and to apply it to the payment of her debts. At the time she conferred the power she intended to surrender all further dominion over the property, and believed that she had clothed the agent with ample power, not only to contract for the sale of the property, but even to pass the title to the purchaser. Under such circumstances the power conferred is an enlarged power, and much beyond that ordinarily conferred upon a real estate broker, and is sufficient to authorize the agent to contract for the sale of the land. Lyon v. Pollock, 99 U. S. 668, 25 L. Ed. 265; Rutenberg v. Main, 47 Cal. 213; Smith v. Allen, 86 Mo. 178; Weaver v. Snively, 73 Neb. 35, 102 N. W. 77. We, therefore, hold that the agent in this case was clothed with the power to make a binding contract of sale.

2. Conceding that the agent was clothed with power to make a binding contract upon his principal to convey her title to the plaintiff, still it is urged by counsel for the defendants that the power did not include the power to contract for a deed with covenants of general warranty and for an abstract of title. Proof of custom or usage was relied upon by plaintiff to supplement the power directly conferred, and thus sustain the power to contract for general warranty of title and abstract of title. We have examined the record and must say that the proof of custom or usage is very unsatisfactory, and whether the same was established is very doubtful. But, assuming that there was no sufficient proof of custom or usage, or, assuming that usage or custom was inadmissible as supplementing the power, still we believe that the great weight of authority is to the effect that a power to sell and make a binding contract of sale implies a power to contract for a conveyance with general warranty. 2 Page, Cont. § 963; Vanada's Heirs v. Hopkins' Adm'r, 1 J. J. Marsh. (Ky.) 285, 19 Am. Dec. 92; Le Roy v. Beard, 8 How. (U. S.) 451, 12 L. Ed. 1151; Mechem, Agency, § 322. But, assuming that the power conferred upon the agent in this case did not include the power to contract for abstract of title and conveyance by deed with general warranty, there is another principle, it seems to us, which is controlling in this case. It is a well-recognized principle of equity that a vendee, in an action brought by him for specific performance of a contract, may waive the performance on the part of the vendor of portions of his contract, and may elect to take a partial performance, if he himself is willing to fully perform. This doctrine has been most frequently applied in those cases where the vendor has found himself unable to fully comply as to the amount of land contracted for, or as to the land being free from incumbrances. We can see no reason, however, why the doctrine should not likewise be applied to a case like this one, where, assuming the agent has exceeded his power,

the vendee elects to take partial performance. The vendee, plaintiff in this case, has taken a decree of the court below divesting the title of the vendor, and vesting it in plaintiff. It is to be assumed that the vendee took this decree without objection, and it must be held in this court to amount to an election or waiver of full performance by the vendor. The only case we have been able to find in which this principle has been specifically applied to a state of facts like those in the case under consideration is the case of Vanada's Heirs v. Hopkins' Adm'r, 1 J. J. Marsh. (Ky.) 285, 19 Am. Dec. 92, above cited. See, also, Hammond v. Bank, Walk. Ch. (Mich.) 214. A similar doctrine is often applied. Thus a purchaser may elect to take a defective title; or he may elect to take a part of the land less a homestead; or he may elect to take subject to a mortgage, and take decree so as to protect against it. See 26 A. & E. Ency. Law, 83, § 3; Lancaster v. Roberts, 144 Ill. 225, 33 N. E. 27; Hill v. Ressegieu, 17 Barb. (N. Y.) 162; Townsend v. Blanchard, 117 Iowa, 36, 90 N. W. 519; Peters v. Delaplaine, 49 N. Y. 368; Bull v. Bell, 4 Wis. 69-75. See Pomeroy, Contracts, §§ 438, 439, and note. It is a familiar principle that, where a part of the acts are within, and a part without, the power, the former are valid. Mechem, Agency, §§ 414, 416. A contrary doctrine was announced in Dellet v. Whitner, Cheves, Eq. (S. C.) 213.

