Union Bank v. Commissioners of Town of Oxford

• Decision Date: 26 March 1895
• Citation: 21 S.E. 410,116 N.C. 339
• Parties: UNION BANK OF RICHMOND, VA., v. BOARD OF COM'RS OF TOWN OF OXFORD.
• Court: North Carolina Supreme Court

21 S.E. 410

116 N.C. 339

UNION BANK OF RICHMOND, VA., v. BOARD OF COM'RS OF TOWN OF OXFORD.

Supreme Court of North Carolina

March 26, 1895

Appeal from superior court, Granville county; Hoke, Judge.

Petition for mandamus by the Union Bank of Richmond to compel the commissioners of the town of Oxford to levy taxes to pay certain railroad aid bonds.

In an action to compel a town to pay railroad aid bonds issued by it, an answer merely denying the allegations of the petition and setting up nonuser, failure to complete the road, and other facts for which the state might forfeit the company's charter, and praying that the bonds be canceled, does not contain such counterclaim or demand for affirmative relief as will prevent plaintiff, at the close of the evidence, from taking a nonsuit on the court's holding that the bonds are void.

The court, at the close of evidence, and after argument, having intimated an opinion that on the evidence, if believed plaintiff could not recover, and that he would charge the jury, if they believe the evidence, they should answer second issue, "No." That the bonds were issued without authority, and plaintiff was effected with notice. In deference to the opinion, the plaintiffs submitted to a monsuit, and appealed. Notice waived, and appeal bond fixed at $100. Defendant also appealed. Nonsuit set aside, and new trial granted.

The bond, with coupons, sued upon, is as follows:

"Exhibit A.

"United States of America. The County of Granville, Town of Oxford. No. 1. $1,000.00. The board of commissioners of the town of Oxford, for value received, is justly indebted to and promises to pay *** or bearer the sum of one thousand dollars upon presentation of this bond at the office of the treasurer of said town of Oxford, Granville county, and state aforesaid, on the 1st day of August, 1922, with interest thereon at the rate of six per cent. per annun, to be paid semiannually upon the 1st days of February and August in reach and every year till the maturity of said bond, upon the surrender of and in accordance with the terms of the interest warrants or coupons hereto annexed.

This bond is issued in pursuance of the powers and the authority granted by the state of North Carolina, as provided in chaper 49 of the Code of North Carolina, and in pursuance of the authority granted by section 30 of the charter of said town of Oxford, which is embraced in chapter 21 of the Private Laws of 1885, as pased by the general assembly of said state, and in pursuance of the authority granted by chapter 315 of Laws of 1891, passed by the general assembly of North Carolina, and ratified the 5th day of March, 1891 entitled 'An act to incorporate the Oxford and Coast Line Railroad company.' And in pursuance of an election held in said town of Oxford on the 27th day of April, 1891, and of a settlement and adjustment of a controversy and litigation in which the Oxford and Coast Line Railroad Company et al, were plaintiffs and the board of commissioners of Oxford and mayor of said town were defendants, adopted by the said board of commissioners July 25th, 1892, and the judgment and decree of his honor, H. G. Connor, judge presiding, in said action at July term, 1892, of Granville superior court. This bond may, at the option of the board of commissioners of Oxford, be redeemed at any time after the expiration of ten years from the date of said bonds upon the payment of the principal and interest due and fifty dollars additional upon each of the bonds so redeemed, due notice of the call therefor having first been given by publication for sixty days in some newspaper published in the city of New York, and in some newspaper published in the city of Baltimore, and in some newspaper published in the town of Oxford, and after the expiration of the time mentioned in said notice all interest on said bond shall cease. In testimony whereof, the said board of commissioners of Oxford have caused this bond to be signed by the mayor of said town, ex officio chairman of said board of commissioners, and attested by the clerk of said board with the corporate seal of said town of Oxford, North Carolina, this 1st day of August, 1892.

(Image Omitted)

"The town of Oxford, North Carolina, will pay to bearer on the 1st day of August, 1893, thirty dollars, being six months' interest on its bond No. 20, issued to aid in constructing the Oxford and Coast Line Railraod. Dated August 1st 1892. Payable at the office of the town treasurer in Oxford, North Carolina. [Signed] A. A. Hicks, Mayor.

