Opinion of the Court-Whitman, J.

This was a certiorari sued out of the district court by D. M. Bull against John Snodgrass, A. C. Cleaveland, and Frost, composing the board of county commissioners of Washoe county, to bring up their proceedings in the appointment of F. M. Willis, as a justice of the peace of said district, for review.

*Boardman & Kennedy and William Webster, for [*525] Appellants.

J. H. Flack and H. B. Cossett, for Respondent.

By the Court, WHITMAN, J.:,

The defendants appeal from the judgment of the district court, annulling their action in appointing an additional justice of the peace for township eleven in Washoe county, under the provisions of the statute of the State of Nevada, entitled "An act authorizing the county commissioners of the several counties in this State to appoint additional justices of the peace," approved March 5, 1867. This is the language of the act: "Whenever a majority of the taxpayers of any township in any county of this State shall petition to the board of county commissioners for the appointment of an additional justice of the peace for such township, the commissioners of said county having jurisdiction of such township shall, and they are hereby authorized to make such appointment, and to require the necessary bond as provided by law." In the act relating to officers, etc. (Stat. 1866, sec. 18), it is provided that for each township of every county "one justice of the peace shall be elected." The constitution of the State (art. VI, sec. 8), declares that: "The legislature shall determine the number of justices of the peace to be elected in each city and township of the State, and shall fix by law their powers, duties, and responsibilities."

The necessary inference from, if not the direct meaning of, this language is that the office of justice of the peace is elective, and the legislature is commanded to determine the number of justices to be elected. Such determination is

Opinion of the Court-Whitman, J.

then of the purely law-making power which cannot be delegated. All political power is primarily with the people, and leaves them only by force, fraud, or their own consent. In this State, the people have ordained that the law-making power be vested in the senate and assembly, chosen [*526] in manner provided and under certain *restrictions,

and there such power must rest until removed by the same supreme will which placed it. This power can only be exercised by the legislative branch of the governmént, and when as in this case the constitution has clearly declared that the legislature shall do a certain thing, that thing must be done as the constitution has said.

In the statute under which appellants acted something different is attempted. The legislature has otherwheres provided for the election of one justice of the peace for each township. This statute empowers a majority of the taxpayers of every township in the State to determine the number of justices therein, providing that upon their petition an additional justice may be appointed by the county commissioners. This as a general law without limitation of the term of appointment. The statute is repugnant to the constitution on two grounds: First. The legislature must determine the number of justices for each township. Second. Such justices must be elected; that is, while possibly the power exists, not being prohibited, to provide otherwise for emergency or special occasion, as in the case of a vacancy or the creation of a new office, the office is always to be filled under general laws by popular election, all of which the statute relied upon by appellant ignores. The judgment of the district court was correct and is affirmed.

Argument for Appellant.

C. GRELLET, RESPONDENT, v. J. H. HEILSHORN ET AL., APPELLANTS.

[4 NEVADA, 526.]

RECORD OF DEEDS INTENDED FOR MORTGAGES AS NOTICE.-The statute concerning conveyances has no provisions similar to those of the New York statutes, under which it is, in that State, held that the record of a deed, absolute upon its face, though intended as a mortgage, gives no notice to a subsequent mortgagee.

RECORD OF CONVEYANCES IN GENERAL AS NOTICE.-In this State both subse

quent purchasers and mortgagees have constructive notice under the statute of every properly recorded conveyance affecting real estate. LIENS OF DEEDS INTENDED AS MORTGAGES.-- Where the owner of real estate made a deed of the same absolute upon its face, but intended as a mortgage, and the same was recorded as a deed, and afterwards he made a formal mortgage upon the same property: Held, that the latter instrument was taken with constructive notice of, and subject to the lien of, the former.

CONSTRUCTIVE NOTICE BY RECORD ENTIRELY STATUTORY.-The matter of constructive notice by the record of conveyance is entirely a creature of statute; and its effect is to be gathered from construction of the statute. HOLDING OF LEGAL AND EQUITABLE TITLES WITHOUT MERGER. Upon the facts of this case as stated in the opinion: Held, that there was no merger of the equitable title into the legal title in the hands of Stevenot, so as to give the Dohle mortgage priority to the Grellet mortgage.

-

MERGER NOT FAVORED IN EQUITY.-Mergers are not favored in equity, and are not allowed unless to promote the intention either averred or presumed of the party.

APPEAL from the District Court of the First Judicial District, Storey County.

The facts are stated in the opinion.

