Kan.) ST. LOUIS & S. F. RY. CO. v. BLAKELY. * is claimed that the fire was set out? A. According to evidence, yes. (4) Was not the engineer who was operating said engine at the time it is claimed the fire was set out by said engine an experienced, competent, skillful, and careful engineer? A. According to the evi* (6) If you dence, he was experienced. * answer that the fire came from the engine, state how the engineer so mismanaged his engine as to set out the fire. A. No evidence showing how. (7) In what does the negligence of the railroad company in permitting the fire to escape from its engine consist? A. * * (9) Before the No evidence showing. * hay in question had been burned, had not the growing grass on the right of way of the railroad company adjacent to the plaintiff's land, on which his hay was, been burned off by the railroad company? A. Yes. (92) Before the hay was burned, had not the sectionmen in the employ of the defendant railroad extended the fire guard beyond the right of way, and upon the plaintiff's land, a distance of seventy-five or eighty feet, making a fire guard of 125 or 130 feet between the track and the hay which was burned? A. Yes. (10) What, if any, possible precaution could the railroad company take that was not taken to prevent the fire which it is claimed burned the plaintiff's hay? A. Not known. (11) Was not an unusually strong wind blowing at the time it is claimed the fire was set out? A. Yes. (12) At what rate of speed was the engine going when it is claimed fire escaped from it, and set fire to the plaintiff's hay? A. Ten or thirteen miles per hour. (13) Was not the engine being operated in the usual and ordinary manner, and by a competent engineer, at the time it is claimed fire escaped from the engine? A. Evidence that he was experienced, but none as to competency. (14) Was there any other way, under the testimony, in which the fire could escape from the train than from the smokestack? A. No. * (16) Were not the spark-arresting appliances of the engine which it is claimed set out the fire examined a day or two after the fire was, and found to be in perfect condition? (18) Is there any incompeA. Yes. * tence or carelessness shown on the part of the engineer or any other employé of the train the engine of which it is claimed set out the fire? A. Engineer experienced, but no evi* (20) Has any dence of competency. defect been shown to exist in the engine which it is claimed set out the fire, so far as its spark-arresting appliances were concerned, * * (22) or in any other respect? A. No. * Has any negligence been shown on the part of the engineer or other employé of the train, the engine of which it is claimed set out the fire that burned plaintiff's hay? A. No proof from any other employé except engineer (24) How far from the track was the stack which first caught fire? A. Two hundred and ten feet. (25) Had not the railroad company shown that its engine was perfect, and had the most approved appliances for the prevention of the escape of fire, and that no 49 P.-48 * employé of said train was guilty of negli- case here for review. The first alleged error argued by plaintiff in error is that the court permitted the introduction of evidence showing that other fires had been set out in the operation of the defendant's railroad. We think the court erred in permitting this evidence to cover so large a range of time and of engines as it did. The court afterwards instructed the jury that they This cured must not consider this evidence. the error. Not only this, but there was an abundance of uncontradicted and competent The substantial evidence showing that the fire was started by the engine of the company. rights of the plaintiff in error were not prejudiced by the error complained of. The plaintiff in error contends that the court erred in overruling its motion for judgment The proof was upon the special findings. uncontradicted that engine abundant and No. 37, being operated by the company, set out the fire, and the plaintiff established his damages. This made a prima facie case against the company, and their negligence is presumed. It was then the duty of the company to show that the fire was an accidental fire, set without negligence on their part. The question therefore is, do the special findings show such a state of facts as defeats a recovery by the plaintiff below? They show that the engine was complete and perfect in every respect so far as the appliances for preventing the escape of fire were concerned; that the engineer was an experienced man; that the company had burned its right of way, and some 75 or 80 feet besides, in an endeavor to protect the hay; that an unusually strong wind was blowing at the time it was claimed the fire was set out; that the train was running from 10 to 13 miles per hour; and that there was no way in which the fire could escape other than from the smokestack. The answer to question 6 decides that there was no evidence to show that the engineer mismanaged his engine, The answer to so as to set out the fire. question 7 decides that there was no evidence showing in what the negligence of the railway company consisted in permitting the fire to escape from its engine. The answer to question 10 decides that they do not know of any possible precaution that was not taken which could have been taken by the company to prevent the fire. There was no evidence introduced as to whether the engineer was competent, careful, and skillful; was there any evidence showing that the fireman or other employé was not guilty of negligence. There was, however, uncontradicted evidence introduced showing that the engine was drawing a train consisting of 10 or 12 empty cars, running on schedule time; nor that the furnace fire was in good shape, and had the regular fire in the furnace; and that the train was running the same as it was run on other days; and that the engine