"[Signed] Geo. P. Fleming, Clerk."

"Agreement.

"State of North Carolina, Granville County. This covenant and agreement made and en tered into this the 25th day of July 1892, by and between the Oxford & Cost Line Railroad Company (chartered by an act of the general assembly of North Carolina entitled 'An act to incorporate the Oxford & Coast Line Railroad Company,' and ratified the 5th day of March, 1891) on the one part, and the board of commissioners of Oxford (a municipal corporation, also chartered by an act of the general assembly of North Carolina, entitled 'An act to repeal chapter 215 of the Laws of One thousand Eight Hundred and Fifty-Two, and to charter the town of Oxford,' and ratified the 16th day of February, 1885) on the other part, witnesseth: That whereas, in the year 1891, the board of commissioners of Oxford ordered an election to be held in the said town of Oxford on the 25th day of May, 1891, to decide upon the question as to whether the town of Oxford should vote to issue bonds to the amount of forty thousand dollars, to subscribe to the capital stock of the Oxford & Coast Line Railroad Company, the money so received to be used in building that portion of the said road in Granville county, and afterwards the said board of commissioners changed the day of holding said election to the 27th day of April, 1891, by another order, with the direction that those who favored said proposition should vote a ballot with the word 'Approved' thereon, and those opposed should vote a ballot with the words 'Not Approved' thereon; and whereas, said election was accordingly held in said town, and a majority of the qualified voters of the said town voted ballots having the word 'Approved' thereon; and whereas, the Oxford & Coast Line Railroad Company, under a contract with James T. Pruden, proceeded to construct a railroad from said town of Oxford to a point in said county of Granville on the Durham & Northern Railroad, at Jack Dickerson's, in said county, and, after having done considerable work in the grading of the same, demanded that the board of commissioners of Oxford should issue bonds to the amount of forty thousand dollars as aforesaid, as a subscription by the said board of commissioners to the capital stock of said Oxford & Coast Line Railraod Company, which said board of commissioners refused to do; and whereas, a controversy has arisen thereupon between the parties to these presents, the party of the first part claiming and insisting that it has the right to have such bonds as aforesaid issued as a subscription by the party of the second part to the capital stock of the said Oxford & Coast Line Railroad Company, and to compel the issue of the same, and the said party of the second part claiming and insisting the contrary, and that said party of the first part has no right to require or compel said party of the second part to become a subscriber at all to the capital stock of said Oxford & Coast Line Railroad Company, or to issue any bond or bonds as a subscription to the same; and whereas, there may be reasonable doubt as to whether said party of the first part has such right as claimed by it as aforesaid, and whether said party of the second part is justified in its refusal as aforesaid; and whereas, two suits have been brought to the superior court in the said county of Granville by the said Oxford & Coast Line Railroad Company and James T. Pruden against the board of commissioners of Oxford, A. A. Hicks, mayor of the town of Oxford, being applications for mandamus; and whereas, upon a conference between the parties to these presents, it has been concluded by and between them that it is best for the interests of both parties to compromise and settle said controversy in manner and upon the terms hereinafter set forth: Now, therefore, it is covenanted and agreed by and between the said parties to these presents as follows, ti wit: (1) That the said party of the second part, instead of subscribing anything to the capital stock of said Oxford & Coast Line Railroad Company, or issuing bonds to the amount of forty thousand dollars as a subscription to the same, shall, for the purpose only a compromise and settlement of this controversy, issue to the said party of the first part bonds to the amount of twenty thousand dollars, the said bonds or their proceeds to be used exclusively and applied in aid, in the first place, of the payment and satisfaction of the present indebtedness, contracts, and liabilities of the said party of the first part, of every description, and, in the second place, if more than sufficient to complete such payment and satisfaction, then, as to the excess, in aid of completing the construction of said railroad which is now in course of construction by said party of first part between the town of Oxford and a point on the said Durham & Northern Railroad as aforesaid; said bonds to be each in the sum of $1,000.00, dated August 1, 1892, and due and payable on the first day of August, 1922, with coupons of interest attached, at the rate of six per cent. per annum, and payable semiannually on the first day of February and the first day of August in each and every year, and both bonds and coupons to be payable upon presentation at the...