must take notice of an Instrument or instruments which authorize it, and therefore of the recitals of such instruments. But this rule is subject to the manifest exception that, where a patent for land is issued by the regular officers of the United States, a purchaser from the patentee may presume the regularity of the preliminary steps which culminated in the patent, and need not, at his peril, investigate those steps. The title under the mayor's deed, in this case, does not differ in principle from title directly from the United States. In both cases, title results from a judicial investigation conducted by public officers acting under the obligations of their oaths, and a purchaser under such deed could presume that the jurisdiction of such officers had been rightfully exercised. It is unnecessary to decide what, if any, estate appellants took under the Cronyn deed. The judgment is affirmed.

MINER, BARTCH, and SMITH, JJ., con

cur.

(10 Utah, 400)

STAHN v. HALL et al. (Supreme Court of Utah. July 27, 1894.) ACTON TO REFORM DEED-EVIDENCE-REVIEW ON APEAL-CONFLICTING EVIDENCE-NOTICE.

1. In an action to set aside a deed as to land alleged to have been conveyed by mutual mistake, option contracts, in pursuance of which the deed was made, which contain a description of the land plaintiff alleged was intended to be conveyed, and which contain no description of the land in suit, are competent to show that such land was not intended to be conveyed.

2. Though there is a conflict in the evidence, a judgment will not be disturbed, where the complaint is substantially sustained.

3. Though the defendants, who were not made grantees in the deed, but who subsequently purchased from the grantees an interest in the land described therein, had no actual knowledge of the mistake, they are still chargeable with actual notice of plaintiff's equities in the land in suit, where plaintiff was in actual possession of it at the time they made the purchase.

Appeal from district court, fourth district; before Justice J. A. Miner.

Action by Emil Stahn against C. D. Hall and others to reform a deed. From a judg ment for plaintiff, defendants appeal. Affirmed.

James N. Kimball, for appellants. John E. Bagley and Maloney & Perkins, for respondent.

BARTCH, J. The plaintiff claims that, in a certain warranty deed made and executed by him and his wife on the 2d day of May, 1890, to the defendants H. B. Westover, George J. Kelly, and C. D. Hall, there was inserted in the description therein, among several other parcels of land, a certain parcel, by mutual mistake; that there was no intention on the part of the grantor to convey, nor on the part of the grantees to purchase,

the parcel of land so erroneously included in the description of the other lands contained in the deed. The defendants refusing to reconvey, he brought this action to reform the deed, and asked that it be set aside and held for naught, so far as the land so erroneously conveyed is concerned. The case was tried before a referee, and upon judgment being rendered in his favor, and a motion for a new trial having been denied by the court, the defendants appealed. The defendants Ille and McMillan were not named as grantees in the deed, but it is claimed they were parties to the original transaction, and had full knowledge of the land which was intended to be conveyed, and in a short time thereafter their interest therein was evidenced by deeds from the other defendants. Among other facts, the referee found, substantially, that when the deed of May 2, 1890, was executed, and delivered, neither of the defendants knew that the land in controversy was described therein, nor intended it to be a part of the land conveyed; that the mistake of so including it was mutual between the plaintiff and the defendants; that the deed was made in pursuance of, and based wholly on, certain optional contracts made between the plaintiff and the defendant Westover, neither of which contained a description of the land in controversy; that the plaintiff continued in the possession of the land in question, and did not know of the mistake until a few days before bringing this suit; that it was through the mistake, inadvertence, and oversight of one Nelson, who prepared the deed, that the land in controversy was included; that, while the deed was made to the grantees therein named, yet McMillan was an original purchaser, defendant Westover having taken title in his name in trust for McMillan, who had full and actual notice thereby of the equities of the plaintiff; that, when defendant Ille purchased his interest in the land conveyed, the plaintiff was in the actual possession of the land in controversy, and was cutting lucerne therefrom, and had a fence and haystacks thereon; that the plaintiff never received any consideration for the land in question from the defendants.

