been grossly negligent and reckless. The idea that valuable farms can be submerged and destroyed under an act of the legislature made especially for their protection from floods, and the owners can have no redress, is too preposterous to be entertained by any legal mind. Smith v. Gould, 61 Wis. 31, 20 N. W. Rep. 369; Pettinger v. Evansville, 25 Wis. 223; Arimond v. Canal Co., 31 Wis. 316. 4. The learned counsel of the respondent contends that the plaintiff favored the work, and gave the right of way or the land on which the levee was constructed, and therefore waived and is estopped from claiming damages caused by it. There is a wide difference between the taking of the land of the plaintiff on which to place the levee, and the general consequential damages caused by it to his farm and property, which he claims in this case. If there is any fact established by the evidence in this case, it is that the plaintiff all the time insisted that the levee should be continued below the bridge, and along the low south bank of the river opposite his low land. He finally refused to give the right of way until it should be so extended. He notified the authorities of the city that they must do this, or his farm might be flooded and damaged. They willfully persisted in this gross negligence, and defied the plaintiff. There is no evidence that the plaintiff ever expressed himself satisfied with the manner in which the work was so left incomplete, but he continued to repeat that it should be con. tinued below the bridge. There is not the slightest evidence of the plaintiff's waiver of these damages. 5. The question arose on the admission of testimony as to what should be the measure of damages in the case. The learned counsel of the appellant offered to prove what would be the cost to the plaintiff of making the necessary levee below the bridge to protect his farm, and such offer was rejected. This levee is a permanent work, and will cause similar damages to the plaintiff's farm every time there is very high water in the river. The authorities of the city do not propose to extend it any further down the river. It will be to the advantage of both parties to have the whole matter adjusted and disposed of in this action, and to have the lands of the plaintiff protected against the recurrence of such damages, rather than to have an action brought at each time when such damages shall occur in the future. The plaintiff's land and improvements ought to be protected by an extension of this levee as soon as possible. The plaintiff has the right to do this work, and the city ought to be compelled to compensate him for it. In Thompson v. Railway Co. 27 Wis. 93, and in Price v. Railway Co., Id. 98, the building of the railroad across the lands of the plaintiff made it necessary to build a wall for their protection, and the plaintiff in each case was held entitled to recover as damages the cost of building such wall. Here the city has so constructed this work on the lands of the plaintiff as to make it necessary to build a levee for their protection. The cases are alike in principle. The evi dence offered as to the cost of building such a levee ought to have been admitted as part of the plaintiff's damages. The plaintiff showed his right to recover, and the court erred in ordering a nonsuit in the case. The judgment of the circuit court is reversed, and the cause remanded for a new trial. WAUPACA COUNTY V. TOWN OF MATTESON. (Supreme Court of Wisconsin. Feb. 24, 1891.) TOWN BRIDGES-REPAIR BY COUNTY-TAXATION— TOWN CLERK-MANDAMUS. Rev. St. Wis. § 1338, provides that when a town refuses to repair a bridge therein, and an appeal is taken to the county board, they may repair the bridge, and allow the expense thereof, which shall be charged to such town, and added by the county clerk to the next county tax apportioned thereto. Section 1079 provides that, upon receiving the certificate of apportionment from the county clerk, the town clerk shall enter the same in the town tax-roll. Held that, where a town clerk refuses to obey the direction of the county clerk to so enter the cost of such repairs, assumpsit for the amount thereof will not lie against the town, but the proper remedy is mandamus to compel the clerk to make the entry. Appeal from circuit court, Waupaca county. This is an action of assumpsit, brought by Waupaca county against the town of Matteson to recover the expense of a bridge therein, rebuilt by order of the county board. Rev. St. Wis. § 1339, provides that when a town refuses to repair a bridge therein, and an appeal is taken to the county board, they may repair the bridge, and allow the expense thereof, which shall be charged to such town, and added by the county clerk to the next county tax apportioned thereto. Section 1079 provides that, upon receiving the certificate of apportionment from the county clerk, the