| Cal. | Jul 1, 1860
delivered the opinion of the Court—Field, C. J. concurring.
This was an application for a mandamus, and is based on this state of facts : The defendants advertised for sale a lot in San Francisco, which had been conveyed to them in trust. The sale was to be by public auction, and the terms were to be cash or three per cent, scrip. This scrip was part- of the floating debt of the city mentioned, and the payment provided for by the Act of May 1st, 1851. The relator was the highest bidder, and tendered the amount of the purchase in scrip, and demanded a deed. This being refused, this application is made. The 12th Section of the Act of 1851, (Acts, 890,) is as follows: “ The Commissioners of the Sinking Fund created by ordinance of the Common Council, are hereby required to convey to the Commissioners of the Funded Debt of the city of San Francisco, created by this act, on their application therefor, all the property, and all the rights, titles, and interests, in property belonging to said city; and to pay over into the hands of said. Commissioners any funds, notes, securities, or other assets, belonging to said city which they may have received, or may hereafter receive, by virtue of Art. 8, of an Act entitled ‘An Act to Incorporate the City of San Francisco/ approved the 14th day of April, 1851; said Commissioners shall have the right, at such time and place as in their discretion the interest of the city may require, to expose at public sale, or to lease the property to be conveyed, as provided in
We think the Commissioners had the right to sell the property on the terms advertised. Having expressly the powers to sell the realty conveyed to them, and to apply the proceeds to the payment of the city debts, it was within the discretion of the Commissioners to receive those debts immediately as credits, instead of receiving the money and then so appropriating it— provided, that there were sufficient assets to pay all the debts. But there is no complaint on this score. The fact that this scrip was barred by the statute of limitations—if this be so, which is not admitted—is no objection to the enforcement of this contract. Neither the city nor the Commissioners set up this equivocal defense; .and it is not at all apparent that the statute runs against a trust of this sort.
We think that the Commissioners should have received the scrip and niadc the deed.
Judgment reversed and cause remanded.