was not using one-sixteenth of its steam while passing the place where the fire escaped. The negligence of the company being presumed, it was incumbent upon it to show that it was without fault. In an attempt to do so, it has shown that its engine was of the latest approved pattern to prevent the escape of fire, and in good condition; that it was pulling a light train, and using but a small amount of steam, and running at a reasonable rate of speed; that the furnace fire was in good shape, and was the usual fire kept in the furnace; that it was impossible for the fire to escape except from the smokestack; and that it had burned a fire guard, 125 or 130 feet wide, between the track and the hay. All of this evidence is undisputed, and no attempt is made to contradict or question it, and there was no showing of negligence on the part of the company. Nothing can be relied upon but the statutory presumption of negligence, because the fire escaped from the company's engine. What other showing should have been made? What else should they have done or left undone to have rebutted this presumption? It would seem that, if the jury could think of no other precaution that the company could take to have prevented the escape of the fire, the presumption of negligence had been pretty effectually overcome, in their minds at least. It was established that many precautions had been taken by the company. The jury say, in answer to the tenth special question, that it is "not known" what other possible precaution it could take. If the railroad company has shown that it had taken every possible precaution to prevent the escape of fire from its engine, and the jury know of nothing left undone by it or its employés which would have prevented the fire, the jury should have found the question of negligence in its favor, and the company was entitled to a verdict. The court erred in not rendering judgment for the railway company upon the special findings of the jury. The judgment of the district court is reversed, and the cause remanded, with instructions to render judgment for the railway company upon the special findings. All the judges concurring. (31 Or. 524) NORTHUP v. HOYT, County Treasurer. (Supreme Court of Oregon. Aug. 2, 1897.) STATE TAX-COUNTY APPORTIONMENT PAYMENT -PRIORITY--APPLICATION OF FUNDS. 1. Hill's Ann. Laws, § 2465, as amended (Laws 1893, p. 59), requires a county treasurer, when he has $1,500 or more belonging to the county fund, to give notice that he has moneys applicable to outstanding warrants. Section 2813 requires him to pay over to the state by a certain time the entire state tax apportioned to and charged against his county from the first moneys collected and paid in. Const. art. 9, § 3, declares that every law imposing a tax shall state its object, to which only it shall be applied. Held, that the state tax is to be paid from the first moneys received that are constitutionally applicable to such payment, and not from funds derived from a tax which the county is authorized to levy and collect for a special purpose; and hence the treasurer must give notice, under section 2465, when he has moneys belonging to the road fund or other special funds, though the state tax is yet unpaid. 2. The obligation of the county to pay its portion of the state tax is a liability against the county in its corporate capacity, payable out of the funds received for general county purposes. Appeal from circuit court, Multnomah county; E. D. Shattuck, Judge. Proceeding by H. H. Northup against Ralph W. Hoyt, treasurer of Multnomah county. From a judgment in favor of plaintiff, Modified. defendant appeals. J. W. Whalley, for appellant. E. W. Bingham and H. H. Northup, for respondent. BEAN, J. By section 2465 of Hill's Annotated Laws, as amended in 1893 (Laws 1893. p. 59), the treasurer of each county is required to give notice, by publication in some newspaper printed or circulated in his county, that there are funds in his hands to redeem outstanding warrants indorsed, "Not paid for want of funds," whenever he has as much as $1,500 belonging to the county fund. On the 11th day of June, 1897, the treasurer of Multnomah county had on hand $74,514.86 to the credit of the general county fund, and $6,776.71 belonging to the road fund of his county, levied and collected under the provisions of section 4085, and, refusing to give such notice, this proceeding was commenced to compel him to do so. As a defense thereto he avers that there was at the time a balance of $157,661.67 due and owing from his county on the state taxes apportioned to it for the year 1896, which, under section 2813, he is requir ed to pay in full before applying any of the moneys on hand to the payment and redemption of county warrants, and the sole question presented to the court for its decision is the proper construction of that section. It reads as follows: "On or before the first Monday of February in each year the several county treasurers in this state shall pay over to the state treasurer, in gold and silver coin, the amount of state taxes charged to their respective counties, which tax shall be paid out of the first of such moneys collected and paid in to the county treasurer: provided. however, that so far as the time of payment to the state treasurer is concerned, the same shall not apply to the county treasurers of the counties of Wasco, Umatilla, Baker, Union, Grant, Jackson, Coos, Curry and Josephine, but the treasurers of said counties shall be required to pay over to the state treasurer on or before the first Monday of April in each year." The contention for the plaintiff is that this section contemplates that the payment by the county treasurer on account of Or.) NORTHUP v. HOYT. state taxes charged to his county shall be made from the moneys collected on the levy for state purposes only, and that any other construction thereof would be violative of