716
FEDERAL REPORTER,
vol. 45.
made at a future time, and by private negotiations, by which more could be realized than at the pending auction sale. Upon the proofs there seems to be no reason to doubt that it has been carried out in good faith on the part of the defendant. The bill is therefore dismissed.
PARKER fl. WRAY
et al., County Court Judges.
(Oircuit Oo'UTt, W. D. Missouri, W. D. April 4, 1891.) CONTRACY,rS-MuNICIPAL :ijOliDS-SPECIFIC PERFORMANCE.
. Where the complainant entered into a contract with defendant county by which he was to secure the surrender to defendant of certain old bonds and coupons issued by. certain townships in aid of a railroad, and to satisfy all outstanding judgmelits on such bonds and coupons and to hold the townships harmless against such indebtedness, and was'to receive therefor $150,000 in new bonds, compla.inant's undertalting extends only to obligatiolls of the townships themselves, and does not include judgments rendered on bonds issued by the county without authority of law to take up overdue interest coupons on such township bonds. ·
.
In Equity.' , Thisis'a bill for specific performance of entered into between the complainant and the respondent county, of date September 7, 1887. The substance of this contract is as follows: That the respondent county court should issue and .deliver to complainant 150 bonds, of the denomination of$1,OOO each, amounting in all to $150,000, payable 30 years after date, redeemable at the option of the payor at the end of 20 years, to bear interest at the rate of 5 percent. per annum, evidenced by coupons, etc., payable annually at a given bank in the city of New York, said bonds to bear date November 1, 1887; in consideration of which the complainant on his part to surrender and deliver to the respondents $150,000 in old bonds and couponsimd interest thereon, and as much more as he may have on hand, (such bonds, etc., being originally issued by said county on behalf of Grand River township in said county, to aid in the construction of certain railroads;) and should also cause to be entered satisfaction of judgments rendered against said township on said bonds and interest, on the records of the courts where such judgments may be entered; the respondents to deliver such new bonds, and make the exchange on a basis of 60 cents in new bonds for every one dollar in old bonds, coupons, judgmenta, and accrued interest thereon , which complainant surrender to respondents; and the respondents agreed to make further exchange upon the above basis whenever the complainant should present any of the above-described old bonds and coupons, or present evidence of having satisfied judgments on the same. Should the complainant be unable to so deliver and surrender a11M said bonds and coupons, and cause all judgments against said township to be satisfied by January 1, 1888, then the complainant was to surrender and deliver to respondent county a sufficient amount of said indebtedness to
PARKER '11. WRAT.
717
-reduce the same to the lowest possible figure; and the respondents were to retain in their possession a sufficient amount of said new bonds to amount to $110 for every $100 of old indebtedness for which said township is liable, and deliver the remaining new bonds, if any, in their hands to the complainant. "It is understood that the bonds, coupons, and judgments heretofore mentioned consist of the outstanding and unpaid original bonds and coupons issued by the county court for and on behalf of said Grand River township to aid in the construction of certain railroads, but does not inciude the funding bonds issued under chapter 83 of the Revised Statutes of 1879." The contract then provides for the respondent's continuing to make resistance as theretofore to the payment of said indebtedness at the cost of the complainant, with a further stipulation for paying complainant out of said $150,000 certain costs. The complainant further stipulated, in consideration of the premises, to pay all the accrued costs for which said township is liable by reason of the institution of any suit to obtain judgments on any of said bonds, etc., as well as all costs which may bereafteraccrue in any suits against said township instituted upon any of said old bonds and coupons, and costs of mandamus proceedings, etc., and to release all judgments, either heretofore rendered, or any that may hereafter be obtained, against said township, on any of said.old bonds or coupons, and have satisfaction of is record duly entered thereof. "The true intent of this contract _ that for the 150 bonds of the denomination of $1,000 each, delivered to said party of the first part, (the complainant,) he, the said party of the first part, will protect and hold harmless the township of Grand River, in Cass against all of their old