amount agreed to be paid, the answer should have so alleged. On its face the complaint was good, and, accepting for the present, the defendant's construction of the statute, if, after the contract was made, it turned out that the proceeds of a three-mills tax was insufficient to meet the contract price, that fact should have been stated in the answer. It was matter of defense, to be alleged and proved by the defendant. But we are unable to acquiesce in counsel's opinion of the meaning of the statute. The 69th subdivision provided for contracts of this character, and authorized the payment. by the city or town of such sum or sums as might be agreed upon by the contracting parties. To the amount which the municipality might agree to pay, there was no limit fixed. It was matter of agreement between the parties concerned, and whatever they might agree upon, the city might lawfully contract to pay. This is the plain meaning of the language of subdivision 69, standing alone. Is that meaning in any way qualified by the terms of the 71st subdivision? The latter provided for the levy and collection, each year, of a tax sufficient to pay the amounts "so agreed to be paid." The words "so agreed to be paid” refer back to the authority contained in the 69th subdivision, which left the amounts to the unrestricted agreement of the parties. The intention was to provide a method by which the city might discharge its obligation. But the general provision is qualified by a special proviso that the tax should not exceed three mills on the dollar. While there was no limitation upon the amount in which the city might bind itself, there was a limitation upon the amount which, by means of a special tax, might be raised in any single year to be applied upon the debt. We find no reason in the law why the city might not make any deficiency good out of its general revenue. But be this as it may, how the mere failure of the city for one year, or a series of years, to collect enough money to discharge a just and lawful obligation, could operate to extinguish its liability upon the obligation, either in toto or pro tanto, has not been satisfactorily shown to us. The position of coun sel requires the establishment of one of two propositions : either, first, the obligation of the city could not lawfully be fixed in the contract at an amount which should in any one year exceed what the special tax for that year would bring; or, second, the parties might agree upon an amount certain without reference to any tax general or special, but if in any year the proceeds of the tax should be less than the agreed amount, they must, nevertheless, be received in full payment. Respecting the first, to fix a sum which, while approximating the special tax receipts, would never exceed them, would require a foreknowledge, not possessed by any person we have yet encountered. The assessed valuation, and the consequent results, might, and probably would, vary from year to year; while the amount agreed upon might fit the tax in one year, it might be a misfit in another, and, if it should ever fail to fit, payment might be resisted on the ground that the contract was ultra vires. The second amounts to simply this, that a municipality may lawfully contract a debt which it would be unlawful to pay according to the contract. We hardly think a proposed investor, having a proper regard for his solvency, would care to risk his money upon such contingencies. Both propositions, when followed to their logical result, seem to us to end in absurdity. In support of their objection, counsel have referred us to the case of Water Works Co. v. Town of Raton, 49 Pac. Rep. (N. M.) 598. There are two reasons why the decision in that case is not authority in this. First, the answer, unlike the answer interposed here, set up the facts necessary to raise the question of the power of the town to enter into the contract, and second, it does not appear from the opinion that the statute of New Mexico contained any provision corresponding to subdivision 69 of section 3312 of our law, giving to municipal corporations the unrestricted authority to enter into contracts for water supplies. The opinion does not purport to construe any such grant of power, and hence its reasoning is not applicable to the present case. The judgment will be reversed. Reversed. [No. 1780.] LEAPOLD ET AL. v. MCCARTNEY. 1. CHATTEL MORTGAGES-LEGAL TITLE-RIGHTS OF MORTGAGOR. After maturity of a chattel mortgage, the legal title to the chattels vests in the mortgagee, and he is entitled to possession. The mortgagor can bring no action at law for possession, but must resort to equity to compel redemption. 2. CHATTEL MORTGAGES-REDEMPTION. The mortgagor in a chattel mortgage may at any time before forclosure, even after maturity and possession by the mortgagee, tender the amount due and compel its acceptance and relieve his property from the lien, and the debt being paid the mortgagee may be enjoined from further proceeding toward foreclosure. 3. BILLS AND NOTES-PAYABLE IN PROPERTY-PAYMENT. The maker of a promissory note payable in property has a right to sat isfy the note by payment in money. 