it appears from the contract that the parties have in fact agreed that if the vendee shall fail to make the payments as and at the times therein specified, he shall lose the benefit of his purchase, the courts will grant him no relief. Martin v. Morgan, 87 Cal. 203, 25 Pac. Rep. 350. The contract in this case, standing alone, presents no difficulty of construction. Its provisions are simple, and the intentions of the parties appeared clear and unequivocal, an apparent difficulty arising only when, in connection therewith, it is attempted to reconcile the provision of the bond which was given as a guaranty for the faithful performance of the contract on the part of the vendors. The condition of the bond provides as follows: "The condition of the above obligation is such that the above-bounden E. A. Reed and H. H. Henderson, on or before the first day of October next, or in case of their death before that time, if the heirs of the said E. A. Reed and H. H. Henderson, within three months after their decease, shall and do, upon the reasonable request of the said Eugene W. Coughran and Nathan H. Cottrell, their heirs or assigns, make, execute, and deliver, or cause so to be made, a good and sufficient warranty deed in fee simple, free from all incumbrance, and with the usual covenants of warranty." And, after giving a description of the property, it further specifies: "Provided, the said Eugene W. Coughran and Nathan H. Cottrell comply with their part of the contract this day made and delivered to them by the said E. A. Reed and H. H. Henderson, and a copy of which is hereto attached, then the above obligation to be void; else to remain in full force and virtue." This obligation refers to the performance of the contract already made and entered into by the parties, and may be rendered null and void either by the vendees failing to make the payments as provided, or, if the payments are so made, by the vendors conveying the property as provided. Under the contract the vendors were not required to make conveyance until the last payment was made on April 1, 1891. Here the payments were made a condition precedent. Under the condition in the bond Conveyance was to be made on or before the 1st day of October, 1890. Here the payments were made a condition subsequent, and yet the condition of the bond requires the vendees to perform their part of the contract. These provisions are repugnant to each other. and this has raised the question as to whether the parties to the transaction are controlled by the conditions of the bond, or by the contract, or whether the two instruments form but one contract. Both instruments were executed and delivered on the same day; the contract first, and then the bond, which refers to the contract. Both refer to the same transaction, to the same subject-matter. They are therefore presumed to evidence but a single contract, and should be construed together, and the intent of the

parties must govern. 2 Pars. Cont. 503; 1 Warv. Vend. § 17.

The bond was given to secure the performance of the contract, refers to it, and this makes the contract a part of it,-a part of the preamble of the condition of the bond,and it must therefore be construed the same as though the contract was copied into its preamble. Locke v. McVean, 33 Mich. 473. If, then, the contract became a part of the preamble, it must serve to explain the condition of the bond. The contract had been made as a result of the transaction between the parties, and it is but fair to presume that the time of the payments and of the delivery of the deed was therein specified in accordance with the intention of the parties. This view is strengthened by the fact, apparent upon the face of both the contract and the bond, that there is no provision whatever for security for future payments of purchase money, and from this fact it is quite reasonable to infer that no such payments were contemplated by the parties, and that they intended them to be made before the delivery of the deed. This view also renders consistent the reference in the bond to the contract, for why should they refer to the contract in reference to the payments if in fact it did not express the intention of the parties in that particular? Obviously the contract was intended and regarded as the real agreement between the parties, and the repugnant clause was inserted into the bond by mistakes or inadvertence. But, if there should be some doubt as to this view, still, as the contract was referred to, and thereby became a part of the recital in the preamble of the bond, it will control. In a bond the recital is conclusive that the parties admitted the facts therein recited, and they must be presumed to have knowledge of the contents of instruments to which reference is made. If there be fault, it is that of the party who accepts an instrument containing a reference to another which does not correctly represent the intentions of the parties to the transaction. Bell v. Bruen, 1 How. 169; 2 Amer. & Eng. Enc. Law, 464; Coles v. Hulme, 8 Barn. & C. 568; Sawyer v. Hammatt, 15 Me. 40. It follows that the guarantors were liable only for the faithful performance of the stipulations contained in the contract to be performed by the vendors upon the performance by the vendees of their undertakings. It being a unilateral contract, containing a forfeiture clause, and time being material, their liability was complete whenever the vendees had strictly performed their part of the contract, and the vendors had made default. No consideration moved as to them, and they are not bound beyond the exact terms of their guaranty. They would be liable solely because of their promise, and would be under no moral obligation to pay the penalty of their bond, outside of the precise terms of the contract. It is a well-settled rule of law that in cases of the kind un

