Opinion of the Court-Sullivan, C. J.

stance putting the prospective mortgagee upon inquiry as to such rights. Grimmett cannot claim the benefit of the rule, and is estopped from now asserting ownership of the premises in himself. (Eastwood v. Standard Mines & M. Co., 11 Ida. 195, 81 Pac. 382; Farber v. Page & Mott Lumber Co., 20 Ida. 354, 118 Pac. 664; Froman v. Madden, 13 Ida. 138, 88 Pac. 894; Filipini v. Trobock, 134 Cal. 441, 66 Pac. 587.)

SULLIVAN, C. J.-This action was brought by the respondent to foreclose a mortgage upon certain real estate situated in Ada county, which mortgage was given to secure a principal of $4,450 and interest. The mortgage also provides for an attorney's fee. The court made findings of fact, conclusions of law and entered a decree in favor of the respondent for the foreclosure of said mortgage and for a deficiency judgment against all of the appellants except Bellzina Grimmett in case the land did not sell for sufficient to pay the amount of the judgment. The appeal is on behalf of J. H. Grimmett and Bellzina Grimmett, his wife.

It appears from the record that the mortgage and notes involved in this action were executed by J. H. Grimmett, Guy Shaw and Mary Jane Shaw, his wife. The title of record of said land stood in the name of Mary J. Grimmett, she having entered it as a homestead under the land laws of the United States. Mary J. Shaw is the daughter of J. H. Grimmett and his wife, Bellzina Grimmett. She entered said land in the year 1902 and thereafter procured title from the government. There was an understanding or agreement between the father and daughter that they would all reside upon the land, and after the daughter had procured title thereto she would convey to J. H. Grimmett one 80-acre tract of the land included in said entry, and in compliance with said contract, Mary J. conveyed to her father 80 acres of said land, about the month of October, 1904. J. H. Grimmett withheld said. deed from record until the 27th of January, 1913, and the abstract of title to said land showed the title to be in Mary J. Grimmett.

In about the month of November, 1904, Mary J. Grimmett and the defendant Guy Shaw were married, and soon there

Opinion of the Court-Sullivan, C. J.

after removed from said land, and with the exception of a few months have not resided on it since.

On December 14, 1908, the plaintiff and her brother loaned to Mary J. and Guy Shaw and J. H. Grimmett $4,000 and took a promissory note for said sum of money so loaned, signed by said defendants, the payment of which promissory note was secured by said mortgage on said land and a water right which had been procured in the name of J. H. Grimmett and used for the purpose of irrigating said land. Said promissory note became due on December 14, 1911, and was not paid, and new notes, one in the sum of $4,000, representing the principal, and one in the sum of $450, representing the accrued interest and costs, were executed by said Mary J. and Guy Shaw and J. H. Grimmett for the purpose of having the first mortgage canceled, and a mortgage was executed by said defendants upon said land and water right to secure said two promissory notes, and the mortgage given in 1908 was satisfied of record.

The defense of Bellzina Grimmett is based upon the ground that she and her husband were residing upon said land at the time the said mentioned mortgages were executed, and that she had no knowledge or information in regard to the execution of said mortgages and that the 80 acres of land conveyed to her husband by her daughter was community property and her home and residence.

Considerable testimony was taken by the trial court upon the several issues made by the pleadings and the court made findings of fact and conclusions of law in favor of the contentions of the plaintiff, and concluded that said mortgage was executed and delivered to plaintiff by the defendants, Mary J. Shaw, Guy Shaw and J. H. Grimmett, and that neither the plaintiff, her brother, nor her agent had notice of said unrecorded deed from Mary J. Grimmett to J. H. Grimmett for 80 acres of said land, and that plaintiff loaned. said sum of money to the defendants in good faith and without any knowledge or information that the appellant, Bellzina Grimmett, had any interest whatever in said land. It appears from the record that in the month of October, 1904,

Opinion of the Court-Sullivan, C. J.

Mary J. Grimmett conveyed eighty acres of land to her father, J. H. Grimmett, and that he withheld the deed from record from that time until January 27, 1913, and it also appears that neither the plaintiff nor her agent had any information in regard to said conveyance, and the evidence clearly shows that the respondent is a mortgagee in good faith. Sec. 3160, Rev. Codes, provides as follows:

"Every conveyance of real property other than a lease for a term not exceeding one year, is void as against any subsequent purchaser or mortgagee of the same property, or any part thereof, in good faith and for a valuable consideration, whose conveyance is first duly recorded."

