[190] 187-192 Shepherd v. place during that period, and none will be pre-ily liable to him, would discharge the only person who was thus liable. sumed. May, 115 U. S. 505, 511 [29: 456, 457]; Keller v. Ashford, 133 U. S. 610, 625 [33: 667, 673]. But the case at bar does not present itself in that aspect. Aldrich v. Goodell, 75 Ill. 452. The deficiency decree was properly refused, because the debt of Hanford and Chase was barred by the Statute of Limitations. Michigan Ins. Co. v. Brown, 11 Mich. 265. Lucy D. Fake, by her assumption of the debt, and her promise to pay the two notes. becaine the principal debtor, and Hanford and Chase sureties. Oakeley v. Pasheller, 10 Bligh, N. R. 589. Where a creditor gives time to the principal, there being a surety, without the consent of the surety, it discharges him from liability. The question whether the remedy of the mortgagee against the grantee is at law and in his own right, or in equity and in the right of the mortgagor only, is, as was adjudged in Willard v. Wood, above cited, to be determined by the law of the place where the suit is brought. By the law of Illinois, where the present action was brought, as by the law of New York and of some other states, the mortgagee may sue at law a grantee who, by the terms of an absolute conveyance from the Metz v. Todd, 36 Mich. 473; George v. An- mortgagor, assumes the payment of the mortDean v. Walker, 107 Ill. 540, 545, drews, 60 Md. 25; Walton v. Beauregard, 1 gage debt. Rob. (La.) 301; Gay v. Blanchard, 32 La. Ann. 550; Thompson v. Dearborn, 107 Ill. 87, 92; 503; Pruden v. Williams, 26 N. J. Eq. 212; Bay v. Williams, 112 Ill. 91; Burr v. Beers, Home Nat. Bank v. Waterman, 134 Ill. 461. 24 N. Y. 178; Thorp v. Keokuk Coal Co. 48 N. When two persons are bound for the same Y. 253. According to that view, the grantee, debt and there is an obligation on the part of as soon as the mortgagee knows of the arrangeone to exonerate the other in the event of payment, becomes directly and primarily liable to ment being enforced against such other, and this is known to the creditor, then the creditor cannot extend the time of payment to the party ultimately liable without discharging the other debtor, even though such other debtor occupies the position of a principal debtor to the creditor. Millerd v. Thorn, 56 N. Y. 402; Colgrove v. Tallman, 67 N. Y. 95; Walton v. Beauregard, 1 Rob. (La.)_201; Gay v. Blanchard, 32 La. Ann. 503; 1 Jones, Mort. (2d ed.) §§ 741, 742; Calvo v. Davies, 73 N. Y. 211; Shepherd v. May, 115 U. S. 510 (29:457). Mr. Justice Gray, after stating the case as above, delivered the opinion of the court: Few things have been the subject of more difference of opinion and conflict of decision than the nature and extent of the right of a mortgagee of real estate against a subsequent grantee who by the terms of the conveyance to him agrees to assume and pay the mortgage. All agree that the grantee is liable to the grantor, and that, as between them, the grantee is the principal and the grantor is the surety for the payment of the mortgage debt. The chief diversity of opinion has been upon the question whether the grantee does or does not assume any direct liability to the mortgagee. the mortgagee for the debt for which the mort- The case is thus brought within the well to the principal, knowing of the relation of 143 U.S. [192] that conveyance and the agreement of the THE NEW ORLEANS CITY & LAKE v. THE CITY OF NEW ORLEANS. (See S. C. Reporter's ed. 192-196.) Exemption from taration not presumed-street 1 Exemption from taxation is never to be pre- its intention to do so has been declared in clear and unmistakable words. 1887, imposed by an ordinance of the city, The defendant admitted that its annual On October 2, 1879, the city of New Orleans sold to the New Orleans City Railroad Company, for the price of $630,000, the right of way and franchises for running certain lines of street railroad for carrying passengers within the city until January 1, taxation—1906, to have and to hold the said right of way and franchises of the said railroad lines unto the said New Orleans City Railroad Company, its successors and assigns, transferees and vendees, for the full term and period herein above fixed;" and the company agreed to construct its railroad, to keep the 2. The franchise to build and run a street railway streets in repair, and to comply with reguis as much subject to taxation as any other prop-lations as to the style and running of cars, the motive power, and the rates of fare, as therein provided, and to "annually pay into the city treasury, upon the assessed value of said road and fixtures, the annual tax levied upon real estate, the value of said road and fixtures to be assessed by the usual mode of assessment;" and the city bound itself "not to grant, during the period for which said franchises are sold, a right of way to any other railroad company upon the streets through which said right of way is hereby sold, unless by mutual agreement betweer. the city and the purchaser or purchasers of these franchises. erty. 8. Where there is no express contract against tax- 4 The Constitution of the United States does not is left to the state constitutions and state laws. [No. 119.] Argued Dec. 4, 7, 1891. Decided Feb. 29, 1892. IN ERROR to the Supreme Court of the Statement by Mr. Justice Gray: This was a summary proceeding by the city of New Orleans against the New Orleans City & Lake Railroad Company, in a civil district court of the parish of Orleans, to collect a license tax of $2,500 for the year NOTE.