railroad indebtedness, which origicounty, nally consisted of bonds and coupons, and protect said township against all judgments rendered thereon, and against all costs accruing in any suits or proceedings instituted on any such bonds, for which said township 'is now or may hereafter be liable. It is further agreed ,that said party of the first part shall use due diligence in securing and surrendering to said party of the second part all the bonds, coupons, or judgments on same, of the old indebtedness of said Grand River township; but should said party of the first part fail to secure !tIl of said indebtedness by the 2d day of October, 1893, then if no suits be pending against said party of the second part for the collection of anyof said old bonds and coupons, and no unsatisfied judgments existing against said second party, the said second party shall deliver over to said first party all the remaining new funding bonds remaining in their hands, said old bonds and coupons being by that time outlawed and valueless. The contract· to be null and void unless ratified by the qualified voters," etc. There is a like contract respecting the indebtedness of Camp Branch township, with the exception of the proportion of new bonds to the old bonds or indebtedness to be exchanged. After the execution of these contracts the county iCOurt duly submitted the matter of ratification to the qualified voters of said townships, who duly approved the same. The new funding bonds were duly prepared and executed by t&ecounty court, and the complainant proceeded to take up,and presented for surrender, all the
718 ingindebtl:ldness of said Grand Ri-v'er township as he cInims,with the .exception<lfabput $3,300 in amount, and all of the indebtedness of Camp :Branchto;wnship.. The respondents have deliv:ered to complainant SU5,OOOinnewbonds on llccountof·Grand River 'township; and, also withhold Plolirt,<>C the new bonds on account of Camp Branch township. The bill asks tha.t:resptmdents be re,quired to fully, perform saiel contracts, with the exception of the said amount of the outstanding claims against said Grand River township. The substance of respondents' resistance to this action is predicated of. the following state of facts: In October, 1871, alter said township bonds had been issued and sold, the COUllty court made an order, reciting that certain of the coupons on said past due and unpaid" and that for the purpose of maintaining the Cil"edit of the county it ordered that there be issued county funding bonds, for the benefit ofCatnp ,Branch township, in the denomination of$500each, to the amount of $8,000, with coupons, and like bonds with coupons, for the benefit of Grand River township, to the amount of $14,000, for the payment of the said past-due coupons of interest. Said bonds purported on their face to. be obligations of the county, and not :thosEtio( the townshit>s. ' These bonds were placed upon the market, and putohased by innocent, bona fide parties. On their maturity suits were instituted tilereon in the United States circuit court for this district atJefferson City. Itwa!i!foundhy the court, on the evidence before it, that said boups weres()issued by.sltid county, col1rtfor and 011 account of said townships to pay, interest on their indebtedness; that the county court had no right tothutJ saddleupou ,the county at large the debts which of right .and law pertained alone to the· I'espective townships. But a8 tbebQlldson theIr,'faoe purpotted to be the obligations of the Jounty, and ,were funding bond!; which; the county m;ight under certaiu ,:;irc.umstancelk by law, issue, and the same were purchased in market .>vert, whhoutaPY notice to the purchaser of their real consideration, W,ept against the coullty therefor in 1874. 'These judgments have neverlbeeulllltisfied. by theco,unty, or any one for it. It is claimed by these judgment$ cllre within the terms of the contract with ,complainant, and that until the same are satisfied by him he is not ilntitled to the deHveryof the amount of such new bonds as represents the pJ;oporHon: of said judgments. Wm.$.·Slw,lt, Jor complainant. Wm. L. JOil11'QU, Jame8 T. lJ'U:rney, ,and J. F. for respondents. : :' PHIJ,IPS,' ,(a!terstatiulg thl! facts tl8 above.) The single question on the .fu,regoing state¢facts to' be' .determined ,.iswhether or not the judgments 4lgainst CaSBcounty on ,account of theJunding bonds issued by it to pay interest on. the township :bonds come,withiu .the purview of the contract betweell :complainan.t aUIL-the county court. Each of the parties has taken, as to, co.l1versatious bad between them priQr, and np,to thE! and other matters in pats, :.(Q,:thEj,purplP!\e.q{s!:,l.O,wingwbaMlileir respective understandings were as tan<l extentofthec()utraet, , It appears that at the time the
PARKERV. WltAY.
