Volume 15 — Colorado Court of Appeals Reports

<p> Appeal from the District Court of El Paso County. </p>

The causes of action stated in the complaint are two promissory notes, both dated the 28d of November, 1896 ; one of them promising to pay on demand after date $100 at the Union Bank in Greeley, and the other promising to pay $150 on or before six months after date at'the same bank, with interest at ten per cent on the last note from date until paid. Both notes were signed by Mrs. Warren Currier and H. F. Currier.

<p>1. Contracts — Public Policy — Wager on Election.</p> <p>Wager contracts on. the result of elections are contrary to public policy and. void and will not be enforced by the courts.</p> <p>2. Same — Recovery ebom Stakeholder Amount Deposited.</p> <p>A party to a bet may recover from the stakeholder the amount deposited by him, if before it is paid over to the winner, he shall notify the stakeholder that he has repudiated or rescinded the contract and that his authority as stakeholder has been revoked and shall demand a return of the amount deposited by him.</p> <p>3. Same — Notice.</p> <p>Notice, by one of the parties to a wager on the result of an election, to the stakeholder not to pay the money to the other party for the reason that the election is in doubt and that he will hold the stakeholder personally responsible for the money wagered, or a notice that demands the payment of the entire wager on the ground that the party ■ serving the notice has won, is not such notice as will constitute a repudiation or rescission of the contract of wager and support an action against the stakeholder for the amount deposited by the person serving the notice, where the stakeholder pays over the money after the receipt of such notice.</p>

<p> fAppeal from the District Court of Arapahoe County. </p>

<p>1. Negligence — Cities and Towns — Public Streets — Instructions.</p> <p>The duty imposed upon a municipal corporation in respect to its streets is to keep them in reasonably safe condition for travel in ordinary modes, with ordinary care, and in an action against a city an instruction that it was the duty of defendant to keep its streets, at the place where the injury was alleged to have occurred, “in good order and condition ” is erroneous, as a jury might infer and understand from such instruction that it was the duty of a city at all times to keep its streets in absolutely safe condition. But such error is cured by a subsequent instruction in which the jury was told that the city was not liable if the street complained of was at the time of the accident in a reasonably safe condition for travel in ordinary modes, with ordinary care.</p> <p>2. Same.</p> <p>A city is responsible only for reasonable diligence in repairing defects in its streets after the unsafe condition is known, or ought to be known to it, and in an action against a city for an injury caused by a defective street, an instruction that told the jury that defendant was liable, if the city had knowledge of the existence of the defect, or if the defect had existed for a sufficiently long time that the city or its officers ought to have known of its existence, and the city did not “promptly” repair the same, is erroneous. But such error is harmless where no question was raised as to the diligence, or want of diligence of the city in repairing the defect, but liability was sought to be avoided upon the ground of plaintiff’s contributory negligence, and there was evidence both of actual notice and also of constructive notice from the great length of time the defect had existed.</p> <p>3. Instructions — Misleading—Practice.</p> <p>Where the objection to an instruction is that it is misleading, it is the duty of the party objecting to ask additional explanatory instructions before he can avail himself of such objection in an appellate court.</p> <p>4. Instructions — Objections—Practice.</p> <p>Where the only objection raised to an instruction on the trial of a cause is a special and specific one, he will not he allowed to. raise in an appellate court other objections not included in his specific exceptions.</p>

<p> Appeal from the County Court of Arapahoe County. </p>

<p>1. Corporations — Estoppel—Practice.</p> <p>Where a party contracts with a corporation in its corporate name he is estopped to deny the corporate existence.</p> <p>2. Contracts — Conditional Sales.</p> <p>To constitute a sale of personal property a conditional one, an optional payment of the purchase price is as essential as the conditional passing of the title. Where the property was delivered and an unconditional promissory note was given for the purchase price, it was an absolute and not a conditional sale, notwithstanding a condition was attached to the note reciting that the title to the property remained in the vendor till the note was paid, and in case of default might be taken back at the expense of the,maker.</p>