der consideration the undertaking of the guarantor must be strictly construed, and beyond the exact words of his agreement he is neither liable by implication nor by construction. His liability is strictissimi juris. In Miller v. Stewart, 9 Wheat. 680, Mr. Justice Story, delivering the opinion of the court, said: "Nothing can be clearer, both upon principle and authority, than the doctrine that the liability of a surety is not to be extended, by implication, beyond the terms of the contract. To the extent, and in the manner, and under the circumstances pointed out in his obligation, he is bound, and no further. It is not sufficient that he may sustain no injury by a change in the contract, or that it may even be for his benefit. He has a right to stand upon the very terms of his contract; and if he does not assent to any variation of it, and a variation is made, it is fatal." 1 Brandt, Sur. § 93; 2 Pars. Cont. 16; Insurance Co. v. Johnson, 120 Ill. 622, 12 N. E. Rep. 205; Dobbin v. Bradley, 17 Wend. 422; Birckhead v. Brown, 5 Hill, 634; Bank v. Kaufman, 93 N. Y. 273. In conformity with the doctrine thus expressed, the contract between the vendors and vendees in this case fixed the liability of the guarantors, and the failure of the vendees to make their payment on the 1st day of October, 1890, as stipulated in the contract, operated as a discharge of the guarantors from their liability; and their obligation, in the absence of a waiver, was at end. acceptance of the money by the vendors afterwards, though it would be a waiver as to them, could produce no such effect on the part of the guarantors. Nor is the number of days intervening material in such case. Time was of the essence of the contract, and the failure to pay on the day stipulated was fatal. Pars. Cont. § 361; Walrath v. Thompson, 6 Hill, 540; Cunningham v. Wrenn, 23 Ill. 64. It is not deemed important to the decision of this case to consider the other points raised in the record. We think the motion for the nonsuit was properly sustained. The judgment is affirmed.

ZANE, C. J., and SMITH, J., concur.

(9 Utah, 255)

The

ARMSTRONG et al. v. OGDEN CITY et al. (Supreme Court of Utah. Aug. 31, 1893.) MUNICIPAL CORPORATIONS-PUBLIC IMPROVEMENTS

-ASSESSMENTS INJUNCTION.

1. Under Comp. Laws 1888, § 1800, requiring that the city council give notice of intention to levy taxes for public improvements, naming the purpose, describing the improvement, the district to be affected, and the estimated cost, and designating the time for hearing objections, a notice that the council intends to "pave and macadamize **TwentyFifth street, from the west line of W. avenue to the west line of V. avenue," which shall be known as "Paving District No. 2;" that the "boundaries of the district are lines running 150 feet back and parallel with the outer lines of each side of the streets, ou each and every

*

block, and for the full length thereof;" that the estimated cost is a certain sum; that local taxes will be levied on the real estate in the district for the benefits; and that it will hear objections on a certain day at a given hour,-is sufficient.

2. Since the statute requiring notice by the common council of intention to levy taxes for improvements provides that if written objections, signed by one-half the property owners, be not filed at or before the time fixed for the hearing, the city council shall be deemed to have acquired jurisdiction to order the improvement, a complaint to enjoin a levy of taxes for an improvement, which alleges that objections were filed by such a number of property owners, is not demurrable, since the demurrer admits the allegation, and in such case the council could have no jurisdiction to order the improvement.

