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deducible from this principle, it results that any permission by statute or ordinance whereby such authority is temporarily surrendered is only a license, a cancellation of which is not violative of a state or of the federal Constitution prohibiting the passage of laws impairing the obligation of contracts. Thus a grant of the right to maintain a lottery, for which money has been given, will not prevent a repeal of the authority to conduct such business. Boyd v. Alabama, 91 U. S. 615, 24 L. Ed. 302; Stone v. Mississippi, 101 U. S. 814, 25 L. Ed. 1079; Douglas v. Kentucky, 168 U. S. 488, 18 Sup. Ct. 199, 12 L. Ed. 5.53. A license to manufacture or sell intoxicating liquor does not create a contract, and for that reason the privilege may be annulled before the expiration of the term for which it was given. Beer Co. v. Massachusetts, 97 U. S. 2.5, 24 L. Ed. 989; State ex rel. v. Bonnell, 119 Ind. 494, 21 N E. 1101; Fell v. State, 42 Md. 71, 20 Am. Rep. 83; State v. Cooke, 24 Minn. 2-17, 31 Am. Rep. 34; Wallace v. Mayor, 27 Vev. 71, 73 Pac. 529, 63 L. R. A. 337. 103 Am. St. Rep. 747. Though the slaughtering of animals, the flesh of which is designed for human food, does not tend to corrupt the public morals and is a legitimate business which may be classed by some as a necessity, the place where it is conducted may, by reason of its proximity to the residence portion of a city or village, demand its removal, notwithstanding it may have been established pursuant to a statute or an ordinance authorizing it. Butchers' Union Co. v. Crescent City Co., 111 U. S. 746, 4 Sup. Ct. 052, 28 L. Ed. 585; Villavaso v. Bartlet, 39 La. Ann. 2:54, 1 South. 599. As illustrative of this principle see, also, Fertilizing Co. v. Hyde Park, 97 U. S. 659, 24 L. Ed. 1036. All property is acquired and held subject to the rule that it shall be so used as not to injure another, and, though at the time of establishing a lawful enterprise in a place where the probability of injury to others arising therefrom is remote, if the undertaking should become offensive by reason of many persons moving into the vicinity or passing it daily, whereby the public health is menaced, the business must yield to the paramount right of an exercise of the police power for the suppression of nuisances. Coates v. Mayor, etc., of New York, 7 Cow. (N. Y.) 584; Brady v. Weeks, 3 Barb. (N. Y.) 157. The occupation of a building in a city, as a slaughterhouse, is prima facie a nuisance to persons residing near it (Wood, Nuisance [3d Ed.] § 571; Catlin v. Valentine, 9 Paige [N. Y.] 575, 38 Am. Dec. 567), and, though under a general

, grant of power over the subject a common council has no authority to adopt an ordinance declaring a thing a nuisance which in fact is not one, yet in doubtful cases, depending upon a variety of circumstances requiring an exercise of judgment and discretion, their action is conclusive, and, pursuant to such grant, they are empowered to adopt an ordinance declaring a slaughterhouse with

in the corporate limits a nuisance (Harmison v. City of Lewiston (III.) 38 N. E. 628, 46 Am. St. Rep. 893.)

Ordinance No. 9611, pursuant to and upon the faith of which Zimmerman made valuable improvements upon his real property, did not, in our opinion, create a contract between him and the municipality and the common council were authorized, when the public health so demanded, to repeal the law and to cancel the license granted to him, as was done December 2, 1897, by the passage of ordinance No. 10,560; for, the authority to provide for the exclusion of slaughterhouses from the city or any part thereof haring been expressly granted (Laws Or. 1891, p. 806), of which Zimmerman is presumed to have had knowledge, the exercise of the power thus conferred must be as efficacious as though the council had been granted authority to declare what constituted a nuisance and to provide for the abatement thereof. It will be remembered that, after the repeal of the ordinance granting to Zimmerman the right to maintain a packing house, etc., the council, on April 6, 1901, passed ordinance No. 13,885, making it unlawful for any person to slaughter, within the city limits, any animal, the flesh of which was intended to be offered for sale. At that time the city charter had been amended in some particulars but the clause hereinbefore quoted had not been materially changed, and now confers upon the council the following authority: "To regulate, restrain, and to provide for the exclusion from the city, or any part thereof, of * *

