The eastern clarion. [volume] (Paulding, Miss.) 1837-1863, 1861-04-12
James Gaines Treasurer, &c.
955s.
W. P. Faris, ct. al.

L
This action was brought by the plain
tiif in error as Treasurer of Tishomingo
scQiutys % kecover the mbnes due upon
bill single, executed by the defendant for
the sum Of SIP, payable to his prede-
cessor in Office, and his successors. The
defendants filed four pleas, the first OF
which is, in substance, as follows-that
prior to the date of this note, one Bum
had borrowed from the school fund of the
county of Tishomingo SIP, for which he
had given his note with Beatty and Faris,
two Of the defendants in this action, his
sHreties, and a deed in trust on lands, to
secure it-ihat Bum died intestate. and
afterwards the lands were sold under the
deed IN trust and bid off by Beatty, or by
him and Faris for about sixty dollars,
leaving due on the note about ffty-two
dollars, when Beatty and Faris executed
the note here sued on with two sureties
thereto, the same being executed TO secure
the purchase money due for the land and
| the balance due on the note; averring
| that no money was advanced from the
common school fund to any one of these
defendants, and that the note is therefore
void for want Of power in the Treasurer or
Board Of Police to make such a contract
/
the Board Of Police did not take deed
of trust upon rail estate to secure til.
same according to the statutes upon the
subject.
The other pleas present the same
ground of defence.
The plaintiff demurred to these pleas
his demurrer was overruled and judgmen'
rendered for the defendants and hence
the case is brought here by writ of error
The first position taken in support OF
the plea is, that there was no power in
the Board Of Police or county Treasurer
to take the note except for the actual loan
of money and that this note, being upon
the consideration Of the sale of land, wa,
taken without authority and is void. But
we do not agree with this view.
The statute authorizes the Board o.
Police to take deeds in trust to secure the
money loaned belonging to the schoo
fund ; and this security might be entirely
nugatory unless there was authority iT
the county Treasurer to purchase the lane
conveyed TO secure the debt in the event
Of the obligors to the note given for the
money loaned, being insolvent. Anc
after having purchased the land. in such
case, it would be unavailable for the bene
fit Of the school fund unless there wa
power to sell it and convert it into money
But these powers clearly arise by implica
ton from the power to take deeds in trus
in order to secure the payment of thu
money loaned. Then, how is land 81
purchased to be converted into money
The statutes contain no restrictions uJoI
this power, and there is nothing in tn,
nature Of the subject, which could pro
hibit q sale on credit. Hence, If this not,
had been given for land purchased by tn,
Treasurer under the deed of trust, an'
afterwards sold TO the defendants in orde
to secure the money 10 the school fund
the note executed by the defendants for tn
purchase money would be valid.
But in this case, the note was executes
IN part for the purchase money of tn
. land sold under the trust deed. and partl
for the residue due on the original note
which is admitted to have been valid
The purchase was made by two Of tn
: obligors to that note, who executed tn
note sued on. The transaction was, reall
! and in substance, continuation of tn
! previous Indebtedness and a renewal @
: the original note by Beatty and Fari;
: with their sureties. And il is very clea
l that the Board Of Police or Treasurer ha,
. the power to renew the note and continu
. the Indebtedness, taking new sureties.-
, This ground Of defence is, therefore no
: tenable.
The other ground Of defence taken b
{ the plea is, that the note is void, hecaus
3 no deed Of trust was taken to secure il
4 and there was no authority under tn
z statutes Of 1854, Oh. 345 Sec. Is, and lS5
/ Oh. q Sec. IL, TO take the note wfthou
f the security Of deed of trust.
D We do not consider that these statute
t render the taking Of a deed Of trust il
Q dispensable to the validity Of a note exc
a cuted for the loan of money belonging {
L the school fund. Their provisions in r,
o lation to taking CT deeds Of trust are eY
Q IDENTIFY directory, and intended for tn
y better security Of the money loaned.
b 4 plainly the duty Of the officer to tax
Is them but they are not conditions prec
IF dent to the validity Of note execute
D. for money due TO the school fund. An
j. clearly it does lie with the parties VII
a. have failed TO, execute such deed f
r money due the school fund, to object thi
% their notes executed therefore are not vail
n on that ground.
y But this question l. placed beyon
3 doubt BY toe concluding clause of Il
II 10Th Sec Of the act of 1856, which is
d. these woodworking to the previol
IT part Of the section requiring the exec
1t ton Of deeds Of trust-"nor shall al
D. thing herein contained be so construed
ID 10 lessen the obligation Of personal secul
b " or securities in any case whatever"
10 II follows from these views, that Il
d pleas we're insufficient and the demurr
d to them should have been sustained.
50 Judgment reversed. demurrer sustaine
. and the cause Temanded for further pS
feaings, HANDY.