The first contention of counsel for the appellants is that the court erred in admitting in evidence the optional contracts mentioned in the findings of fact, and it is insisted that the land in question is not referred to in either of these contracts. It is evident that these contracts were not introduced in evidence for the purpose of making any reference to the land in question, but for that of showing the intent of the parties as to what land should be conveyed by the plaintiff. It is apparent from the record, and the referee so found, that these contracts constituted the basis of the whole transaction, and the fact that the land in question was not referred to in either of them, while the land to be conveyed was properly referred to in each of them, if not a strong inference, is at least a circumstance tending to show, that it was not intended

to be conveyed by deed. For such purpose the contracts were admissible, because if the land in question was not intended to be conveyed, and yet was described in the deed, the inference would naturally be that it was so described by mistake or inadvertence. They were written instruments calculated to aid the court in arriving at the real intent of the parties, and were therefore admissible. Pom. Eq. Jur. § 859. There are a number of other points made on the admissibility of testimony, but we think none of them are sufficient to disturb the judgment.

The further point is also made that the evidence is insufficient to justify the findings of the referee. While there appears to be some conflict in the evidence, yet it seems clear and certain therefrom that the material allegations of the complaint are substantially sustained. The findings of fact having been adopted by the court, and the referee having heard the evidence, and having had an opportunity to observe the several witnesses while on the stand, and notice their conduct and bearing, this court will not disturb the conclusions reached, in the absence of a clear showing that there is a mistake or oversight which materially affects the substantial rights of the appellants. Mining Co. v. Haws, 7 Utah, 515, 27 Pac. 695; Wells v. Wells. 7 Utah, 68, 24 Pac. 752; Dooly Block v. Salt Lake Rapid Transit Co., 9 Utah, 31, 33 Pac. 229. It is clear that, under the circumstances of this case, the defendants named as grantees in the deed were chargeable with notice of the equities of the plaintiff; and, even if it were conceded that defendants McMillan and Ille had no actual knowledge of the mistake in the deed at the time of their purchases, they are still chargeable with actual notice of the plaintiff's equities, because the plaintiff at that time was in the actual possession of the land in controversy, and such possession was actual notice to all the world. These defendants therefore purchased at their peril, for it is not shown that they sought the plaintiff, to ascertain the actual state of the title. See Live-Stock Co. v. Dixon (decided at this term) 37 Pac. 573; Toland v. Corey,| 6 Utah, 392, 24 Pac. 190. It is evident from the facts shown that the land in question was conveyed by mistake, and that the plaintiff is entitled to equitable relief. There appears to be no reversible error in the record. The judgment is affirmed.

MERRITT, C. J., and SMITH, J., concur.

(10 Utah, 404)

UTAH NAT. BANK OF OGDEN v.
BEARDSLEY.

(Supreme Court of Utah. July 27, 1894.) JUDGMENT-REVIVAL IN FAVOR OF PURCHASER AT EXECUTION SALE OF PERSONAL PROPERTY.

1. Comp. Laws 1888, § 3450, provides that if the purchaser "of property" at an officer's sale fail to recover "possession," because of ir

regularity in the sale, or if the property was not subject to execution and sale, the court must revive the original judgment for the amount paid, with interest, and such judgment shall have the same force as an original judgment. Held, that the latter clause of such see tion applies to sales of personal as well as rea' property.

2. The operation of such statute is not affected by Civ. Code, §§ 577, 581, which require that, where personal property sold on execution is capable of manual delivery, it must be present at the sale, and the officer must deliver it to the purchaser.

Appeal from district court, fourth district; before Justice J. A. Miner.

Action by the Utah National Bank of Ogden against Mills H. Beardsley, in which there was a judgment for plaintiff, on which an execution was issued, and certain personal property sold thereunder at sheriff's sale to John Broom. Such property not being subject to execution sale, Broom moved to revive such judgment in his favor for the amount of the purchase money paid by him, under Comp. Laws 1888, § 3450. Broom afterwards died, and the administratrix of his estate was substituted in his stead. From a judg ment in favor of such administratrix, defendant appeals. Affirmed.

Ogden Hiles and Sutherland & Howat, for appellant. Kimball & Gilbert, for respondent.

BARTCH, J. This is a proceeding by motion of the administratrix of the estate of John Broom, deceased, a purchaser of certain personal property at a sale under an execution issued out of the district court, to revive the judgment in her favor, under the provisions of section 3450, Comp. Laws Utah 1888. Upon the hearing of the cause the court rendered judgment in favor of the administratrix, and against the defendant, Beardsley, for the sum of $9,568.37 and costs, and ordered that the former judgment of the court, rendered in favor of the plaintiff and against the defendant herein, be revived, as prayed for. From this judgment the defendant appealed to this court.