-A8 to power of states to tax see note to That taxation of stock or shares in corporation does As to exemption from taxation; whether a contract On June 9, 1883, the liquidating commissioners of the New Orleans City Railroad Company, whose charter had expired, sold and transferred all that company's real and personal property, movable and immovable. right of way and franchises for the privilege of running street cars, to the defendant, by a contract by which, among other things, said New Orleans City Railroad Company, having, according to law, paid its State and city licenses for 1883, amounting to twentyfive hundred dollars each, hereby transfers the unexpired term thereof, extending to De cember 31, 1883, to the present purchaser, the New Orleans City & Lake Railroad Company.' Judgment was given in favor of the city, or not; not implied, see note to Tucker v. Ferguson. 22: 805. As to when an injunction to restrain the collection of a tax will be granted, see note to Dows v. Chicago, 20: 65. As to when taxes illegally assessed can be recovered back, see note to Erskine v. Van Arsdale, 21: 63. [193] [195] and was affirmed on appeal by the Supreme Court of Louisiana. 40 La. Ann. 587. The defendant sued out this writ of error. Mr. Charles F. Buck for plaintiffs in error. Mr. W. B. Somerville, for defendant in error: A grant, by a municipal corporation, to build and operate street railroads for a term of years, does not exempt the grantees from the imposition of a license tax for the use of the privileges conferred. Memphis Gas-Light Co. v. Shelby County Tax. Dist. 109 U. S. 398 (27: 976). In order to establish a contract to exempt from taxation, the ordinance must be explicit and without doubtful words. Picard v. East Tennessee, V. & G. R. Co. 130 U. S. 641 (32: 1052). If the tax, which, it is claimed, impairs the obligations of a contract, be declared valid, all else in the case is beyond the domain of the jurisdiction of the court. Delaware Railroad Tax, 85 U. S. 18 Wall. 231 (21: 896). Exemptions from taxation are personal, and are not transferable. Morgan v. Louisiana, 93 U. S. 223 (23: 861); Chesapeake & O. R. Co. v. Miller, 114 U. S. 176 (29: 121); Louisville & N. R. Co. v. Palmes, 109 U. S. 244 (27: 922); Picard v. East Tennessee, V. & G. R. Co. 130 U. S. 637 (32: 1051). Article 118 of the Constitution of Louisiana, of 1868, which provides that taxation shall be equal and uniform, requires license taxes to be equal and uniform on all persons pursuing or following the same business, occupation or calling. Merchants Mut. Ins. Co. v. Blandin, 24 La. Aun. 112; East Feliciana Parish v. Gurth, 26 La. Ann. 140; Honold v. New Orleans, 23 La. Aun. 727; State v. Endom, 23 La. Ann. 664; New Orleans v. Home Mut. Ins. Co. 23 La. Ann. 450; Orleans Parish v. Cochran 20 La. Ann. 373; New Orleans v. La Fayette Ins. Co. 28 La. Aan. 757; New Orleans v. St. Charles St. R. Co. 23 La. Ann. 498; Louisiana Cotton Mfg. Co. v. New Orleans, 31 La. Ann. 446; New Or. lens v. New Orleans Sugar Shed Co. 35 La. Ann. 550. An exemption from taxation, granted by the government, to an individual, is a franchise, which can be lost by acquiescence under the imposition of taxes for a period long enough to raise a conclusive presumption of a surrender of the privilege. Given v. Wright, 117 U. S. 648 (29: 1021). Mr. Justice Gray, after stating the facts as above, delivered the opinion of the court: Exemption from taxation is never to be presumed. The Legislature itself cannot be held to have intended to surrender the taxing power, unless its intention to do so has been declared in clear and unmistakable words. Vicksburg S. & P. R. Co. v. Dennis, 116 U. S. 665, 668 [29: 770, 772], and cases cited. Assuming without deciding, that the city of New Orleans was authorized to exempt the New Orleans City Railroad Company from taxation under general laws of the State, the contract between them affords no evidence of an intention to do so. The franchise to build and run a street railway was as much subject to taxation as any other property. In Gordon v. Appeal Tar Ct., 44 U. S. 3 How. 133 [11 : 529], upon which the plaintiff in error much relied, the only point decided was that an Act of the Legislature, continuing the charter of a bank, upon condition that the corporation should pay certain sums annually for public purposes and declaring that, upon its accepting and complying with the provisions of the Act, the faith of the State was pledged not to impose any further tax or burden upon the corporation during the continuance of the charter, exempted the stockholders from taxation on their stock; and so much of the opinion as might, taken by