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adverse possession for about three years and six months, and made no finding as to the payment of taxes. But he states, as a conclusion of law, that each of the plaintiffs is entitled to a decree quieting his title. So it appears that the referee found the existence of the facts set up to show a right to specific performance in the complaints of Hennefer and Bunce, but did not find adverse possession and payment of taxes, alleged in the complaints of McLaughlin and Campbell, to show their right to have their titles quieted. The referee found the facts stated in the two first complaints, but stated, as a conclusion of law, that all the plaintiffs were entitled to decrees according to the prayer of the two complaints containing the facts not found. Upon these findings, decrees were granted in the respective cases, quieting the titles of the respective parties; and a motion for a new trial in each case having been denied, and exceptions taken, the defendant appealed from such decrees and the orders overruling her motions for a new trial, and assigns said respective orders and decrees as error.

From this statement it is apparent that the findings were not responsive and applicable to the causes of action alleged in the complaints of James McLaughlin and Celia M. Campbell, and that the conclusions of law and the decrees were not responsive to the causes of action alleged in the complaints of A. H. Hennefer and Rebecca A. Bunce, and that the conclusions of law did not follow from the facts found. We therefore hold that the court below erred in the findings of fact as to the cases of McLaughlin and Campbell, and in stating its conclusions of law, and in the decrees and orders overruling defendant's motion for a new trial in the respective cases.

On the trial, A. H. Hennefer, a plaintiff, and one of the parties to the contract with Abraham Hays, deceased, of which the court was asked to decree specific perform

ance against the defendant, was permitted to testify, against her objection. The testimony consisted of statements of the deceased, which, with the promises of the grandchildren above named, it is claimed, constituted the contract relied on. The defendant was an heir and a party, and the statements were equally within the knowledge of the witness, who was also a party, and the deceased ancestor. We are of the opinion that this testimony was inadmissible, under section 1, c. 31, p. 26, Laws Utah 1894, which declares that "a party to any civil action, suit, or proceeding, and any person directly interested in the event thereof, and any person from, through, or under whom such party or interested person derives his interest or title or any part thereof, when the adverse party in such action, suit or proceeding, claims or opposes, sues or defends as guardian of any insane or incompetent person, or as the executor or administrator, heir, legatee or devisee of any deceased person, or as guardian, or assignee or grantee, directly or remotely, of such heir, legatee or devisee as to any statement by, or transaction with, such deceased, insane or incompetent person, or matter of fact whatever, which must have been equally within the knowledge of both the witness and such insane, incompetent or deceased person, unless such witness be called to testify thereto by such adverse party, so claiming or opposing, suing or defending in such action, suit or proceeding." The case of In re Atwood's Estate, 14 Utah 1, we regard as decisive of this point.

For the reasons stated, the orders and decrees appealed from are reversed, and the court below is directed to grant a new trial, and to give the respective plaintiffs leave to amend their complaints.

BARTCH and MINER, JJ., concur.

EMERY COUNTY, APPELLANT, v. P. C. BURRESEN, RESPONDENT.

EXECUTION AGAINST A COUNTY-EXEMPTIONS-MANDAMUS—AUDITED

CLAIM.

1. K. brought suit against Emery county for services, and obtained judgment before a justice of the peace, and afterwards levied execution on property of the county, and sold it. Emery county then commenced suit against K. and the sheriff for conversion of the property. Held, that a county is one of the political divisions of a state, and is clothed with certain political power of government of its local affairs.

2. Section 3419, Comp. Laws Utah 1888, giving a party in whose favor judgment is rendered a right to execution; and subdivision 10 of section 3429, exempting certain classes of property from execution against a county,-cannot be extended so as to include the right to levy an execution against the property of the county, state, or municipal organization, in the absence of a statute expressly granting such right in express terms.

3. Under section 199, p. 307, Comp. Laws Utah 1888, a judgment against a county, when duly filed, becomes an audited claim against said county; and plaintiff, in case of failure from lack of funds or refusal to pay the same, can resort to his writ of mandamus.

(No. 725. Decided Oct. 22, 1896.)

Appeal from the Seventh district court, Emery county. Hon. Jacob Johnson, Judge.

Action by Emery county against P. C. Burreson and others. From a judgment for defendants, plaintiff appeals. Reversed.

W. K. Reed and Thurman & Wedgwood, for appellant.

J. W. N. Whitecotton, for respondents.

MINER, J.:

Killpack commenced suit in the justice's court against Emery county for $6.75, claimed to be due him from the county for fees as justice of the peace, which claim had been presented and disallowed by the county court, and $25 attorney's fees for trying the case against the county, taxed as costs. Killpack recovered judgment, which, together with costs, amounted to $52.50. Execution was issued by the justice against Emery county, which was levied by Burresen, the sheriff, upon property of the county, consisting of scrapers, plows, estray brands, etc., and sold the same to satisfy the execution. This action is brought by Emery county against the plaintiff Killpack, who brought the action; Burresen, the sheriff, who took the property; C. P. Anderson, the justice; and C. E. Kofford, the attorney, who advised the suit,—for conspiracy and unlawful conversion of the property of the county, claiming damages of $324. The respondents justify upon the judgment and execution issued by the justice of the peace. The respondents obtained judg ment, and for costs, in the district court, from which judgment the plaintiff Emery county appeals.

The question presented is whether the property of Emery county is liable to be levied upon and sold upon execution, in satisfaction of a judgment obtained against Emery county, one of the political divisions of the state. It appears that the claim, duly itemized, was presented to the county court for allowance before suit, and that it was wholly disallowed; that, after judgment, a certified copy thereof was filed with the county court. The respondents base their right to the issuance, levy, and

sale by execution upon section 3419, Comp. Laws Utah 1888, which gives a party in whose favor judgment is rendered a right to a writ of execution for its enforcement, and upon subdivision 10, § 3429, Id., which exempts certain specified classes of property belonging to the county, not included in the execution and sale, from execution. The nature, objects, and liabilities of political, municipal, or public corporations, like a county in a state, stand upon a different ground from private corporations. A county is one of the political divisions of the state, signifying a community, clothed with such extensive authority and political power as may be deemed necessary by the superior controlling power of the state for the proper government of its people residing within its borders, and for a proper administration of its local affairs. A county can raise revenue by taxation, make public improvements, and defray the expenses of the same by taxation, exercise certain specified judicial powers, and generally act within the authorized sphere created and abridged by the statute or constitution of the state. The power of taxation furnishes the means by which it may pay its debts and meet obligations necessarily incurred for the many purposes of its existence and welfare. The county has control of the county property to be used and disposed of to promote corporate purposes. It does not possess property liable to execution in the same sense that an individual possesses it. Levying upon and selling the property or revenues of a county, or removing it, may work irreparable injury, and ruin its inhabitants.

We are unable to find, nor has our attention been called to, any statute in this state expressly giving authority to levy an execution, and sell property of the county for a debt. It is a general rule that the people or the sover

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