actual possession, built two houses upon the land, planted an orchard, cleared and fenced land, and lives yet on the land; so he meets this demand. It is well established that a gift of land based on meritorious consideration, by reason of which the donee has been Induced to make valuable improvements, will be enforced in equity by conveyance of the legal title. Frame v. Frame, 32 W. Va. 463, 9 S. E. 901; Harrison v. Harrison, 36 W. Va. 556, 15 S. E. 87; Burkholder v. Ludlam, 30 Grat. 255; Halsey v. Peters' Ex'r, 79 Va. 60. So I conclude the dismissal of the bill as to Jasper England was right.

Next, as to the land devised by John England to James England. I cannot see how the bill was dismissed as to this land. James England did not answer. His case is different from Jasper's. He was not put in possession, but continued living with his father in the house on the land given him by the will, until his father's death. He made no improvements. Hence, if a gift were made to him, his possession was a mere continuance to dwell with his father as before, not a possession referable alone to the gift. His land is liable to Crim's debts. The land left by William Nestor, a surety in the bond, in the hands of his heirs, is liable to Crim's debts. So is any balance in the hands of James Lawless, the purchaser of land sold under the will of John England, and proceeds of its sale in the hands of John England's executor. So are the legatees of John England liable for what they derived from the sale of his land. I wrote up the case as to Samuel Moats, as he answered, and Crim's counsel discussed the case as to him, when I discovered that Moats is not a party to the suit, and the bill contains no matter touching him; and therefore I do not pass on his case in any manner, and the court decides nothing as to him. reverse the decree, and dismiss the bill as to Jasper England, so far as it seeks to make his land devised to him by his father liable for Crim's debts, and discharge his said land therefrom, and we remand the case for further proceedings proper in the case, as above indicated, and further as equity requires.

(46 W. Va. 328)

We

STATE, to Use of UNITED STATES SCHOOL-FURNITURE CO. v. McGUIRE et al.

(Supreme Court of Appeals of West Virginia. April 8, 1899.)

ACTION ON BOND-DECLARATION-OFFICIAL BOND

-CONSTRUCTION-LIABILITY OF SHERIFF
-PLEA OF PAYMENT.

1. A declaration upon a bond or other writing need give only its legal effect, and must do that, so far as pertinent to the action.

2. The law in force at the time of the execution of a public bond is part of it, and the effect of it, in law, must be held to be known to its makers, as if in words incorporated therein.

3. Where the condition of an official bond contains some valid provisions, and others not valid or warranted by law, the bad ones, if separable from the good, will be ignored.

4. A bond of a sheriff provided for the faithful discharge of his duties as sheriff, and that he "shall account for and pay over all money that shall come to his hands for school purposes for the year 1893, as provided in section 46, c. 45, of the Code." The words and figures "for the year 1893" will be eliminated and ignored, and the bond held to cover school money received by the sheriff in any year of his term.

5. Where a court or officer has authority to take a bond, and makes a mistake by omitting some condition prescribed by law, or inserting a condition not authorized or illegal, unless the statute, by express words or necessary implica tion, makes it wholly void, the bond is not void; the good shall not be vitiated by the bad; and the bond may be sued on, so far as the conditions are good, as a statutory bond.

6. Where, in an action on a bond, the only plea is payment, the bond need not be produced in evidence.

(Syllabus by the Court.)

Error to circuit court, Webster county; W. G. Bennett, Judge.

Action by the state, for the use of the United States School-Furniture Company, against P. J. McGuire and others. Judgment for Affirmed. plaintiff. Defendants bring error.

Watts & Ashby, for plaintiffs in error. Mollihan & McClintic and W. G. Mathews, for defendant in error.

BRANNON, J. This was an action of debt in the circuit court of Webster county by the state, for the benefit of the United States School-Furniture Company, against P. J. McGuire and the sureties in an official bond given by him, as sheriff, for school moneys, in which there was judgment for plaintiff.