3. It is urged by counsel for defendants that the defendants Arthur E. Walker, Raymond H. Lester, and Benton S. Jackson, who are the purchasers from the defendant Wilson, have been guilty of no inequitable conduct against the plaintiff, but have simply been diligent and succeeded in getting a conveyance from the defendant Wilson, notwithstanding her contract with the plaintiff in this case. It appears, however, that these defendants were fully advised before they opened up negotiations with the defendant Wilson of the fact that the agent Fleischer has contracted with the plaintiff for the purchase of this land. They, therefore, bought with notice of the plaintiff's rights, and cannot complain if those rights are enforced by the court. Pomeroy on Contracts, § 465. It is further urged that the contract is lacking in mutuality and therefore not enforceable. It is unnecessary to go further than to cite the case of Borel v. Mead, 3 N. M. (Johns.) 84, 2 Pac. 222, as decisive of the doctrine that a contract of this kind is enforceable by a decree for specific performance, and this seems to be the settled doctrine of the courts.

For the reasons stated, the judgment of the lower court is affirmed, and it is so ordered.

MILLS, C. J., and McFIE, POFE, and MANN, JJ., concur. ABBOTT, J., having tried the case below, did not participate in this decision.

(14 N. M. 493)

TERRITORY v. SANCHES. (Supreme Court of New Mexico. Feb. 26, 1908.) 1. SHERIFFS-REMOVAL FROM OFFICE-MISCON

DUCT.

Under the provisions of section 844 of the Compiled Laws of 1897, a justice of the peace, constable, or sheriff is removable from office for "official misdemeanors" committed by him while holding the same office in a preceding term, at least if there has been no intervening term held by another.

[Ed. Note. For cases in point, see Cent. Dig. vol. 43, Sheriffs and Constables, § 14.]. 2. SAME-COMMISSION OF CRIME.

The fact that an act by such an officer is punishable as a crime does not affect his liability to removal from office for the same act. 3. JURY-RIGHT TO TRIAL BY JURY.

Whether by the terms of section 854 of that statute one accused and on trial under it is entitled to trial by jury, quære; but, if it is accorded to him by the court, it should be conducted as in other similar judicial proceedings. 4. SHERIFFS -REMOVAL-PROCEDURE-DIRECTING VERDICT.

A proceeding under the statute in question 18 so far a civil cause in its nature that the trial court has the right to direct a verdict against the defendant, if the evidence would warrant such a direction in a civil cause, and if the facts thus found, or any of them, constitute as a matter of law any one of the grounds for removal enumerated in the statute, to enter a judgment of removal.

(Syllabus by the Court.)

Appeal from District Court, Torrance County; before Justice Edward A. Mann.

Proceeding by the territory for the removal of Manuel Sanches y Sanches from the office of sheriff. Judgment of removal entered, and defendant appeals. Affirmed.

This was a proceeding in the trial court under section 844 of the Compiled Laws of 1897 for the removal of Manuel Sanches y Sanches from the office of sheriff of Torrance county. It was begun by a sworn complaint made by Fred Fornoff, a citizen of the territory, to the district court for Torrance county, and filed in the office of the clerk of that court January 19, 1907. It charges the defendant with habitual and willful neglect of duty, of gross partiality, of oppression, of corruption, of extortion, and of willful maladministration as sheriff, and specifies eight "instances of such official misdemeanors." The defendant asked for a jury trial on the charges thus made, which was granted by the court and had at a term of said court held in Torrance county in February, 1907. At the conclusion of the evidence, the court, on motion of the district attorney, directed the jury to return a verdict for the plaintiff, "as to the charges contained in paragraphs numbered 1, 4, 6, 7, and 8 of the complaint, and for the defendant as to count three of the complaint. The second and fifth charges had been dismissed on motion of the plaintiff." As to some of the acts charged on which the verdict was against the defendant, it appeared that, as alleged, they occurred before the beginning of the

term of office in which the defendant was serving as sheriff at the time the complaint was made and the trial had, but within the next preceding term of the same office which he held for that term. It also appeared that, in specification numbered 1, the defendant was charged with doing that which was punishable as a criminal offense, if it was done. A judgment of removal from office was entered by the court, and the cause is here on appeal from that judgment.

George W. Prichard, for appellant. A. B. Fall, Atty. Gen., and F. W. Clancy, Dist. Atty., for the Territory.