town clerk shall enter the same in the town tax-roll. Reed, Grace & Rock, for appellant, cited the following cases: School-Dist. No. 2 v. School-Dist. No. 1, 3 Wis. 333; State v. Smith, 11 Wis. 65; State v. Wilson, 17 Wis. 687; School-Dist. v. Town of Green Grove, (Wis.) 46 N. W. Rep. 895, and cases cited therein; High, Extr. Rem. §§ 16, 21, 80, 139, 369. A. L. Hutchinson and Cate, Jones & Sanborn, for respondent. The ORTON, J. This is an appeal from an order overruling the demurrer to the complaint. The case is, in short, as follows: The town is in the county, and in the town there was a bridge across the Embaras river, impassable and unfit for use. The county requested the town to repair it, and the town refused. Thereupon an appeal was duly taken to the county board, according to section 1338, Rev. St. county board caused the bridge to be rebuilt, at an expense of $737, which was audited and allowed, and added to the next county tax apportioned to said town by the county clerk, and said clerk directed the clerk of the town to insert the same in the tax-roll for collection, and the clerk of the town refused to do so. The statement of the claim was filed with the town clerk, and duly presented to the town meeting, and by a vote thereof was disallowed. Judgment is demanded against the town for said $737 and interest. This general statement of the complaint is sufficient to show that this is not the proper action or remedy. The demurrer ought to have been sustained on this ground. The theory of the complaint is that the provisions of the above section have been strictly complied with, so as to make it the duty of the town clerk to insert this demand in the tax-roll of the town for collection like other taxes, according to section 1079, Rev. St., and he has refused so to do. According to these facts, it was the clear and unquestionable duty of the town clerk to have done so; and it is claimed that his refusal to do has given the county a right of action of implied assumpsit against the town to recover the demand. The action cannot be maintained. The true, and it would seem the only, remedy in such a case is by mandamus against the town clerk to compel him to do his official duty, and insert the claim in the tax-roll of the town for collection. The town has no fund with which to pay a judgment against it in such a case, and cannot have until it has been raised by taxation in this very way. The town cannot possibly pay this claim, and of course is not liable to an action for not doing what is impossible. If a judgment could be rendered against the town, the county would be no nearer the end than now; for the town clerk must insert the judgment in the tax-roll for collection, and he might refuse as he has done here. Both duties are alike, and in the same section. What, then, would be the remedy? Could the town again be sued in an action on the judgment? This method might be repeated, and without end. Mandamus against the town clerk to compel him to discharge this clear legal duty is the only adequate remedy in either case. This is too plain for argument. The end can never be reached by actions against the town. The town is not liable in any action for the neglect or refusal of its clerk to perform such an official duty. Little v. City of Madison, 49 Wis. 605, 6 N. W. Rep. 249. This is a well-established principle of law. The town clerk has to place all the various kinds of taxes in the tax-roll. His refusal to do so might occasion a multiplicity of such actions against the town, and without any practical result. Mandamus against the town clerk to compel him to put a judgment in the tax-roll is the proper remedy. State v. Gates, 22 Wis. 210. It is the proper remedy to compel the officers to take the proper steps to have such claims collected as other taxes. State v. Wilson, 17 Wis. 687; School-Dist. No. 2 v. School-Dist. No. 1, 3 Wis. 333. This case comes within the very office of the writ of mandamus to enforce a specific legal right, or to compel the performance of a positive legal duty, when there is no other specific legal remedy. State v. Washington Co., 2 Pinney, 552. It is useless to cite other authorities in a case where, as we have seen, there is no other remedy. The statute clearly points out the remedy by mandamus. The clerk of the town must insert the claim in the taxroll, or must be compelled to do so. See other cases cited in appellant's brief. The other grounds of the demurrer need not be considered. The demurrer should have been sustained. The order of the circuit court is reversed, and the cause remanded, with directions to sustain the demurrer, and to dismiss the complaint. GREELEY V. WINSOR et al. (Supreme Court of South Dakota. March 4, 1891.) FRAUDULENT CONVEYANCES-CHATTEL MORTGAGES -JURISDICTION ON APPEAL. 