Brewer v. Board of Co. Commissioners of Merrick County

• Decision Date: 18 December 1883
• Citation: 18 N.W. 43,15 Neb. 180
• Parties: JAMES G. BREWER, PLAINTIFF IN ERROR, v. THE BOARD OF CO. COMMISSIONERS OF MERRICK COUNTY, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

18 N.W. 43

15 Neb. 180

JAMES G. BREWER, PLAINTIFF IN ERROR, v. THE BOARD OF CO. COMMISSIONERS OF MERRICK COUNTY, DEFENDANT IN ERROR

Supreme Court of Nebraska

December 18, 1883

ERROR to the district court for Merrick county. Heard below before POST, J.

AFFIRMED.

Webster & Sparks, for plaintiff in error, cited Thompson v. Lee County, 3 Wall. 330. Ind. N. & S. R. R. Co. v. City of Attica, 56 Ind. 476. Middleport v. AEtna Life Ins. Co., 82 Ill. 562. Hamlin v. Meadville, 6 Neb. 227. Stewart v. Otoe County, 2 Neb. 177.

A Ewing, for defendant in error.

OPINION

COBB J.

This action was brought in the district court for Merrick county for the purpose of setting aside, having declared null and void, and removing as a cloud upon the title of plaintiff's lands, a certain mortgage executed by plaintiff and wife to the treasurer of Merrick county, upon certain lands of the plaintiff, situated in said county. The purpose and object of the said mortgage will be gathered from the defeasance clause thereof, which I copy as follows, to-wit: "Provided, however, and this conveyance is made to, and the title to said property is to be held by, the said treasurer of Merrick county, his successors or assigns, in trust and upon the conditions and for the purposes hereinafter stated, to-wit: Whereas, in pursuance of a majority vote of the electors of said Merrick county, at a special election held for that purpose in said county, on the 9th day of January, A. D. 1872, the county commissioners of said Merrick county did, on the 1st day of February A. D. 1872, execute and issue certain bonds of said Merrick county, known and designated as the Merrick County Mill Bonds, dated the 1st day of February, A. D. 1872, each for the sum of one hundred dollars, payable at the office of the county treasurer in and for said Merrick county, amounting in all to the sum of six thousand dollars, bearing interest at the rate of ten per cent per annum, payable semi-annually on the first days of August and February in each year, at the National Park Bank in the city of New York; which said bonds were authorized and issued, and are to be loaned to the said James G. Brewer for the purpose of aiding said James G. Brewer in building a public grist mill and water power in said Merrick county, on section thirty-one in township thirteen north, range six west. Two thousand dollars of said bonds to be delivered to said Brewer, at the date and on the execution and delivery of this instrument; two thousand dollars of said bonds to be delivered to said Brewer at the expiration of three months from the date hereof, in case said work shall have progressed satisfactorily to the county commissioners of said Merrick county; and the balance of two thousand dollars of said bonds to be delivered to said Brewer, at the expiration of six months from the date hereof, or when said mill and water power shall have been completed to the satisfaction of said county commissioners; said county of Merrick to provide and pay all semi-annual installments of interest on said bonds. Now therefore, if the said James G. Brewer, his heirs or assigns, shall pay or cause to be paid to the treasurer of said Merrick county, his successors or assigns, to and for the use of said county, on or before the first day of February, A.D. 1882, the full amount of all of said bonds, which shall have been received by said Brewer, his heirs or assigns, and a written receipt therefor, endorsed on this instrument, together with interest thereon, at the...