itself, seem to support this writ of error, has been often explained or disapproved. Piqua Branch of State Bank v. Knoop, 57 U. S. 16 How. 369, 386, 401, 402, [14: 977, 984, 990, 991]; New York v. Commissioners of Taxes, 71 U. S. 4 Wall. 244, 259 [18: 344, 350]; Jefferson Branch Bank v. Skelly, 66 U. S. 1 Black, 436, 446 [17: 173, 178]; Farrington v. Tennessee, 95 U. S. 679, 690, 694 [24: 558, 561, 562]; Stone v. Farmers L. & T. Co. 116 U. S. 307 328 [29: 636, 643]. The case at bar cannot be distinguished from that of Memphis Gas- Light Co. v. Shelby County Tax. Dist., in which this court upheld a license tax upon a corporation which had acquired by its charter the privilege of erecting gas works and making and selling gas for fifty years; and, speaking by Mr. Justice Miller, said: "The argument of counsel is that if no express contract against taxation can be found here, it must be implied, because to permit the State to tax this company by a license tax for the privilege granted by its charter is to destroy that priv. ilege. But the answer is that the company took their charter subject to the same right of taxation in the State that applies to all [196] other privileges and to all other property. If they wished or intended to have an exemption of any kind from taxation or felt that it was necessary to the profitable working of their business, they should have required a provision to that effect in their charter. The Constitution of the United States does not profess in all cases to protect property from unjust and oppressive taxation by the states. That is left to the state constitutions and state laws." 109 U. S. 398, 400 [27: 976, 977]. The New Orleans City Railroad Company having had no right of exemption from the tax in question, it is unnecessary to consider whether such a right, had it existed, would have passed by the conveyance to the plaintiff in error. See Chesapeake & O. R. Co. v. Miller, 114 U. S. 176, 184 [29: 121, 123], and cases cited; Picard v. East Tennessee V. & G. R. Co. 130 U. S. 637 [32: 105]. Judgment affirmed. ROBERT W. WATERMAN, Appt., V. PHILANDER M. ALDEN ET AL. ((See S. C. Reporter's ed. 196 202.) Construction of will. A clause in a will which directs that any notes held by the testator at his death against a legatee therein, shall be canceled and delivered up with out payment thereof, does not apply to or include notes made to the testator between the date of the will and his death, by a partnership of which the legatee is a member, to obtain money to carry on the business of the partnership, and secured by a conveyance of property. [No. 455.] This was a bill in equity by Robert W. Waterman, a citizen of California, against Philander M. Alden and George S. Robinson, citizens of Illinois, and executors of James S. Waterman, to recover back certain sums of money alleged to have been paid by mistake. James S. Waterman, for twenty years before his death, lived and did business as a banker in Sycamore, Illinois. He died on July 19, 1883, without children or descendants, and leaving an estate amply sufficient, without the sums claimed in this suit, to pay Submitted Jan. 8, 1892. Decided Feb. 29, 1892. all debts, legacies and costs of administration. APPEAL from a decree of the Circuit Court of the United States for the Northern District of Illinois, dismissing a suit in equity brought by Robert W. Waterman against Philander M. Alden and Geo. S. Robinson to recover back moneys paid by mistake. Af firmed. The facts are stated in the opinion. Mr. William R. Plum, for appellant: The said seventh clause of said will imports a legacy; it is not a testamentary act in the nature of a release. 2 Roper, Legacies, 66; Izon v. Butler, 2 Price, 34; Elliott v. Davenport, 1 P. Wms. 83; Toplis v. Baker, 2 Cox, 118. The rule of construction is, that a bequest in general terms prima facie includes every thing, capable of being comprehended under said general terms, which the testator had power to dipose of. 2 Jarman, Wills, 56; 1 Redfield, Wills, 386; 1 Roper, Legacies, 212, 213, 221; Morrice v. Aylmer, 45 L. J. Ch. 614; Wigram, Interpre tation of Wills, 28, 331; Foot's App. 22 Pick. 302. The debt in question was the several debt of appellant to the testator. Marine Bank of Chicago v. Ferry, 40 Ill. 255; Gge v. Mechanics Nat. Bank, 79 Ill. 62; People v. Harrison, 82 Ill. 84; Byers v. First Nat. Buk, 85 Ill. 423; Stearns v. Aguirre, 6 Cal. 176; People v. Love, 25 Cal. 521. The testator did not mean to confine his be quest to such debts as were secured only by the personal engagement of the debtor brother or sister. 2 Jarman, Wills, 359. A gift or legacy imports a bounty or al benefit to the legatee. By his last will, dated November 28, 1870, and admitted to probate September 18, 1883. 