R. II. Taylor, for Appellant Dohle:

The general rule is, that where the legal and equitable title are both united in the same person, in the same right, the equitable is merged in the legal title, and is extinguished by the unity of seisin. (Nicholson v. Halsey, 1 Johns. Ch. 417; Gardner v. Astor, 3 Id. 54; Starr v. Ellis, 6 Id. 393; 1 Hill. Mort. 330, sec. 64; Willard Eq. Jur. 425; Eaton v. George, 2 N. H. 300.) To prevent a merger there must be a decisive intention of the mortgagee to keep the titles separate; or it must appear that the situation of the estate or the interest of the mortgagee requires that the

Argument for Respondent.

legal and equitable estates should be kept distinct; or that by reason of infancy, lunacy, or other disability, the mortgagee is unable to make an election. (James v. Johnson, 6 Johns. Ch. 417; James v. Morey, 2 Cow. 246; Duncan v. Drury, 9 Barr. 332; 2 Story Eq. Jur. 1035, b; 1 Hill. Mortg. 330, sec. 64.) The legal estate having been acquired by Stevenot, and the equitable estate being thus merged, could not be revived by his reassignment to plaintiff. (James v. Morey, 2 Cow. 319; 2 Bl. Com. 177.) A subsequent incumbrancer is not bound to search for deeds, in order to be protected against the operation of a mortgage. This ground is tenable, notwithstanding the fact that our statutes omit to specify books which county recorders shall use, for it is not the book but the character of the instrument which is to be looked to. (Dey v. Dunham, 2 Johns. Ch. 189; James v. Johnson, 6 Id. 422; Dunham v. Dey, 15 Johns. 568; Brown v. Dean, 3 Wend. 213; James v. Morey, 2 Cow. 316; White v. Moore, 1 Paige, 551.)

Hillyer, Wood & Deal, for Respondent:

The deed from Heilshorn and wife to Grellet and Gagnon was a mortgage. (Blair v. Bass, 4 Black f. 539; 6 Blackf. 113; Ilarbison v. Lemon, 3 Blackf. 51; Pierce v. Robinson, 13 Cal. 125; Murray v. Walker, 31 N. Y. 399; Clark v. Henry, 2 Cow. 326.)

The equitable title did not become merged in the legal title by the deed from Heilshorn and wife to Stevenot: Because it was the intention of Stevenot to keep the legal and equitable estates distinct. (Jumes v. Morey, 2 Cow. 282; Mickels v. Townsend, 18 N. Y. 584.) Courts of equity do not favor mergers, and where the intention of the party beneficially interested is to keep the two estates distinct, the courts will hold that the estates do not merge. (1 Co. Litt. 338, f. note 42, Am. ed.; Gibson v. Crehore, 3 Pick. 482; Millspaugh v. McBride, 7 Paige, 509; Hunt v. Hunt, 14 Pick. 383; Chumpney v. Coope, 32 N. Y. 549; Cooke v. Brightly, 46 Penn. S. R. 439; Earle v. Washburn, 7 Allen, 95; 2 Wasli. R. P. 203.) The intention to keep the two estates separate is presumed where it is for the interest of the party

Opinion of the Court-Whitman, J.

that they should be kept separate. (Mallory v. Hitchcock, 29 Coun. 127; 2 Ves. Jr. 262; Lord Compton v. Oxendler, 1 Watts & Serg. 485; Gibson v. Crehore, 3 Pick. 482; Forbes v. Moffatt, 18 Ves. Jr. 390.)

[*530] *By the Court, WHITMAN, J.:

This appeal is on the part of John Dohle, impleaded as defendant alleged to have some interest in certain realty, subsequent to plaintiff's mortgage sought to be foreclosed, and for which decree was rendered in this action. The facts are as follows: On the ninth of September, 1863, defendant Heilshorn and wife, for the consideration of $15,000, executed to the plaintiff and one J. B. Gagnon, a conveyance, upon its face an absolute deed, of certain real property, nine-fifteenths undivided to Grellet, six to Gagnon. This conveyance was duly recorded at its date. On the same day Heilshorn executed his notes, one for $9,000 to Grellett, one for $6,000 to Gagnon; and Grellet and Gagnon united in the execution to Heilshorn and wife of a defeasance; this was never recorded. On the first of June, 1864, Heilshorn and wife mortgaged a portion of the same property to defendant Dohle for $1,000. On the thirtieth of January previous they had mortgaged the whole to Stateler and Arrington for $1,000; this mortgage was afterward assigned to defendant Ralston. On the fifteenth of June, 1864, Grellet assigned the $9,000 note and his interest in the mortgage to one Stevenot. On the twentieth of the same month, Heilshorn and wife conveyed the property to Stevenot. On the sixth of July, 1867, Stevenot re-assigned to Grellet. On the twentieth of the same month, he commenced suit of foreclosure on the Grellet [*531] conveyance, which was dismissed on the fifth of August following; and on the twenty-third of the same month the present action was instituted. All the defendants have suffered default, except Dohle. He does not deny that the conveyance of September 9, 1863, was a mortgage, but contends that its record imparted no notice to him, and therefore his mortgage is the prior lien upon that portion of the property described therein. Again, that the accept