qualified," and "eligible to any office, used in the provision of the constitution, was construed as having reference to the qualification to hold office, and not to the choosing or election to such office. One of the judges (Elliott, J.,) dissented; but that judge, in the case of Brown v. Goben, (1890,) 122 Ind. 113, decided, under all the circumstances, it was best to adhere to the decision in Smith v. Moore, supra. He said in his opinion, among other things, that "we conclude, therefore, that it must be held to be the settled law of this state that the disqualification must exist at the time the term of office begins, and that the right of the claimant is not affected by the fact that at the time of his election he was ineligible." The syllabus in that case reads: "The disqualification must exist at the time the term of office begins, the right of the claimant not being affected by the fact that at the time of his election he was ineligible." In the case of Vogel v. State, (1886,) 107 Ind. 374, the judge writing the opinion, (Zollars, J.,) speaking for the court, said: "The constitution provides that no person elected to any judicial office shall, during the term for which he shall have been elected, be eligible to any office of trust or profit under the state, other than a judicial office. Rev. Stat. 1881, § 176. That the office of justice of the peace is a judicial office, under our constitution and statutes, is well settled. It was held in the case of Smith v. Moore, 90 Ind. 294, that a judicial officer may be elected to an office not judicial, the term of which will begin after the expiration of the judicial term; in other words, that the disability imposed by the constitution has reference to the taking and holding of the office, and not to the election. That case has been followed and approved in subsequent cases. Marks was eligible to take and hold the office of township trustee, if the term began after the expiration of his term as justice of the peace, although such term may not have expired at the time of the election." A part of the syllabus reads: "A judicial officer may be elected to an office not judicial, the term of which will begin after the expiration of the judicial term; the disability imposed by the constitution merely having reference to the taking and holding of the officer." The court at that time consisted of five judges. The decision was unanimous. These decisions of Indiana referred to must be considered of greater force because the earlier decisions of that state construed "eligible to office" as relating "to the capacity of being elected." A more thorough examination of the whole subject induced that court to change its former decisions, and to construe "eligible" as "going only to the holding of the office," and not to mean "incapable of being chosen. The case of People v. Hamilton, 24 Ill. App. 609, is in line with the later Indiana cases, and "eligible to the office of alderman" is construed to mean legally qualified." The disqualification referred to in the statute in that case is construed to apply to the office, and not the election. In addition to the earlier Indiana cases, we are also cited to Searcy v. Grow, 15 Cal. 117, which was followed in People v.

The other objections made to Demaree's holding the office of county commissioner were not well taken. In the case of Rogers v. Slonaker, 32 Kan. 191, Rogers' term of office as coroner did not expire until January 14, 1884. He attempted, while coroner, on January 12, 1884, before the expiration of his term, to act as county commissioner. He tried to hold two offices at the same time. This cannot be done. In State v. Plymell, 46 Kan. 294, Plymell was ineligible to the office of county commissioner because he continued to hold the office of city clerk. He attempted to discharge the duties of county commissioner. He also tried to hold two offices at the same time. Forbes, who was elected to the office of township trustee to succeed Demaree, was notified of his election about the 18th of November, 1892. He qualified December 31, 1892. The acts relating to township officers make no provision for any of the offices therein named becoming vacant on the refusal or neglect of the officer elected to give the official bond within the time prescribed by law. Jones v. Gridley, 20 Kan. 584. On the 9th of January, 1893, at the time that Demaree appeared and demanded his office as a member of the board of county commissioners of Seward county from the third commissioners' district he was "eligible"-that is, he was "legally quali fied"-to hold the office at that time. He had fully complied with all the provisions of the statute, and Scates should have surrendered to him the office.

