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289.

«» Jarvis V. Albro, 67 Me. 810; (Hieever v. Perley, 98
Mass. (11 Allen) 584; Hendrickson v. Decon, 1 N. J.
£q. (1 Saxt.) 685; Booker v. Booker, 29 Gratt. (Va.)
605; 8. C, 26 Am. Rep. 401.

33 See Kernett v. Portfleld, 56 la. 412; Day v. Bald-
win, 34 la. 880.

ss O>ok v. Parham, 63 Ala. 456; Colddaugh v. John-
son, 34 Ark. 312; Butler V. Hagadone, 45 Mich. 890;
Howard v. Hildreth, 18 N. H. 105; Murphy v. Coates,
83 N. J. Eq. (6 Slew.) 424; Suavely v. Pickle, 29 Gratt.
(Ya.) 27; Pears v. Laing, L. R. 12 Eq. 41.

** Philbrook v. Clark, 77 Me. 176.



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or unless such revivor affects the rights of
purchasers and mortgagees acquiring title
after the bar is complete, and before the act
of revivor.^ Where a mortgagor conveys
the equity of redemption, and ceases to pay
interest on the mortgage note, the regular
payment of interest by the grantee does not
operate to prevent the running of the statute
of limitations against the liability of the mort-
gagor on the note.'®

4. Limit of Less than Twenty Tears, — ^It
has been held that the lapse of even a less
number of years than twenty will be sufficient
to raise a presumption of payment. Thus, it
was said, in Henderson v. Lewis,^ that a pre-
sumption of the payment of a bond may be
raised by a lapse of less than the statutory
period of twenty yearsy* when taken in con-
nection with other evidence, but that in the
absence of other circumstances the full stat-
utory period must expire to raise the pre-
sumption.^ And in another case^ the court
say that, ''as to what amount of time alone,
divested of other circumstances, shall be of
weight sufficient to authorize a jury to pre-
sume payment, unless the presumption be re-
butted, is necessarily arbitrary as a rule, and
based upon grounds of public policy. Six-
teen years having, in the case referred to,^
been adopted, and society having acted on it
for many years, it would be improper, we
think, to question the correctness of the
rule.""

5. Effect of Outlaw of Debt on Right to
Foreclose Mortgage. — It is a prevailing doc-
trine of the courts that, where a mortgage
has been given to secure the payment of a
simple contract debt, a statute limiting the
time within' which to commence an action for
the recovery of such debt is no bar to an ac-
tion for the foreclosure of the mortgage,"^

tB Johnson v. Johnson, 81 Mo. 881.

^ Trustees of Almhouse Farm v. Smith, 52 Conn.
484.

^9 Serg. & R. (Pa.) 879; s. c, 11 Am. Deo. 788.

» See also Lesley v. Nones, 7 Serg. & R. (Pa.) 410;
Husky y. Maples, 2 Coldw. (Tenn.) 25; Leiper v. £r-
win,5 Yerg. (Tenn.) 97; Freeman on Judgments, fS
464, 465; 2 Greenl. £y. S 528.

» Atkins y. Danoe, 9 Terg. (Tenn.) 424; s. c, 80
Ank Dee. 432.

<^Blackburne y. Squib, Peck (Tenn.), 64.

o See also, Tarnell y. Moore, 8 Coldw. (Tenn.) 176;
Carter y. Wolfe, 1 Heisk. (Tenn.) 700; Anderson y.
Settle, 5 Sneed (Tenn.), 208.