It appears from the record that, at the time the property in question was purchased at the execution sale by John Broom, the deceased, one J. C. Armstrong, held a mortgage against the same, as security for a note, in the sum of $8,000, executed and delivered to him by the defendant, and that the officer who conducted the sale under the execution, neither before nor after such sale, paid to Armstrong the mortgage debt, or offered to pay the same, or made any tender thereof. Afterwards, and while the property was in the possession of Broom, Armstrong brought suit to foreclose the mortgage, and Broom was impleaded with Beardsley in the foreclosure suit. In this suit the lien of the mortgage was held valid, and on appeal the judg ment was affirmed by the supreme court of this territory, and of the United States. The property, having in the meantime been pla

ced into the hands of a receiver, was again sold under execution upon the judgment in the foreclosure suit. Broom, having thus lost the possession of the property, then instituted these proceedings to revive the judgment in the original suit, and upon his death the administratrix of his estate was substituted as petitioner herein. Under this state of facts, it is insisted by counsel for appellant that the court erred in rendering the judgment appealed from, and referred to above.

The section of the statute under which these proceedings were instituted, as stated above, reads as follows: "If the purchaser of real property sold on execution, or his successors in interest, be evicted therefrom in consequence of irregularities in the proceedings concerning the sale, or of the reversal or discharge of the judgment, he may recover the price paid with interest, from the judgment creditor. If the purchaser of property at an officer's sale or his successor in interest fail to recover possession in consequence of irregularity in the proceedings concerning the sale, or because the property sold was not subject to execution and sale, the court having jurisdiction thereof, must after notice, and on motion of such party in interest, or his attorney, revive the original judgment in the name of the petitioner for the amount paid by such purchaser at the sale, with interest thereon, from the time of payment at the same rate that the original judgment bore; and the judgment so revived has the same force and effect as would an original judgment of the date of the revival, and no more." Counsel for appellant insists that this whole section applies to sales of real estate, and is not applicable to sales of personal property, because the revival is provided for only where the purchaser fails to obtain possession, and that no purchaser at an execution sale of personal property can ever fail to obtain possession, because, under sections 577 and 581 of the Code of Civil Procedure, where such property is capable of manual delivery, it must be present at the sale, and the officer making the sale must deliver the property sold to the purchaser. We are not inclined to adopt this view of the law. The first sentence of the section above quoted is, by its terms, confined to real prop. erty; but in the second sentence there is a departure from the language used in the first, and the word "property" is employed, instead of "real property." The word "property" is frequently used in our law relating to the execution of the judgment in civil actions as a general term denoting both real and personal property, and it is so defined in section 2997, Comp. Laws Utah 1888. We are of the opinion that such is its meaning, as used in the second sentence of the section under consideration; and we are also of the opinion that the word "possession," as used in that sentence, means a possession coupled with a right of property, and not a mere naked possession, such as might be acquired

under a void sale. The statute is remedial in its character, and should receive a liberal interpretation. Cross v. Zane, 47 Cal. 602. The law in question being applicable to sales of personal property, as we think it is, the petition in this case appears to state a case within the statute. There having been no payment or tender of payment of the mortgage, which was a valid lien, before sale, the property was not subject to execution. Comp. Laws Utah 1888, § 2806. Nor does the rule of caveat emptor apply in such a case as is shown by this record. Nor do sections 577 and 581, above referred to, affect the operation of section 3450. The judgment is affirmed.

MERRITT, C. J., concurs.

(10 Utah, 410)

TORONTO v. SALT LAKE COUNTY. (Supreme Court of Utah. July 27, 1894.) COUNTY TREASURER-COMPENSATION-REDUCTION AFTER SERVICES ARE RENDERED-REMEDY.

1. School Laws 1890, § 82, as amended, provides that the county treasurer shall hold the special school fund, and shall receive such compensation as the county court may determine, to be paid on the warrant of the county superintendent. Held that, where such treasurer applied to the county court to fix his compensation, and such court, during his term, fixed his salary at $500 per annum, the court could not, after his term expired, reduce the amount to $500 for his entire term of 28 months.

2. Where the county court refused, on the treasurer's application, to appropriate more than $500 to pay his claim, an action against the county for such salary, and not mandamus against the county superintendent to compel him to issue a warrant for the amount claimed was the proper remedy.

Appeal from district court, third district; before Justice Samuel A. Merritt.

Action by Joseph B. Toronto against Salt Lake county to recover a balance due him for services as county treasurer of such county. From a judgment for plaintiff, defendant appeals. Affirmed.

Walter Murphy, for appellant. Williams, Van Cott & Sutherland, for respondent.