<p> Appeal from the County Court of Conejos County. </p>

<p>1. Pbactice — Pleading—Demubbeb—-Amendment—Judgment on Pleading.</p> <p>After a demurrer has been sustained to a pleading, the unsuccessful party has the right to amend, upon terms and within a time to be fixed by the court, and the right of amendment cannot be cut off by changing the form of objection from a demurrer to a motion for judgment on the pleading.</p> <p>2. Pleading — Answeb—Denial.</p> <p>Where an answer contains allegations inconsistent with the truth of the complaint, it amounts to a denial.</p> <p>3. Pleading — Sufficiency—Judgment on Pleadings.</p> <p>If a pleading contains enough to sustain a judgment in favor of the party offering it, no matter how much superfluous matter it may contain or how rambling and disconnected the allegations may be, it is error to disregard it and enter judgment on the pleading.</p>

<p> Appeal from the District Court of Arapahoe County. </p>

<p>Husband and Wine — Liability foe Family Expenses — Contracts —Landlord and Tenant.</p> <p>Under section 3021a, 3 Mills’ Ann. Stats., a wife’s separate property is chargeable with the expenses of the family, and where a husband contracted with the owner for the lease of certain premises for a residence for his family, for the term of one year at a stipulated monthly rent, the wife would he liable for the rent as well as the husband for the time the premises were occupied by the family. But where the family abandoned the premises before the expiration of the term she is not liable for damage for a breach of the contract of lease, nor for damage to furniture in the house, done while it was occupied by the family. Her liability is strictly a statutory liability, and she is not liable on her husband’s contract nor for damage for its breach. She can only be held for an indebtedness for something of which the family or some member thereof has had the actual benefit.</p>

<p> Appeal from the District Court of Boulder County. </p>

<p>1. Peactice — Setting Causes foe Tbial — Powebs op Couet.</p> <p>Tlic fixing of a time for a trial of a cause is clearly within the inherent powers of the court, which the court may exercise upon its own , motion without notice to parties, unless the rules of court require notice.</p> <p>2. Appellate Peactice — Recobd.</p> <p>Where the record of a case recites that the case was regularly reached for trial according to previous assignment, the recitation is conclusive and binding on the appellate court as to the regularity of the sotting of the case for trial in the absence of a showing of irregularity.</p> <p>3. Appellate Peactice — New Tbials — Discbetion.</p> <p>To warrant an appellate court in interfering with the granting or denying of applications under section 78 of the code to set aside judgments and grant new trials, a gross abuse of discretion by the trial court must appear.</p> <p>4. Peactice — Setting aside Judgments — Sufficiency of Application.</p> <p>An application under section 75 of the code to set aside a judgment and to grant a new trial that merely alleges that defendant had no notice of the setting of the cause for trial without showing any valid or legal excuse for the want of knowledge, and which does not allege any facts from which the court might determine whether or not they constitute a defense, is insufficient to require a setting aside of the judgment.</p>

<p>1. Deeds of Trust — Power of Trustee — Release.</p> <p>A release deed made by a trustee in a deed of trust without authority from the holder of the notes secured thereby is ineffectual to discharge the incumbrance.</p> <p>2. Same.</p> <p>It is only after the trust is carried out and the power to sell is extinguished by payment that it is possible for a trustee in a deed of trust to reconvey the title discharged of the incumbrance.</p> <p>3. Same — Incidental Powers of Trustee.</p> <p>Whatever limitations and restrictions are placed upon the express powers of a trustee attach also to his incidental and implied powers.</p> <p>4. Same — Innocent Purchaser.</p> <p>A party dealing with a trustee is charged with notice of the powers of the trustee as created by the deed of trust and must know that the facts exist that authorize the trustee to act. Where a deed of trust is on record a person who makes a subsequent loan on the same property, relying on a release deed made by the trustee, is not an innocent purchaser. It is the duty of the subsequent incumbrancer to inquire of the holder of the notes secured, whether the release was authorized.</p> <p>5. Appellate Practice — Findings of Trial Court — Agency.</p> <p>The findings of the trial court on the question of agency will not be disturbed on appeal where the evidence supports the findings.</p> <p>6. Principal and Agent — Loan Broker — Trustee—Release.</p> <p>Where a loan broker secured a loan for a person, having himself named as trustee in the deed of trust and it does not appear that he had anything to do with the transaction other than what is usually done by a loan broker, namely, to prepare the papers and to collect the interest as it became due, paying it over to the principal, there was no such agency as would authorize the broker to release the deed of trust from part of the land conveyed.</p> <p>7. Laches — Action to cancel a Release Deed.</p> <p>A delay of sixteen months after the discovery thei’eof before bringing an action to set aside an unauthorized release of a deed of trust was not such laches as would defeat the action where the subsequent incumbrancer was actually informed by plaintiff soon after the discovery that the release was unauthorized and where the delay was occasioned by promises from the trustee who made the release that in a short time he would arrange so that she would get all of her money, and where there were no intervening rights of third persons and the delay caused no injury to any of the parties.</p> <p>8. Release Deeds — Recitals of Payment — Statutory Construction.</p> <p>Section 1, Session Laws, 1893, page 473, providing that recitals of payment in any release or partial release of a deed of trust where such release is made before the indebtedness is due, shall be evidence of ■ such payment so as to give full effect to such release, when executed by the proper trustee, as to subsequent purchasers or incumbrancers of the property, to the same extent as releases made after the maturity of the note, has no retroactive effect and does not apply to deeds of trust executed prior to the adoption of the act, and section 2 is retroactive only so far as it makes the recitals in a release to a subsequent purchaser of the premises as good and valid as if made to the original maker of the deed.</p>