slaughterhouses.” Sp. Laws Or. 1903, p. 30. Based on this grant of power, the remaining question is whether or not the passage of ordinance No. 14,639, without referring to ordinance No. 13,885, was a repcal thereof by implication so far as it relates to the Pacific States Packing Company, and, as the abrogating ordinance does not contain a saving clause respecting violations of the prior law or of penalties incurred thereunder, but was passed before the judgment was rendered, was an error committed in refusing to acquit the defendants? The repeal of a law imposing a penalty will prevent any trial or judgment for an offense committed against it while it was in force, unless the annulling act expressly stipulates to the contrary or the penalty may be inflicted under some existing general law: Endlich, Int. Stat. $ 478; Sutherland, Stat. Const. § 166. “Where, however," says the latter author (section 143), “the new statute contains no reference for repeal or otherwise to existing statutes, and defines an offense made punishable by a prior law, and imposes a new punishment, it will not repeal such prior law as to existing cases; for, as the new law will only operate prospectively, there is, as to offenses already committed, no conflict. The prior law will operate as to all offenses against it committed up to the

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time that the new law goes into effect, and 4. SAME. the trial may be had and judgment pro

About 1,440 acres of land were sold at

execution sale for the amount of the judgment, nounced afterwards." Without quoting

which was about $2,000; there being at the from, or commenting upon, some of the pro- time claims against the property, other than the visions of ordinance No. 14,639, we shall, judgment and taxes, amounting to over $15,

000. On an issue as to the adequacy of the without deciding the question, assume that

price, there was evidence that at that time the the enactment licensed the Pacific States

land was worth an average of from $15 to $30 Packing Company to operate a slaughter-- an acre, but it appeared that much of it was house on the premises which were leased swamp land, and that much of it which was

meadow land had been flooded each spring, from Zimmerman, but, as the ordinance re

and that the land was so infested with certain lates to the killing of animals within the

weeds that portions of the crops had to be city "from and after the passage of this harvested in patches. It appeared that at the act," which by its terms went into immedi

time of the sale unfavorable financial conditions

existed, and that unavailing efforts had been ate effect, and prescribes penalties for a

made by the owner to sell the lands. Held, that violation thereof different from ordinance the evidence did not show such inadequacy of No. 13,885, it did not repeal the latter act price as to warrant the setting aside of the

sale therefor. in respect to violations thereof committed

Ed. Note.For cases in point, see Cent. Dig. prior to the passage of ordinance No. 14.639.

vol. 21. Exécution, $$ 703-707.] Commonwealth v. Wyatt, 6 Rand. (Va.) 694;

5. SAME-MISCONDUCT AFFECTING SALE. Commonwealth v. Pegram, 1 Leigh (Va.) The fact that, while property was being 569; Allen v. Commonwealth, 2 Leigh (Va.) offered for sale under execution in favor of a

bank, an officer of the bank told one who made 727; Pitman v. Commonwealth, 2 Rob. (Va.) 800; Miles v. State, 40 Ala. 39; Mongeon v.

a bid that the lands were being sold subject to

mortgages thereon, whereupon the bidder went People, 55 N. Y. 613.

away and the officer purchased, did not show At the trial in the circuit court testimony the preventing of competitive bidding so as to

warrant the setting aside of the sale where the was received, over objection and exception,

representation was true. to the effect that the operation of the slaugh

[Ed. Note.-For cases in point, see Cent. Dig. terhouse by the Pacific States Packing Com- vol. 21, Execution, 8 698.] pany tended to create a nuisance. The de


In a suit by plaintiff for an accounting by ing within the city limits, animals, the flesh

defendants as trustees of property conveyed to of which was intended to be sold, and also

defendants by plaintiff to pay his debts, evidence maintaining within such territory, a slaugh- considered, and held insufficient to show that terhouse. The testimony so objected to was one who purchased trust lands at execution sale therefore, irrelevant, but, as the cause was

purchased for the joint benefit of himself and

one of the trustees. tried without the intervention of a jury and

7. LANDLORD AND TENANT – ESTOPPEL OF the defendants admitted the charge but TENANT-DENIAL OF LANLORD'S TITLE. claimed immunity therefrom, the error com- A tenant may purchase the demised lands

at a sale under execution, issued on a judgplained of is not material, and hence the

ment against the landlord. judgment is affirmed.