4. SAME-CHATTEL MORTGAGES-REDEMPTION. Certain lumber dealers entered into a contract with a sawmill man, whereby the latter was to supply the former with certain lumber, and the dealers furnished the mill man with certain supplies for which they took his note for a certain amount payable in lumber and secured by a chattel mortgage on the mill and fixtures. The chattel mortgage was given alone as security for the note, and not to secure the contract to furnish lumber. Held that the consideration of the note was the supplies furnished, and it might be paid in money, and that the assignee of the mortgagor had a right to redeem from the chattel mortgage by tendering the amount of the note, notwithstanding the default of the mortgagor in his contract to furnish lumber. 5. SAME. In an action by the assignee of a mortgagor to redeem from a chattel mortgage by tendering the amount in money of a note made payable in property, where the answer alleges the contract to pay the note in lumber, but alleges no specific damages on account of the failure to deliver the lumber, the damage was the value of the supplies furnished for which the note was given, and was liquidated and fixed by the amount of the note and was completely satisfied by the payment of the note. Appeal from the District Court of Arapahoe County. Mr. JOHN H. REDDIN, for appellants. Messrs. ROBINSON & ANFENGER, for appellee. BISSELL, P. J. As it may be characterized with sufficient accuracy for the purposes of a statement, this is a bill in equity to redeem from a chattel mortgage after maturity. But two of the points which are relied on by the appellants need be considered since the resolution of these adversely to their contention will compel the affirmance of the judgment. On the 25th of May, 1897, Davies was the owner of a sawmill located on the Snake river in Summit county, and carrying on the general business of a sawmill. Leapold & Jones were lumber dealers in Denver, and on that date made a written contract with Davies for the purchase of some 50,000 feet of merchantable lumber of the kinds and dimensions that might be ordered. According to its terms Davies was to deliver three carloads of lumber on the dates named, at a fixed price per thousand feet. Davies apparently being short of cash entered into an arrangement with them whereby they were to advance him, in supplies needed in and about the mill, $250. By various transfers the title to the sawmill became vested in McCartney, the appellee, and the rights of the contract in the appellants, Leapold & Barr. The circumstances or nature of the transfer and the extent of the interest of these assignees can be well omitted since there is no contention concerning them. To secure themselves for the advances which they agreed to make it was provided that they should be taken as payment for the fumber which was to be delivered and they took a note from Davies for $250 which recited that sixty days after date Davies promised to pay to their order $250 at Denver, payable in 50,000 feet of lumber as per contract with interest at blank per cent. To further secure the payment of the note Davies executed to them a chattel mortgage on the sawmill and its fixtures and appliances. The mortgage was in the ordinary form and transferred certain named personal property as security and the instrument then provided that if Davies should well and truly pay to the other parties for the redemption of the goods and chattels the full sum of $250 according to his promissory note, then the obligation should be void. The mortgage was also conditioned that he might retain possession until maturity, and that in case of default the mortgagees might take possession and sell, and apply the proceeds to the payment of the note. The mortgage did not either in express terms or by implication provide that it should be security for the performance of the contract other than as to the payment of the note, nor that it should be security for any damages which Leapold and Barr might sustain by reason of any other breach than the nonpayment of the note. It is also true the original contract was conditioned that in case he defaulted in performance and failed to deliver the lumber according to the demands of the vendees, they should have the right not only to enforce the note and mortgage, but also to resort to any other remedy which the law gave them for any breach of the conditions. The supplies were furnished, received by Davies or the assignee, whereby he became obligated to pay the note, either in money or in lumber. Neither Davies nor his assignee further complied with the conditions of the contract except to deliver a small part of the lumber in value amounting to something less than $50.00. The lumber not having been delivered and the stipulated time having gone by the parties extended the arrangement and executed a new note and mortgage for the $250 not otherwise changing the terms of the original contract save as to the date of its contemplated execution. The extension having expired and there having been no performance a dispute arose as to the adjustment of their respective obligations. The assignee, McCartney, who became by transfer the owner of the mill which he took subject to the mortgage, attempted to satisfy it by paying to Leapold and Barr its amount in cash, that is the amount then due which was about $205 as found by the trial court. There was some dispute respecting the time at which they offered performance but the court found the issues tendered by the |