■Qilette y. Smith, 18 Hun (N. Y.),110; Heyer v.
Pruyn, 7 Paige Ch. (N.Y.)465; s. C, 84 Am. Dec.
856; Pratt y. Hf^ns, 29 Barb. (N. Y.) 277; Ware



because the mortgage remains in full force
until the debt is paid which it was given to
secure.® The statute of limitations simply
takes away the remedy but does not other-
wise affect the parties.'^

y. Curry, 67 Ala. 274; Scott y. Ware, 64 Ala.
174; Bizzell y. Nix, 60 Ala. 281; s. c, 81 Am.
Rep. 88; Bimie y. Main, 29 Ark. &91; Hough y.
Bailey, 82 Conn. 288; Haskell y. Bailey, 22 Conn.
578; Belknap y. Gleason, 11 Conn. 160; s. c, 27 Am.
Dec. 721; Baldwin y. Norton, 2 Conn. 168; Browne y.
Browne, 17 Fla. 607; Elkinsy. Edwards, 8 Ga. 826;
iEtna Life Ins. Co. y. Finch, 84 Ind. 801 ; Crooker y.
Holmes, 66 Me. 195; s. C, 20 Am. Rep. 687; Joyy.
Adams, 26 Me. 880; Lingan y. Henderson, 1 Biand Ch.
(Md.) 286, 282; Balch y. Onion, 58 Mass. (4 Cush.) 559;
Eastman y. Foster, 49 Mass. (8 Mete.) 19, 24; Thayer
y. Mann, 86 Mass. (19 Pick.) 537; Webber y. Ryan, 54
Mich. 70; Powell y. Smith, 80 Mich. 451 ; Michigan Ins.
Co. y. Brown, 11 Mich. 265; Wilkinson y. Flowers, 87
Miss. 812; 8. c, 66 Am. Dec. 609; Trotter y. Erwin, 27
Miss. 772; Bush y. Cooper, 26 Miss. 599, 611 ; Trustees
of Jefferson College y. Dickson, 18 Miss. (5 Smed. &
M.) 650; Miller y. Helm, 10 Miss. (2 Smed. ^ M.) 687,
688; Woody.Augustine, 61Mo. 46; Cookes y. Cul-
bertson, 9 Ney. 199,208; Mackie y. Lansing, 2 Nev. 802;
Bead y. Edwards, 2 Ney. 265; Henry y. Confidence
Gold Mining Co., 1 Key. 819; Cathart y. Dettrick,91
N. C. 844; Myer y. Beal, 5 Oreg. 130; Fisher y. Moss-,
man, 11 Ohio St. 42, 46: Ballou y. Taylor, 14 R. I. 277;
Richmond y. Aiken, 25 Vt. 824; Cerney y. Pawlot, 66
Wis. 262; Knox y. Galligan, 21 Wis. 470; Wiswcll y.
Baxter, 20 Wis. 680; Bank of Metropolitan y. Gutt-
schlick,89 U. S. (14 Pet.) 19; bk. 10 L. ed. 885; Sparks
y. Pico,l McAl. C. C. 497; Toplis y. Baker, 2 Cox C. C.
118, 128; Spears y. Hartley, 8 Esp. 81. In an early New
York case, howeyer, it was intimated by Justice Suth-
erland that a mortgage to secure a simple contract
debt, was presumed to be paid In six years, because
the statute of limitations, at the expiration of that
time, might be pleaded to a suit upon a note. See
Jackson y. Sackett, 7 Wend. (N. T.) 94. But this was
elearly ohiter dicta^ and has since been denied in sey-
eral New York cases. In Heyer y. Pruyn, 7 Paige Ch.
(N. Y.) 465; s. c, 84 Am. Dec. 855, Chancellor Wal-
worth says that it "certainly cannot be law.'' At least,
that such a principle cannot apply in a case where the
real security upon the land is separated from the per-
sonal responsibility of the mortgagor by a sale of the
equity of redemption upon execution. In the case of
Pratt y. HIggin8,29 Barb. (N. Y.) 277, the general term
of the third district flatly oyerruled the doctrine im-
plied in Judge Sutherland's remarks in Jackson y«
Sackett, and held, in regard to the precise facts, that
the debt secured be a sealed mortgage, and an unsealed
note, instead of a bond, may be enforced by a fore-
closure of the mortgage after the expiration of six,
but before the expiration of twenty years from the
time when the debt become due. The court say:
*^The debt is the principal thing, and the note is one
form of the surety for, or eyidenoe of, the debt, and
the mortgage another." See also, Borst y. Corey, 15
N. Y. 505, 510; Jones y. Merchanu' Bank of Albany, 4
Bobt. (N. Y.) 221; Belknap y. Gleason, 11 Conn. 160;
6. C, 27 Am. Dec. 721; Baldwin y. Norton, 2 Conn.
168; Thayer y. Mann, 86 Mass. (19 Pick.) 537; Topliss
y. Baker, 2 Cox C. C. 128; Spears y. Hartley, 8 Esp. 81.