[Ed. Note.--For cases in point, see Cent. Dig.

vol. 32, Landlord and Tenant, $$ 193, 194.] (48 Or. 527)



Where, on an issue as to the adequacy of (Supreme Court of Oregon. Dec. 4, 1906.)

the price at an execution sale of land, it appears 1. ASSIGNMENTS FOR BENEFIT OF CREDITORS- that the land was sold some time later for very ACCOUNTING-EVIDENCE-SUFFICIENCY. little more than the purchase price, and after a

In a suit for an accounting by defendants, dispute existing at the time of the sale as to as trustees of property conveyed to them by riparian claims had been settled in favor of plaintiff, to pay his debts, evidence considered. the lands, there was no such inadequacy shown and held insufficient to show that at the time as to warrant a setting aside of the sale. certain lands embraced in the trust were sold TEd. Note. For cases in point, see Cent. Dig. under execution the trustees had in their pos- vol. 21, Execution, $$ 703-707.1 session sufficient funds arising from the trust

9. PLEADING property to have paid the judgment and pre


AMENDED PLEADING. vented the sale.

B. & C. Comp. $ 100, provides that any 2. SAME.

pleading may be once amended at any time beIn a suit for an accounting by defendants,

fore time for answering, in which case a copy as trustees of property conveyed to them by

of the amended pleading shall be served on the plaintiff, to pay his debts, evidence considered.

adverse party. Held, that it was error to enand held insufficient to show any fraud and

ter a decree against one of defendants, on an collusion between the trustees and judgment

amended complaint, which was not served on creditors and mortgagees of the plaintiff.


TEd. Note.For cases in point, see Cent. Dig. INADEQUACY OP PRICE.

vol. 39, Pleading, $ 1007.] Mere inadequacy of price on an execution sale, where the parties stand on an equal foot

Appeal from Circuit Court, Union County: ing, and where there are no confidential relations between them, is insufficient to set aside

Robert Eakin, Judge. the sale, unless the inadequacy is so gross as Suit by Fred Nodine and another againsc to amount to proof of fraud or to shock the

F. L. Richmond and others. From a judg. conscience.

ment in favor of defendants, plaintiffs ap[Ed. Note.--For cases in point, see Cent. Dig. vol. 21, Execution, $$ 703-707.]

peal. Modified and affirmed.

This suit is brought by plaintiffs for an debtedness, he entered into negotiations with accounting by the defendants Richmond and the defendant Starr to devise some means Wright as trustees of certain personal prop- whereby he might pay his debts and have erty transferred and certain lands conveyed something left from his property, if possible. to them by the plaintiffs under a contract, Before entering into the contract hereinafter hereinafter set out, between the plaintiff set out, it was first suggested that one trustee Fred Nodine and the defendant F. A. E. be appointed and bonds required of him for Starr, and for $150,000 damages against such the faithful performance of his duties, but trustees for permitting the sale of such it was later arranged that, in lieu of such lands upon executions issued upon judgments bond, the defendant Wright, a friend and and a mortgage existing against the plain- fellow townsman of Nodine, in whom he tiff Fred Xodine at the time he conveyed the had confidence and whom he selected, should lands to said trustees, and to recover such be made co-trustee with defendant Richlands or the value thereof from the pur- mond, who had been selected by Starr. The chasers at sheriff's sale, and cancel certain following agreement was then signed by the deeds thereto.

parties: "This agreement made and entered The facts are substantially as follows: into this 11 day of April, A. D. 1891, by and