1. In a former opinion in this case (45 N. W. which, by its terms, permitted the mortgagor to Rep. 325) it was held that a chattel mortgage sell the mortgaged property for his own benefit, is presumptively fraudulent as to creditors of the mortgagor, and that such a mortgage, containing the power of sale as to stock of goods, but not as to furniture and fixtures, is presumptively invalid as to both; and this opinion is ad hered to. 2. Held, further, that the act of the territorial legislature of 1887 authorizing an independent appeal from an order of the district court sustaining or overruling a demurrer is not in conflict with section 1869 of the organic act, which provides that "writs of error, bills of exceptions, and appeals shall be allowed in all cases from the final decisions of the district courts to the supreme court of all the territories, respectively, under such regulations as may be prescribed by law." 3. Such section is not the source of the general appellate power of the supreme court, and is not intended to limit its jurisdiction to cases therein named, but does qualify the preceding section 1866, which declares that such appellate jurisdiction "shall be limited by law, so that no law shall so limit or prescribe its jurisdiction as not to allow writs of error, bills of exceptions, and appeals in all cases from the final decisions of the district courts. (Syllabus by the Court.) On rehearing. KELLAM, J. This case was argued and decided at a former term. See 45 N. W. Rep. 325. The principal questions presented and argued were: (1) The force and effect of the provision in the lease for a lien for rent, as against the mortgage creditors, considered in connection with other provisions of the lease; and (2) the jurisdiction of the territorial supreme court, to which this appeal was originally taken, to entertain an appeal from an order overruling a demurrer. The second question was not considered in the opinion of the court; and on that account, more particularly, though not exclusively, a reargument of the case was allowed. We held that the stipulation for a lien for rent upon the goods, fixtures, and furniture was, in effect, a chattel mortgage; and that the further provision allowing the mortgagor to make sales "in the usual course of retail trade," without any proviso or agreement as to the application of the proceeds, or any part thereof, was a stipulated permission to sell for his own use; and that while such permission did not, in terms, extend to the furniture and fixtures, its legal effect was, as against other creditors, to make such chattel mortgage presumptively fraudulent, not only as to the goods, but as to the fur niture and fixtures. It is this holding, | statute the fraudulent character of the that the presumption of invalidity applies to the entire mortgage, and tends to defeat the lien upon the furniture and fixtures, as well as upon the goods, of which respondent complains. In our former opinion we recognized the fact that upon this question different courts had reached directly inconsistent conclusions; but the earnestness and ability with which the contention is again presented induces us briefly to review the question. Referring to respondent's brief, we do not think Jones, in his work on Chattel Mortgages, intends or undertakes to state the rule, adverse to our former holding, as an established one. He says it "is held," and refers to cases in support from four different states. In the immediately preceding section (350) he says, "In New York and one or two other states" the contrary rule prevails; in support of which he also refers to cases from four different states. In a foot-note to section 351, he quotes from the opinion of Judge DILLON in the Kirkbride Case, 5 Dill. 116, and the same is reproduced in respondent's brief; but this must not be taken as an expression of this learned judge's opinion of what the general law is upon this subject. The case was from Missouri, and the opinion simply states that the courts of that state had settled the question for that jurisdiction, and, in accordance with the established rule in the federal courts, the holding of the state court was followed. The American & English Encyclopædia of Law (volume 3, p. 187) says: "A mortgage of personal chattels which, under the statutes, is fraudulent and void as to a part| of the chattels covered by it, (e. g., as being intended to delay and defraud creditors.) is void altogether;" but in the footnote cites two cases for, and two against, the proposition. So, in 2 Wait, Act. & Def. p. 191, we find: "It has been held that a mortgage of chattels which is void as to a part of the chattels covered by it, as being given to hinder, delay, and defraud creditors, is void as to the whole;" but recognizes a contrary holding in State v. Tasker, 31 Mo. 445. Wait on Fraudulent Conveyances (section 194) says: "We shall see, presently, that as a general rule