"Sec. 7. It shall be the duty of the proper officers of any county, city, or township, in which bonds have been heretofore voted for any of the purposes mentioned in the act to which this act is amendatory, annually, at the time when other taxes are levied, to levy and cause to be collected a sufficient tax to pay the interest on all such bonds as the same shall become due, and also for the purpose of creating a sinking fund for the final redemption of such bonds.

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"Sec. 13. It will be the duty of the board of county commissioners of any county in which railroad bonds shall be issued under the provisions of this act, annually, at the time when other taxcs are levied, to levy and cause to be collected, as other taxes are levied and collected, a sufficient tax to pay the interest on all bonds issued for railroad purposes by such county, or any township therein, as the same falls due, and also for the purpose of creating a sinking fund for the final redemption of such bonds."

These statutes were in force when the alternative writ of mandamus was sued out in this case. The judgment against the township was rendered on the eleventh of June, 1881. It therefore became the duty of the proper officers to levy the tax at the time fixed by law for that purpose in the year 1881. No such levy was made, and, consequently, all officers whose duty it was to make the levy were in default when the alternative writ was sued out in 1882. It follows that the writ was not prematurely issued if it was the duty of the board of county commissioners to make the levy when there was no trustee of the township. The fact that the board may not have had actual notice of the rendition of the judgment until November, 1881, does not affect their legal obligation to make the levy. It may be accepted as an excuse for not performing that duty, but it does not relieve them from the consequences of their legal default.

The township trustee is in law the principal officer of the township. It is his duty to superintend all the pecuniary concerns of the township, and, with the advice and concurrence of the board of county commissioners, to levy all taxes required to meet the liabilities of the township not otherwise provided for by law; but, if he fails in this duty, the board must, as we think, make the necessary levies for him. To that extent the board is charged with the duty of caring for the interests of the township. Such is the fair meaning of section 22, (5988.) Under that section the township trustee is required to attend the meeting of the board in July of each year and lay before them his recommendations for taxes to be levied. As his levy can only be made with the concurrence of the board, there must necessarily be an inquiry by the board into the pecuniary concerns of the township, so as to determine whether what is recommended by the trustee is enough. or more than enough to meet its liabilities for the current year. the trustee has omitted a tax for any purpose, which the law requires to be levied, it is the clear duty of the board to make the levy themselves if the trustee will not. The trustee and the commissioners are made in law a tribunal to meet in July in each year to estimate and determine what taxes are required in the township for the year. If both the trustee and commissioners are present at the meeting and

If

agree as to what should be done, the trustee reports the tax to the county clerk; but if the trustee is not present, or being present does not agree with the commissioners, the opinion of the commissioners prevails, and they may proceed without him. This is the evident purpose of the provision that, "in failure of such trustee and commissioners to concur," the board shall make the levy. The tax to pay the judgment in this case was one of the taxes to be levied on the property of the township to pay a township debt. It is true that this section of the law was enacted in substance years before the bonds involved in this suit were issued, but unless it has been in some way superseded by reason of the special acts connected with the particular obligation of these bonds, it governs this case. So far as we are advised, if the tribunal, consisting of the trustee and county commissioners, are relieved from their general supervision of the needs of the township in the way of taxation for these bonds, it is only to put that duty on the board alone. If on the board, it was clearly their duty to levy the tax without the trustee at the meeting in August, 1881, because the legal liability of the township had then been judicially established. If, however, it was a matter in respect to which the trustee should act conjointly with them, both they and the trustee were in default in July, 1881. In any view of the case, the obligation to levy the tax had been imposed on the county commissioners when the alternative writ was sued out, and they have shown no good cause why the levy was not made.

The board of county commissioners have alone brought this writ of error. So far as appears, the clerk and treasurer are satisfied with what has been done in reference to them. The board are in no condition to complain for the other officers, because, under the law, they must levy the tax before the others can act, and, if the levy is made, the duties of the clerk and treasurer are purely ministerial. The whole proceeding depends on the duty of the board to levy the tax. We conclude, therefore, that the motion to quash should have been overruled, and the motion for judgment sustained. The first question is answered accordingly. The second question is answered in the affirmative.

As the judgment was in accordance with these answers it is affirmed.

(109 U. S. 504)

TOWNSEND v. LITTLE and others.

(December 10, 1883.)

PURCHASERS FOR VALUE-NOTICE-POSSESSION-STATUTES-INCONSISTENT PROVISIONS-SPECIAL AND GENERAL.

Purchasers for value of legal titles are not affected by latent equities.

When the owner of real estate goes into possession with his polygamous wife, her occupancy does not give a purchaser of the legal title constructive notice of the equities arising from a secret agreement for the transfer to her of an interest in the property.

A specific statutory provision will prevail against a general one with which it is in apparent conflict, provided the two can subsist together. Accordingly, under a statute regulating the conveyance of public land in towns, which merely directs that the deed shall be executed by the mayor, under seal of the corporation, such a deed is valid without witnesses, although by a general statute all deeds are required to be witnessed.

Appeal from the Supreme Court of the Territory of Utah.