The defendants complain that the court overruled a demurrer to the declaration, and the point on which chiefly they would rest this assignment of error is that the bond, as the declaration states, has the condition reciting McGuire's election as sheriff, and providing that if he should "faithfully discharge the duties of his office of sheriff of Webster county, and account for and pay over all money that shall come into his hands by virtue of his said office for school purposes for the year 1893, as provided in section 46 of chapter 45 of the Code, then the above obligation to be void," and that, though the letter of the bond limited the liability of the sureties to the year 1893, the declaration does not show that the default of the sheriff was in 1893, or that the transaction alleged (the nonpayment of certain school drafts drawn by boards of education on the sheriff) had reference to 1893. The declaration alleges that the sheriff, while in office, collected certain amounts of money belonging to those districts, and that drafts (dated in 1893 and 1894) on him were not paid. The bond was dated October 2, 1893. So we have the question whether the bond binds the sureties for payment of money collected at any time dur ing the term, or is limited to moneys collected for 1893. A declaration upon a writing must declare upon it according to its legal effect. If it does this, no more can be re quired. If. when brought under legal con

struction, this bond limits the liability of its makers to school money received in 1893, then the declaration is perhaps faulty, as it fails to allege that McGuire collected money of that year to pay this draft; but, if its effect covers money of any year during his term, then the fault does not exist in the declaration. Indeed, as it charges that the sheriff "on and after 2d day of October, 1893, and during his continuance in office," collected and received money for the use of the boards of education of Fork Lick and Glade districts, we may say it charges that he received money of 1893.

But, going back to the question mentioned above, does this bond cover money of other years than 1893? I hold that it does. The words in it, "for the year 1893," are as surplusage, in fact, without sanction of law, and therefore contrary to law. Section 46, c. 45, Code 1891, provides that the sheriff shall receive and disburse all school moneys for the various districts of his county, and requires the county court to require of him, in addition to his general bond, a special bond as to school moneys, and, in prescribing its penalty,-merely in prescribing its penalty,directs that the penalty shall be "equal to double the amount of school money which will probably come into his hands for school purposes during any one year of his term of office." This does not limit the obligation of the bond to one year, but the statute plainly means that it shall cover any school money received during his term; and therefore the insertion of those words in the bond was the insertion of a limitation upon its binding force unsanctioned by, and contrary to, law. But counsel say:

"Look at the letter of the bond. It binds the sureties only for money of 1893." That might be so if the bond were between private individuals,-a private contract; but this is a public bond, given under statute, contemplating that it shall cover all school money received by the sheriff during his term, and not contemplating such a restriction, and, when the sureties signed it, they must be held to have known that the law required such a bond, and that it had a certain legal force. Sureties stand on "the letter of the bond," it is true, and it cannot be stretched, as a general rule; but the law in force at the execution of the bond, giving it a certain legal effect, is part of the bond, and sureties engage with eyes open to that law. State v. Nutter, 44 W. Va. 385, 30 S. E. 67. This view is strengthened when we reflect that the statute requiring this bond does not specify its condition, and therefore we must go to the general provision prescribing the condition for official bonds; and there we find that the Code, c. 10, § 6, says that, in an officer's bond, the condition "shall be for the faithful discharge by him of the duties of his office and for accounting for and paying over, as required by law, all money which may come to his hands by virtue of the said office." This covers "all money which may come to

his hands by virtue of the said office," and the presence of the clause "for the year 1893" in McGuire's bond is a departure from this statute, and a violation of it. The law will purge the bond of this phrase. Where the statute says that a bond not taken conformably to it shall be void, a bond departing from it will be void; but where it merely prescribes a condition, and does not declare a bond not conforming to it void, a clause not warranted by the law, or contrary to it, is alone void, and will be eliminated. Justices v. Wynn, Dud. (Ga.) 22. In Newman v. Newman, 4 Maule & S. 70, Lord Ellenborough said, "Admitting the condition of this bond to be ill as to one part, it seems that it may be well as to other parts, for you may separate at the common law the bad from the good." The old maxim, "Utile per inutile non vitiatur," solves the question. It was unanimously agreed in Pigot's Case, 11 Cooke, 27, that, in case certain conditions of a bond are against law, some good and lawful, "the conditions which are against law are void, the others stand good." "Though the condition of a statutory bond contains more than is required, it will not invalidate the bond, if the good can be eliminated from the bad." 4 Myers, Fed. Dec. § 234; Farrar v. U. S., 5 Pet. 373. Gibson v. Beckham, 16 Grat. 331, follows the old law, in holding that where a court taking a bond makes a mistake "by omitting some condition prescribed, or inserting a condition not authorized or illegal, unless the statute, by express words or necessary implication, makes it wholly void, the bond is not void. The good shall not be vitiated by the bad, and the bond may be sued on, so far as the conditions are good, as a statutory bond." It is not asserted that this bond is void, but that the clause "for the year 1893" limits the force of it to money of that year. But I cite the above law to show that we must eliminate that clause from the bond. This leaves the bond to say that the sheriff shall faithfully discharge his duties, and account for and pay over all money coming to his hands by virtue of his office for school purposes, as provided in section 46, c. 45, of the Code,-provisions amply broad to cover all money received during his term. The clause for faithful discharge of duties would be enough to cover failure to pay the drafts, without the clause to pay over money. Poling v. Maddox, 41 W. Va. 781, 24 S. E. 999; Murfree, Off. Bonds, § 189. Though not essential to the decision, I think the declaration alleges the reception of money of 1893, and it would make no difference that some of the drafts were drawn in 1894. Courts struggle to make public bonds answer public justice.

