sUbsequent purchaser in good faith and for a valuable consideration" of the same property, whose oonveyanoe shall be first reoorded. It does not appear from the answer but that Smith's deed was reoorded within 30 days from' its exeoution. It is only alleged that it was not reoorded until after Maroh 11th, which may be true, although it was reoorded within 26 days from its exeoution. Nor is it alleged in the bill that it was ever recorded. But the plaintiffs have put the deed in evidenoe, and it appears therefrom that it was not reoorded until February 12, 1862. No question is made but that Wilkinson waS a· purchaser in good faith and for a valuable consideration. Smith's deed was reoorded after Wilkinson's and more than 30 days after its exeoution, and therefore the statute postpones it-deolares it void as against Wilkinson's. The plaintiffs, as to this interest, now claim under this void deed against a grantee under Wilkinson, and,their right is the same as if the Buit was brought by Smith against Wilkinson. The plaintiffs not having any interest in the premises which they can assert in this court against the covenant of their ancestor and grantor, the bill for is dismissed.
ROGERS t1. MARSHALL.-
(lA'rC1dt Court, D. Colorado.
PRAOTICE-REHEAJUNG, EFFECT OF.
, When a rehearing is granted for the reason that the court, upon the ings and proofs as they stood at the hearing, is inclined to doubt the correctness of the decree, it is the proper practice to set aside such decree until the case is again heard. It would he otherwise if rehearing WitS granted in order to allow additional proof. In the latter case, the decree should stand, pending the :ehearing.
On motion to vacate order setting aside interlooutory decree, and permitting defendants to file further answers. MCCRARY, J. This case was heard at the October term, 1881,+ upon final proofs, and, as the result of that hearing, an interlooutory decree was entered, setting aside a conveyance from complainant to respondent, James Y. Marshall, of certain mining property, and referring the oase to a master to take proofs respecting profits
*From the Colorado Law Reporter.
tSee 13 FED. REP. 59.
teceived by said MatshallfrQID, mine in controversy after said sale. Soon after the entering of this decree,t:tnd during the same term of court, a petition for;a rehearing was presented on behalf of the respondents.. The court granted this petition, and set the same down for rehearing at Keokuk in July last.. The application was based-First, upon. the record as it stood at the former hearing; and second, upon the ground ot newly-discovered evidence. At the time and place above named the parties appeared, and the whole caS6was exhaustively reargued, both upon the origin!tl record and proofs, and upon the alleged newly-disco\'el'ed evidence. application for rehearing 'upon the ground of. newly-discovered evidence was overruled",;.Theapplication.for rehearing upon the record as it stood at the former trial was. sustained, alid the case was reopened for further consideration upon c.ertain:qnestions 13tated in the opinion. The court being of the opinion,.uponreconsideration of the whole case, that interlocutory decree ought not to have been entered, made an order setting the same aside,' which. ordel'was entered of record in term ·time.. It is now insisted, upon the part of the complainant, that the (,lourt had no power to set aside the interlocutory decree, hut is hound to let the same stand until the final hearing upon further proof. If the court had merely reopenea the case for the purpose of letting in newly-discovered evidence, it would certainly have been very improper, and probably erroneouB, to have set aside the interlocutory decree pending such further hearing; but where the court grants a rehearing upon therecora aait stood at the first hearing, and, as a result of that rehearing, reaches the conclusion that an interlocutory decree previously entered wa.s not justified by the proof as it stood, it is not only the right, but the duty, of the court to set it aside, l1lthough it ml1Y be thl1t, upon further showing, the complainl1nt may be able to make a case which would justify the granting of the same relief by another decree. The question in such a case is, was the interlocutory decree right upon the record as it stood when the same was entered, and at the time of the rehearing? This rule was distinctly laid down in the case of Fourniqttet v. Perkins, 15 How. 82. In that case the court proceeded to a hearing upon the first proofs, and passed a decree in favor of the complainants, vesting in them certain real property, together with the gains thereof, and referring the Cl1se to a· master in chl1ncery to take and report an account. The account hl1ving been taken and stated by the master, certain exceptions were filed to his report. At the argument upon the ex-
ROGERS V. MARSHALL.