In April, 1891, the plaintif Fred Nodine between Frederick Nodine, of Union, Union owned about 3,660 acres of land in Union county, Oregon, and F. A. E. Starr of Portcounty, Or., known as the "Novine Farm," land, Oregon, witnesseth: That whereas the and also a large amount of personal proper- said Frederick Nodine is the owner of certy, consisting of about 275 head of range tain real estate in Union county, Oregon, horses, about 400 head of cattle and 230 particularly described as follows, to wit: logs, and a lot of farm implements and Section 32, the South one half and North machinery, including a threshing machine, West Quarter of Section 33, the South engines, hay balers, and other usual farm half of the South West Quarter and equipment, such as wagons, harness, and East half of Section 29 all in Township !orses. IIe also owned a judgment, against Three South of Range 39 East W. M. and the one J. Q. Shirley for about $2,000, upon West half of the West half of Section 2, the which execution had issued, and the sheriff East half and the North West Quarter and of Union county then held under attachment the North half of the South West Quarter of certain live stock and farm implements. He Section 3, Section 4, the North half and about also had an interest in certain first-mortgage 20 acres included within the meander line bonds of

of the Union Railway Company, of the Tule Lake in the North East corner pledged to him as security by the owner of of the South East Quarter of Section 5, the the bonds. At this time he was indebted to North half of the North half of Section 9 various persons on secured and unsecured all in Township 4 South of Range 39 East W. (laims to the amount of about $57,500. M. and the South West Quarter and South About $30,000 of this was secured by mort- West Quarter of South East Quarter of Secgages upon his lands, nearly all of which tion 6 and North half of North East Quarter were mortgaged. About $20,000 of it was of Section 7 all in Township 4 South of Range in the form of a dozen or more judgments 40 East W. M. all of said lands being situated ilgainst him, which were liens against all his in Union county, Oregon, and including the land lands, and the remainder was unsecured known as the Tule Lake conveyed by the state notes and accounts and unpaid taxes. Among of Oregon to said Frederick Nodine. And the judgments against him was one for over