The declaration says that the school drafts were indorsed, "Pay to sheriff of Webster county, or order, for collection and remittance for account of U. S. School-Furniture Com pany," and sent to McGuire, and received by him, and that he kept them, converted them

to his own use by receiving credit for them in his settlements with the boards of education, and never paid them to the furniture company, and refused so to do. It is claimed that the sheriff was thus made the company's agent, and the sureties are not liable. This point is untenable. They were sent to the sheriff for payment and remittance, as the indorsement shows. Surely, if a person risks sending to a sheriff a school order, to be paid and remitted, he does not make him his agent to collect, and absolve liability as sheriff. He intrusts it to him only for payment, just as if, standing in his office, he would hand him the draft and request payment. Was there any other intention? If he retained the orders as sheriff, he was bound as sheriff to pay them. The owner could sue on the bond, and need not sue the sheriff alone in assumpsit.

The court refused an instruction that the plaintiff must produce the bond, but, as the only plea was payment,-a plea of confession and avoidance, admitting the execution of the bond, it was not necessary to produce it. Hamilton v. Moore, 4 Watts & S. 570.

Some instructions were given for plaintiff. I see no error in them. They involve nothing of importance requiring discussion, and as the case does not go back for new trial, and the instructions are not discussed in the brief, it is needless to discuss them. Affirmed.

(46 W. Va. 273)

JOHNSON v. MANN. (Supreme Court of Appeals of West Virginia. April 8, 1899.)

EXCHANGE OF PROPERTY VENDOR'S LIEN-EN

FORCEMENT-DECREE.

T. J. and A. E. J. jointly exchanged farms with M.. taking M.'s land at an estimated price of $17,150, to be regulated by survey as to number of acres, and taking M.'s bond for $2,800, $5,000 and $7,000 difference, reserving a lien therefor on the lands conveyed by them to M. The sale to M., at the price named ($32,500), was conditioned on M. making sale of same at that price within a few days to C. The $7,000 bond was turned over to T. J. for his interest in the lands conveyed, and secured by said vendor's lien. M. failed to make the sale to C. Another contract was entered into between A. E. J. and M., with which T. J. had nothing to do, whereby the $2,800 and $5,000 bonds were returned to M., and A. E. J. was to pay M. $2,000, difference between his land and M.'s, which was conveyed to A. E. J., and gave to M. his bond for $2,000, which M. assigned to T. J., to apply as a credit on the $7,000 bond held by T. J. Said last contract says nothing about a survey of M.'s land to ascertain the acreage. T. J. brought his suit against M. to enforce his vendor's lien. M. filed his answer in the nature of a cross bill, and prayed that T. J. be required to amend his bill, making A. E. J. a party thereto, and that he be required to answer his cross bill, and that the differences between M. and A. E. J. be adjudicated therein, and thus affect the claim of T. J. The bill was so amended by order of the court. A. E. J. answered. Depositions were taken, and at the hearing decree was rendered, enforcing the lien of T. J., and the court went further, and ascertained that, by the payment of said bond of $2,000, the said A. E. J. had overpaid M. by the sum of $896, and dismissed

defendant's cross bill. Held, the court erred only in ascertaining that A. E. J. had overpaid, contrary to his own contention that he was to pay the $2.000 difference between lands transferred, without any reference to surveys to ascertain the number of acres.