Appeal from district court, Weber county; James A. Miner, Justice.

Suit by J. C. Armstrong and others against Ogden city and others to restrain the levy of a tax for local improvements. A demurrer to the complaint was sustained, and plaintiffs appeal. Reversed.

Brown & Henderson and H. H. Henderson, for appellants. James N. Kimball, for respondents.

ZANE, C. J.

This is an appeal from an order of the court below sustaining a general demurrer to plaintiffs' complaint, in which numerous facts are alleged, and a prayer for an injunction restraining the levy of a tax for paving Twenty-Fifth street, in district No. 2, in Ogden city, and from a judgment of the court against the plaintiffs after they had elected to stand on their complaint. The plaintiffs claim that the facts stated in the notice of intention to levy the tax were insufficient to authorize the levy. It is as follows: "Notice of intention of the city council of Ogden city of creating a district for paving, and of paving and macadamizing the streets therein, and to defray the expenses of such improvement by local assessment. The city council of Ogden city, in the territory of Utah, gives notice that it intends to make the following improvements, to wit: Pave and macadamize the following streets: Twenty-Fifth street, from the west line of Washington avenue to the west line of Wall avenue. This shall be known as 'Paving District No. 2.' The boundaries of the district to be affected and benefited are lines running 150 feet back, and parallel with the outer lines of each side of the streets on each and every block, and for the full length thereof, therein. The estimated cost of such improvement is $40,000.00. For the payment of the costs and expenses thereof, the city council intends to levy local taxes upon the real estate lying and being within said paving district to the extent of the benefits to such property by reason of such improvements. The city council will, on March 29, 1892, at 10 A. M., hear objections in writing from any and all persons interested in said local assessments. By order

of the city council. T. P. Bryan, City Re

corder." The statute requiring the notice and prescribing the statements it shall contain is as follows: "In all cases before the levy of any taxes for any improvements provided for in this act, the city council shall give notice of intention to levy said taxes, naming the purpose for which the taxes are to be levied, which notice shall be published at least twenty days in a newspaper published within such city. Such notice shall describe the improvements so proposed, the boundaries of the district to be affected or benefited by such improvements, the estimated cost of such improvements and designate the time set for such hearing. If at or before the time so fixed written objections to such improvements, signed by the owners of one-half of the front feet abutting upon that portion of the street, lane, avenue or alley to be so improved, be not filed with the recorder, the city council shall be. deemed to have acquired jurisdiction to order the making of such improvements.' Comp. Laws 1888, § 1800. In the notice set forth in the complaint, the intention to levy the tax is expressed, and the purpose of the tax, the description of the improve ments proposed, the boundaries of the district, the estimated cost, and the time set for such hearing, are all given with sufficient certainty.

The plaintiffs also alleged in their complaint that the owners of one-half of the front feet abutting on the street named filed with the recorder written objections to the improvements in question before the time designated in the notice for hearing objections to them. The demurrer admitted this allegation. The filing of such objections, in writing, as alleged, signed by the owners of one-half of the front feet abutting on the street, deprived the city council of jurisdic tion to order the improvements. We are of the opinion that the court erred in sustaining the demurrer to the plaintiffs' complaint, and in entering judgment against the plaintiffs. The Judgment and order appealed from are reversed, and the cause is remanded, with costs to plaintiffs.

BARTCH, J., concurs.

(9 Utah, 267)

SMITH et al. v. SIPPERLY et al., (GRAY et al., Interveners.)1

Aug. 30, 1893.)

(Supreme Court of Utah. ASSIGNMENT FOR BENEFIT OF CREDITORS - FRAUD -PREFERENCES.

1. An assignment by an insolvent merchant, who has been doing business solely on capital borrowed from his relatives, who knew of his insolvency, in which such relatives are preferred, is fraudulent in fact as to his other creditors, who were ignorant of the circumstances. Webb v. Armistead, 26 Fed. Rep. 70, followed.

