Nelson v. Atkinson. The appellant, as plaintiff, filed in the district court of Lancaster county her amended petition, in which she prayed that an accounting might be had and a settlement between herself and the defendants, and that if anything should be found due from herself to the defendants, the amount thereof should be fixed by the court, and that she be allowed to pay the same, and that the above contract be adjudged to be a mortgage; and that on the payment of the amount which might be adjudged to be due to the defendants from said plaintiff, the said instrument be adjudged to be paid and satisfied and discharged of record, or that said property be reconveyed to said plaintiff, or that said decree of conveyance be decreed by the court, and for general equitable relief. The contention of the appellees, that the instrument above set out was not a mortgage or mere security, was sustained by the district court, and plaintiff's petition was dismissed, in so far as a foreclosure was prayed. In the brief of appellees they state that the only question involved in this case to be determined by this court is this: "Was this contract, as appeared in the record, a conditional sale or a mortgage? If the conveyance merely secured a debt, it is a mortgage; if it extinguishes the debt, it is a sale, notwithstanding the reservation of the right to redeem." The agreement just quoted falls clearly within the first class referred to in the above definition. The indebtedness was not ascertained at the time the agreement was made. Indeed, for the most part, it was not yet in existence, and was never fixed until by stipulation between the parties, after the commencement of this action. The provisions of the contract were such that H. A. Nelson obligated herself to pay the fees of the first parties, pay all costs and damages adjudged against her, and to hold harmless the first parties from any and all damages by reason of the giving of the bond, and by the said agreement the appellees were bound, upon payment of their fees and upon being fully released State, ex rel. Singleton, v. Sadilek. and discharged from all liability on the bond within a year from the date of the agreement, to reconvey to said second party the premises described. In case Mrs. Nelson failed to pay said appellees and release and discharge them from all liability by reason of said bond within the time fixed, the premises were to become the absolute property of the appellees, and thereby they were released from all obligations to reconvey the premises to Mrs. Nelson. No argument or amplification could make it more clear than a simple consideration of the above stipulation, that there was no element of a conditional sale in this contract. While not in the exact language or form of the ordinary mortgage, the provisions, in effect, are just such as we generally find to be in such an instrument. It follows that the judgment of the district court holding otherwise was wrong, and it is therefore THE other commissioners concur. REVERSED. STATE OF NEBRASKA, EX REL. JAMES SINGLETON, V. FRANK J. SADILEK, COUNTY TREASURER. FILED SEPTEMBER 20, 1893. No. 4664. Mandamus: PROCEDURE IN SUPREME COURT. Where an application for a mandamus is submitted for final determination upon the petition and a general demurrer thereto, no briefs being filed, and the petition appearing upon original examination to sufficiently state a cause of action, a peremptory writ may be awarded as prayed. ORIGINAL application for mandamus. Abbott & Abbott, for relator. W. G. Hastings, contra. RYAN, C. State, ex rel. Singleton, v. Sadilek. On the 28th day of February, 1891, a petition for mandamus was filed in this proceeding against Frank J. Sadilek, treasurer of Saline county. The relator alleges in this petition that he is a resident and freeholder of Crete precinct, in said county and state, and in connection with his averments as to the voting of precinct bonds in Crete precinct to aid in the construction of the Missouri Pacific railroad he alleged that the bonds had been duly earned by the said railway company, and that said company had paid said taxes duly assessed on its line of road in said precinct, and having alleged such facts further as entitled the taxpayers of said precinct to have set apart and appropriated the taxes paid by said railroad company in said precinct for the payment of the amounts due on said bonds, the relator prayed that the defendant, whom he alleged refused so to do, should be compelled to segregate