The claim that Demaree offered to give a bribe to E. D. Haines on the 8th of November, 1892, to procure his vote, we do not think is supported by the evidence. It is said that Demaree agreed with Haines to use his influence to relocate a schoolhouse near the

to the holding of the office thereafter, and that if a person, though qualified at the time of the election, afterwards became disqualified by accepting a federal appointment, he could not hold both offices. In the case of State v. Smith, 14 Wis. 498, it was held that, although there was no statutory or constitutional provision in that state prohibiting an alien from holding the office of sheriff, a person who was still a subject of Great Britain was ineligible to that office. In the case of State v. Murray, 28 Wis. 96, 9 Am. Rep. 489, it was held that a person who had not declared his intention to become a citizen at the date of the election, but who did so before his term of office commenced, might be elected clerk to the county board of supervisors. The court, however, says: "In other words, I think that in those cases, as in this, the disqualifications relate to the holding of the office, and not to the election thereto. As a matter of course, none of these remarks are intended to apply to a case where a different rule bas been enacted by constitutional and statutory provision." This case can hardly be considered as upholding the views expressed in the opinion of the chief justice. In the case of State v. Clarke, supra, the court says: "We agree with the defendant that the framers of the constitution intended to prohibit one who was holding a lucrative federal office from holding a state office at the same time; but, instead of restricting the meaning of the word "eligible" as defendant contends, we think, to carry out the intention of the constitutional convention, we ought, rather, to give it a more extended signification than is generally given, and that it means both incapable of being legally chosen, and incapable of legally holding." To my mind, the reasoning of Justice Elliott in his dissenting opinion in Smith v. Moore, 90 Ind. 307, is much more clear and convincing than that in the opinion of the majority of the court. The view of the supreme court of Minnesota, as appears in the case of Taylor v. Sullivan, 45 Minn. 309, 11 L. R. A. 272, meets my entire approval: "Our inquiry is as to the meaning of the word 'eligible,' as used in the constitution. In Webster's Dictionary its meaning is defined to be: 'Proper to be chosen ; qualified to be elected.' In this, and the cognate

words derived from the same source, (the Latin verb 'eligere,') the idea primarily involved is that of choosing, selecting. It is expressed in our words, to elect,' derived from the same Latin word. This primary and strictly proper signification of the word eligible' is also its well understood popular meaning. If we had adopted the form 'electable' for the adjective, instead of following more nearly the form of the verb from which it is derived, the meaning might have been more obvious, but it would not have been different. In State v. Murray, 28 Wis. 96, 9 Am. Rep. 489, it was considered to be a fundamental principle of popular govern ment, even in the absence of any constitutional or statutory restriction, that one who is not a qualified elector cannot legally hold an elective office. According to the opinion of Ryan, Ch. J., in the Later case of, State 7. Truging, 50 Wis. 103, this proposition should,,in principle, be more broadly stated, and only such persons as are themselves electors at the time of the election should be deemed eligible to office. We think that this must certainly be so considered under a constitution which, in effect, declares that only such persons shall be eligible to elective offices. I am entirely satisfied with the decision in Privett v. Bickford, 26 Kan. 52, 40 Am. Rep. 301, because the provision there under consideration contained the term "qualified to hold office, which, of course, refers to the period covered by the term, rather than the time of the election. Neither of the other cases appears to me to be decisive of the question in this state. It appears to me that the legislature has plainly said, in substance, that no person holding a township office shall be elected county commissioner. If the spirit of this law requires the courts to hold that no person who, after election as county commissioner, though qualified at the time shall hold both that and a township office at the same time, we still are not required to do away with the rule that is, in terms, declared in the statute. I perceive no inconsistency in the construction placed on the word by those courts which hold that the inhibition applies both to the time of the election, and to the term of office.

from a decree of the Circuit Court for Multnomah County in favor of plaintiff in an action brought to quiet title to certain real estate. Affirmed.

Statement by Moore, J.:

This is a suit in equity to quiet title, and grows out of the following facts: On October 3, 1882, one Robert Gilbert, the father of the defendant Margaret A. Carmack, was the owner in fee simple of the E. of the E. of the S. W. of section 17, in township 1 S., of range 2 E. of the Willamette meridian, in Multnomah county, Or., containing 40 acres, and of other

1. Denying its receipt in an action for the purchase price.

In Baker Dewey, 1 Barn. & C. 704, it was held that parol evidence was inadmissible, that a part of the consitleration the receipt of which was ac knowledged in the deed, had not been paid, "but it was said that if the pleadings bad allowed, a part of the purchase money might have been shown to have been returned to the grantee on condition of his performing certain work for the grantor.

