ecution in that case against the trustees should not be recalled and rescinded; why the enforcement of the judgment in that case against the trustees should not be suspended until further order; and why there should not be other proceedings, orders, and process necessary for equitably charging the trustees in this action. Case discharged.

SMITH, J ., did not sit. The others concurred.

LADD o. BARTON.1

(Supreme Court of New Hampshire. July 30, 1886.)

AssUMPsIT—PENSION ATTORNEY’s FEE—STATUTORY LIMIT. hen a pensioner, voluntarily, without demand or undue influence, pays his attorney $100 as compensation for his services in procuring the pension, in addition to the sum allowed by statute, he may recover back the same in an action of assumpsit.

Reserved case from Sullivan county.

Assumpsit. Facts found by the court, which appear in the opinion. G. R. Brown, for plaintiff.

H. W. Parker and L. W. Barton, pro se, for defendant.

DOE, C. J. The defendant obtained the pension for the plaintiff, and received $10 from the government, and $100 from the plaintiff. Both parties understood that it would be unlawful for the defendant to receive for his services in a pension case a greater sum than $10, (Rev. St. U. S. §§ 4785, 4786, 5485; Act June 20, 1878,) and that the sum of $100, though paid voluntarily, without demand or undue influence, was paid and received as compensation for the defendant’s services in the plaintiff’s case. The amount of the fee is fixed for the protection of the pensioner, as the rate of interest is fixed by the usury law for the protection of the borrower; and the parties are not in equal fault. State v. Rand, 51 N. H. 361. The right of pensioners to recover in such cases as this is necessary for the protection the statute was intended to give them.

Judgment for the plaintiff.

ALLEN, J ., did not sit. The others concurred.

LOVERIN v. SCHOOL-DIsTRICT No. 3 IN CROYDEN and others.1
(Supreme Court of New Hampshire. July 30, 1886.)

Reserved case from Sullivan county.

Bill in equity for an injunction against the building of a school-house on a lot selected by a school committee, and for other relief. Facts found by the court.

A. S. Wait and H. W. Parker, for plaintiffs.

L. W. Barton and J. M. Shirley, for defendants.

DOE, C. J. Since the trial, district NO. 3 has been abolished by Laws 1885, c. 43. The town district, being now the defendant in interest on the question of school-house location, should be made a defendant of record, and should have notice and an opportunity to be heard. The plaintiffs may move, at the trial, for an amendment and notice, and the case is continued.

CLARK, J ., did not sit. The others concurred.

SCHOOL-DISTRICT No. 3 IN GREENFIELD and others 1:. TOWN OF GREENFIELD and others.1

(Supreme Court of New Hampshire. July 30, 1886.) 1. CORPORATIONs—WINDINC UP AFFAIRS OF—COMMON-LAW METHODS Nor ABOLIsHED. The common-law methods of winding up the affairs of extinct cor orations are not abolished by the New Hampshire statutes allowing a limite continuance of some of their powers for special purposes.

2. SCHOOLs AND SCHOOL-DISTRICTS—SCHOOL-DISTRICTS—PBOPERTY HELD IN TRUST.

A school-district holds its property in trust for beneficiaries whose equitable rights in the trust~estate are not created by the incorporation, nor lost by the dissolution of the imaginary holder of the legal title.

8. SAME—ABOLISHED SCHOOL-DISTRICTS—DEBTS, now PAID—LAws N. H. 1885,

H. .

When the debts of an abolished school-district are less than the value of its property, they may properly be paid by the town-district to which the property passes, under Laws 1885, c. 43.

Reserved case from Hillsborough county.

Petition for a mandamus under Laws 1885, c. 43, § 2, praying that an appraisal of the property of the district may be made, and that the selectmen be required to assess and levy a tax upon such appraisal. Chapter 43, § 2, Laws 1885, is as follows:

“Each town shall forthwith take possession of all the school-houses, lands, apparatus, and other property owned and used for school purposes by the said districts hereby abolished, which said districts might lawfully sell or convey. The property so taken shall be appraised by the assessors of the town, and at the next annual assessment a tax shall be levied upon the whole town equal to the amount of the whole appraisal; and there shall be remitted to the taxpayers of each district the said appraised value of its property so taken .”

A committee appointed for that purpose appraised the property of the district at $4,493.75. The debt of the district is about $4,200. The funded debt is payable in installments at different times from 1886 to 1890. The sum of $600 was assessed and collected in 1885, and the sum of $800 has been assessed upon the tax-payers of the district the present year to meet that portion of the debt becoming due in 1886.