a transaction void in part for any cause is entirely void;" and cites in illustration Russell v. Winne, 37 N. Y. 591. And again, in section 434: "And as a general rule a deed which is fraudulent in part as to creditors will be declared void in toto." In Bump on Fraudulent Conveyances (page 486) it is said: "If a mortgage is made with the intent to secure a part of the property to the mortgagee, and to cover the residue for the use of the debtor, it is void as to the whole." "A fraudulent stipulation in a written instrument vitiates the entire instrument." The fact is it is beyond the power or the province of any text-writer to state what the law really is on this particular question, for the courts are in plain and notorious disagreement upon the subject; and we think the authorities, so far as numbers go, do not largely preponderate either way. But respondent insists that under our mortgage as to any part of the property could not be determined by the court on demurrer, as a matter of law. Section 4656, Comp. Laws, so far as it relates to the facts or the question under considera tion, reads thus: "Every transfer of property or charge thereon made with intent to delay or defraud any creditor or other person of his demands is void against all creditors of the debtor." By section 4659 the question of fraudulent intent is declared to be one of fact, and not of law. This last section, making fraudulent intent a question of fact, is not peculiar to this jurisdiction. It is the same in New York, Wisconsin, Minnesota, Indiana, Michigan, Nebraska, California, and perhaps other states; and there is, Í think, nearly an unbroken uniformity in holding that such provision, in the language of DAVIS, J., in stating the law as held by the Indiana supreme court, "applies to cases of actual or meditated and intentional fraud, and is not applicable to written instruments which the law adjudges to be fraudulent on their face, and consequently void." Robinson v. Elliott, 22 Wall. 513. And the courts of these states-Michigan excepted-have not hesitated to declare void, presumptively or conclusively, as a matter of law, instruments which themselves exhibit the fraudulent intent. Edgell v. Hart, 9 N. Y. 213; Russell v. Winne, 37 N. Y. 591; Coleman v. Burr, 93 N. Y. 31; Place v. Langworthy, 13 Wis. 629; Steinart v. Deuster, 23 Wis. 136; Blakeslee v. Rosman, 43 Wis. 116; Williams v. Evans, 6 Neb. 216; Horton v. Williams, 21 Minn. 187; Jenners v. Doe, 9 Ind. 461. We come again to the old question, is the security clause in the lease, which it is conceded should be treated as a chattel mortgage, presumptively fraudulent as to furniture and fixtures, as well as to the goods, the stipulation that the mortgagor might sell in the usual course of trade applying only to the goods? Upon what theory does the law declare the mortgage of these goods invalid? The answer is that it was given with a fraudulent intent,-not, of course, morally, but legally, fraudulent,-and that because its natural and obvious effect is to binder and delay other creditors of the mortgagor. When respondent took his mortgage, and therein stipulated that the mortgagor might dispose of a part of the mortgaged property for his own benefit, it was an agreement in advance with the mortgagor that he would not look to nor depend upon such property for his security. The apparent effort and effect was to make it a mortgage as to the public, but not as between themselves. Under such an agreement the mortgagor might dispose of the bulk of the property, in terms covered by the mortgage, and convert the proceeds to his own use; but if, while such conversion was going on, a creditor should seize any part of it, the mortgagee would stand ready with his mortgage to protect it. The mortgage could not have been intended to, nor did it, give the mortgagee any certain or abiding lien on the goods for the payment of his claim; for it dis He and that the provision allowing the tinctly provided that the goods, apparent- | gage, if fraudulent at all, is so altogether, ly pledged for such purpose, might be sold at the will of the mortgagor, regardless of payment made or contemplated, precisely as though there were no mortgage. This, we say, makes the mortgage presumptively fraudulent, because its natural and legitimate effect is a fraud upon other creditors; and, as every man is presumed to intend the obvious result of his own acts, the law presumes that the resulting mischief was contemplated. It is well known that in many of the states such a mortgage is held, in law, conclusively fraudulent; but, conscious that there are many cases where kindred provisions, apparently vicious, are not fraudulent in fact,-provisions whose fraudulent complexion may be changed by explanatory and affirmative evidence of good faith,we think the rule best calculated to work justly in the most