<p> Appeal from the District Court of El Paso County. </p>

<p>Contracts — County Commissioners — Ultra Vires — Removal of Courthouse.</p> <p>A contract made by the board of county commissioners of a county to perpetually maintain a county courthouse on certain lots in a town is ultra vires and void, and a person who deeded lots to a county for that purpose in consideration of such a contract cannot maintain an action against the board of county commissioners to restrain them from removing the courthouse from such lots or from building another courthouse at another place. The contract being VQid could not be made binding on the county by any subsequent acts of the commissioners, either of acceptance or user.</p>

<p>1. Bills and Notes — Pleading.</p> <p>Where a complaint; upon a promissory note alleges the execution and delivery of the note to plaintiff, the presumption is that the ownership and possession continues in plaintiff, and it js not necessary for him to allege that he is the owner and in possession of the note.</p> <p>2. Partnership — Parties—Action against Survivor — Estate op Decedent.</p> <p>A joint action on a partnership debt cannot be brought against the administrator of a deceased partner and the- survivor, but a separate action can be brought against each, and a judgment against one does not bar the action against the other. The fact that a partnership note was presented and allowed against the estate of a deceased partner and partly paid did not preclude the claimant from afterwards bringing an action against the survivor for the balance.</p>

<p> Appeal from the County Court of Arapahoe County. </p>

This is an agreed case made by the parties pursuant to chapter 24 of the code. The parties stipulated as follows : A certain herd of horses, branded “55” on left shoulder, known as the “ 55 ” herd, consisting of mares and geldings of all ages, and colts, numbering upwards of 500 — the exact number being unknown — ranged in the counties of Bent and Kiowa, but chiefly in Bent.

<p> Appeal from the District Court of Arapahoe County. </p>

<p>1. Fraud — Misrepresentations to Mercantile Agency — Sales— Rescission.</p> <p>Where a purchaser of goods makes false representations of his financial ' standing to mercantile agencies and the vendor relies on the false representations in making the sale, he may rescind the sale, although at the time the representations were made there was no distinct and direct intention to defraud the vendor who sold the goods.</p> <p>2. Sales — Evidence—Insolvency—Intent.</p> <p>Insolvency alone would not be sufficient to warrant a finding of a fraudulent intention in the purchase of goods, but in connection with other facts it is a proper subject-matter of proof, and is always a fact for the jury to consider as tending to show the motive of the vendee when the purchase was made.</p> <p>3. Sales — Misrepresentations to Commercial Agencies — Chattel Mortgage — Intent oe Purchaser — Question for Jury.</p> <p>In an action to recover goods claimed to have been purchased through fraudulent misrepresentations where the evidence tended to show that the purchaser had misrepresented his financial standing to mercantile agencies, that the vendor relying on the truth of the report made to the agencies was induced to make the sale, and that immediately upon delivery of the goods the vendee executed a chattel mortgage to defendant to secure a pre-existing indebtedness, it was plaintiff’s right to have the question of the purchaser’s intent in making the report to the mercantile agency and in purchasing the goods submitted to the jury and a judgment of nonsuit was erroneous.</p> <p>4. Sales — Chattel Mortgages — Burden of Proof.</p> <p>In an action by a vendor against a chattel mortgagee of his vendee to recover goods claimed to have been purchased through fraud of his vendee, should the jury find from the testimony that the vendee was insolvent at the time the goods were purchased and had no intention of paying for them, or that credit was obtained through misrepresentations by the vendee of his financial status, whereby under the law the vendor would have a right to rescind the sale, then in order to defend his title it would be incumbent on the mortgagee to prove the character of his mortgage, the consideration on which it was based, and in general to uphold his title.</p> <p>5. Sales — Chattel Mortgages — Fraud.</p> <p>A creditor who takes a chattel mortgage on goods to secure a pre- ■ existing debt of his mortgagor acquires no such rights as belong to a purchaser for a valuable consideration without notice, and no title to the goods as against the vendor of the mortgagor who had a right to rescind the contract of sale on account of fraud of the mortgagor in the purchase of the goods and who acted promptly in asserting such right.</p>