(Syllabus by the Court.)

Appeal from circuit court, Monroe county; J. M. McWhorter, Judge.

Bill by Thomas Johnson against James Mann and another. Decree for plaintiff, and defendant Mann appeals. Reversed.

John W. Harris, for appellant. John Osborne, for appellee.

MCWHORTER, J. By deed of date October 23, 1891, Thomas Johnson and A. Emerson Johnson and Cora H., his wife, conveyed to James Mann, in consideration of $32,500, of which the receipt of $17,150 was acknowledged, and the residue, $15,350, was to be paid in the bonds numbered, respectively, 1, 2, and 3,-the first, for $1,350, at 30 days, the others at one and two years, respectively, with interest from date of deed, and a vendor's lien reserved on the property conveyed to secure same; amount of the several bonds 2 and 3, for the residue, $14,000, not mentioned in the deed. The deed conveys four tracts of land, in Monroe and Summers counties, on the waters of Greenbrier river, and at the mouth of Wolfe creek,-the first tract, except about 15 acres, to cover the house, yard, garden, barn lot, orchard, pond lot, and scales lots reserved to the separate use of said Thomas, and the title to the same in fee simple to him, and his heirs and his assigns, being the whole tract, of which the one undivided one-half interest was conveyed by said Thomas and wife to said A. Emerson by deed dated December 17, 1885, and containing 375 acres; the second tract, part of the "Lane Farm," being that portion lying between the river and the Chesapeake & Ohio Railroad, and running as far up the river as Mohler's Mill, and containing 44 acres; the third tract, known as the "John Alderson's Island," containing about 15 acres. The fourth and last tract is the same conveyed by Enos Reynolds and his wife to said A. Emerson Johnson by deed of 29th December, 1886, containing 181⁄2 acres, making an aggregate of about 4371⁄2 acres conveyed by said deed, with general warranty. On the same date, October 23, 1891, James Mann and Elizabeth N., his wife, conveyed to said A. Emerson Johnson, in consideration mentioned in the deed and stated hereinafter, three tracts of land, lying in the counties of Greenbrier and Monroe, all of said tracts to be surveyed, and the prices per acre of each tract separately, and the said surveys, with their courses, to be a part of the deed,-the first tract, lying in Greenbrier county, known as the "Old Home Place," at $25 per acre, and with said tract they also conveyed a certain lot or body of timber, and all privileges thereto, as reserved by deed of conveyance of December 1, 1887,

re

made by parties of first part to Wellington Johnson; the second tract, also situate in Greenbrier county, on the east side of Flat Top Mountain, and known as the "Mountain Tract," at $14 per acre; the third tract, lying in Monroe county, on Bickett's Knob, and known as the "Wellington Johnson Place," and adjoining the lands of John Skaggs, Harry Lemons, Widow Ellis, and others, and containing, by a second survey, 286 acres, and taken, without further survey, at $25 per acre, with general warranty. At the August rules, 1894, Thomas Johnson filed his bill in equity against James Mann, in the circuit court of Monroe county, alleging: The conveyance by plaintiff and his son, A. E. Johnson, to Mann, of certain real estate they owned in Monroe county, conditioned upon Mann closing out a certain trade he had in view with other parties. That they were to get for said real estate $32,500, to be paid as follows: They were to allow Mann a certain price per acre for the tracts of land owned by him,-two tracts in Greenbrier and one in Monroe county, the residue of the purchase money to be paid in money. That for the deferred payments Mann executed his notes, payable to A. E. Johnson or order, showing on their face they were given for land sold by, A. E. and Thomas Johnson, and were for $spectively. That within a short time Mann ascertained that he could not carry out the trade in view, and then made another contract with A. E. Johnson, by and with the consent of plaintiff, by the terms of which last contract plaintiff was to get $7,000 for his interest in the lands sold to Mann. A. E. Johnson was to pay Mann $2,000, the difference between his interest in the said lands and the three tracts aforesaid, and, as Mann had already recorded the deed under the first contract, one of the notes executed by Mann to A. E. Johnson, and secured by vendor's lien in said deed, was turned over to plaintiff in payment for his interest in said lands, which note is filed as an exhibit with the bill, is dated October 23, 1891, and reads as follows: "Alderson, Oct. 23, 1891. $7,000. Two years after date, I promise to pay to A. E. Johnson or order $7,000, it being the third and last payment on lands transferred by T. and A. E. Johnson, and for which a vendor's lien is retained as in deed, and to bear interest as per date of deed. [Signed] James Mann. [Seal.]" That said A. E. Johnson executed his writing obligatory to said Mann for the difference between lands so expressed on its face, and paid the sum when it fell due. That, under the terms of the first contract, the said James Mann lands were to be surveyed, and were to be a credit, at certain values, on the $32,500, but, under the new contract evidenced by the writing obligatory of A. E. Johnson to Mann, a gross sum was agreed upon between A. E. Johnson and Mann for the interest of A. E. Johnson in the lands conveyed. He also exhibited the deed. That the second agreement with James Mann was made November 25,