cases, and unjustly in the fewest, is that such mortgages should be held presumptively fraudulent only, leaving in every case the suspicion which attaches to such a mortgage to be overcome and removed, if it can be, by evidence showing the entire bona fides of the parties in the transaction towards other creditors. But, having adopted such rule, there is the greater reason for mak ing it apply, in a case like this, to the mortgage in toto; as well to the furniture and fixtures as to the goods. If the mortgage were held conclusively fraudulent, it would be, as to other creditors, as though there were no mortgage, and it would present no shield to protect the property from their attacks; but if the mortgage is only presumptively invalid, and may in fact be good, creditors may only approach such property at their peril. The parties to the instrument are the only ones who can know in advance whether it is in fact fraudulent or not. If it is, it is because it was so intended, and in that case no part of it ought to be saved; but if it was in fact given in good faith, and under such circumstances as to purge it of the suspicion of fraud which the law raises, the presumption against its validity may be overcome, and thus the entire mortgage held good. The unfairness of such an instrument towards other creditors is further manifest in this: Its possible validity renders it a protecting shelter for property pledged as security in form, but not in fact. The mortgage assumes to create a lien, both upon goods and furniture and fixtures, but authorizes the mortgagor, at his pleasure, to destroy it as to the goods. This fact seems quite inconsistent with the thought that the goods were to constitute security to the mortgagee. A legitimate, if not the inevitable, inference is that the goods were to be mortgaged, if necessary to protect them from creditors; otherwise, the security should be upon the funiture and fixtures only. Such an instrument gives a protection and an advantage to the mortgage debtor, to which, in fairness to his creditors generally, he is not entitled, and casts suspicion upon the entire instrument. For these reasons, and others expressed in our former opinion, we think the mort The remaining question, and the one not considered in our former opinion, is as to the jurisdiction of the late territorial supreme court to entertain an appeal from an order overruling a demurrer; this appeal having been taken to said court, and found upon its calendar as it came to us, as the successor of said territorial supreme court. The question involved the proper construction of several sections of the federal statutes, which in part constitute the organic act of the old territory of Dakota, and in connection therewith an act of the territorial legislature, hereinafter more particularly referred to, and, while no longer of great practical importance generally, it is interesting on account of its character, and necessary to be considered in disposing of this case. It would be a waste of time to discuss the relation of the territorial courts to the congressional legislation which created them, and all discussion of the question now presented must be predicated upon the understanding that all the power and jurisdiction which the territorial supreme court had or could exercise must be found in the federal statutes. In the organization of the territory of Dakota, congress provided, as in other cases, for a system of courts, which should constitute the judicial de partment of the government. Section 1907, Rev. St. 1874, provides that "the judicial power in * Dakota is paramount to that of the legislature, still the fact remains, for what it is worth, that notwithstanding, and appar. ently in conflict with, the opinion expressed in that decision, the legislature very evidently understood that said section 1869 did not so limit the jurisdiction of the supreme court; for no other view would justify the law of 1887. Nor has the court itself which made the decision consented in other cases to measure its jurisdiction by the views there announced. Smith v. Adams was the title of the Brown countyseat contest case, taken to the territorial supreme court on appeal from the decision of the district court on demurrer to the notice of contest. The appeal was not dismissed for want of jurisdiction, but was entertained, heard, and decided on the merits. The opinion of the court is not yet published,1but the case was subsequently appealed to the United States supreme court, and the facts sufficiently appear in 130 U. S. 167, 9 Sup. Ct. Rep. 566. Bostwick v. Knight, 5 Dak. 305, 40 N. W. Rep. 344, was an appeal from an interlocutory order. The court dismissed the appeal upon the ground that the order appealed from was a chambers order, and therefore not appealable under the statute, and for the further reason that the record