» Joy y. Adams, 26 Me. 880.

w Waltermire y. Westoyer, 14 N. Y. 16. See Borrt



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The remedy on a mortgage is not lost be-
cause a personal action upon the note is
barred by the statute of limitations. The
remedy on the mortgage is generally avail-
able until the payment of the note is shown,
or may be presumed, or until the mortgagor
has remained in possession for twenty years
without recognizing the mortgage.^ But it
is held that the right to enforce the lien of an
equitable mortgage is barred by the statute
of limitations applicable to the debt secured.^

6. Exceptions to General Rule — Special
Statutes. — In California, Illinois, Iowa, Kan-
sas, Nebraska and Texas, it is held that
where an action on the note secured by a mort-
gage is barred, the remedy on the mortgage
is gone. The courts of these States hold that
separate remedies may be pursued but that
the same limitations apply to both.^ And in
these States it is held that the purchaser from
a mortgagor subsequent to the execution of
the mortgage may plead the statute of limit-
ations as a defense to an action commenced
after the statute has run against the debt se-
cured.^ In these States the debt is not
discharged by the statute or the right or
obligation taken away; the statute simply
takes away the remedy ;^ the debt remaining
unsatisfied and unextinguished and is a suffi-
cient consideration to support a new prom-
ise.-**

The present English statute of limitations,
it is said, however, not only bars the right
but destroys the remedy also ; does not sim-
ply exclude the recovery, but transfers the
estate.^

V. Corey, 15 N. Y. 506, 510; Pratt v. Higgins, 29 Barb.
(N. T.) 277; Jones v. Merchants' Bank of Albany, 4
Eobt. (N. Y.) 221; Baldwin v. Norton, 2 Conn. 163;
Thayer v. Mann, 36 Mass. (19 Pick.) 587; Myer v. Bell,
5 Oreg. 13.

» Ballou V Taylor, U E. I. 277.

w Borst V. Corey, 15 N. Y. 506; Wayt v. Carwithen,
21 W. Va. 516.

^ Lent V. Morrill, 25 Cal. 492; Coster v. Brown, 28
Cal. 142; Keinlin v. Castro, 22 Cal. 100; McCarthy v.
White, 21 Cal. 495; Lord v. Morris, 18 Cal. 482; Emery
V. Keigan, 94 111. 548; Brown v. Bockhold, 49 la. 282;
Clinton Co. v. Cox, 37 la. 570; Hubbard v. Missouri
Yalley Life Ins. Co., 25 Kan. 172; City of Fort Scott v.
Schulenberg, 22 Kan. 649; Schmucker v. Sibert, 18
Kan. 104. But see Cheney v. Woodruff, 20 Neb. 124;
Hurley v. Coz, 9 Neb. 280; Blackwell v. Bamett, 52
Tex. 826; Daggs v. Ewell, 8 Wood C. C. 844.

» Lent V. Shear, 26 Cal. 861 ; Grattan v. Wiggins, 28
Cal. 17; McCarthy v. White, 21 Cal. 495.

>• Grant T. Burr, 54 Cal. 296; Sichel v. Carrillo, 42
Cal. 498.

^ Sichel Y. Carrillo, 42 Cal. 497, 496.