SMITH, J. The plaintiff brings this action to recover $1,166.66, which he claims to be due him as extra compensation for official services rendered as county treasurer of defendant county. The claim for compensation is based upon section 82 of the school law of 1890, which is as follows: "The county treasurer shall receive and hold as a special school fund, subject to the orders of the county superintendent all district school moneys from whatever source received and keep a separate account thereof, and when the same is apportioned to the school district shall open and keep a separate account with each district. He shall, on or before the first day of August in each year, make a report," etc. "The county treasurer shall re

ceive such compensation out of the county school fund as the county court may determine for the services rendered by him in pursuance of this act." By a subsequent amendment of this section, it was provided that such compensation should be paid upon the warrant of the county superintendent of schools. After this law was in force, plaintiff was elected county treasurer, and entered upon the discharge of his duties September 1, 1890, and continued performing his duties to December 31, 1892,-a period of 28 months. Shortly after he qualified, plaintiff made application to the county court to fix his compensation as provided in this statute. Some time afterwards, and during his term of office, such compensation was fixed at $500 per annum. No part of it, however, was paid to plaintiff up to the time that he retired from office, on March 13, 1893; and after his term of office had expired, he having in the meanwhile asked an order of the county court appropriating the sum of $1,166.66 from the school fund in payment of his compensation, the county court, upon its own motion, made an order allowing $500 as full compensation for the two years and four months that plaintiff had served as county treasurer. The plaintiff claims that his right to compensation had become vested under the order fixing the salary at $500 per year, and that the subsequent order of the county court, allowing him $500 in full payment of all compensation for his term of office of two years and four months, was without jurisdiction and void, and this is the principal question involved in this appeal. Judgment in the court below was rendered upon the pleadings, on motion of plaintiff, in his favor, for the full amount claimed, and from that judgment the county appealed.

It is contended by the appellant county that there is no contract relation between the government and a public officer; that the right of a public officer to compensation is not a contract right. Many authorities are cited by the appellant to sustain this proposition, and the proposition, that is necessarily a part of it, that a public officer can never recover upon a quantum meruit. We think this position is correct, in a case to which it applies. The difficulty is that this case does not come within the rule; a different rule obtaining where, as in this case, an officer has already performed the services for which he claims compensation, provided the compensation has been fixed by the proper authority at the time the services were rendered. The plaintiff asked the county court to fix his compensation at or shortly after the time of his qualification. For some reason, not explained, there was considerable delay in making the order, but it was finally made, and made during his term of office, and upon his petition. We think that the true rule in such case is stated in the case of Givens v. Daviess Co. (Mo. Sup.) 17 S. W. 998, where the court say: "Every day he

[the officer] held the office, the law vested in him the right to a due proportion of the salary as at that time fixed; and consequently an order changing the compensation could not have a retrospective operation, and divest him of what was his already." That case was exactly like the one at bar. It must be observed that, when the county court undertook to reduce the plaintiff's compensation for 28 months' services, he had already fully completed his term of office, and his compensation, whatever it was, was completely earned; and, as we hold, his right to such compensation was completely vested. A vested right is a title, legal and equitable, to the present and future enjoyment of property, or to the present enjoyment of a demand or a legal exemption from a demand made by another. With this definition before us, it is difficult to see why the plaintiff, when his term of office is completed, and his services entirely rendered, did not have a complete vested right to the present and future enjoyment of the compensation attached to his office by law at the time he held it and performed the services. It is true that an officer has no property in the prospective compensation attached to his office, whether it be in the shape of salary or fees for services yet to be rendered. But we think, both upon principle and authority, he has a complete vested right of property in the compensation fixed by law for services rendered, and that this right is one that cannot be taken away, as was attempted in this case, by an order made after his term of office had expired.

This determines the principal question in the case against the appellant, and there remains but one more matter that we need consider. It is claimed by the appellant that in any event the plaintiff cannot maintain this action against the county; that his remedy is by mandamus against the county superintendent of schools, to compel him to issue the warrant for the amount claimed. This contention can hardly be sustained. It is made upon the ground that the salary is payable out of a particular fund, and not out of the general county revenue. The difficulty in the present case is that there has been no appropriation made by the county court of any part of the school fund to pay this claim, except the sum of $500, and the county court refuses to appropriate any additional sum. The claim has been presented to the county court, and in part rejected. In our opinion, this is the proper practice. Claims against the county funds, of whatever nature they may be, should be presented to the county court to be passed upon by that body; and its allowance of the claim is a sufficient authority to the proper ministerial officer-the county superintendent of schools, in this case-to draw his warrant on the treasurer for the payment of the claim. Without such allowance, it is difficult to see what check there would be upon the superintendent in making out these war

rants for compensation. It is true the salary was fixed at $500 per annum, but there must be some board or body-some authority somewhere-to determine whether or not the claimant has performed the services that entitle him to the compensation fixed by law. We think in this case the county court is that body, and has the authority; that it was its duty to make this allowance, and certify it to the county superintendent as his authority for issuing the warrant. We find no error in the judgment of the court below, and it is affirmed, with costs to respondent,