In

By an act of congress passed March 3, 1867, entitled "An acto for the relief of the inhabitants of cities and towns*upon the public lands," (14 St. 541,) it was provided that whenever any portion of the public lands of the United States had been, or should thereafter be, settled upon and occupied as a town-site, it should be lawful for the corporate authorities of the town to enter at the proper land-office, at the minimum price, the land so settled and occupied, in trust for the several use and benefit of the occupants thereof, according to their several interests, and that the execution of said trust, as to the disposal of the lots of said town, etc., should be conducted under such rules and regulations as might be prescribed by the legislature. of the state or territory in which the same might be situated. pursuance of the authority thus granted, the legislature of the territory of Utah, by an act passed February 17, 1869, (Comp. Laws Utah, 1876, p. 379,) provided that whenever the corporate authorities of any town should enter any public land occupied as a townsite, such corporate authorities should give notice thereof, by publication in a newspaper for three months, whereupon any person claiming to be the rightful occupant, or entitled to the occupancy or possession of any lot or part thereof, should, within six months after the first publication of the notice, file in the probate court of the county a statement in writing, containing an accurate description of the particular parcel of land in which he might claim to have an interest, and the specific right, interest, or estate therein which he claimed to be entitled to receive; and that the filing of a statement should be considered notice to all persons claiming any interest in the lands described therein of the claim of the party filing the same; and that all persons failing to file such statement within the time limited by the act, should be forever barred the right of claiming or

receiving such land, or any interest or estate therein, or in any part, parcel, or share thereof, in any court of law or equity. The act further provided that if there were no adverse claimants to a particular lot or parcel of land, the probate court should give notice to the person filing the statement claiming the same to produce his proofs in support of his statement, and the court, if satisfied from the proofs of the validity of such claim, should cause judgment to be entered of record, and certify the fact to the mayor of the town, who should make to the party claimant a deed for the tract or parcel of land so adjudged to him.

The appellant, Elizabeth M. Townsend, brought this suit in the district court for the third judicial district of the territory of Utah, by which she claimed title under the provisions of the act of Congress, and the act of the legislature of the territory of Utah, to the undivided half of a certain lot in the city of Salt Lake, which was particularly described in her bill of complaint. She alleged that in the year 1867 she and the defendant James Townsend went into the actual possession of said premises; that from the date just mentioned until March 1, 1878, they jointly occupied and improved said property and kept a hotel thereon, known as the Townsend House; that they occupied said premises as two persons for their mutual and equal benefit, mutually acknowledging each other's interest; that said premises formed part of a tract of land in Salt Lake City, in the territory of Utah, subject to entry, which, on November 21, 1871, was in fact entered at the United States land-office in Salt Lake City by Daniel H. Mills, mayor of said city, in trust for the occupants thereof, under the act of congress aforesaid; that at the date of said entry the appellant was, as to a half interest in said premises, one of the persons for whose relief said act of congress was passed, and she and said Townsend were conclusively entitled to a conveyance of said premises from the mayor on complying with said rules and regulations; that on May 1, 1873, Townsend obtained a deed from the mayor conveying the entirety of said premises to himself in fee, without the knowledge of appellant, and she was not informed thereof until a subsequent year; that when it came to her knowledge she requested Townsend to convey to her one-half of said premises, which he promised to do, admitting her right to the same, and that upon the obtaining of such deed from the mayor by Townsend a trust resulted in her favor, binding Townsend to convey to her the one undivided half of said premises, which he has never done. The bill further alleged that the defendants Hooper, Jennings, and Roberts claimed some interest in the premises, adverse to appellant, as purchasers, incumbrancers, or otherwise, but that their rights were only such as they had questionably derived from Townsend, with notice of appellant's possession and occupancy of said premises, and her consequent rights, and subject thereto. The bill prayed that the purchase of said premises by Townsend might be declared as to one-half thereof

as a purchase in trust by him for appellant, and that Townsend, Hooper, and Jennings might be required to convey the same to her. The defendant Townsend filed no answer. Roberts answered disclaiming any interest in the premises. Defendants Hooper and Jennings filed a joint answer, in which they denied all the averments of the petition, except that the premises in controversy were situate within the town-site of Salt Lake City and were subject to entry by the mayor under the act of congress, and that Townsend had obtained a deed from the mayor for the whole of said premises. They averred that they were purchasers of said premises for a valuable consideration, without notice of the claim of appellant, and that they had no notice thereof until the bringing of this suit, and that appellant and Townsend had conspired to bring and maintain this suit for the purpose of defrauding them, well knowing that the claim of appellant was false.

The district court made a finding, from which the following facts appeared:

In

On March, 1865, the defendant James Townsend took possession of the premises in question, having purchased the possessory right thereto of one Clawson, who conveyed the same to him for the price of $6,000. Afterwards, in the years 1872 and 1873, he purchased the rights of other claimants for $3,000. All the purchase money for these claims was paid by Townsend out of his own means. the fall of the year 1866 he went on the premises to reside, taking with him his lawful wife, whom he had married in 1828, and the appellant as a plural or polygamous wife. He kept a hotel on the premises from that date until February, 1878, which was known as the Townsend House and was carried on in his name solely, and heg was represented to the public by every advertising agency as the sole proprietor. During all this time he and the appellant lived together on the premises as husband and polygamous wife, the appellant tak ing an active part in conducting the business of the hotel. The lawful wife of Townsend also lived with him as such on the same premises until her death, in 1870. In the fall of the year 1867, Townsend and appellant entered into a verbal agreement with each other whereby Townsend stipulated that if appellant would continue to live at the Townsend House, and assist in carrying on the business of the hotel as she had theretofore done, he would convey to her a one-half interest in the real and personal property of the hotel. During the fall of the same year Townsend took another polygamous wife, but ostensibly continued his cohabitation with the appellant as his polygamous wife, the motive of both being to conceal from the public any change in their relations to each other.

On November 21, 1871, the mayor of Salt Lake City entered in the land-office and paid for the lands embraced in the town-site of Salt Lake City in trust for the occupants thereof, and received a patent therefor on June 1, 1872. The mayor gave for the period of