ABBOTT, J. (after stating the facts as above). Several questions of much interest and moment are before us for determination in this cause. As the case usually is with questions on which good lawyers could reasonably differ, they have been decided in opposite ways by different courts of last resort among the more than half a hundred courts of that class in this country, and we are much in the same position we should be in if there had been no decision whatever on them, since we are not constrained by the unquestioned authority of adjudged cases to adopt conclusions which might seem to us contrary to reason and justice.

It is essential to determine at the outset, and to bear in mind throughout, the true nature and purpose of the proceedings brought here for review. They could hardly be better expressed than in the words of Kent, J., in State v. Leach, 60 Me. 58, 11 Am. Rep. 172, in which the state, was represented by its Attorney General, Hon. Thomas B. Reed: "The object of the removal of a public officer for official misconduct is not to punish the officer, but to improve the public service, and to free the public from an unfit officer." To the same effect is Rankin v. Jauman, 4 Idaho, 53, 36 Pac. 502. With this clear statement, which cannot be gainsaid, as a guide, we shall be prepared to deal with the first claim of error for the defendant, discussed in the brief in his behalf, namely, that the trial court erred in holding that the defendant could be removed from office for acts done by him while holding the same office in the term immediately preceding the one in which his trial took place. The weight of authority in numbers is probably with the defendant on that point. But is a public officer less unfit to hold his office, or are the people less injuriously affected by his holding it, because the act demonstrating his unfitness was committed on the last day of one term of office rather than on the first day of the next succeeding term? There can be but one answer to that question. The reasoning of the court in State v. Welsh, 109 Iowa, 21, 79 N. W. 369, seems to us so absolutely sound and conclusive that we quote from the opinion: "On motion the particular averments of official misconduct and neglect of duty during

the first term were stricken from the petition on the ground that removals are only allowable for acts during the term being served. The statute contains no such limitation. The very object of removal is to rid the community of a corrupt, incapable, or unworthy official. His acts during his previous term quite as effectually stamp him as such as those of that he may be serving. Re-election does not condone the offense. Misconduct may not have been discovered prior to the election, and, in any event, had not been established in the manner contemplated by the statute. The defendant was entitled to the office until his successor was elected and qualified. Being his own successor, the identical officer continued through both terms. His disqualification to continue in the particular office results from the commission of some of the prohibited acts during his incumbency. * This has been

the uniform rule in impeachment trials, where, coupled with removal from office, is the penalty of disqualification to hold any office of honor, trust, or profit under the state. In New York Judge Barnard was impeached during his second term of acts committed in that previous. The same was true of the impeachment of Judge Hubble of Wisconsin, and Gov. Butler of Nebraska.

For many purposes each term of office is separate and entire. This is especially true with respect to the obligation of sureties. But there is no reason for so holding as to the incumbent. Being his own suc cessor, there is no interregnum. His qualification marks the only connection between the terms. The commission of any of the prohibited acts the day before quite as particularly stamps him as an improper person to be intrusted with the performance of the duties of the particular office as though done the day after. The fact of guilt with respect to that office warrants the conclusion that he may no longer with safety be trusted in discharging his duties."

It is also urged for the appellant that, because one of the acts of which he was found guilty by the verdict is made a criminal offense by statute, he cannot be removed from office because of it. But we again apply the test that the procedure for removal is not penal in purpose, but remedial and protective. The fact, if it should appear to be one, that an act on which a charge of official misconduct was based was also a criminal offense, should strengthen rather than weaken the case for removal. 23 Am. & Eng. Ency. 443, and cases cited, note 4; Hopkins v. Scott, 38 Neb. 669, 57 N. W. 391.