7. Effect of Covenant to Pay Debt on
Might to Foreclose. - As aiffected by the run-
ning of the statute of limitations against the
debt, there is a distinction to be observed be-
tween those mortgages which do and those
which do not covenant for the payment of
the debt. A suit to foreclose a mortgage
not containing a covenant to pay tiie debt is
barred when the debt secured by it is
barred.** Thus a suit to foreclose a mort-
gage, given to imdemnify the mortgagee on
account of liability as a surety for the mort-
gagor, but containing no covenant to pay, is
barred by the same lapse of time, from the
date a cause of action accrues, that bars the
debt it was given to secure.^ But, except as
it is affected by the statute of limitations, a
mortgage has the same effect as any other
security for a debt,'whether it does or does
not contain an express promise to pay.^

8. Effect of Statute of Limitations where
Mortgage Executed by Surety. — ^In those cases
where the consideration upon which a mort-
gage is given is to secure certain notes, upon
which the owner of the mortgaged premises
is in no way liable, the general rule is that to
entitle the mortgagee to enforce such mort-
gage obligation it is essential that the obliga-
tion against the principal must be subsisting.
The extinguishment of the direct agreement
of the principal, no matter how accomplished,
extinguishes the collateral liability of the
surety.***

In such a case, when the statute of limita-
tions runs against the debt of the principal,
there being no longer any subsisting obliga-
tion to which the mortgage is collateral, the
office of the mortgage is performed, *'unless,"
as remarked in a recent case, \4t can be
maintained on foot as an independent secu-
rity."^ In a recent Indiana case the court
say that '4f from the lapse of time the pre-
sumption is to be indulged that the notes se-
cured by the mortgage had been paid, then

« Fearnside v. Flint, 48 L. T. (N. S.) 154; Harver v.
Dugall, 1 McQueen, 821.

4 Lilly V. Dunn, 96 Ind. 220.

« Lilly V. Dunn, 96 Ind. 220.

^ Jouchert v. Johnson, 108 Ind. 486.

^ Bridges Y. Blake, 106 Ind. 882; s. C, 4 West. Bep.
486; Bakery. Merriam, 97 Ind. 589; State v. Blake, 8
Ohio St. 147. See Mount Pleasant Bank v. Conway, 18
Ohio, 284.

^ Bridges y. Blake, 106 Ind. 882; s. c, 4 West. Rep.
486. See Boschert y. Brown, 72 Pa. St. 872; Sage y.
Story, 40 Wis. 575.



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although the mortgage itself may have been
barred by the statute of limitations, it be-
comes functus officio as completely as though
the notes had actually been paid." ^^ Where
suit was brought on the bond of a public
officer, given to secure faithful performance
of his official duties, it was held that such
bond was merely a collateral obligation and
could exist no longer than the liability it was
created to secure,^^ because it is of the es-
sence of a contract of suretyship that there
be a subsisting valid obligation of the princi-
pal debtor, for without a principal there can
be no accessory ; and by the extinction of
the liability of the former the latter becomes
extinct.^

9. Delay in Foreclosing — Presumption. — ^A
mortgage is not necessarily presumed paid
from lapse of time, if the mortgagee asserted
his right to foreclose in due season, and there
does not appear to be any adverse holding
under the mortgagor.^ And a mortgage will
not be presumed to be satisfied merely from
the lapse of twenty years, before filing a
complaint in foreclosure, where partial pay-
ments of principal or interest were made on
the debt before the lapse of twenty years."
And where the presumption that the mort-
gage has been paid is raised by the lapse of
time, it may be rebutted by circumstances. ^^

While a mortgage will be presumed to be
satisfied after the lapse of twenty years,
where nothing appears to the contrary,*^ yet,
in the absence of a statute fixing a less
period, the conclusive presumption of pay-
ment does not arise at an earlier date than
twenty years after the last payment of prin-
cipal or interest ;^ but it has been said by
the Supreme Court of Illinois, that a court of
equity will often treat a less period of time



^ Bridges v. Blake, 106 Ind. 882; s. c, 4 West. Bep.
486.