And in Rowntree v. Jacob, 2 Taunt. 141, Mansfield, Ch. J., said that it was the opinion of the court that a verdict against the evidence of the acknowledgment in a deed of the receipt of the consideration would not stand, although he did not fully agree with that opinion.

But in Lampon v. Corke, 5 Barn. & Ald. 606, parol evidence was allowed that the consideration had not been paid for a deed which contained a statement that £40 had been agreed to be paid, followed by a receipt of its payment "as herein before is mentioned."

And in Smith v. Battams, 26 L. J. Exch. 232, in an action for breach of warranty of some linen, parol evidence was admitted that the consideration of a deed stated therein to be £100 was partly in cash, and partly in the linen on which suit was brought.

The acknowledgment in a deed of the receipt of the purchase money was held in the following early cases to estop the grantor from showing that it had not been paid. Mendenhall v. Parish, 53 N. C. 105, 78 Am. Dec. 269; Brocket v. Foscue, 8 N. C. 64; Graves v. Carter, 9 N. C. 576, 11 Am. Dec. 786; Spiers v. Clay, 11 N. C. 22; Dixon v. Swiggett, 1 Harr. & J. 252; Steele v. Adams, 1 Me. 1; Gist v. Davis, 2 Hill, Eq. 335, 29 Am. Dec. 89.

But in Crawley v. Timberlake, 36 N. C. 346, where the grantor of a deed filed a bill alleging that the acknowledgment, therein, of the receipt of the entire purchase price, was inserted by mistake, and that only a part had been paid, an answer which did not deny this was held to be bad.

And in Shaw v. Williams, 100 N. C. 272, it was said that while the decisions in North Carolina precluded evidence that the consideration of a deed acknowledging its receipt had not been paid, yet it might be shown in a court of equity to have been acknowledged inadvertently, and without intent to bar the grantor's recovery.

And in Smith v. Arthur, 110 N. C. 400, it was held that the recital in a deed of the receipt of the consideration did not preclude parol evidence of its non-payment.

Parol evidence is admissible that a part of the purchase price was left in the grantee's hands for the grantor's use. Schillinger v. McCann, 6 Me. 364.

And thar although the grantor was estopped from denying the receipt of an acknowledged consideration, he might show other considerations than those expressed in the deed. Emmons v. Littlefield, 13 Me. 233.

children, he and his wife on that date executed and acknowledged a warranty deed for the expressed consideration of $1,000, in which they purported to convey to their said daughter, Margaret A. Carmack, the real property above described, and at the same time the same Gilbert and wife executed like deeds to their children for other real property; that when the deed to the defendant Carmack had been so executed, Mr. Gilbert placed it in a trunk, intending at some future time to deliver the same to his said daughter, Margaret; that said daughter, without the knowledge or consent of her father, took said deed from said trunk, and on

Parol evidence was allowed in the following cases that the consideration had not been paid, although the receipt was acknowledged in the deed: Triplett v. Gill, 7 J. J. Marsh. 438; Gully v. Grubbs, 1. J. Marsh. 387; Hickman v. McCurdy, 7 J. J. Marsh. 555; Harris v. Harris, 2 Harr. (Del.) 354; Fechheimer v. Trounstine, 15 Colo. 386; Wolfe v. Hauver, 1 Gill, 84; O'Neale v. Lodge, 3 Harr. & McH. 433, 1 Am. Dec. 377; Bratt v. Bratt, 21 Md. 578; Thompson v. Corrie, 57 Md. 197; Higdon v. Thomas, 1 Harr. & G. 139; Mills v. Dow, 133 U. S. 423, 33 L. ed. 717; Taggart v. Stanbery, 2 McLean, 543; Callaway v. Hearn, 1 Houst. (Del.) 607; Parker v. Foy, 43 Miss. 260, 55 Am. Rep. 484; Kimball v. Walker, 30 Ill. 482; Elder v. Hood, 38 Ill. 533; Hall v. Perry, 3 Iowa, 579; Wilkinson v. Scott, 17 Mass. 249; Elysville Mfg. Co. v. Okisko Co. 1 Md. Ch. 392; Spalding v. Brent, 3 Md. Ch. 411; Shephard v. Little, 14 Johns. 210; Bowen v. Bell, 20 Johns. 338, 11 Am. Dec. 286; Baker v. Connell, 1 Daly, 469; Stackpole v. Robbins, 47 Barb. 212; Hamilton v. McGuire, 3 Serg. & R. 355; Jordan v. Cooper, Id. 564: Weigley v. Weir, 7 Serg. & R. 309; Watson v. Blaine, 12 Serg. & R. 131, 14 Am. Dec. 669: Deloach v. Turner, 6 Rich. L. 117; Beach v. Packard, 10 Vt. 96, 33 Am. Dec. 185; White v. Miller, 22 Vt. 380.