1891, and the bond of A. E. Johnson to Mann, for the difference agreed upon, originally bore this date, but was corrected by mutual consent, so as to make all the papers of even date. He also files the said bond as Exhibit C, as follows: "Interest, $240. Alderson, W. V., Oct. 25, 1891. Two years after date 1 promise to pay to James Mann or order two thousand dollars, with interest from date, it being difference between lands transferred. Given under my hand and seal. A. E. Johnson. [Seal]," and indorsed: "I assign the within to Thomas Johnson, as assignee of Emerson Johnson, to stand as a credit on land note of ($7,000) seven thousand dollars, this 24th day of Oct., 1893. James Mann." He alleges that the $7,000 note was for plaintiff's interest in the lands conveyed to Mann; that with the trade between Mann and A. E. Johnson plaintiff had no concern; that all the interest he had in it was to get from James Mann the $7,000 for his interest; that no part of the lands was conveyed to plaintiff; that notwithstanding the said new agreement, and notwithstanding plaintiff had no connection with the purchase of the James Mann lands by A. E. Johnson, the defendant Mann now seeks to avoid paying plaintiff for his interest by reason of a claim he sets up against A. E. Johnson, and wants to make plaintiff pay him a balance he claims to be due from A. E. Johnson on account of the purchase of his lands by A. E. Johnson, in which plaintiff was not known and had no part. He alleges that he has a right to the enforcement of his vendor's lien against the real estate conveyed by himself and A. E. Johnson for his note of $7,000, and prays for decree of sale to pay same, and for general relief.

Defendant Mann tendered and filed his answer to the bill, and says that in October, 1891, W. S. Thompson, acting as agent for A. E. Johnson, represented to respondent that George H. Cameron, through his agent, W. Haskins, wanted to buy a certain farm in Monroe county, owned by plaintiff and his son, A. E. Johnson, and would give therefor the sum of $32,500. That A. E. Johnson was anxious to accept the offer, but his father was unwilling to sell, or that his son should sell, unless his son got land in return. That the son was unwilling to antagonize his father, and that he (Thompson) was authorized by A. E. Johnson to say to respondent that he would turn over the offer of $32,500 to respondent, and accomplish the deal, by letting him take the farm at that price, and take defendant's own land at a certain price (as set out in deeds), and for the difference respondent could execute his bonds to him, the said A. E. Johnson. That, as the result of his proposition and some further negotiations with A. E. Johnson in person, respondent agreed to take the farm from Johnson at said figures, but only on the express condition that the sale to Cameron should be closed at the same time for cash. and before any papers should pass between Johnson and respondent. That said Johnson