whereas the said Frederick Nodine is large. $1,600 and attorney fees and costs in favor ly indebted to numerous persons for large of John W. Couper, entered in 1893, and sums of money due and to become due, a afterwards, in 1891, sold and assigned to the list of his creditors and the amount owing to defendant J. P. Marshall. The First Nation- each being hereto attached marked 'Exhibit al Bank of Union also held two judgments A' and made part of this agreement. And against him, each entered in 1893, one for whereas the said Frederick Nodine is desirous $2,400 and attorney fees and costs, and the of making some arrangement for the purother for $6,739 and costs, all of which judg- pose of disposing of said lands for the purinents will be referred to hereafter. Times pose of paying said claims and demands. were hard, money scarce and difficult to Now, therefore, the said Frederick Nodine secure. Values were low and farm products for a valuable consideration, upon the signing and live stock did not find a ready market of these presents, hereby agrees, to convey at any price. In fact, conditions were such by deed of general warranty, all his right, that a financial panic prevailed over the title and interest of, in and to the lands hereentire country, and many men of property inbefore described to F. L. Richmond of Portwere forced to sacrifice all to meet their land, Oregon, and W. T. Wright of Union, creditors. Under these conditions, with a Oregon, in trust however upon the terms and large amount of his indebtedness then due conditions following, to wit: To dispose of and pressing for payment, and his property the said lands so soon as the said Richin danger of being sacrificed by actions and mond and Wright in their judgment may consuits, and wasted and consumed in ex- sider it for the best interest of the said Nopenses and litigation without paying his in- dine for a price not less than $27.50 per acre, the terms of the sale to be such as to plaintiff and his wife deeded to the defendsecure the purchase price of the said lands ants Richmond and Wright, by deed absolute in a manner satisfactory to the said Xodine. upon its face, but in fact a trust deed, all Out of the proceeds of the sales of the siz! of the lands then owned by plaintiff, consistlands, or the proceeds of any other property, ing of about 3,660 acres of farm and grazing rights or choses in action, which may be as- lands, and thereafter delivered to them all signed or transferred to said trustees under his personal property, except the 273 head this agreement, the said trustees are to pay of range horses and 30 head of range cattle. the debts of the said Frederick Xodine here- and the trustees assumed charge of the lands inbefore referred to and mentioned in the and personalty, and conducted the farming said Exhibit A, hereto attached, and also operations upon the lands with plaintiff's all taxes against the said lands and all in- knowledge, consent, and partial assistance terest and costs that may accrue upon or by until the fall of 1895, the management therereason of the said indebtedness. The re- of being largely in the hands of defendant mainder of the proceeds of the sales of the Richmond, but with knowledge on the part said real property, and of any and all other of Yodine of all that was done, and suffiproperty, rights or closes in action assigned cient knowledge on the part of Wright or transferred to the said trustees under this to make him equally liable therefor with agreement, and the remainder of the said Richmond. The range horses and cattle last property remaining in the hands of the said mentioned never came into the possession of trustees unsold, shall upon the completion of the trustees, but were retained and sold by the payment of the said indebtedness and Yodine personally, with the consent of the the performance of the conditions herein set trustees, and are not involved in this suit. forth, be divided between the said Frederick The personal property held under the execuXodine and the said F. A. E. Starr, the said tion issued upon the judgment against ShirNodine to receive four fifths (4) of such re- ley was sold, and a portion thereof, consistmainder and the said F. A. E. Starr one ing of a few cows and horses and farm imfifth (16) of the said remainder. Now there- plements, was bought in for $1,730.75 by fore, in consideration of the premises afore- Richmond and Wright as trustees for the said, the said F. A. E. Starr, hereby under- plaintiff, as shown by the sheriff's return uptakes and agrees to conduct all the legal on the execution which is in evidence. A business necessary made necessary or that part of the remainder was sold to other permay become necessary by reason of this sons and the proceeds applied on the costs agreement, and to use every effort and en- of sale, including keepers' fees, and the rest deavor on his part necessary or proper for of the property was released by order of the the disposal of the said property and the plaintiff and his attorneys to Shirley and payment of the said indebtedness. It is other persons claiming it. The property so hereby further agreed and understood, that purchased was taken to the Nodine farm all moneys arising from the sales of the and there used and disposed of with other said lands, and from the sales and disposal property transferred to the trustees. of all other property rights or choses in ac- The interest of plaintiff in the first-morttion, by the said trustees under this agree- gage bonds of the Union Railway Company ment, shall be deposited in the First Nation- was $0,756.31, and was realized from the al Bank of Union, Oregon, in the joint name sale thereof by the trustees and charged in of the said trustees, and that the same the account hereafter referred to. The cattle shall not be drawn or paid out except and hogs turned over to the trustees by upon their joint order, and that no sales plaintiffs were sold by them with his knowlof the said lands, or of any other property, edge and consent, and fully accounted for to rights or choses in action, assigned or trans- him. The other personal property, consistferred under this agreement. shall be made ing of work horses, farm implements, and by them. It is further agreed that all the machinery, and that purchased at the Shirley costs, disbursements and expenses, necessa- sale, and the crops raised upon the lands. ry for the carrying of this agreement, shall and the proceeds of such portions of the be borne by the said F. A. E. Starr out of property and crops as were sold, were used the one fifth (13) interest which he shall by the trustees in farming the land and in receive by reason of this agreement. In wit- payment of pressing claims against Nodine, ness whereof the said parties have hereunto and what remained thereof in December, set their hands and seals the day and year 189.5, was sold to the defendant Townley as first above written.” Exhibit A, referred to hereinafter stated. When the trust deeds in the foregoing agreement, contains a list were executed, Starr and the trustees began of the amounts and character of his indebt- negotiations for the sale of the lands, and edness, aggregating about $45,000, and enu- had a large portion of them surveyed into merated among others the three judgments small tracts, and advertised them in various hereinbefore mentioned. He was. however, ways and placed them for sale with real indebted about $12.500 additional on two estate men in Union county, in Portland, and mortgages, one judgment, unpaid taxes, and in the East, but were unable, on account of interest, not mentioned in the exhibit. On the hard times and stringent condition of April 12, 1894, pursuant to this agreement, the the money market, to effect any sales, ex