«See State v. Black, 2 Ohio St. 147; Walton v.
United States, 22 U. S. (9 Wheat.) 651 ; bk. 6, L. ed. 182.

«See SUte v. Blake, 2 Ohio St. 147; Russell v.
FaUor, 1 Ohio St. 829.

» Baldwin v. Cullen, 61 Mich. 88.

a Cook T. Parkham, 68 Ala. 456.

« Philbrook v. Clark, 77 Me. 176; Baeni v. Kemer-
eutt, 57 Mich. 268.

« Wilson V. Albert, 89 Mo. 587.

« Peck V. WUliams, 10 N. Y. 509; Moore v. Cable,

I Johns. Ch. (N. Y.) 886; Lock v. Caldwell, 91 III. 417;

Boone t. Pierrepont, 28 K. J. Eq. (1 Stew.) 7; Hnt-

•onpiller v. Stover, 12 Gratt. (Va.) 579, 588; Sadler t.

nnedy, 11 W. Va. 187.



than twenty years as a presumptive bar to
the recovery.*^

Payment of a mortgage debt is not con-
clusively presumed from the lapse of many
years, but there must be decisive proof that
it is an existing lien to warrant a decree of
foreclosure.^ And no conclusive presump-
tion of payment will arise from mere lapse
of a time less than that prescribed by the
statute of limitations ; yet the fact that a
mortgagee has neglected to assert his rights
for any considerable period will be evidence,
together with other circumstances, that pay-
ment has been made. Thus, in a case where
the mortgagee had taken no steps to enforce
his lien, and made no demand for nineteen
years previous to the trial, it was said that
the jury would have been warranted to pre-
sume the debt satisfied.^^

There is held to be a manifest distinction
between those cases where length of time
operates as a bar to an action, and those in
which it can be used only as matter of evi-
dence. In the first class it may be pleaded
in bar and is conclusive though the debt be
not paid, but when relied upon as mere evi-
dence of payment it only raises a presumptive
fact which may be repelled by other circum-
stances to be considered in arriving at the
truth."

The mortgagee will not lose his right to
foreclose the mortgage by lapse of time where
there has been a payment of interest,^ an
acknowledgment of the indebtedness,^ or a
promise sufficient to take the case out of the
statute of limitations,^^ or where the statute



« Castner v. Walrod, 88 111. 171.

MCowie V. Fisher, 45 Mich. 629.

w Jackson v. Pratt, 10 Johns. (N. Y.) 881, 387.

« Bailey v. Jackson, 16 Johns. (N. Y.) 210; Jackson
v. People, 12 Johns. (N. Y.) 242; Jackson v. Pratt, 10
Johns. (N. Y.) 892; Shields v. Pringle, 2 Bibb (Ky.),
889; Howland v. Shurtlefl, 43 Mass. (2 Mete.) 26; s. o.,
85 Am. Dec. 384; Inches v. Leonard, 12 Mass. 379;
Allenv. E?erly, 24 0hloSt. 97; BlsseU v. Jandon, 16
Ohio St. 498; Brobst v. Brock, 77 U. S. (10 Wall.) 519;
bk. 19, L. ed. 1002.

» Halght V. Avery, 16 Hun (N. Y.), 252; Pears T.
Lalng, L.B.,12£q. 41.

« Chase v. HIggins, 1 T. A C. (N. Y.) 229; Howard
V. Hlldreth,18N.H.105.