section 3, art. 9, of the constitution, which declares that "every law imposing a tax shall state distinctly the object of the same, to Section 2813 which only it shall be applied." comprises the whole of the act of October 21, 1864, and is amendatory of section 46 of the territorial act of 1854 (Laws 1855, p. 441), which required the county treasurer of each county in the territory to pay over to the territorial treasurer, in gold and silver coin, the amount charged to his county "out of the first moneys collected" and paid into the county treasurer. Aside from the use of the word "state" for "territory," the act of 1864 only changed the latter section by inserting the phrase "of such" before the word "moneys," so as to make it read, "out of the first of such moneys collected," and in extending the time for the payment of state taxes by certain counties. It is conceded that, as the law stood prior to the act of 1864, its language is broad enough to require the treasurer to pay the state taxes out of the first moneys collected and paid into the county treasury, without regard to the purpose for which they were collected. But the contention is that, by using the words "of such" between the words "first" and "moneys" in the amendatory act, the legislature intended that such payment should be made from the moneys collected for state purposes only, but this seems to be a strained construction of the statute. What office, if any, the words "of such" were designed to perform is not by any means evident, unless, as is very probable, it was to render more certain the necessity of paying the state taxes in gold and silver coin, and to settle the contention then prevailing as to the right to pay such taxes in treasury notes. See Whiteaker v. Haley, 2 Or. 128. But, however this may be, the section referred to requires the county treasurer of each county to pay over to the state treasurer by a certain time the entire state tax apportioned to and charged against his county, and it would be absurd to say that the legislature expected such payment to be made only from the money collected on account of what is commonly denominated the "state tax," when, in the very nature of things, it could not all be collected and paid into the treasury by the date named. Certainly, if an entire change in the policy of providing state revenue had been intended by the amendatory act of 1864, it would have been clearly expressed, and not left to mere inference and conjecture. The evident purpose of the amendatory act was to extend the time for the payment by certain counties of the state taxes charged against them, and not to change the fund out of which such payment should be made. But we are unable to concur in the contention of the defendant that the payment of the state taxes charged against his courty is to be made from the first moneys collected for taxes and paid into 24 Kan. 534; Doty v. Ellsbree, 11 Kan. 209. the general county levy for the special purpose of raising money with which to pay the county's obligation to the state is designated as a state tax in the law and upon the county records, it is, in fact, a county tax levied for county purposes. The state does not deal with the individual taxpayer, but its revenue is apportioned to, and collected from, the various counties in their corporate capacity, in proportion to the taxable property in each, and is payable by the county, whether collected from the taxpayer or not; and therefore money raised from taxation for general county purposes is not diverted from the object for which it was laid, within the meaning of section 3, art. 9, of the constitution, by being applied in payment of the amount of state revenue apportioned to the particular county. As we understand the law, upon the showing made by this record, the county treasurer of Multnomah county should have given notice that he had on hand a certain amount of money belonging to the road fund applicable to the payment of warrants on such fund theretofore indorsed, "Not paid for want of funds," but no warrants drawn on the general fund of the county can be paid by him until after the state tax is paid in full. The judgment of the court will therefore be modified accordingly. (32 Or. 195) LADD v. JOHNSON et al. 1 (Supreme Court of Oregon. Aug. 2, 1897.) DEED OR MORTGAGE ASSIGNMENT FOR BENEFIT OF CREDITORS PREFERENCES. 1. A declaration of trust executed by a solvent person contemporaneously with an absolute deed recited that whereas the maker was in a state of mortal illness, and desired to provide for the payment of his debts, he had conveyed his real estate to plaintiff, in trust to pay his debts, with the desire to avoid proceedings in the courts; it being declared that the deed was a conveyance in trust, with full power to sell, the balance, after payment of debts, to be returned to the maker, his heirs, executors, or assigns. Held, that the deed and agreement did not constitute a mortgage, but passed the absolute legal title to the land. 2. Hill's Ann. Lavs, § 3173, declaring that no general assignment by an insolvent, or in contemplation of insolvency, shall be valid unless made for the benefit of all creditors, does not apply to a conveyance by a solvent debtor to prefer particular creditors, if executed in good faith. Appeal from circuit court, Multnomah county; Loyal B. Stearns, Judge. Suit by William M. Ladd against Cordelia Johnson and others. A demurrer to the complaint was sustained, and plaintiff appeals. Reversed. This is a suit for the purpose of reforming a certain deed and instrument in writing, executed by A. H. Johnson to the plaintiff, by correcting a mistake in the description of the property intended to be included therein, and of restraining the sale of attached property in an action by the defendant White against Johnson. The complaint, after alleging the death of Johnson, on April 16, 1894, the pro 1 Rehearing