v. Rundle, 33 Wash. 604, 74 Pac. 836. So, too, it has been held that one, who, by either private or judicial sale, has become the owner of an interest in real estate belonging to one or more heirs at law of the mortgagor, may plead the statute of limitations in bar of an action to foreclose a mortgage on the real estate so acquired, although each and all of such heirs at law are parties to the action, and neglected or refused to interpose the plea. Hopkins v. Clyde. 71 Ohio St. 141, 72 N. E. 846, 104 Am. St. Rep. 737. The following cases also support the doctrine that one who has acquired a lien or interest in and to property sought to be foreclosed by

a prior mortgage may invoke the aid of the statute as against the mortgage, notwithstanding the mortgagor neglects or refuses to plead the statute, or that by reason of his acknowledgment, or of his absence, the running of the statute as to him may have been suspended. Hill v. Hilliard, 103 N. C. 34, 9 S. E. 639; Schmucker v. Sibert, 18 Kan. 110, 26 Am. Rep. 765; Coster v. Brown, 23 Cal. 142; Frates v. Sears, 144 Cal. 246, 77 Pac. 905; Watt v. Wright, 66 Cal. 202, 5 Pac. 91: Corbey v. Rogers, 152 Ind. 169. 52 N. E. 748. Though it may be assumed that the tax deed, because of its claimed imperfections, and because of the alleged irregularities of the tax proceedings, was inoperative to convey a good title, nevertheless, the deed purporting to convey title and being consistent with good faith to claim title under it, the defendant Crossley's possession of the property and the equitable lien thereon acquired by her under the circumstances by the payment of the taxes by her, gave her such an interest in and to the real estate sought to be foreclosed by plaintiff as to entitle her to invoke the aid of the statute.

3. This brings us to the question as to whether the action was barred by the statute. It may be assumed that the action, on the face of the note, is not barred. It may further be assumed, without deciding the point, that the provisions in the note and mortgage giving the right to declare the principal sum due on default of interest or monthly payments were only for the benefit of the creditor. But the rule seems to be well settled that the insolvency of a building and loan association and the appointment of a receiver to wind up its affairs works a practical dissolution of the association and terminates, to a certain extent, its contracts with its members. Under such circumstances, the mortgage indebtedness of its borrowing members becomes immediately due and collectible by the receiver, regardless of the fact that it is, in terms, payable in installments extending over a definite period of time. The authorities generally hold that, in such case, the borrowing member is to be charged with the amount of money actually received by him, together with legal interest. They differ only as to the amount or kind of credits which are to be allowed him, some holding that he is entitled to credit for all money paid by him to the society, others holding that he is entitled to all interest and partial payments, but not to mere premium or stock payments. These principles are well illustrated by the following authorities: Curtis V. Granite State Prov. Ass'n, 69 Conn. 6. 36 Atl. 1023, 61 Am. St. Rep. 17; Johnston v. Grosvenor, 105 Tenn. 353, 59 S. W. 1028; Weir v. Granite State Prov. Ass'n, 56 N. J. Eq. 234, 38 Atl. 643; Strauss v. Building Loan Ass'n, 117 N. C. 308, 23 S. E. 450, 30 L. R. A. 693, 53 Am. St. Rep. 585; Strohen v. Franklin Svgs. Fund & Loan Ass'n, 115 Pa. 273, 8 Atl. 843; Windsor & Appelgrath

v. Bandel, 40 Md. 172; Thompson, Bldg. & L. Ass'n, § 319; Thornton and Blackledge on Bldg. & L. Ass'n, 446; Endlich on Bldg. & L. Ass'n, 518-531. The rule, so far as here applicable, is well stated in 5 Am. & Eng. Decisions in Equity, page 278, note 20, in the following language: "The insolvency of a building association, which is that condition of its affairs in which it is unable to pay back to its members the amounts paid in by them, respectively, dollar for dollar. puts an end at once to its operations, and as it thus prevents the stock from maturing and extinguishing the loans, according to the contracts between the association and its borrowing members, constitutes a breach of those contracts, and, on the on hand, excuses the borrowers from all further liability for the payment of dues and fines, and, on the other hand, renders the mortgages given to secure the loans due and enforceable at once, without regard to their terms, even though payable in installments, and the receiver can proceed to collect them." The question whether the mortgagors were entitled to credits for all moneys paid to the society by them, or only for interest and partial payments, is not here involved. When the association was declared insolvent and a receiver appointed to wind up its affairs, the mortgage became immediately due and collectible, and the receiver could then have maintained an action for a recovery. The cause of action accrued at that time, and the statute then began to run. The association was adjudged insolvent and a receiver appointed January 8. 1898. The action was commenced April 29, 1904, a period of time longer than six years.