«i N. Y. Code Civ. Proc., i 895. See Klncade v.
Archibald, 73 N. Y. 189, affirming s. c, 10 Hun
(N. Y.), 9; Plske v. Hlbbard, 45 N. Y. Sup. Ct. (18 J.
& S.) 881; Shipley v. Abbott, 42 N. Y. 448; WlncheU
v. Hicks, 18 K. Y. 569; Murray v. Coster, 20 Johns.
(N. Y.) 576; s. c, 11 Am. Dec. 888; Fletcher v. Up-
dike, 5 T. & C. (N. Y.) 518; s. C.,67 Barb. (F. Y.)



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of limitations has been prevented from run*
ning by the existence of statutory disability.

Where a judgment of foreclosure and sale
has been entered this is not a merger of the
debt, it is simply a means of enforcing the
lien of the mortgage, which remains until the
debt is paid or discharged ; and the lien, not-
withstanding the decree, is subject to be
defeated by the presumption of payment
founded upon a lapse of time the same as if
no decree had been entered.^ If, however,
it be held that by virtue of the decree a new
security is given, the same presumption of
payment arises after the lapse of twenty
years without an attempt to enforce the de-
cree by a sale.® Upon this principle it has
been held that where there has been a fore-
closure and sale but no conveyance to the
purchaser or any recognition of the mortgage
by the mortgage debtor, that it will be pre-
sumed after the lapse of twenty yeais that
the land has been redeemed from such sale.^

10. StatiUe Controls. — ^The principle of the
statute of limitations applies in those States
where the period of limitation has by statute
been reduced to less, or increased to more
than twenty years the same as in those States,
which, following the statute of James I., fix
the period at twenty years.® The different
States have fixed various periods of limita-
tion for bringing of actions upon sealed in-
struments, including mortgages; thus the
California code fixes the period at four
years ;® in Connecticut, fifteen years ;*^ Flor-
ida, seven years ;® Iowa, ten years ;® Montana
Territory, three years ;'^ Oregon, ten years ;^

864; 8 Hun (N. T.)> 450. Under the provisions of
codes generally, a new promise, in order to take the
deed out of the statute of limitations, must be in writ-
ing, signed by the party to be charged. See N. T.
Code Civ. Proc, < 805; Scott v. Ware, 64 Ala. 174;
Alabama Code, S 8220.

« Barnard v. Onderdouk, 98 N. Y. 158; Brown v.
Frost, 10 Paige Ch. (N. Y.) 243.

« Barnard v. Onderdouk, 98 K. Y. 158; Beynolds v.
Dishon, 8 111. App. 178.

^ Reynolds y. Dishon, 8 III. App. 178.

« Haskell v. Bailey, 22 Conn. 569; Newman v.
DeLorrimer, 19 la. 244; Martin v. Bowker, 19 Yt. 526;
Richmond v. Aiken, 25 Yt. 824.

« N. Y. Code Civ. Proc, i 887.

«7 Haskell v. Bailey, 22 Conn. 569.

« Laws of Florida, i 10, ch. 1869; Browne v. Browne,
17Fla.0O7.

* Newman v. DeLorimer, 19 la. 244; Crawford v.
Taylor, 42 la. 260; Iowa Rev. Code, i 2740.

^ National Mining Co. v. Powers, 8 Mont. 844; Laws
of 1872, p. 516; MonUna Code 514, {$ 8, 4.

Ti £urbanks v. Leverldge, 4 Sawy. C. C. 274; Oregon
•Civ. Code, iji.



Pennsylvania, twenty-one years ;'* South Car-
olina, twenty years ;'' Wyoming Territory,
twenty-one years. ^^