The abstract of title furnished by J. H. Grimmett to the respondent showed the title in Mary J. Grimmett, and the evidence shows that J. H. Grimmett informed the respondent and her agent that Mary J. (Grimmett) Shaw owned said land. After the husband, J. H. Grimmett, had so informed the respondent and her agent, it certainly would have been presumptuous on their part to go to Bellzina Grimmett, his wife, and inquire of her whether she owned any interest in said land, since they had no notice or intimation whatever that she had any interest in said land.

We find the evidence amply sufficient to sustain the findings and judgment. The judgment must therefore be affirmed, and it is so ordered, with costs in favor of the respondent.

Truitt, J., concurs.

Argument for Plaintiff.

(November 9, 1914.)

GEORGE E. WYCOFF, Plaintiff, v. J. R. STRONG, Clerk of the City of Moscow, Defendant.

CITY CLERK

[144 Pac. 341.]

DUTIES OF MINISTERIAL-SEWER

CONTRACT-ACCEPT

ANCE OF SEWER BY CITY-FISCAL YEAR-TAXES LEVIED FOR.

1. Where a city council allows a claim and directs the city clerk to draw a warrant in payment thereof, and he refuses to do so, he may be compelled to issue and countersign such warrant by writ of mandate, as such duty is merely ministerial and requires no exercise of discretion on the part of the clerk.

2. Where a contract is within the exercise of the powers and duties of a city council, and the city accepts the work done under such contract, it must pay for it.

3. The fiscal year of certain municipalities under the law cornmences on the first Tuesday in May, and the enactment of a law allowing one-half of the taxes levied for city purposes to be paid before the first Monday in January following and the other half before the first Monday in July following, only changes the time of the payment of the taxes and does not deprive the city of the amount of taxes levied for the fiscal year, even though such taxes were not collected during the fiscal year for which they were levied.

Original application for a writ of mandate to compel the city clerk of the city of Moscow to issue and countersign a certain warrant. Writ granted.

C. J. Orland, for Plaintiff.

Mandamus is the only remedy open to the plaintiff. The council has audited and allowed the claim of the plaintiff, and ordered a warrant drawn therefor, and the clerk, assuming that the claim is illegal, has refused to perform the ministerial duty, required of him by law, of issuing such warrant. (Rice v. Gwinn, 5 Ida. 394, 49 Pac. 412; Wood v. Strother, 76 Cal. 545, 9 Am. St. 249, 18 Pac. 766; People v. Flagg, 16 Barb. (N. Y.) 503; Ireland v. Hunnel, 90 Iowa, 98, 57 N. W. 715; Idaho Power etc. Co. v. Stephenson, 16 Ida. 418, 101 Pac. 821; Montgomery v. State, 35 Neb. 655, 53 N. W. 568.)

Opinion of the Court-Sullivan, C. J.

Where there is no lack of power upon the part of a municipality to make a contract for the performance of labor, or the furnishing of material in its behalf, upon a contract which is irregular, and fatally defective, but it is performed, the municipality receiving and retaining the benefit thereof will be held liable upon an implied contract for the reasonable value of such labor or service. (Moore v. Hupp, 17 Ida. 232, 105 Pac. 209; Schipper v. Aurora, 121 Ind. 154, 22 N. E. 878, 6 L. R. A. 318; Hitchcock v. Galveston, 96 U. S. 341, 24 L. ed. 659; Moore v. Mayor etc. of N. Y., 73 N. Y. 238, 29 Am. Rep. 134; Rogers v. Omaha, 76 Neb. 187, 107 N. W. 214; City of Logansport v. Dykeman, 116 Ind. 15, 17 N. E. 587; Ward v. Town of Forest Grove, 20 Or. 355, 25 Pac. 1020; Miles v. Holt County, 86 Neb. 238, 125 N. W. 527, 27 L. R. A., N. S., 1130; 1 Abbott on Municipal Corporations, p. 623.)

G. G. Pickett, for Defendant, files no brief.

SULLIVAN, C. J.-This is an original application for a writ of mandate to J. R. Strong, city clerk of the city of Moscow, for the purpose of requiring him to issue and countersign a warrant on the treasurer of said city for the sum of $5,500 which has been allowed by the city to the plaintiff upon his claim for material and labor in the construction of certain sewers in the said city of Moscow.

After the material had been furnished and the work done, the plaintiff filed with the city his verified claim therefor, which was audited and allowed by the city council and the defendant was directed to draw and countersign a warrant on the city therefor, and the clerk thereupon refused to draw said warrant and entered upon the minutes the following: "The city clerk at this time gave notice to the city council of his refusal to comply with the order of the council and hereby does refuse to draw such warrant for the reason that he is informed and believes that the said claim was and is illegal and void." And said clerk has ever since refused to draw said warrant, and this proceeding was instituted for the purpose of procuring a mandate commanding the clerk to issue such warrant to the plaintiff.