<p> Appeal from, the District Court of Boulder County. </p>

<p> Appeal from District Court of Morgan County. </p>

<p>1. Practice — Pleading and Proof — Payment—Certiorari Bonds.</p> <p>The rule that the defense of payment must be affirmatively alleged and proven, does not apply in an action on a bond where the liability is a conditional one. In an action on a certiorari bond it is incumbent on the plaintiff to show that his judgment has not been satisfied before he can recover against the sureties on the bond.</p> <p>2. Certiorari Bonds — Attorney at Law — Estoppel.</p> <p>Where by leave of court an attorney in a case signs a certiorari bond as surety, and thereby secures the removal of the cause and delays the collection of the judgment, he is estopped to deny his obligation on the ground that he was an attorney at the time he signed the bond.</p>

Fulton and his copartners filed an adverse to Duncan’s application for a patent to the Sampson lode, which is located in Boulder county. To support it they brought suit, set up their ownership of tire Rainbow lode in the same mining district, and alleged an occupancy and a right of possession. We shall assume, since it is in no manner questioned, a valid discovery of mineral, a legal location and a sufficient record of the Rainbow lode.

<p>1. Pleading — Negligence.</p> <p>In an action for damages on account of negligence of defendant, where the complaint states enough to permit the inference that the injury resulted from the negligence alleged, and plaintiff is permitted to prove his case without objection, an objection to the complaint raised for the first time on appeal will not be considered, although there is no direct allegation that the injury resulted from the negligence alleged and the complaint was demurrable on that ground.</p> <p>2. Practice — Pleading and Proof — Variance—Negligence.</p> <p>In an action for damage against a city alleged to have been caused by a horse stepping into and catching his foot in a hole in the floor of a viaduct, where the floor was constructed of two layers of plank, proof that the hole extended only through the upper plank, and not through the entire floor, was not a fatal variance from the allegation.</p> <p>3. Negligence — Instructions—Duty of City to Maintain Highway.</p> <p>In an action for damage against a city caused by a horse stepping into and hanging his foot in a hole in the floor of a viaduct, an instruction that it was the city’s duty to keep the viaduct in a reasonably safe condition was not erroneous, the jury having been- advised by another instruction that the city was only bound to use reasonable care to keep its streets in safe condition.</p> <p>4. Cities and Towns — Viaducts—Duty to Maintain.</p> <p>Where a city constructs a viaduct for the use of the people, and for the convenience of public travel, it assumes the duty to maintain it and is bound to keep it in a reasonably safe condition for the use of the public.</p>

A somewhat full and accurate statement of the proof, given both as a naked statement, and as an argumentative narration of what was done by the parties, will partially serve to decide the case and leave only a brief discussion of the law necessary to fully determine it. In the spring of 1895, the appellant, Witcher, as owner, was running some sawmills, and carrying on a lumber business at Cripple Creek.