In New York and States with similar code»
the statute of limitations differs from the
statute of James I., and the statute of limita-
tions in those States which follow it, in this,
that the statute of James I., and of those
other States apply in their terms, only to par-
ticular remedies and are enf orcible in law only ;
courts of equity are said not to be bound by
them except in cases of concurrent jurisdiction
and when they do enforce such statutes are
said to act merely in analogy to the statutes of
limitation, and not in obedience to them.*^
In New York, and those States where the
distinction between actions at law and suits
in equity, and the forms of those actions and
suits have been abolished, the statute con-
trols those actions which have heretofore
been denominated legal or equitable. The.
New York statute is pre-emptory, and re-
quires that suits on sealed instruments shall
be commenced within twenty years.'* Thia
statute bars an action to enforce the lien of a
mortgage as much as it bars an action on the
note or bond, and no help can be given by
the court to the plaintiff, unless facts are al-
leged in the complaint and shown by the
proof which bring his case within the excep-
tions prescribed by the statute itself. No
presumption of payment can control, for
presumptions may be rebutted; the court
must refuse to enforce a lien after twenty
years whether the debt has been paid or not.

In this respect the rule in New York and
other code States differs from that in those
States proceeding upon a different principle.
Thus, in Maine, where a presumption of pay-
ment of the mortgage debt arises from the
possession of the mortgaged premises by the
mortgagor or his assign for more than twenty
years aft3r the naturity of the debt, where
the holder of a mortgage permitted hia
mother, the mortgagor, and his sister, to

n 10 Serg. A B. (Pa.) 147; McCoy v. Trustee, etc., I
Serg. & B. (Pa.) 802; Act of March 26, 1785; 2 Sm. L.
299. The statute of 21 Jac 1, ch. 16, was not extended
to PennsylvaDia, so that prior to the act of March 26»
1785, the period of limitation in that State was sixty
years.

78 Nichols T. Briggs, 18 S. C. 478; 8. C. act of 1889^
amending code.

74 CompUed Laws of 1876, ch. 18, i 8.

n Lord v. Norris, 18 Cal. 482.

w N. Y. Code Civ. Proc, » 380, 881.



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whom the mother had conveyed the equity,
to occupy the premises for more than twenty
years, without payment of the debt or of the
interest, and he had refrained from asking
for the interest or enforcing the mortgage
because the mortgagor was his mother, it was
held to rebut the presumption of payment,
and that the mortgage could enforced.^

^ Phllbrook t. Clark, 77 Me. 176.



MUNICIPAL CORPORATIONS — TBLEPHONES-
CHARGES-PUBLIC USE— STATE CONTROL.

CITY OF ST. LOUIS V. BELL TELEPHONE CO.
OP MISSOURI

Suprmne Ctmrt of JAmovH, Dectmoer 20, 1888,

1. Municipal Corporations— Telephones -^ChargeM.
A city has not the tight to fix the annual charge for
the use of telephones therein, unless such power is
found in a reasonable and fair construction of its
charter.

2. Telephones^Puhlic Use—State Control. — The
property of a telephone company is devoted to a pub-
lic use, and the company exercises special franchises
and privileges, and the State can prescribe a maxi-
mum rate for the telephone service.

Black, J., delivered the opinioQ of the court:
This was a prosecution against the Bell Tele-
phone Company of Missouri for the violation of
an ordiQance which provides that ^Hhe annual
charge for the use of the telephone in the cltj of
St. Louis shall not exceed $50.'^

A violation of the ordinance is made a misde-
meanor, and subjects the offender to a fine of not
less than $50 nor more than $500. The defendant
appealed from a judgment assessing a fine of $300
against it. The defendant is a corporation organ-
ized under article 5 of chapter 21 of the Revised
Statutes of this State, and hence has all the pow-
ers therein conferred upon such corporations.
Among others they have the power to own and
operate lines of telephone, to make such reasona-
ble charges for the use of the same as they may
establish, to erect their poles along and across
public roads and streets, to condemn private
property for a right of way, and they are charged
with the duty of receiving and transmitting mes-
sages with impartiality and good faith. The de-
fendant neither affirms nor denies the power of
the State itself to fix a maximum rate of changes,
but does contend that no such power has been
delegated to the city of St. Louis. The defend-
ant's property, consisting of poles, wires, fixtures
and the like, is, of course, private property ; but
the property is devoted to public use, and since
the defendant has conferred upon it special fran-





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