presented no bill of exceptions. The court, in its opinion, puts its dismissal upon these distinct grounds. It would hardly have so disposed of the case upon grounds of practice only, if it had entertained the opinion that the court could have no jurisdiction, under the organic act, to entertain such an appeal. White v. Railway Co., 5 Dak. 508, 41 N. W. Rep. 730, was an appeal from an order of the district court refusing to change the place of trial. The question of the want of jurisdiction, for the very reason now under consideration, was squarely raised and argued by respondent, so that the matter could not have been overlooked; yet the court entertained the appeal, and made a decision upon the merits. These facts are referred to in support of the intimation, already made, that the doctrine of Manufacturing Co. v. Walsh, supra, has not been universally acquiesced in. shall be vested in a supreme court, district courts, probate courts, and in justices of the peace." "Sec. 1866. The jurisdiction, both appellate and original, of the courts provided for in sections 1907 and 1908 [the section last named referring to Arizona only] shall be limited by law." "Sec. 1868. The supreme court and district courts, respectively, of every territory shall possess chancery, as well as common-law, jurisdiction. Sec. 1869. Writs of error, bills of exception, and appeals shall be allowed in all cases from the final decisions of the district courts to the supreme court of all the territories, respectively, under such regulations as may be prescribed by law; but in no case removed to the supreme court shall trial by jury be allowed in that court." These are the provisions of the federal statutes which granted, defined, and limited the powers and jurisdiction of the supreme court of Dakota territory. In 1887 the territorial legislature assumed to enact a law providing that an independent appeal might be taken to the supreme court from an order of the district court sustaining or overruling a demurrer; and the question now before us is, is such law valid? Respondent contends that it is not, because said section 1869 limits appeals to "final decisions of the district courts," and an order sustaining or overruling a demurrer is not "a final decision." Prior to the passage of the law of 1887 the supreme court of the territory had given expression to its opinion as to the meaning and force of these sections, and held in Manufacturing Co. v. Walsh, 2 Dak. 41, 3 N. W. Rep. 307, that the effect of said section 1869 was to limit the appellate jurisdiction of the supreme court to the review of “final decisions of the district courts," and dismissed the appeal, which was from an order sustaining a demurrer to one paragraph of defendant's answer. And the question now presented does not necessarily involve the correctness of that decision; for the court there expressed the opinion that the territorial law then in force was not intended to authorize an independent appeal from an interlocutory order, but that such order might be ap-nificant fact that these provisions of the fedpealed from and reviewed in conjunction with the appeal from the final judgment. This view prevailing would fully justify the decision upon that ground, and make the further expression of opinion as to the meaning and effect of said section 1869 obiter. The further expression of opinion was that, if such law was intended to give an independent appeal in such case, it was invalid, because in violation of the organic act. The fact, however, cannot escape our attention that although, as is usual with the learned judge who wrote the opinion, the general question of the force of these sections, beyond the particular question in his opinion necessarily involved, was vigorously discussed, and his conclusions as clearly and concisely stated, its doctrine has not been implicitly adopted, nor its teaching faithfully followed, by legislature, bench, or bar. While, upon such a question, the opinion of the court Bearing upon this discussion, it is a sig eral laws have not been peculiar to Dakota, nor to the more recently organized territories. For many years they have constituted nearly a stereotyped formula which congress has used to convey, define, and limit the power and jurisdiction of the territorial courts; and whatever they have meant as to other territories, they have meant as to Dakota. The same provisions identically are found in the act of congress of March, 1849, organizing the territory of Minnesota. The legislature of that territory passed a law providing for appeals from the district to the supreme court on interlocutory orders and decisions on demurrer. St. Minn. 1851, p. 414, § 7. I have come across no case in which the consistency of this Minnesota statute with the organic act was directly in question, but its validity was fully recognized Not reported. |