We come, then, to the manner in which the charges were dealt with by the court. It is alleged, for the defendant, that he was entitled to a jury trial, and that he did not have one. He was not entitled to jury trial as a constitutional right (17 Enc. Pl. & Pr. 225, and cases cited), but perhaps had the right by the terms of the statute which provides that

in such a proceeding "all accusations of facts shall be tried as in other actions." "Other actions" must mean other actions of like nature, and even in civil cases most nearly resembling those arising under that statute a jury must be had unless it is waived. The territorial Legislature has besides in specific terms by statute (section 2567, Comp. Laws 1897) provided for the summary removal of certain public officers, and it may fairly be assumed that, if it had intended by the statute in question to provide for removal, summary in its nature, it would have so declared. But it is not necessary to decide that question in this case, since the trial judge gave the defendant the benefit of the doubt on that point and granted him a jury trial. Having granted one, he was, we have no doubt, bound to see that it was a jury trial within the ordinary meaning of that expression. Had the trial judge, then, the right to direct a verdict against the defendant on any charge, assuming for the moment that there was sufficient evidence to sustain it on that charge, and was substantially no evidence for the defendant to the contrary? That raises the question whether the proceeding is civil or criminal, or, if it is only quasi criminal at most, whether it is in respect to the right of the court to direct a verdict, to be classed as a civil cause? Here we come definitely to the parting of the ways. On either we can have the company of able lawyers and eminent jurists. On the one, however, we shall find ourselves with those public officers who have shown themselves unworthy of the trust reposed in them, but escaped removal because the courts followed rules which came into being centuries ago, when the individual needed protection against the despotic executive, who claimed to be the state, and are but poorly adapted to these times in which the state, now the people collectively, is beset by predatory individuals, and is often helpless against them, because it is hampered by such rules. By the other way we shall join lawyers and judges equally learned and upright, and, what is more important, the great body of citizens who are entitled to be served by competent and honest officers. There can be no question, then, of the choice we should make, if we are not constrained by precedent or principle to the opposite one. It has been held in California and Texas that such a proceeding is to be considered as a criminal cause. In New York, Maine, Tennessee, and Idaho it is not so regarded, in its essential nature, at least. Kilburn v. Law, 111 Cal. 237, 43 Pac. 615; State v. Alcorn, 78 Tex. 387, 14 S. W. 663; State v. Leach, supra; Rankin v. Jauman, supra; Fields v. State, 1 Mart. & Y. (Tenn.) 168. It has also been held that the accused has not a constitutional right to trial by jury in such a case; that the method of procedure provided by the statute under which action is taken must be strictly followed (Armijo v. County Commissioners of Bernalillo County,

3 N. M. 297, 7 Pac. 19), but that the strict rules of pleading and proof which obtain in criminal cases are not applicable (17 Enc. Pl. & Pr. 219; Poe v. State, 72 Tex. 625, 10 S. W. 735); and that the quantum of evidence need be only that required for a verdict in a civil cause (23 Am. & Eng. Ency. 451; People v. Roosevelt, 6 N. Y. App. Div. 382, 39 N. Y. Supp. 640). Now, on principle we do not perceive why a proceeding should be considered criminal which does not provide for the imposition of a fine or imprisonment for the one through it found to be unfit for office, but leaves him still subject to either or both if the acts for which he is removed are so punishable, which does not even deprive him of property, since in this country a civil office is not property, but which merely by the judgment rendered prevents him from holding the office for which he has been found unfit for the remainder of his term, and does not disqualify him for reelection or reappointment for another term. We hold, then, that the trial judge had the right to direct a verdict as in a civil case, and proceed further to inquire whether the evidence justified the direction given.

The statute specifies several grounds of removal, all but one of which are included in the sworn complaint made against the defendant. It was sufficient to sustain a judgment of removal if any one of those grounds was established. In each of the first seven specifications under the general charge a single act was alleged. In the eighth a general doing of acts of a certain kind was averred. The question for the jury was whether the defendant did what was charged in six of the eight specifications, two having been dismissed, or in any one of them. By direction of the court it was found that he did what was charged in five of them. Even if the evidence did not warrant such a direction as to more than one, but did warrant it as to that, the verdict should stand on that one. Poe v.