pending. bate of his will, the appointment. of the defendant Cordelia Johnson as executrix, and setting forth the names and ages of his heirs, avers, in substance, that on January 25, 1894, Johnson and wife conveyed, by warranty deed, to the plaintiff, Ladd, a large amount of real property in the city of Portland, for the purpose and upon the terms and conditions set forth in an instrument in writing executed contemporaneously therewith, and as a part of the same transaction, which is in words and figures substantially as follows: "Whereas, A. H. Johnson, of Portland, Oregon, is indebted to various creditors in the sum of $240,000.00, more or less, of which indebtedness the sum of $180,000.00, more or less, is due to Ladd & Tilton, bankers, of Portland, Oregon; and whereas, the said A. H. Johnson is in a state of mortal illness, and desires, as far as possible, to make provision for the payment of said indebtedness out of his assets, and to that end has especially requested William M. Ladd, of the firm of Ladd & Tilton, to act as his trustee in said behalf, and has, by deed executed the 25th day of January, 1894, and bearing said date, conveyed to said William M. Ladd the following described real estate situate in the county of Multnomah, state of Oregon, to wit: [Then follows a description of the real estate referred to and described in the deed of conveyance from Johnson and wife to Ladd:! and whereas, to the end aforesaid, the said A. H. Johnson has also, by a certain instru ment, executed on said 25th day of January. 1894, and bearing said date, conveyed to said William M. Ladd two hundred and seventy shares of the capital stock in the Union Meat Company, a corporation of the state of Ore gon: Now, therefore, this declaration of trus witnesseth: That the said William M. Lade is fully empowered in all things to manage. incumber, sell, and dispose of said property. or any portion thereof, according to his best and sole judgment, as fully and freely as if he were the owner thereof, upon the trust only that he shall apply the net proceeds of said sales and incumbrances to the reduction of the lawful indebtedness against said A. H. Johnson, and with power to sell and conver to any creditor, including said Ladd & Til ton, such portions of said property as he may see fit to convey, in liquidation of such creditor's debt, including the debt to Ladd & Tilton, or any portion thereof, as he may see fit. The conveyances have been made, and this declaration of trust is made and delivered to said William M. Ladd, in full confidence in his ability and integrity, and with the express desire to avoid proceedings, by foreclosure or otherwise, in the courts; and it is expressly intended, not as a mortgage, but as a conveyance in trust, with full power to sell and incumber, and with as full power to seli and incumber to the firm of Ladd & Tilton. of which said trustee is a member, as to any other person whatever. And it is expressly understood that any person who may pur Or.) LADD v. JOHNSON. In witness chase the aforesaid property, or any part thereof, from said William M. Ladd, having knowledge or notice of this trust, shall not be required to see to the application of the proceeds of such sales; and it is further expressly understood that the acceptance of this trust by the said William M. Ladd shall in no respect prejudice the firm of Ladd & Tilton in respect to any claims, of any nature whatever, or any rights and remedies at law or in The overplus or equity by reason thereof. residue of said property or the proceeds thereof, after all the just debts of said A. H. Johnson shall have been paid, shall be reconveyed or returned to said A. H. Johnson, his heirs, executors, or assigns, the customary or usual compensation to be allowed said trustee for his services performed herein. whereof, the said A. H. Johnson and Cordelia Johnson, his wife, have hereunto set their hands and seals, this 25th day of January, 1894,"-signed by Johnson and wife and Ladd and properly witnessed and acknowledged. The complaint further alleges that Johnson was solvent at the time of the execution of the deed and agreement, although largely indebted to Ladd & Tilton and other persons, which indebtedness is still unpaid, and that said deed covered only a portion of his prop erty. Then follow appropriate allegations of the mistake in the description of a portion of the property intended to be conveyed, and of the attachment thereof prior to Johnson's death, in an action brought against him by A demurrer to the the defendant White. complaint having been sustained, and the bill dismissed, the plaintiff appeals. Geo. H. Williams and S. B. Linthicum, for appellant. Wirt Minor and R. Williams, for respondents. It BEAN, J. (after stating the facts). In support of the ruling of the court below, it is claimed, in the first place, that the deed and agreement set out in the complaint created a mortgage to secure Johnson's indebtedness to Ladd & Tilton and his other creditors, enforceable only in equity, and that the legal title to the property covered thereby remained in Johnson, subject to attachment. But we cannot agree with this contention. is clear from the declaration of trust accompanying the conveyance that the transaction was intended by the parties as an unconditional conveyance to the plaintiff for the purpose of raising a fund to pay the grantor's debts then existing, between which and a mortgage or deed of trust in the nature of a mortgage there is a well-recognized distinction. In the one case the grantor parts absolutely with his title, and it vests in the grantee for the purposes of the trust. the other the conveyance is conditional and subject to be defeated by performance on A mortgage or the part of the grantor. deed of trust in the nature of a mortgage is intended as security for the payment of In money, or for the performance of some col- |