C'. H. Burns and C. R. Morrison, for plaintiffs.

Briggs d’e Huse, for defendants.

DOE, C. J. The common-law methods of winding up the affairs of extinct corporations are not abolished by the statutes allowing a limited continuance of some of their powers for special purposes. Gen. Laws, 0. 147, § 17; Id. 0. 86, § 28; Laws 1885, c. 43, § 1. In this case it does not appear that the survival of any of the powers of district No. 3 will be necessary or convenient for the settlement of its business. As a private corporation holds its property in trust for the benefit of its stockholders, so a municipality holds its property in trust for beneficiaries, whose equitable rights in the trust-estate are not created by the incorporation, nor lost by the dissolution, of the imaginary holder of the legal title. The common law transfers the legal title to a provisional trustee, if the employment of such an agent is necessary, settles the business of the defunct corporation, and so disposes of the trust property as to maintain the rights of the equitable owner. Ashuelot R. R. v. Elliot, 58 N. H. 451, 455; Morrison v. Manchester, Id. 538, 563; Robinson v. Dover, 59 N. H. 521, 526; Sirnpson v. City San. Bank, 56 N. H. 466, 478; Chapin v. School-district, 35 N. H. 445, 454; Wilson v. Towle, 36 N. H. 129, 138; Broughton v. Pjensacola, 93 U. S. 266, 268; Farrington v. Tennessee, 95 U. S. 679, 686; jMeriwether v. Garrett, 102 U. S. 472. 501, 502, 512, 521, 528, 530, 5 2; Cooley, Tax’n, (2d Ed.) 142, 143: 1 Dill. Mun. Corp. §§ 169, 17 O; 2 Mor. Corp. §§ 1031—1037; Field, Corp. §§ 491, 492; Pierce, R. R. 13; Bristol v. New Chester, 3 N. H. 524, 533, 535; Green'v’ille V- .oson, 53 N. H. 515, 518; Gordon v. Cornes, 47 N. Y. 608, 612; Tax’n, 144; Bowles v. Landafi”, 59 N. H. 164, 192.

The eneral rule of equalization, applied to abolish ed school-districts by LaWS 885, c. 43, § 2, is an affirmance of the right of all parties concerne l. The union of several districts necessarily involves a process of mars aling the benefits of their assets and the burdens of their debts. The statute provides the simple method of assessment and remission. 8"" vent v. Union School-dist., 63 N. H. 528, 532; S. C. 2 Atl. Rep. 641. he case of an abolished district, parts of which belong to different ns, provision is made for an apportionment Of property and debts, more than a year is allowed for adjustment. In the case of other olished districts the act of 1885 makes no express provision in regard l0 debts, and the property is to be equalized in one year. A statutory a tirmance of constitutional and common-law rights of property and debt is unnecessary, and the limitation of time is directory merely, and not a li itation of right, remedy, or power. There is no express or implied p ohibition of an assessment after the time named. Pond v. Negus, 3 M tss. 230, 232; Hughes v. Parker, 20 N. H. 58, 71; Nashua Fire Ins. Ca. .V- Moore, 55 N. H. 48, 54; Cooley, Const. Lim. 77; Sedg. St. & Const.

Law, (2d Ed.) 316—324; Dwarr. St. (Potter’s Ed.) 222; Queen v. Ingall, 2 Q. B. Div. 199.

As the debts of district No. 3 are less than the value of its property, they will properly be paid by the town-district to which the property passes. The successor in property is the natural successor in debt. Broughton v. Pensacola, 93 U. S. 266, 270; Mt. Pleasant v. Becsz'th, 100 U. S. 514; 1 Dill. Mun. Corp. §§ 186, 188, 189. By regarding the debts of No. 3 as assumed by the town-district, and set off against an equal amount of the debtor’s property, the municipal succession will be forwarded in one Of the simple modes designed by the statute. The legislature did not intend the money for the payment of the funded debt should be unnecessarily raised years before the debt could be paid. The equalizing tax will include, not the whole amount of the property of NO. 3, but the excess of its property over its debts. Accrued interest on its debts will be reckoned to the time its property vested in its successor, and the whole adjustment will be made on equitable principles. The rights of creditors will not be impaired, and the securities need not be changed. Clark v. Iichols, 52 N. H. 298, 300, .