State, supra. The defendant, who testified in his own behalf, did not deny that he acted as attorney for Luis Martinez at the trial of a criminal charge against him before a justice of the peace, as charged by specification No. 8, nor did he deny, in relation to specification No. 7, that he was acting as attorney for Reyes Quintana and Manuel Quintana, at whose instance S. J. Humphries had been arrested by his deputy, at the trial of the cause before a justice of the peace, and he admitted that he heard them tell Humphries, without denial on his part, the case could be settled if he would pay the costs, including $20 for their lawyer, meaning the defendant, Sanches, which Humphries would not do, but, instead, waived examination, appealed, and gave bond. He said, too, that $20 was the amount of his charge to the Quintanas in the matter. We find in the record no evidence that he had not done these things and his own admission that he had. Indeed, he did not deny the essential facts

charged in any of the specifications on which the verdict against him was directed, but gave explanations of some of them which tended to show that, as to them, he was not guilty of intentional misconduct. The verdict was well founded, therefore, as to all the specifications on which it was against him, except possibly that numbered 8, which alleges that he "frequently acted as attorney," etc., while there was evidence of only two instances of the kind. Did these acts constitute any one of the grounds of removal enumerated in the complaint? However it may be with reference to oppression, extortion, or corruption, a bad motive for the act is not an essential element of willful maladministration by an officer. "Willful" means no more than that an act is "done with free activity of the perpetrator's will." Abbott's Law Dictionary. And maladministration is not in ordinary use distinguished from misadministration. Mechem on Public Officers, 457. There can be no doubt that it was gross misconduct for the defendant when he was sheriff to appear as attorney for one charged with crime before a justice of the peace of his county. Although it was testified that on objection by the attorney for the accused he said he laid aside his official position for the occasion, that could make no real difference, and he was lending his official influence to aid the accused person. So, by acting as attorney for the Quintanas and co-operating with them in an attempt to make Humphries pay $20 which he was under no obligation to pay, he was clearly guilty of misconduct, if not of oppression. If it be said that what he did was not official misconduct, that he was not acting as sheriff, the reply is that in the Martinez case the evidence indicates that up to the time when his right to act as attorney for the accused was questioned he had the latter in his custody as sheriff, and only then turned him over to a constable. In the latter case his deputy had arrested the accused, and he was thereafter under official responsibility as to him up to the time when he gave bond. In the acts proved under the fourth specification and not denied by him he was beyond question acting officially. The undisputed evidence was that he arrested two men at least for playing billiards at a table for which he claimed that the proprietor should have obtained a license, that he was intoxicated at the time and drew a revolver on one of the men he had arrested, who was unarmed, was not resisting, but, on the contrary, was at the moment conducting the sheriff to the bar of the saloon where they were on his invitation to "take a drink," which the sheriff had accepted. He did not keep the men whom he had arrested in custody, or bring them to trial. Even if he believed, contrary to the fact, that the men he arrested were offending against the law, he could not be held excusable for such conduct.

The facts properly found by the verdict clearly constituted maladministration at least,

and warranted the judgment of removal by the district court, which judgment is affirmed; and it is so ordered.

MILLS, C. J., and McFIE, PARKER, and POPE, JJ., concur. MANN, J., having tried the case below, did not participate in this decision.

(14 N. M. 502)

HOME SAVINGS BANK OF DES MOINES, IOWA, v. WOODRUFF et al. .

(Supreme Court of New Mexico. Feb. 26, 1908.) 1. PLEADING AMENDMENT OF ANSWER-TIME.

The request of the defendants in the trial court for leave to amend their answer by a denial of the execution of the mortgage on which the complaint was based, made after a jury had been impaneled and a great part of the evidence for the plaintiff introduced, was properly denied.

[Ed. Note. For cases in point, see Cent. Dig. vol. 39, Pleading, 88 770-773.]

2. ESTOPPEL-POSITION IN LEGAL PROCEEDINGS CHANGE OF THEORY.

A party who, by his pleadings in express terms, or by omitting to traverse what has been before alleged, has taken a certain position in a cause, cannot be permitted, especially after verdict, to "mend his hold" by taking a new and inconsistent position.

[Ed. Note. For cases in point, see Cent. Dig. vol. 19, Estoppel, §§ 165-169.]

3. CHATTEL MORTGAGE-RENEWAL AFFIDAVIT.

The mortgagee of record is ordinarily, at least, a proper party to make the affidavit of renewal.