captions, the court reconsidered' its opinion, upon which the interlocutory decree was entered, and dismissed the bill. The case was taken by appeal to the suprema court; where objection was made to the decree of dismissal, because it was made at the argument upon the exceptions, and was contrary to the opinion upon the merits expressed by the court in its interlocb.tory. order.' Chief Justice TANEY delivered the opinion of court, and said (page 85) on this point:
.. But this objection cannot be maintained. The case was at final hearing at the argument upon the exceptions,arid all of the previous interlocutory orders in relation to the merits were open for re"ision, and under the control of the court. This court so decided when the former appeal, hereinbefore And if the court below, mentioned,. was dismissed for want of upon further reflection or examination, changed its opinion after passing the order, or found that it was in conflict with the decision of this court, it was its duty to correct the error."
It follows, from this ruling, that if the present case had come bafore the court upon the repQrt of the master, stating an account, and exceptions thereto, it' would have been competent, at that stage of the proceeding, to reconsider the interlocutory decree upon the original proofs, and set the same aside. Of course, the power of the .same when the application for rehearing was made court pending the accounting, and before the report of the master. By reference to the opinion filed 'UPon the rehearing, it will be seen that I am not satisfied, from the proof as originally submitted, that the complainant had title to the mine in question, which she conveyed to Marshall. The interlocutory decree proceeds necessarily upon the assumption that complainant was the owner of the full undivided interest in fee, which she undertook to convey. With this point unsettled, and with a strong inclination, upon the proof as it stands, to hold adversely to the complainant, it was manifestly my duty to set aside the interlocutory decree, and leave the parties in the positions they severally occupied at the commencement of the suit; at leaRt, until the complainant shall make a stronger case than that wbi.ch now appears. The court cannot be expected to adhere to an interlocutory order setting aside the conveyance, and making other provisions equivalent to the appointment of a receiver, after its attention is called to facts appearing in the record, which, to say the least, render the right of complainant to such a decree extremely doubtful. It is said that the argument at Keokuk in July last was upon the question whether the respondents should be allowed a rehearing, and not upon a rehearing. I do not so understand it. 'fhe petition
for rehearing was granted almost as a matter of course, in so far as it was based upon the record as it originally stood, and the case was set down for reargument at Keokuk at the time named. At that hearing the whole case was elaborately reargued, and I certainly should not have given it the time and attention I did if I had under. stood that it was simply an application for leave to be reheard. Under the circumstances, if I were to take the view suggested by complainant's counsel, I should certainly not desire to hear the same argument over again, and therefore the rehearing would be a mere matter of form. . The motion to vacate the order setting aside the interlocutory. de. cree, alld allowing defendants to file further answers, must be over" ruled, and it is so ordered.
'Circuit Court, D. Colorado. December Term, 1882.)
JUDGMENT-POWER OF COURT OVER, AFTER TERM.
Suit was brought in Colorado on .a judgment rendered by the superior court of Cook county, Illinois, and judgment was rendered here. Subsequently the Illinqis judgment, the case being removed by writ of error to the appellate court of that state, was reversed. Defendant s.ets up these facts in a petition, and moves that the judgment be vacated. Beld, that such proceeding is allowable.
SAME-CIRCUMSTANCES ARISING AFTER JUDGMENT.
WhHeit is the general rule that, as.to all matters that were in issue, or which might have been contested at the time judgment was rendered, the court has no power to vacate judgment after the expiration of the term at which it was rendered, yet as to matters arising after the judgment, or before the judgment but too late to be presented as a defense, the rule is different. Relief in such case may be had by motion to vacate or otherwise, as the circumstances may require. 3.
THE ISSUE GROWING OUT OF THE SUBSEQ,uENT FACTS MUST BE TRffiD.
In this case the judgment of the superior court having been reversed and the case remanded for retrial there, proceedings in this court will be stayed until final action by the courts of Illinois, when proper steps can be taken to afford relief, either by a renewal of this motion, or by proceeding in equity, or otherwise, as the circumstances may require.
Motion to Vacate Judgment after the Term. M. B. Carpenter, for defendant. S. P. Rose, for plaintiff·
· From the Colorado Law Reporter.