2. An assignment for the benefit of creditors which contains a preference which is fraudulent in fact, is void in toto. Crawford v. Neal, 12 Sup. Ct. Rep. 759, 144 U. S. 598, followed.

'Rehearing denied.

Appeal from district court, Salt Lake coun ty; T. J. Anderson, Justice.

Attachment suits by John O. Smith and others against A. F. Sipperly and others, in which M. J. Gray and others intervened. From a judgment for plaintiffs, interveners appeal. Affirmed.

John W. Judd, for appellants. Dey & Street, for respondents.

SMITH, J. A. F. Sipperly and H. S. Lee were, prior to January 13, 1892, partners doing business as merchants at Salt Lake City, and on the above date made an assignment for the benefit of their creditors of all of their property to F. W. Ross. The written assignment, which appears in the record, after creating a class of first preferred creditors, which is denominated "Schedule A," contains the following clause: "And whereas, the said A. F. Sipperly is indebted to Mrs. A. F. Sipperly by note dated the 10th day of March, 1887, for $4,800.00, and to Mrs. E. J. Walling of South Cambridge, New York, by note of fourteen hundred dollars, ($1,400.00;) and whereas, the above said H. S. Lee is indebted to H. A. Lee by note in the sum of two thousand dollars, ($2,000.00:) These last-named three debts shall hereafter be known in this conveyance as 'Schedule B.'" Then follows a long list of creditors of the firm, who are classed as "Schedule C." The writing provides that the assignee shall pay the debts in the following order: First, Schedule A in full; next, Schedule B in full; next, Schedule C in full; and the surplus, if any, to the assignors. Schedule A amounts to about $3,000. Schedule B, as above shown, amounted to $8,200, without interest. Schedule C amounted to about $22.000. Only $11,000 was realized from the property assigned. A number of the creditors named in Schedule C renounced the assignment so far as their claims were concerned, and attached the property of Sipperly & Co. in the hands of Ross, the assignee. Ross defended, and the creditors in Schedules A and B intervened. Ross was afterwards by agreement appointed receiver by the court, and as such sold the property, and holds the proceeds to be disposed of by the judgment of the court. The court found, among other things, the following facts: That Mrs. A. F. Sipperly was the wife, and Mrs. E. J. Walling was the aunt, of the assignor A. F. Sipperly; that H. A. Lee was the son of the assignor H. S. Lee; that the firm of Sipperly & Co., and both members thereof, were insolvent, and had each and all been insolvent since the time they first began business in 1887; that the money due to the parties named in Schedule B was the only capital employed by said firm in said business, and was loaned by said creditors to the members of the firm, to be used as such capital, with full knowledge of the insolvency of the firm and the members thereof;

that the attaching creditors did not know of the existence of these debts until the assignment was made. The eleventh finding of fact is "that said assignment was made by said defendants A. F. Sipperly and H. S. Lee to said Frank W. Ross with intent to hinder, delay, and defraud their creditors." After making proper conclusions of law the court entered judgment making distribution of the fund in the hands of the receiver among the attaching creditors in the order of their attachments, and dismissed the petition in intervention. The interveners appeal.

The first question presented is, was the assignment void because of the preference of the creditors of the individual partners as provided in Schedule B? The next and remaining one is: If the assignment is void as to the preference given to the parties named in Schedule B, is it not valid for all other purposes?

As to the first question, it is conceded the firm was always insolvent, and that the members thereof were likewise insolvent. The creditors in Schedule B know this, and knowingly loaned the money, to be used as capital in this business. Is it a fraud upon the other creditors to provide for and prefer these parties? We think it is well settled that such an act is fraudulent and void. In Webb v. Armistead, 26 Fed. Rep. 70, which was a case very like the one under consideration, the court says: "These creditors were dealing with him on the faith of such capital in ignorance of the fact that he was all the time insolvent, and that large family debts of many thousand dollars were lying in abeyance to be preferred whenever the business should come to the disastrous end, which was inevitable. I do not know how a more gross injustice could be done those who gave credit on the faith of a large in-put capital than was done by this deed, which revealed the fact when it was too late that there was no capital whatever available to protect them in the event of losses in trade or shrinkage in value." This language we have quoted at length, because it so aptly describes the case at bar. Το the same effect are the cases of Ferson v. Monroe, 21 N. H. 462; Bailey v. Clark, 21 Wall. 284; Cribb v. Morse, 77 Wis. 322, 46 N. W. Rep. 126.