[Ed. Note. For cases in point, see Cent. Dig. vol. 9, Chattel Mortgages, § 182.]

4. SAME ASSIGNMENT of Notes.

The mortgagee under a chattel mortgage had sold and indorsed the notes secured by the mortgage to a third party, but it did not appear that the mortgage itself had been assigned to the purchaser, and the mortgagee remained liable on the notes as indorser. The mortgage itself provided, in substance, that it would be security for the mortgagee so long as it should remain liable as indorser of the notes, and that it should have in such case a concurrent right with the indorser to foreclose the mortgage. Held, that an affidavit of renewal was properly made by the mortgagee of record.

[Ed. Note.--For cases in point. see Cent. Dig. vol. 9, Chattel Mortgages, § 182.]

5. SAME-FORECLOSURE-DIRECTING VERDICT.

The mortgagee being a corporation, and the affidavit of renewal in its behalf necessarily made by an individual, evidence that the one who made the affidavit in question here in which he was alleged to be the "agent and president" of the mortgagee was at the time the manager of the corporation and became its president about that time, and that the mortgagee had adopted and was claiming under the affidavit of renewal is sufficient, in the absence of evidence to the contrary as to that particular, to warrant an instructed verdict for the plaintiff. 6. SAME-RENEWAL-TIME OF FILING.

Sections 2362, 2363, Comp. Laws 1897, are to be construed together in relation to the effect of the affidavit of renewal there provided for, and so construed their plain intent is that the late filing of the affidavit of renewal provided for by section 2363 shall be as effectual except as against purchasers, mortgagees whose mortgages have been recorded prior to it, and those who have obtained liens on it in good faith, as if it had been filed, as required by sec

tion 2362, within 30 days after the end of each year of its life.

[Ed. Note. For cases in point, see Cent. Dig. vol. 9, Chattel Mortgages, § 177.]

7. TRIAL-MOTIONS TO DIRECT VERDICT.

When, at the conclusion of the evidence, both parties move for a directed verdict, it amounts to an assertion by each that there is no question of fact for the jury and a waiver of any requests for instructions to the jury as to questions of fact.

[Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trial, § 400.]

(Syllabus by the Court.)

Appeal from District Court, Chaves County; before Justice Wm. H. Pope.

Action by the Home Savings Bank of Des Moines, Iowa, against K. S. Woodruff and others. Judgment for plaintiff, and defendants appeal. Affirmed.

The plaintiff says that on November 20, 1903, C. W. and R. S. Walker executed a mortgage of certain cattle ranging in Chaves county, N. M., to the Barse Livestock & Commission Company, to secure the payment of a promissory note in the sum of $14,869.75, dated November 20, 1903, and another note of the same date for $350; that said note first named was given in renewal of a note between the same parties of earlier date; that on June 7, 1904, said notes of November 20, 1903, were renewed between the same parties by three notes aggregating $15,236, and the last-named notes were renewed between the same parties November 2, 1904, as to the amount then due, by a note for $11, 174.85, payable October 1, 1905, bearing interest from date at 7 per cent. per annum; that the last-named note with the interest and attorney's fees in it provided for remained due and unpaid; that said mortgage was duly recorded; that on May 8, 1905, the mortgagee above named, by its duly authorized agent and president, C. T. McCoun, made an affidavit of renewal of said mortgage, which was duly recorded May 11, 1905; that on August 10, 1905, the defendant Woodruff, sheriff of Chaves county, at the instance of the defendant bank, took possession of a portion of the mortgaged property under a certain execution in favor of the defendant bank, and forthwith proceeded to advertise the same for sale; that on September 9, 1905, the defendants did sell and convert to their own use 67 head of said cattle, and on October 24, 1905, 41 head, which were of the reasonable market value in all of $2,160, for which sum, with interest and costs, the plaintiff prayed that it have judgment.

The defendant did not deny the allegations of seizure by them of a part of the mortgaged cattle on execution as the property of C. W. and S. R. Walker, but, in effect, justified, under the execution above named, which they say was issued on a judgment in favor of the defendant bank, recovered prior to the time when the affidavit and record of renewal were made. They allege that the re