Or that a note was given which had been lost. Lazell v. Lazell, 12 Vt. 443, 36 Am. Dec. 352.

The burden of proving that it has not been paid, lies upon the grantor, and that its payment was not conditional, but absolute. Hebbard v. Haughian, 70 N. Y. 54.

The proof of a balance due must be clear. Hutchison v. Sinclair, 7 T. B. Mon. 291.

The consideration expressed in a deed is not absolutely conclusive upon the grantor, as to the amount or payment of the purchase money. Hannah v. Wadsworth, 1 Root, 458.

The prima facie evidence of payment of the consideration from a recital in the deed may be contradicted by parol evidence that credit has been allowed for it elsewhere. Bridges v. Russell, 30 Mo. App. 258.

In an action by the grantor for the purchase price against an attorney in fact who has sold real property under a power of attorney, parol evidence is admissible that the consideration therein acknowledged to have been received, has not been paid, and that the real consideration was one named in a collateral contract. Vaugine v. Taylor, 18 Ark. 65.

The acknowledgment of the receipt of the consideration for a deed is prima facie evidence of that fact, throwing the burden of proof on the one denying it. Ayres v. McConnel, 15 Ill. 230; Stone v. Duvall, 77 Ill. 475.

This is so by the current of authority in Tennessee. Bayliss v. Williams, 6 Cold w. 440.

The recital in a deed of a valuable consideration is evidence that that was the true and only consideration, until the contrary is shown. Haywood v. Moore, 2 Humph. 584.

August 21, 1883, placed the same on the records of said county, and thereafter exercised acts of ownership over said premises; that soon after the deed had been filed for record her father became aware of the fact, but that he made no objection thereto, and has never since that time made any claim to said land. No money was paid or intended to be paid for said land, and said conveyance was intended as a gift by said Gilbert and wife to their said daughter. On September 22, 1887, the appellants, Tatum & Bowen, commenced an action against said defendant Margaret A. Carmack et al. in the circuit court of said county on an account for goods sold and delivered, to recover the

2. Evidence of a further consideration than that named in the deed.

a. To pay debts of the grantor. Parol evidence of an agreement by the grantee to pay the debts of the grantor in addition to the consideration recited in the deed, is inadmissible. Emery v. Chase, 5 Me. 232.

Where the consideration expressed in a trust deed was the security of a note of a greater amount than the property sold for, parol evidence was not allowed that the deed was given in full consideration for the note, Saffold, J., dissenting on the ground that a greater or less consideration than that recited might be proved. Brooks v. Maltbie, 4 Stew. & P. (Ala.) 96.

Parol evidence is admissible of a promise by the grantee to pay a note given by the grantor and secured by a mortgage on the property sold. Burbank v. Gould, 15 Me. 118.

And of a promise by the grantee to pay a note in an action against him by the holder. Price v. Reed, 38 Mo. App. 489.

And that the real consideration was a note for the payment of rent in addition to that recited in the deed. Steed v. Hinson, 76 Ala. 298.

In Saramia v. Courrege, 13 La. Ann. 25, it was held, Spofford, J., dissenting, that the grantee might show by parol that a part of the consideration, the receipt of which in current money was acknowledged, was a note on which the grantor was bringing suit.

Parol evidence is admissible that the consideration for a deed the receipt of which is therein acknowledged, was certain notes secured by mortgage. Howards v. Davis, 6 Tex. 174; Stiles v. Giddens, 21 Tex. 783.