Our conclusion is that the action was barred, and the judgment of the court below is, therefore, affirmed, with costs.

MCCARTY, C. J., and FRICK, J., concur.

(12 Idaho, 613)

EDMINSTON v. STEELE Judge. (Supreme Court of Idaho. Nov. 14, 1906.) 1. JUSTICES OF THE PEACE-APPEAL-BONDSUFFICIENCY.

On appeal from a justice's court to the district where the appellant gives "an undertaking for the payment of costs on the appeal to the district court and for a stay of execution," and the sureties are bound in a sum exceeding $100, though not in an amount sufficient to stay the proceedings, and the undertaking contains all the obligations required in appeal bonds, such undertaking will be held sufficient to perfect the appeal, and in such case a motion to dismiss the appeal was properly overruled by the district court.

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Application of Mary E. Edminston for writ of prohibition to E. C. Steele, judge. Writ denied.

John O. Bender, for plaintiff. Eugene A. Cox and Edward S. Fowler, for defendant.

AILSHIE, J. This is an application for a writ of prohibition. To the plaintiff's petition the defendant has demurred on the ground that the petition does not state facts sufficient to entitle her to the relief demanded. This application grows out of the following state of facts: The plaintiff, Mary E. Edminston, commenced an action in the justice court and obtained a judgment for the total sum of $86.40. The defendant in that action. Martha Smith, served and filed her notice of appeal, and gave an undertaking in the following form: "Whereas the above-named defendant. Martha Smith, desires to give an undertaking for the payment of costs on an appeal to the district court and for a stay of execution against the property of the said Martha Smith in the above entitled case: Now therefore, we, the undersigned sureties, do hereby obligate ourselves jointly and severally to the above named plaintiff. Mary E. Edminston, under the said statutory obligations and all statutory obligations applicable to such undertaking in appeal and for a stay of proceedings in the sum of one hundred eighty dollars ($180)." When the case came on in the district court, the plaintiff here, who was respondent there, made a motion to dismiss the appeal on the following grounds: "That no undertaking on appeal for the payment of costs has been executed, or filed by appellant. Martha Smith; and that the undertak ing executed by her to stay proceedings is not in a sum equal to twice the amount of the judgment rendered in the justice court including costs; that this court has no jurisdiction of this case." After hearing the motion the court overruled the same, and thereupon the respondent, who is plaintiff bere, applied to this court for a writ prohibiting ad restraining the district court from pro ceeding to a trial of the cause.

It is contended by the plaintiff that the undertaking given on appeal from the justice court to the district court is so indefinite and uncertain that it is neither good as an appeal bond nor as a stay bond. It is conceded by both sides that the undertaking is not in a sufficient amount to stay the proceedings as required by section 4842. Rev. St. 1887. Wilson v. Doyle (Idaho) 85 Pac. 928. Counsel who appear for the defendant judge contend that the undertaking is in due form for an appeal bond, and is in a sufficient amount, and that, although it is not sufficient to stay proceedings, it is good as an appeal bond and that the court correctly overruled the motion. It will be seen from an examination of this undertaking that it contains the language of the