1. A verbal agreement with owners of property under which plaintiff is to procure a company to operate it, "upon a basis the details of which were to be thereafter agreed upon," cannot be enforced, for uncertainty.

2. A verbal contract by which M. was to raise money to operate certain property, but which fixed no time therefor, nor the amount to be raised, and which required M. to place the property with the company to be so organized, without showing how he was to get title to it, and to give plaintiff half the profits accruing from the transaction, cannot be enforced, for uncertainty.

3. In an action to compel the transfer to plaintiff of half the shares given one M. for organizing a company, the joinder of two officers of the company as individuals is improper where no fraud is charged against them or the company, and where they were not parties to any of the contracts.

4. A verbal agreement based on a prior agreement barred by the statute of limitations is within 2 Comp. Laws 1888, § 3165, providing that such promise must be in writing, signed by the party to be charged thereby.

Appeal from district court, third district; before Justice C. S. Zane.

Action by William H. Whitehill against William Lowe, administrator of the estate of George A. Meears, deceased, and others, to compel defendants to transfer to plaintiff certain shares in defendant the Meears Mining Company. From a judgment for defendants, plaintiff appeals. Affirmed.

Gerald G. P. Jackson. for appellant. Thomas Adams and Marshall & Royle, for respondents.

MINER, J. This action was brought by appellant, by bill in equity, in the third judicial district court of the territory of Utah, upon the 3d day of October, 1892, to compel the transfer of certain shares of mining stock. The plaintiff, by his complaint, alleged a verbal agreement, in 1883, with the owners of a certain mining property situated in Park City, Summit county, territory of 'Rehearing denied.

Utah, and more particularly in the Uintah mining district, in said county and territory, which property was known at that time (1883-84) as the Morgan group of mines, by which agreement he (the appellant) was to secure and bring about the incorporation of a company to operate the property; that, in accordance with the terms of that agreement, the appellant introduced the owners of said property to the defendant and respondent Meears, who verbally agreed with the plaintiff to share with him in any benefits and profits that might accrue from the transaction. In consequence of the agreement with Meears and the introduction of the owners of the aforesaid property to him, the owners of that property contracted in February, 1884, to convey it to the said Meears. for the purpose of incorporating a company to operate the mines, and the performance of the conditions of this last agreement was guarantied by the firm of Walker Bros., a partnership of capitalists, of which the defendant J. R. Walker was a member; that thereafter, for a number of years, there was considerable litigation touching the title to said property, the contract to convey to Meears was in abeyance, and the conditions as to the incorporating a company to operate the property were not complied with or executed until the termination of the legal proceedings, on or about the 15th day of October, 1890, when the incorporation now known as the Meears Mining Company was formed, to operate the property for which the defendant Meears had obtained the contract to convey from the owners thereof. The plaintiff further alleged that the contract for conveyance obtained from the owners of the property had been obtained and procured by said Meears in his own name, to the exclusion of the plaintiff, without the knowledge of the plaintiff, and during the absence of the plaintiff from the territory of Utah; that, after the said incorporation, the defendant Meears had been assigned 31,625 shares of the capital stock of said incorporation for services in promoting the incorporation, which shares Meears retained in his own name, and has not transferred to the plaintiff onehalf thereof, for which transfer the plaintiff brought this action, claiming said stock on account of services and expenses by him rendered in litigation, etc. The defendants demurred to the bill. The court below sustained the demurrer, and dismissed the action. The plaintiff gave notice that he would stand by his bill, and subsequently gave notice of appeal, and now appeals to this court from the judgment and order of the court below, sustaining the demurrer and dismissing the action, and relies upon the following errors for reversal: (1) The court erred in sustaining the demurrer upon the ground that "said complaint does not state facts sufficient to constitute a cause of action." (2) The court erred in sustaining the demurrer upon the ground "that there is a mis