719
contract· was entered into· the .county justices did not know of the considerationofthebonds on which judgmentahadbeen taken 13 years before against .the county. As there is no latent am biguity in the terms of the contract, ,and the wbole contract between tbe parties was red uced to writing and formally executed and delivered, it is presumed, as a matter of law,tocontain the whole agreement between the parties. And I discover nothing whatever to take it out oftheoperation of the weH-, recognized rule of law that all anterior negotiations and understandings between the parties are presuuled to ,be merged in the written contract, and that nothing can be taken from or added to its express terms,nor can they be varied or modified, by parol evidence., The 'answer is not framed so as to present any issue of fraud or mistake in the, execution, of the contract. The county court accepted and spread this contract on its records, as they were required by law to do. It is, thereforel a: solemn written compact,and,as such it must speak for itSelf. Looking at ,this contract in its scope and essence, ,its manifest purpose was to: wipeout the old indebtedness of the townships, whether in the fO'fm of bondswitb coupons, or judgments against them., It was the debts of the townships owing on account of the old bonds originally issuoo by the county on their behalf,and not for any ,debt of ,or claim against the county as such, which was and is thesubject-matter(jf this contract. The .specifications of. the contract allesingJllarly striking in this respect. His tbe "exchange of new bonds * *:* for oldborids, coupons; and judgments on same, (said bonds, etc., being originally issued * *, * for and on behalf of said ,tc>wnship to aid in the construction of.the St. Louis and Sante Fe Railroad." Then again: "In old bondS; coupons and interest thereon, or rendered, against said township on said bonds,orcouponsj or both." Then; in summing up as towllat is the purpose of the contract; itds said: "It is understood tbat the old bonds, coupons, and judgments heretofore mentioned,consist of the outstanding and unpaid bonds and coupons,and on the same, issued by said county for and on behalf of said township to aid in the e,ohBtruction of" said And<again, further on, it recites that II said party of the first part agrees to release all judgments, either heretofore rendered, or that may hereafter be obtained, against said township on any. of said botlds or coupons. OJ. It winds lIP with a restatement Oft-he true import of the <)ontract. It is to protect and save harmless the ,township" against all of the old indebtedness, which consists of bonds and ;coupons, and against aU judgments' thereon, and costs;" from which it: is mOfit manifest that the bondl'l'to be taken care of by Parker are the old bonds of the townships,-nofunded or new honds; and the judgments to be satisfied by Parker are judgments upon said townsbipbonds, SInd judgments against the townships, or such judgments as are enforceable, .as such, against the townships. As, was well known ;presumably, to the contracting parties', judgments on township bonds', while they go against the county, are not county debts, and the judgmentspecifres' that the same is to be collected by levies on the taxable pl'Operty of the township,alid it is not enforceable against the body of the county ;
720
The judgment in question was rendered against the county as such, and was declared to be a debt of the county, enforceable as such. It was not, therefore, a judgment against the township,' or against the county for and on behalf of the township. The county has no judgment over against the township on account of this judgment against it; nor, indeed, could it, if at all, obtain any judgment until it has paid and satisfied the judgment against it, on account ofits assumption for the township. Indeed, I am unaware of any law which would enable the county to maintain an action against one of its township subdivisions on account of a debt voluntarily assumed and paid by the county for the township constituency. It was not only a voluntary payment of a debt not owing by it, without the solicitation of the debtor, but a payment of a debt for a subdivision of the county, where there was no agent or lawful representative of the subdivision to consent and no power lodged in any one t6 ratify the act on behalf of the quaai municipality. The county court is not authorized by statute to make a levy on the taxable property of the township for such a claim. It is only empowered by statute to make an assessment and levy for and on behalf of the township to pay interest and principal on its bonds issued in aid of railroads, or to enforce the payment ora judgment on such bonds and coupons, when such judgment is against the county for and on behalf of the township. It was the obligations, existing, vital; and enforceable, of the township which the complainant undertook to protect and satisfy, and not the