The tax assessed on No. 3 in 1885 was properly, collected, and should not be reimbursed. Any part Of it, collected and remaining unexpended, vests in the town-district, to be accounted for, like other property of No. 3, in the assessment and remission of the equalizing tax. The 3800 tax

\of 1886 was unnecessarily assessed, and should not be collected.

A mandamus will be issued for action consistent with the principles of this decision. The case is recommitted to the justice by- whom it was reserved, for further proceedings, and for interlocutory and final orders to be made as of last March trial term. \_

vllIORTeAeEs—FORECLosURE—PossEssION ACTUAL AND CONSTRUCTIVE—RIG GRANTEE 0F EQUITY. If. during the whole of the year after an entry to foreclose a mortgage, the mortgagor’s second grantee has continued possession of the land, exclu We and peaceable, not subordinate in fact to any right of any other person, 119 mortgagee’s constructive possession is not actual, within the meaning of statute of foreclosure, as against such grantee.

Reserved case from Merrimack county. Trover for wood cut by the defendant on lot No. 2, which, with lots No 1 and 3, one Dearborn had mortgaged to a bank. Facts found by th court, which appear in the opinion. If the mortgage was not foreclose on NO. 2, the plaintiff is entitled to judgment for $135. Barnard (b Barnard, for plaintiff.

Pike & Parsons and C. C. Rogers, for defendant.

DOE, C. J. The mortgage of the three lots was made to the bank in 1871, and the bank conveyed lot No. 2 to the defendant in 1883. The only actual possession the bank ever had of this lot was the foreclosing entry made upon it in 1881,. In 1879 the mortgagor conveyed it, so far as he could by an absolute warranty deed, to the plaintiff; and since that conveyance the plaintiff has had exclusive possession, not subordinate, in fact, to any right of any other person, and interrupted only by the bank’s peaceable entry, May 24, 1881, and by the defendant’s cutting the wood in the winter of 1883—84. For foreclosure the bank needed not only an entry, but also a year’s continued, actual, peaceable possession. Gen. Laws, 0. 136, § 14. During the whole of the year of a1leged foreclosure after the entry, the plaintiff’s possession was continued, actual, and peaceable, and the bank’s possession was constructive. The plaintiff had constructive notice, but no knowledge of the mortgage and the foreclosing entry; and the bank had no knowledge of the conveyance to the plaintiff, or of his possession. Under these circumstances, the mortgagee’s possession, found to be imaginary in fact, was not actual within the meaning of the statute of foreclosure.

If the lot had been wild and unoccupied, all the foreclosing possession that was reasonably practicable might have been a compliance of the statute. Green v. Cross, cited in Green v. Pettingill, 47 N. H. 375, 379. Foreclosures on reversions and equities may also come within a rule of necessity and practicability, upholding the only possession of which the mortgaged estate is reasonably capable. Colby v. Poor, 15 N. H. 198; Penniman v. Hollis, 13 Mass. 429;‘Palmer v. Fowley, 5 Gray, 545. But the fact is found that the bank’s constructive possession of this lot was not all that is required by that rule. The Massachusetts statute has received a liberal construction. Swift v. Mendell, 8 Cush. 357; Bennett v. Conant, 10 Cush. 163; Lennon v. Porter, 5 Gray, 318; Hawkes v. Brigham, 16 Gray, 561; Ellis v. Drake, 8 Allen, 161; Thompson v. Kenyon, 100 Mass. 108 ; Fletcher v. Cary, 103 Mass. 475. The meaning of our statute, settled by practice and general understanding, does not sustain the sufficiency of the fictitious and presumed possession in this case. For some purposes, possession held by the mortgagor, or any one claiming under him by title subsequent to the mortgage, is presumed to be in subordination to the mortgage, and not adverse. Howard v. Hildreth, 18 N. H. 105, 107; Tripe v. Marcy, 39 N. H. 439; Hodgdon v. Shannon, 44 N. H. 572, 578; Bellows v. Railroad, 59 N. H. 491, 492. But the presumption is not conclusive for all purposes. For whatever equitable purpose it might make the plaintiff’s possession subordinate, in contemplation of law, contrary to the fact, it did not confer upon the bank’s unreal and unapparent possession the character of actuality required by the statute of foreclosure.

After entry, the bank leased the three lots to the mortgagor, who continued to occupy No. 1. But, as the lessee had no other possession Of NO. 2 than the constructive holding derived from the lessor, the lease is