$1,400, which

he paid

the trustees, but $650

cept for 40 acres to one D. M. Jameson for

, $ of this sum was paid by them to Balfour, Guthrie & Co. for the release of the mortgage held by them upon the lands sold. The trustees also bargained about 90 acres to one August Nelson, who made two payments thereon, amounting to about $702, but before paying any more the land was sold under execution issued upon the Couper judgment herein before mentioned, and the trustees received nothing more therefrom. All of the proceeds from these sales were fully accounted for by the trustees to plaintiff. In December, 1891, upon the written request of the plaintiff Fred Nodine, the trustees rendered him a written statement of their receipts and disbursements as trustees to that date, which shows that the farming operations for that year had not been very successful. However, they continued to farm the lands and tried to effect a sale thereof during the year 1895, but crop shortages, caused by the high water in the spring and drought in the summer, made the farming operations net small returns each year. In the latter part of December, 1895, the trustees submitted to the plaintiff a full report of all their doings to that date, showing what they had received and how it had been expended, and that they had paid out of the proceeds from the sales of personal property, crops raised, and lands sold and bargained and from moneys advanced by Starr and Richmond about $20,000 on the plaintiff's old indebtedness. Starr and Richmond each advanced a considerable sum of money for the payment of claims pressing against the plaintiff Nodine, and Starr also borrowed for that purpose $1,000 from the Ainsworth National Bank of Portland, and according to the statement of the trustees prepared by the defendant Richmond in December, 1895, there was, on account of such advances, then due Starr $3,885.06, Richmond $1,300.48, and the Ainsworth National Bank $525. This account was accompanied by vouchers for all disbursements, and the account and vouchers were all gone over and examined item by item, as the witness Starr says, by the plaintiff Nodine with the defendant Wright, and also with Starr, and fully explained to and accepted by plaintiff. Nodine also admits receiving the statement, but denies that any vouchers were furnished him, and says that he only had their woril for the expenditures. During the month 09 December, and about the time the account was rendered, the remaining personal property, consisting of work horses and farm implements and machinery, was sold to Townley, and the lands rented to him for a period of one year, for a lump sum of $6,000, for which he gave his note to Richmond as trustee. The testimony shows that this was done with the knowledge and consent of Yodine, who was consulted about the value of the property and the rental of the land,

and about $1,000 of this note was for personal property and the rest rental of the land. The statement furnished by Richmond to Nodine in December, 1895, accounted for the disposition of all personal property received by the trustees and all lands sold by them and all other transactions up to that time, except the sale and leasing of the land to Townley above mentioned, and this, being in the form of a note, as explained by the witness Richmond and known to the plaintiff at the time, was not included in the statement which it seems had been prepared just prior to the consummation of the transaction with Townley. The note for $6,000 given by Townley to Richmond as trustee was afterwards turned over by Richmond to the Ainsworth National Bank, presumably to secure the balance due it of $525 for money advanced, and the balance due Starr and Richmond for their advances; it appearing that Starr had borrowed from the bank the money which he advanced. Starr and the trustees being unable to dispose of the lands, and there being no further funds or personal property, early in 1896 the judgment and mortgage creditors began pressing for payment of their claims. The defendant J. P. Marshall in January, 1896, caused an execution to be issued upon the judgment purchased by him from Couper in 1894, and had the sheriff levy upon lands, upon which he had a mortgage for $4,000, subsequent in time to his judgment, and upon which Balfour, Guthrie & Co. held two mortgages for $4,000, each prior in time to his judgment, and had him also levy upon a quarter section of other mortgaged land and 280 acres of land not mortgaged, all of which lands were sold at sheriff's sale in April, 1896, under said execution, and bought by Marshall for the Ainsworth National Bank, of which he was cashier, for the amount of the judgment held by him, which sale was afterwards confirmed and a sheriff's deed executed therefor in November, 1896, after the time for redemption had expired. These lands were held by the bank until 1897, and, after paying off all prior liens, they sold them to other persons who are not parties to this suit for $19,800, taking their notes for the greater portion of the purchase price; the sum paid being about the amount of the mortgages and other claims against the land at the time it was purchased by the bank. Shortly after the execution had been issued upon the Couper judgment by Marshall the plaintiff Nodine requested the defendant Wright, who was and had been for several years president of the First National Bank of Union, to have an execution issued upon the judgment held by the bank against the plaintiff for over $6,000, which was subsequent to the Couper judgment, stating to him at the time that it looked as if plaintiff's lands would have to go, as his creditors were pressing, and he wanted the bank to try to make itself whole on what was due it. Acting upon

tion had expired.

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