the said taxes for the use aforesaid. On the 3d day of March, 1891, a general demurrer was filed to the aforesaid petition. As we have been favored with a brief on neither of these pleadings, we are, perhaps, somewhat in the dark as to what question was intended to be presented by the demurrer. As the matter is of public interest, however, the petition and demurrer have been carefully considered, and the conclusion reached is that the petition states a cause of action. As the case was submitted for final determination upon the petition and demurrer, a peremptory writ will issue as prayed. THE other commissioners concur. WRIT ALLOWED. Township of Midland v. County Board, Gage County. TOWNSHIP OF MIDLAND, APPELLEE, V. COUNTY BOARD FILED SEPTEMBER 20, 1893. No. 3452. 1. Railroad Companies: CONSTRUCTION OF ROAD: TOWNSHIP BONDS: VARIANCE BETWEEN PETITION FOR ELECTION AND PROPOSITION VOTED UPON. Fifty freeholders of Midland township, in Gage county, petitioned the board of supervisors to call an election in said township and submit to the electors thereof a proposition to vote bonds to aid a certain railroad company to construct its railroad into and through said county of Gage. The supervisors called an election and submitted to the electors of said township the proposition to vote bonds to aid said railroad company in the construction of its road into and through said township. Held, As no part of the railroad was built in the township, the railroad company was not entitled to the bonds voted. 2. : -: : : TRANSFER OF RIGHTS OF DONEE: INJUNCTION. The electors of Midland township, in Gage county, by a vote, authorized the supervisors of said county to issue and deliver the bonds of said township to a railroad company designated, upon the construction by it of a certain railroad. The railroad company named as donee failed to build the road, sold out its property and franchises, and its vendee built the improvement and claimed the bonds. Held, That the electors of the township are entitled to stand upon the very letter of their promise; that the supervisors of the county were special agents of the electors of the township with limited powers, and would be enjoined at the suit of the township from delivering the bonds to the vendee of the company named as donee in the election proceedings. APPEAL from the district court of Gage county. Heard below before BROADY, J. Hazlett & Bates and Brown & Craig, for appellants: The mistake made by the board of supervisors in substituting the word "township" in the call and notice of election for the words "county of Gage" contained in the Township of Midland v. County Board, Gage County. petition of the freeholders, was an immaterial clerical error, which could have had no effect upon the result of the election, and could not, consequently, effect its validity. Ch. 45, sec. 14, Comp. Stats., gave the township the right to aid any railroad in constructing its line into the city of Beatrice, Gage county, even though it should not enter the township. (State v. Babcock, 23 Neb., 179; Quincy, M. & P. R. Co. v. Morris, 84 Ill., 410; St. Joseph & D. C. R. Co. v. Buchanan County Court, 39 Mo., 485; Walker v. Cincinnati, 21 O. St., 14; Council Bluffs & St. J. R. Co. v. Otoe County, 16 Wall. [U. S.], 667; Bell v. Mobile & O. R. Co., 4 Id., 598.) If any taxpayer was deceived he must not only show it, but must act promptly in protesting, and not wait until the work is completed and thus secure all the benefits while escaping his obligation to pay. (Brown v. Merrick County, 18 Neb., 355, and cases cited.) The sale and transfer by the Nebraska company of its railroad, constructed and to be constructed, and the appurtenant franchise, to the Kansas company, had no effect upon the contract for the issue of the bonds. (Morawetz, Corporations [2d ed.], secs. 1004, 1010; Livingston County v. Portsmouth Bank, 128 U. S., 102; New Buffalo v. Iron Co., 105 Id., 73; Harter v. Kernochan, 103 Id., 562; Bates County v. Winters, 112 Id., 325; Menasha v. Hazard, 102 Id., 81; Scotland County v. Thomas, 94 Id., 682; Town of East Lincoln v. Davenport, Id., 801; Wilson v. Salamanca, 99 Id., 499; Henry County v. Nicolay, 95 Id., 619; Empire v. Darlington, 101 Id., 87; Nugent v. Supervisors, Putnam County, Ill., 19 Wall. [U. S.], 241.) Griggs, Rinaker & Bibb, contra. RAGAN, C. This is an action in equity brought by the township of Midland, in the county of Gage, to restrain the board of supervisors and county clerk of said Gage county from |