This brings us to the second question, can the assignment be upheld in any part? The supreme court of the United States in Peters v. Bain, 133 U. S., at page 670, 10 Sup. Ct. Rep. 354, say: "We agree that, as respects fraud in law as contradistinguished from fraud in fact, where that which is valid can be separated from that which is invalid without defeating the general intent, the maxim 'void in part, void in toto' does not necessarily apply;" and this rule is relied on by appellants to sustain the assignment notwithstanding the fraudulent preferences in Schedule B. At the argument we were

forcibly impressed with this suggestion, but the trouble is that in this case the assignment is fraudulent in fact. It was made with a fraudulent design and purpose. This fact is expressly found. The rule in such a case is declared in Crawford v. Neal, 144 U. S., at page 598, 12 Sup. Ct. Rep. 759, as follows: "Undoubtedly the rule is that a transaction void in part for fraud in fact is entirely void." The rule is fully stated, with the authorities in support of it, in Burrill, Assignm. (5th Ed.) § 352. See, also, Vernon v. Upson, 60 Wis. 418, 19 N. W. Rep. 400. We find no error in the record, and the judgment of the district court is affirmed, with costs to respondents.

1. In an action by the United States against certain real estate belonging to the Church of Jesus Christ of Latter-Day Saints, known as the "Tithing Yard and Offices," to forfeit and escheat the property, it appeared that the land was first laid out in 1848, and taken possession of by the representatives of the church of the same name as such corporation, then and until 1855 a voluntary sect; that in the latter year the church was incorporated, and such corporation thereafter possessed the property up to July 1, 1862, and that valuable improvements were put on it by the church. In November, 1871, the land was entered under the town-site act by the mayor of Salt Lake City, who conveyed it to the church's president, as trustee, by whose successor, as trustee, title was held March 3, 1887. Held, that such property was within the proviso of Act Cong. July 1, 1862, § 3, which declares that all real estate acquired or held, in any territory of the United States, by any corporation or association for religious or charitable purposes, of greater value than $50,000, shall be forfeited and escheated to the United States, "provided that the existing vested rights in real estate shall not be impaired by the provisions of this section," and was not subject to forfeiture.

2. Rev. St. U. S. § 1047, provides that no suit or prosecution for any penalty or forfeiture, pecuniary or otherwise, accruing under the laws of the United States, shall be maintained, except in cases where it is otherwise specially provided, unless the same is commenced within five years from the time when the penalty or forfeiture accrued. Held that, where land was subject to forfeiture more than five years before the action to forfeit it was commenced, and was not conveyed by the owner, but was held by such owner in violation of the statute rendering it forfeitable within five years next before the commencement of such action, the action was not barred.

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

Action by the United States against certain real estate situated in the city and county of Salt Lake, belonging to the late corporation of the Church of Jesus Christ

of Latter-Day Saints, known as the "Tithing Yard and Offices," and William B. Preston and others, as trustees for the church, to forfeit and escheat such property to the Unite States, in which James P. Freeze and Spencer Clawson intervened in behalf of themselves and all other members of such church. From a judgment in favor of plaintiff, defendants and interveners appeal. Reversed.

F. S. Richards, Le Grand Young, and W. H. Dickson, for appellants. The United States Attorney, (Bennett, Marshall & Bradley, of counsel,) for the United States.

