McKaig v. Moutrey

THE COURT. These cases have been consolidated on appeal and involve the same questions of law. The complaints are practically identical, the only difference being in the tracts of land involved.

These actions are brought for the following purposes: To compel the board of directors of the district to demand of the collector that she execute deeds to the district of certain lands which had been sold to the district for delinquent 1930 and 1931 assessments. Also, to compel an accounting by the defendant copartnerships of Moutrey & Benoit and Clark & Benoit for alleged profits made by them from the operation of a portion of said lands during the years 1934, 1935, and up to the filing of the complaints in July, 1936.

The complaints first allege that the plaintiffs are owners of matured and unpaid bonds of the district; that the Provident Irrigation District is now existing, and was organized [539]as such in 1918. The names of the officers of the district are set out, and that they were such officers, either directors, secretaries or collectors at the time of the commencement of these actions. The issuance of bonds by the district are alleged, the bonds held by the plaintiffs, and the amount of due and unpaid principal, and also the amount of due and unpaid interest coupons issued by the district, and the amount thereof held by the plaintiffs. The complaints further allege that the district has not, since the 1st day of July, 1930, made any payments upon interest coupons, nor has it paid anything upon the principal or matured bonds, and that the district has been in default in payment of matured bonds and matured coupons since said date.

The complaints also allege the adoption in 1920 by the directors of a resolution providing for the payment of assessments in two instalments, one-half to be paid on or before the last Monday in December, and the remaining one-half to be paid on or before the last Monday in June thereafter.

The complaints further allege the levying of assessments every year, and the failure of the landowners to pay the assessments upon the lands involved in this action. The complaints also allege delinquent sales have been made for nonpayment of assessments.

Following the foregoing allegations it is set forth that Moutrey, Benoit and Clark leased the lands mentioned in the respective complaints, during the years 1934, 1935 and 1936, and obtained profits therefrom.