statute required in undertakings on appeal from a justice court, namely, that it is "for the payment of costs on appeal." On the other hand, the obligation in the latter clause is in conformity with the act providing a form for undertakings, approved February 14, 1899 (Sess. Laws 1899, p. 235), and binds the sureties in accordance therewith, namely, "the sureties bind themselves under the said statutory obligations and all statutory obligations applicable to such undertaking on appeal." The undertaking seems to contain all the obligations and requirements necessary for an undertaking on appeal, and the fact that it was also attempted to include therein a bond for stay of proceedings, and that the amount of the obligation was not sufficient for that purpose. does not invalidate or vitiate the first obligation to pay costs of the appeal. There can be no doubt, we think, but that the bondsmen can be held on this undertaking for the costs of the appeal to the extent of $100 under the statutory obligations. Such being the case, it would have been error for the district court to have dismissed the appeal. As to the extent, if any, of the obligation entered into by the sureties for stay of proceedings, that is not a matter involved in this case, and we have no occasion to consider it here. It must be assumed that this undertaking was given for a purpose. The first purpose to be served by an undertaking in such case is to perfect the appeal, because, if there is no appeal, there can be no stay of proceedings-there will be nothing to stay. The bond, whatever its conditions or the amount of the obligation as to stay of proceedings, could serve no purpurpose if there is no valid appeal. The primary object of the party appealing from the justice court in giving an undertaking must have been to comply with section 4842, Rev. St. 1887, and make the appeal "effectual."

Counsel for plaintiff have placed some reliance upon the decisions of this court in Wilson v. Doyle, supra, and Numbers v. Rocky Mt. Bell Tel. Company, 7 Idaho, 408, 63 Pac. 381. Those cases each turned upon different facts from those involved here, and neither one of them is decisive of this question. Counsel also cites Duffy v. Greenebaum (Cal.) 12 Pac. 74, Galloway v. Tjossem (Wash.) 60 Pac. 129, Beezley v. Sessions (Wash.) 60 Pac. 130, and Sumner v. Rogers (Wash.) 58 Pac. 214, in support of plaintiff's contention. Duffy v. Greenebaum is not in point for the reason that the undertaking there considered by the court was held not to contain the necessary obligations required in an appeal bond, and only amounted to a stay bond. The other cases cited by plaintiff are from the state of Washington, and appear to support his position. We are not, however, inclined to follow those authorities. They do not seem to us well founded and have never met with the unan

imous approval of that court. As late as the case of Douglas v. Badger State Mine (Wash.) 83 Pac. 178, Mr. Justice Fullerton repudiated the doctrine that had been previously followed and approved by a majority of that court, and said: "In my judgment a bond sufficient in condition and amount as an appeal bond is good as an appeal bond regardless of any condition looking to the stay of the judgment it may contain." The view we have taken in this case seems to have been entertained in California under the statutes from which ours were taken and prior to their adoption in this state. M. H. C. & M. Co. v. Woodbury, 10 Cal. 186; Dobbins v. Dollarhide, 15 Cal. 374; Zoller v. McDonald, 23 Cal. 136; Ward v. Superior Court, 58 Cal. 519. There was no error in the trial court overruling respondent's motion to dismiss the appeal and setting the case for trial.

Defendant's demurrer to the petition herein will be sustained, and the case is dismissed, with costs in favor of defendant.

STOCKSLAGER, C. J., and SULLIVAN, J., concur.

(74 Kan. 557)

Appeal of RICHARDSON. (Supreme Court of Kansas. Nov. 10, 1906.) BOUNDARIES-LOCATING CITY PLATS-RULES.

The primary rules for locating city plats upon the ground are, in order of precedence in application, as follows: First. Find the lines actually run and the corners and monuments actually established by the original survey. Second. Run lines from known, established, or acknowledged corners and monuments of the original survey. Third. Run lines according to courses and distances marked on the plat.

[Ed. Note. For cases in point, see Cent. Dig. vol. 8, Boundaries, § 3.]

(Syllabus by the Court.)

Error from District Court, Wilson County; L. Stillwell, Judge.

In the matter of the appeal of R. N. Richardson from the George Sipe Survey. Reversed and remanded.

P. C. Young, for appellant. Kennedy & Kennedy, for appellee Cedar Oil & Gas Co.

BURCII, J. The city of Altoona was surveyed and platted in the year 1870. Original corners were marked by walnut pins driven in the ground. The city hall and other improvements upon the townsite were afterward located in conformity with the ground marks of the original survey, and other original corners are definitely known and provable. After 1870 a public highway known as the "Reed Road" was laid out along the north side of the townsite. Block 3 is in the north tier of blocks. A survey was made to establish the line between lots 2 and 3 in this block, which upon appeal was set aside and an order for a new survey was made in the following terms: "It is ordered,

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