Vaughn v. Commissioners of Forsyth County

Avery, J : The right to contract the contemplated bonded indebtedness has already been passed upon. Vaughn v. Commissioners, 117 N. C., 429. It may be that this or the former action was brought for the purpose of extracting advice from the Court, but nothing appears upon the face of the record to show that it is not a bona fide controversy between parties, as it was properly constituted below and brought up for review according to the regular course of the court. This. Court has no right to indulge in or act upon mere conjecture. A County is a governmental agency created in part at least for the purpose of providing public buildings for the administration of justice and for the safe-keeping.of prisoners. The county revenue is safe from seizure by creditors, or even for taxes due the Federal Government, because to admit the right to appropriate them in satisfaction of a claim would be to concede the power to destroy the State government by depriving its agencies of the means of performing their proper functions. Subject to the restrictions contained in the Federal Constitution, the State is a Sovereignty, and it is essential to its preservation to give to all property held for it by such agencies, as Counties, the same'protection as is given to that held in it:, own name. Hughes v. Commissioners, 107 N. C., 598; Meriweather v. Garnett, 102 U. S., 473; U. S. v. Railroad, 17 Wall., 322. The same exemption from seizure and sale under execution is extended to property held for public use, such as public buildings, streets, engine houses, and everything which is devoted to governmental purpose. Dillon Mun. Corp., Sec. 576; Hughes v. Commissioners, supra; Gooch v. Gregory, *640 65 N. C., 142. For the same reason no lien is acquired by judgment creditors or'mechanics against property devoted to governmental purposes, whether the title be in the State or a County, unless where the Legislature expressly provides for its acquisition. City of Davenport v. Insurance Co., 17 Iowa, 276; Schoffer v. Cadwelder, 36 Pa. St., 126; Leonard v. Brooklyn, 71 N. Y., 498; Bell v. Mayor, 105 N. Y., 139; 2 Dillon, supra, Sec. 577. It is equally well settled that neither a public corporation nor a quasi public corporation has the power to sell property held for corporate purposes, where the alienation of it would tend to embarrass or prevent the performance of its duties to the public. Hughes v. Commissioners, supra; Gooch v. McGee, 83 N. C., 59. It is contended that the amendatory act (Laws 1895, Ch. 135, Sec. 1) makes.no change or no material alteration in the language of The Code, Sec. 707 (20). But whether the contention be well founded or not, if the County Commissioners have no authority to convey the land on which they propose to erect the court-house’, by a mortgage deed to secure the bonds issued to build it, and thereby render the site and buildings liable to sale for the satisfaction of the debt, it is needless to discuss the effect of the legislative amendment. For, though it be conceded that the effect of the amendment was to delegate to the Commissioners, without the assent of the justices, the power “ to sell or lease the real property of the county and to make deeds or leases for the same to any purchaser or lessee,” they cannot by any fair implication claim the right under this authority to encumber by mortgage instead of making an absolute sale. The general rule, as laid down by almost all of the text writers and a majority of the courts of the states, is that a power to sell and convey real estate does not confer authoxdty to mortgage. To *641 bring a particular case within the exception to the rule, it must appear from the language used and the nature of the property subject to the power, that the principal donor or grantor of the power intended that the' agent should be at liberty to raise money by mortgaging it. 1 Jones Mort., Sec. 127; 2 Dillon, supra, Sec. 579; Stonghill v. Anstey, 2 DeG. M. & G. R., 634 (490); Morris v. Watson, 13 Minn., 212. “ A power to sell,” said the Supreme Court of Massachusetts in Hoyt v. Jaques, 129 Mass., 286, “ implies that the attorney is to receive for the benefit of the principal a fair and adequate price for the land ; a power to mortgage involves a right in the attorney to convey the land for a less sum, so that the whole estate may-be taken on a foreclosure for only a small part of its value. So, under a will, a trust with power to sell prima facie imports a power to sell ‘ out and out,’ and will not authorize a mortgage, unless there-is something in the will to show that a mortgage was within the intention of the testator.” It is true that some decisions are to be found which are in conflict with the general consensus of opinion, especially where the controverted question is whether a strictly private corporation is authorized to mortgage its land. Corporations, which exercise delegated governmental authority, such as Counties, must be confined to a strict construction of the statutes granting their powers. There is nothing in the nature of their duties to give rise to the implication that the State intends to clothe them with any other power than that expressly conferred, and the further right to do what is necessary to the complete exercise of the express powers. Where the law so jealously protects the rights of the Sovereign State against the sale of its property devoted to public purpose, by any implication, in satisfaction of mechanic’s liens or judgments, it would be strangely inconsistent to infer from an express power to''sell at. a *642 fair price the intent on the part of the grantor of the power to permit an indirect alienation at much less than the value of the property. Such latitude in construction appears still more unreasonable where the effect is to placean incumbrance upon a building and site provided for the administration of justice. Where a taxpayer shows prima facie that an illegal tax is about to be levied by the County authorities or that they are about to issue bonds of the County contrary to law, courts of equity will restrain such abuse of power at his instance. McDowell v. Construction Co., 96 N. C., 514. Though the mortgage deed which the defendants propose to execute would be void, it would nevertheless cast a cloud upon the title of the County to the land, (Beach on Ins., Sec. 708, 709,) and as a court of equity would enjoin a sale for foreclosure under the mortgage, it has for the same reason the right to grant its aid in the ineipiency of the proceeding by thwarting the attempt to give a power of sale. In an action for possession by a purchaser at a foreclosure sale of the proposed mortgage, it would become necessary to resort to extrinsic evidence to show the action of the Commissioners and then to establish the fact that they had transcended their powers. Beach on Inj., Sec. 609; Roth v. Insley, 86 Cal., 134. Where a sale by virtue of a mortgage deed, though it be unlawfully executed, would tend to compel persons having an interest in the property which it is proposed to incumber to resort to such means for protection, the same reasons exist for talcing time by the forelock upon a proper application, as where the mortgagee is about to sell to foreclose. The plaintiff has an interest in common with other taxpayers in protecting property purchased by the County tax fund, and especially where, if it be sacrificed at a foreclosure sale, the *643 taxpayers will be called upon to provide other property for public use in its stead. For the reasons given there was error in vacating the restraining order. Error.