SMITH, J. This is an action begun by the United States against certain real estate belonging to the late corporation of the Church of Jesus Christ of Latter-Day Saints, to forfeit and escheat the property. The property involved in this particular action is part of lots 3, 4, 5, and 6, block 88, plat A, Salt Lake City survey, commonly known as, and called, the "Tithing Yard and Offices." The defendants William B. Preston, Robert T. Burton, and John R. Winder are alleged to be claimants, as trustees of the property for

The

the voluntary religious association known as the Church of Jesus Christ of Latter-Day Saints. James P. Freeze and Spencer Clawson intervened in behalf of themselves and all other members of the religious association known as the Church of Jesus Christ of Latter-Day Saints, claiming that the property belonged to that religious body. The defendants Preston, Burton, and Winder answered the complaint. Freeze and Clawson, by their petition in intervention, set up substantially the same facts as alleged in the answer of the trustees. The case was tried by the court without a jury. Findings of fact and conclusions of law were made, and judgment entered in favor of the United States, escheating and forfeiting the property. defendants and interveners appeal. Two assignments of error are made, which we deem it necessary to consider upon this ap peal: First, that the court erred in deciding that the property was subject to forfeiture and escheat, for the reason that upon the facts found it appeared the Church of Jesus Christ of Latter-Day Saints had a vested interest in said property on or before July 1, 1862; second, the court erred in deciding that the property was subject to forfeiture or escheat, for the reason that, upon the facts found, all proceedings to forfeit or escheat the property were barred by section 1047 of the Revised Statutes of the United States. This section of the Revised Statutes was pleaded both by the defendants and the interveners in bar of the action. We will consider these objections in the inverse order in which they are stated.

Section 1047, relied upon, is as follows: "No suit or prosecution for any penalty or

forfeiture pecuniary or otherwise accruing under the laws of the United States, shail be maintained except in cases where it is otherwise specially provided, unless the same is commenced within five years from the time when the penalty or forfeiture accrued." The forfeiture claimed in this case arises under section 3 of the act of July 1, 1862, which is as follows: "That it shall not be lawful for any corporation or association for religious or charitable purposes to acquire or hold real estate in any territory of the United States during the existence of the territorial government, of a greater value than $50,000.00, and all real estate acquired or held by any such corporation or association contrary to the provisions of this act shall be forfeited and escheated to the United States, provided that the existing vested rights in real estate shall not be impaired by the provisions of this section." The title to the land in controversy was acquired by the mayor of Salt Lake City in November, 1871. In 1872 it was conveyed to the trustees of the corporation of the Church of Jesus Christ of Latter-Day Saints for the use and benefit of said church. Title remained in said trustees until the 3d of March, 1887. It is claimed by the appellants that, more than five years having elapsed since 'the perfect title to the property was acquired by the church, no action can now be prosecuted by the United States to forfeit or escheat the property. We have been cited to no case upon this question exactly like the one at bar. Several cases have been cited in which it is held that section 1047 applied to debts and civil actions and forfeitures, as well as to criminal ones. It was so held in the case of Adams v. Woods, 2 Cranch, 336, which was a suit to enforce a penalty founded on the act of the 22d of March, 1794, (1 Stat. 347,) prohibiting the slave trade. It was held that the action was barred, not having been begun within the period prescribed by the statute. Marshall, C. J., discussing the question, says: "It is pretended that the prosecutions limited by this law are those, only, which are carried on in the form of an indictment or information, and not those where the penalty is demanded by an action of debt. if the words of the act be examined they will be found to apply, not only to any particular mode of proceeding, but generally to any prosecution, trial, or punishment for the offense." And the court held that the action of debt for the penalty was a prosecution, and was barred by the statute of limitation. We think section 1047 includes civil as well as criminal proceedings. But the difficulty in the case at bar is that the language of section 3 of the act of July 1, 1862, is that all real estate acquired or held by any such corporation or association shall be forfeited, etc. Counsel for appellant do not deny that the property in question was held

But