7th. I desire and direct that any and all In accordance with the seventh clause of the will, the defendants delivered up to the plaintiff individual notes of his for from $12,000 to $15,000, and to John C. Waterman, another brother, his unsecured notes for about $30,000. person-clause of the wiil applies to notes given by the The real question in the case is whether that plaintiff and another person to the testator under the following circumstances: Bates v. Hillman, 43 Barb. 645. People v. Harrison, S2 III.'84; Wann v. McNulty, 7 Ill. 355; Thompson v. Emmert, 15 Ill. 415; Moore v. Rogers, 19 Ill. 347; Mitchell v. Brewster, 28 Ill. 163; Coates v. Preston, 105 Ill. 470; Mason v. Eldred, 73 U. S. 6 Wall. 231 (18: 783). Every general partner is liable to third per NOTE.-As to interpretation of wills; intention of testator to govern, see note to Pray v. Belt, 7: 309. In 1881 the plaintiff, residing in San Bernardino, California, formed a mining partner. ship with one Porter, under the name of Waterman & Porter, in which the plaintiff's interest was three fourths and Porter's one fourth. On May 14, 1881, the plaintiff signed and gave to the testator, as security for the payment of any advances that he might make to the partnership, an agreement in writing to execute to him, within twelve months from date, on demand, a conveyance of twentyfive undivided hundredths of mining property [197] [198] [200] in California, the estimated value of which at Taking the words of the clause, in connec The plaintiff demanded of the defendants repayment of these sums, as having been paid in ignorance of the terms of the will, and under mistake of law and of fact. The defendants refused, because they were advised by counsel that by the will the only notes or evidences of indebtedness against the testator's brothers which were to be canceled and delivered up were simply personal debts. This bill in equity was thereupon filed, and, after a hearing before the chief justice on pleadings and proofs, was dismissed; and the plaintiff appealed to this court. The matter to be ascertained in this case is the intention of the testator as manifested on the face of his will, by which, after making provision for his widow, and some inconsid erable legacies, he devises and bequeaths the bulk of his property to be distributed among his brothers and sisters in equal shares, and then, as incidental to his general scheme of distribution, directs "that any and all notes, bills, accounts, agreements or other evidences of indebtedness against any of my said brothers and sisters held by me at the time of my decease be canceled by my said executors and delivered up to the maker or makers thereof without payment of the same or any part there of," except two notes held by the testator against John C. Waterman alone, amounting to $12,600, secured by trust deeds upon lands in Missouri, which he directs to be collected and divided among his brothers and sisters. The manifest object of the clause is to bene- | fit brothers and sisters of the testator, and them only. The testator clearly expresses his intention that (with the exception specified) any sums of money which may be owing by any of them to him at the time of his death shall not be collected, or be treated as part of his estate for the purpose of division among them, but that all notes, bills, accounts, agreements or other evidences of such debts shall be canceled and delivered up. The terms of the exception may affirm or imply an intention to include in the general provision debts of a brother or of a sister for which he holds security; but they have no tendency to show that sums of money owing from any other person are intended to be released or given to such person, or to be excluded from the estate to be distributed among the brothers and sisters. The case is quite different from a legacy to a particular person of "his bond" for a sun named, which must, of course, pass a join bond, when there is no other, as in the case, cited by the appellant, of Maitland v. Adair, 3 Ves. Jr. 231, and Izon v. Butler, 2 Price, 34. The decisions upon contracts to secure debts of a particular person are, to say the least, no: inconsistent with this (conclusion. A contract of guaranty or suretyship, by which one person undertakes to be responsible for debts to be contracted by another, does not ordinarily include debts coutracted by the latter jointly with a third person, as partners or otherwise. Bellairs v. Ebsworth, 3 Camp. 52; London Assur. Co. v. Bold, 6 Q. B. 514; Montefiore v. Lloyd, 15 C. B. N. S. 203; Leathley v. Spyer, L. R. 5 C. P. 595, 602; Palmer v. Bagg, 56 N. Y. 523; Parham Sewing Mach. Co. v. Delano, 113 Mass. 194, 197; White Sewing Mach. Co. v. Hines, 61 Mich. 423. Even when a mar gives security for debts which he may himself contract, opinions have differed upon the question whether it does or does not include debts contracted by him as a member of a partnership. Ex parte Freen, 2 Glyn. & J. 246; Chuck v. Freen, Mood. & M. 259; Ex parte McKenna, 3 DeG. F. & J. 629; Bank of Buffalo v. Thompson, 121 N. Y. 280; Hallowell v. Blackstone Bank, 154 Mass. 359, 13 L. R. 315. For these reasons, we concur in the opinion delivered by the chief justice in the circuit court, that the seventh clause of the will, whether operating by way of release or by way of legacy, cannot be construed as including the joint and several notes of Waterman & Porter, or any part thereof. Decree affirmed. (201 202 |