Parol evidence is admissible in an action on a note given in part consideration of a deed of land that the note was to be paid out of the sale of shares in an oil company to be formed, to which the property was to be conveyed. Hoeveler v. Mugele, 66 Pa. 348.

And to show that the real consideration for a deed, reciting a money consideration, was the execution by the grantee of accommodation notes for the grantor in an action by the former to recover on such notes. Pray v. Rhodes, 42 Minn. 93.

Parol evidence is admissible of an agreement by the grantee to pay a judgment against the grantor. Byers v. Mullen, 9 Watts, 266; Miller v. Fichthorn, 81 Pa. 252.

And to pay a judgment and mechanics' liens. Buckley's App. 48 Pa. 491, 88 Am. Dec. 468.

The consideration for a deed reciting natural love and affection and one dollar may be shown by parol to have been a full settlement of all matters of difference between the parties. Coles v. Soulsby, 21 Cal. 47.

And parol evidence is admissible of an agreement to pay an indebtedness on the property as part consideration, McMahan v. Stewart, 23 Ind. 590.

sum of $1,337.20 and interest. It is conceded that said Margaret A. Carmack, for the purpose of hindering and delaying the appellants, Tatum & Bowen, in the collection of their said claim against her, tried to sell and dispose of said premises, and finally agreed to convey the same to one Joseph Burkhard for the sum of $1,600, and on the 23d day of September, 1887, she executed and delivered to him her warranty deed therefor. That at said date said Margaret A. Carmack was a married woman, and her husband, H. C. Carmack, was temporarily absent, and it was agreed that she should procure a deed from her said husband to said Burkhard, and deliver it to him, before any portion of the

And of an agreement to pay debts due from the grantor as part of the consideration for an assignment of a contract. Mills v. Dow, 133 U. S. 423, 33 L. ed. 717.

In Lewis v. Bell, 58 U. S. 17 How. 616, 15 L. ed. 203, parol evidence was allowed that the consideration for a deed reciting one dollar and "divers other good considerations" was an indebtedness of the grantor to the grantee.

And parol evidence was allowed of an agreement by the grantee to pay a debt due from the grantor in an action for such debt. Wait v. Wait, 28 Vt. 350.

In an action by the grantee of land against the grantor to recover a debt equal to the consideration for the deed the latter may show by parol that the debt was the real consideration. Robbins v. Love, 10 N. C. 82.

Parol evidence is admissible of an agreement to pay all the debts against the property sold instead of a definite sum of money mentioned in the deed. Booth v. Hynes, 54 1ll. 363.

Parol evidence is admissible of an agreement by the grantee to pay the taxes on other property as part consideration for a deed. Headrick v. Wisehart, 57 Ind. 129.

And on the property sold in addition to the consideration recited in the deed. Preble v. Baldwin, 6 Cush. 549.

Unless the deed professes to show just what the consideration was parol evidence may be given that the grantee agreed to pay the taxes assessed after the execution of the deed. Pierce v. Brew, 43 Vt. 292.

Parol evidence is admissible of an agreement by the grantee to pay a mortgage on another piece of property as part of the consideration of a deed. Trevidick v. Mumford, 31 Mich. 467; Jordan v. White, 20 Minn. 91.

And of an agreement by the grantee to pay the balance due upon a mortgage on the property sold in a real action in which the plaintiff relies upon such mortgage. Burnham v. Dorr, 72 Me. 198.

And that a part of the consideration was to be applied in payment of a mortgage on the premises sold and that this has not been done, but the proof must be clear and positive. Herbert v. Scofield, 9 N. J. Eq. 492.

And of an agreement by the father of the grantee by whom the negotiations were made to pay off and discharge a mortgage as part of the consideration in an action by him on the mortgage which he had had assigned to himself. Frey v. Vanderhoof, 15 Wis. 398.

And of a promise by the grantee to pay a debt secured by mortgage in favor of a subsequent mortgagee of the same property in an action by him to have the first mortgage declared a lien on other property. Richardson v. Traver, 112 U. S. 423, 28 L. ed. 804.

Parol evidence is admissible in an action to enforce a vendor's lien that an incumbrance on the