agreed to take respondent's home place at $25 per acre, another tract known as "Mann's Mountain Tract" at $14 per acre, and the third tract, lying in Monroe county, known as the "Wellington Johnson Tract," containing 286 acres, at $25 per acre; the two former tracts being subject to survey, and the latter to be taken as containing 286 acres, and respondent to execute his bonds to A. E. Johnson for the difference. The whole agreement, however, as far as respondent was concerned, was predicated upon the closing with Cameron on the terms aforesaid. The estimate was then made, subject to survey provided for, on respondent's land, at the prices and amount, assumed to be $17,150, and on the 23d of October, 1891, the deeds were executed; and avers that to impress respondent with the good faith of the offer of Cameron through his agent, Haskins, and to inveigle respondent into the deal, as he afterwards ascertained, the said A. E. Johnson and his agent, Thompson, before the execution of the deed, exhibited to said respondent a draft drawn on said Cameron for $1,000, and a certified check for another $1,000, which they allege had been drawn to be paid on the Johnson land. That although respondent was deceived thereby, and by other representations made by the partles, into the belief that the negotiation was instituted and prosecuted in good faith, he refused to close the transaction or execute the bonds called for until the sales could be closed with Cameron, and, having been put off from time to time with this and that excuse for Cameron's nonappearance, respondent finally declared that he would have nothing more to do with the matter. That this is borne out by the fact that said Johnson, still insisting that Cameron would take the land at the figures named, on the 12th of November, 1891, entered into a contract in writing with F. N. Mann, a son of respondent, and filed a copy of said contract, as follows: "This article of agreement, made and entered into this the 12th day of Nov., 1891, between A. E. Johnson, party of the first part, and F. N. Mann, party of the second part, witnesseth: That the said party of the second part, by virtue of a sale of the party of the first part's farm to James Mann, takes upon himself the responsibility of paying a certain bond given by James Mann, by party of the first part, which said bond becomes the property of Thomas Johnson, for the sum of $7,000; that is to say, that James Mann gives an option to W. Haskins, agent for Geo. H. Cameron, for the sale of the said farm that he, James Mann, bought from the said party of the first part, for the sum of $32,500, and that said option shall be closed in ten days or less time, as per this option, when this said bond of three thousand five hundred dollars, which said party of the first part has given to said party of the second part, shall be due and payable, twelve months from the day of this agreement, but, if said sale should not be made from James Mann to Geo. H. Cameron,

the said bond of three thousand five hundred dollars given by the said party of the first part to the said party of the second shall be canceled. It is further agreed that the two thousand dollars advanced for the said option shall remain the property of the second part, unless the sale is completed between Geo. H. Cameron and James Mann, and then the said two thousand dollars shall go as a payment to the said party of the first part on the purchase money due him from James Mann; and it is further agreed that the remaining purchase money due to the said party of the first part from James Mann, which is $7,800, payable in two bonds, to wit, $2,800, in thirty days, and the second for $5,000, to be paid in twelve months, shall be deposited in the Greenbrier Valley Bank, with this understanding that, if this said sale should be closed be tween James Mann and Geo. H. Cameron, then the said bonds shall be in full force and effect, but if said sale should not be completed inside of the time specified in said option from James Mann to W. Haskins, agent for Geo. H. Cameron, then the said bonds, numbering 1 and 2, respectively, shall be returned to James Mann. Witnesseth our hand and seals the day and year above written. A. E. Johnson. [Seal.] F. N. Mann. [Seal.]" "I hereby certify that this is a true copy. W. S. Thompson." That accordingly this contract was, on the day following its execution, exhibited to respondent, who executed to said A. E. Johnson his three bonds, of $7,000, $2,800, and $5,000, respectively, and handed them over to F. N. Mann, together with the deed to Johnson, to be used in accordance with the terms of said contract, provided Johnson would indorse the check and draft aforesaid. Respondent averred that he was informed, believed, and charged that Cameron was a man of straw. That the money on which the check of $1,000 was drawn was the money of A. E. Johnson. That Haskins had no funds in the hands of Cameron on which said draft was drawn, and that Cameron had no funds upon which he had authorized said draft to be drawn. That the said Johnson farm was worth only about $20,000, and that the whole scheme was a fraudulent device, concocted by A. E. Johnson, for the purpose of inducing the respondent to part with the title to his land, and execute to him his bonds to a large amount, when in fact there was little, if any, difference in the value of the tracts exchanged. That, on the day following the execution and delivery of the bond and deeds as aforesaid, plaintiff brought the $7,000 bond, and asked respondent to change it so as to make it bear interest from the date of the deed, from which it was understood all the papers should run, but respondent refused to do so, because A. E. Johnson had not yet indorsed the draft and check, of $1,000 each, to F. N. Mann. Plaintiff said he would see the son, and have him do this, and left for that purpose, and soon returned, with the information that A. E. Johnson would indorse them. Respondent