voluntary and unauthorized assumption of obligations of the township by the county. As to the latter the complainant has the right to appeal to his contract and 8:1y, in hoc fcede:re non veni. It cannot be said with legal exactness that it is within the equity of the contract that Parker should save the county of Cass froni its liability on the judgments against it on account of its unauthorized assumption of part of the township obligation. For it must be kept in mind that the county of Casso as such, . was not contracting for itRelfand for its protection. It was acting for and on hehalf of the townships, to enable them to get rid of their township debts springing from the subscription to the railroads, and judgments against the townships incident thereto. The contract was made subject to the ratification of the townships, as it was for their benefit and on their responsibility. Any equity, therefore, which could possibly be invoked would be in favor of the township and not the county; and as the county has no claim against the township which it can enforce, what equity has the township against Parker which the county, under this contract, has the right to interpose? The whole power of the county court to make such railroad subscription and issue such bonds on behalf of the township being conferred by the special act of the legislature, (Laws Mo. 1868, p.92,) we must look to the special enabling act to ascertain the extent of the authority of the county court and the liabilities of the township connected with the making of such SUbscriptions and the is., suing of bonds in payment thereof. No authority is to be found in the statute for the action. of the county court in issuing the funding bonds to takeuptbeinterestcouponson tbetownship bonds; and, inconsequence,
LATHAM: 'V. NORTHERN PAC. R. CO.
721
no provision is found by which the county can reimburse itself for such assumption. The quasi municipal subdivision of the county known as a township is precisely what the legislature in this respect has made it, possessed of no powers or faculties, anli subject to no incidents or liabilities, other than those prescribed in the enabling act. It is not, therefore, perceivable how any court, whether of law or equity, can enforce a claim of the county against the township on account of the bonds voluntarily issued to fund the accrued interest on the townships debts, even should th.e county ever satisfy the judgment against it. The action of the county court in that transaction was violative of its. trust, as the representative of the county; and, whatever may have been or may be the rights of the constituency against the wrongful act of the justices of the.court, a court of equity, no more than a court of law, can create out of their wrong a binding obligation against the township. A court of equity cal).notmake a contract for parties, and then make a law to enforce it. While the granting of a decree of specific performance is said to rest in the discretion of the chancellor, this is a sound judicial discretion, and not one to be arbitrarily exercised or arbitrarily refused. When. it: is ascertained that. the contract is founded on a valuable consideration" its mutual enforcelllent practicable, and its enforcelllent in specie,Rsin this case, is necessary, owing to the impracticability, somewhat, of ,gj,ving . to the new bonds a true valuation in money, and the contract is certain, unambiguous, and reasonable, then the remedy ripens into a right. "The remedy of specific performance is governed by the same general principles and rules which control other equitable remedies. The right to it depends upon circumstances, conditions, and incidents, in addition to the existence of a valid contract, w:hich equity regards as essential to the administration of its peculiar modes of relief. When all these circulllstances, conditions, and incidents exist, the right is perfect in equity, and a specific performance is granted as a matter of course within the classes of agreements to which the jurisdiction extends." Porn. Spec. Perf. § 38. It results that the complainant is entitled to have the contract enforced without regard to the existence of said judgments against CaBS county. Decree accordingly.
et al. v.
NORTHERN PAC.
R. Co.
lCwtmit Court, D. Washington, W. D. April 7,1891.) 1. EQUITY-PuROlIASB 011' A. LAWSUIT-PUBLIO POLIOY.
Whe.re oomplainants have gained possession of premises by purchasing the rights with the purpose of repudiating the lease and disputing the title of defendant as landlord of their grantors, they will be relegated to such legal rights· as they may have acquired, and equity will not aid them by enjoining the efforts of defendant to regain poss68siqn even by force. Though the defendant is oonfessedly intending to regain possession of the premises by the use of force, which is unlawful, and calculated to provoke a breach of
9.
SAMB-FBDHHAL COUllTS-BREA.OH 011' THE PEAOH-INJUNOTION.
v.45F.no.11-46