<p> Error to the District Court of Weld County. </p>

<p>1. Practice — Judgments—Pleading—Proof.</p> <p>In an action against a trustee for converting trust funds, it was error to enter a decree for a greater amount than the ad damnum-oí the complaint. It was also error to enter a decree for more than was shown to have been converted, by the proof.</p> <p>2. Practice — Judgments.</p> <p>In an action against a trustee for converting trust funds, where at the close of the trial counsel for plaintiff asked for judgment in a certain sum, which was granted, it was error to afterwards entera judgment for a larger sum.</p> <p>3. Practice — Pleading—Evidence—General Denial — Payment.</p> <p>In an action against a'trustee for money belonging to a trust fund alleged to have been received and converted by the trustee, the defendant was not required to plead payment before he could show what moneys he had paid over under the terms of the trust, but such evidence was admissible under a general denial.</p>

<p>1. Taxes and Taxation — Legislative Powee.</p> <p>The power of taxation is an incident to sovereignty, and belongs to tbe legislative department to determine the persons and objects to be taxed subject to constitutional limitations, and to provide the necessary mode and provisions for making the law effective.</p> <p>2. Taxes and Taxation — Peopeety.</p> <p>Property within the meaning of the constitution and statutes providing for taxation is to be taken in its broad and general sense, and to constitute property which is subject to ownership as the terms are used in their broad sense there must exist the exclusive right to alienate or transfer, as well as the right to use and enjoyment.</p> <p>3. Same — Newsf apees — Membebship in Associated Press.»</p> <p>Membership in or contract with, tbe Associated Press by tbe publisher of a newspaper is not property subject to taxation within the meaning of the constitution and statutes providing for taxation of property. Neither is such membership or contract subject to taxation under the statute providing for the assessment of credits.</p>

<p> Appeal from the County Court of Arapahoe County. </p>

<p> Appeal from the County Court of Arapahoe County. </p>

<p> Error to the District Court of El Paso County. </p>

He took passage and continued to ride until he was put off the train at a switch shortly out of the station. The circumstances of his ejectment were matters of proof by various witnesses. The whole controversy grew out of Blocker’s attempt to ride on the train without the payment of his fare. He was an employee of another railroad corporation running out of Chicago, and had in some way been hurt and was in Colorado.

<p>1. Bills and Notes — Alteration—Billing Blanks.</p> <p>One who signs and puts in circulation a negotiable promissory note leaving blank spaces for the rate of interest and the time when interest begins to run, cannot escape liability on the note in the hands of an innocent purchaser on the ground of material alteration where the blanks were filled by writing in the rate per cent and the word “ date ” in the blanks by the payee before negotiation.</p> <p>2. Bills and Notes — Want of Consideration — Innocent Purchaser.</p> <p>Although the holder of a negotiable promissory note may have purchased it after maturity, if he purchased it from an innocent holder he acquires all the rights of the innocent holder, and the payer cannot defend against the note on the ground of failure of consideration, nor on the ground that the holder paid no consideration therefor.</p>

<p> Error to the District Court of Weld County. </p>

<p>1. Contracts — Sales—Statute of Frauds.</p> <p>A contract for the sale of grain evidenced by letters and telegrams whereby one offered to sell and the other agreed to buy a certain quantity and kind of wheat at a certain price, and stipulating the time and place of delivery, is a sufficient memorandum in writing subscribed by the parties, to comply with the requirements of section 1521, Gen. Stats., which provides that every contract for the sale of chattels, for the price of $50.00 or more, if no part of the goods is accepted and received by the buyer, and no part of the purchase money is paid by him, shall be evidenced by a note or memorandum in writing, subscribed by the parties to be charged.</p> <p>2. Same — Tender.</p> <p>In an action for damage for failing to deliver wheat as per agreement where the contract stipulated that the seller was to di'aw on the buyer for the price after shipment, it was not necessary that plaintiff should have made tender of the purchase price before bringing his action for damage.</p> <p>3. Pleading — Damage—Failure to Deliver Goods Sold.</p> <p>In an action for damage by a buyer against a seller for failing to deliver wheat as per contract, a complaint that set forth the contract and its breach and alleged that thereby plaintiff had been deprived of divers great gains and profits which otherwise would have accrued to plaintiff from the delivery of said wheat, and had sustained damage in a certain sum, was a sufficient allegation of damages as against a general demurrer or motion to exclude evidence.</p>

<p>1. Mechanics’ Liens — Contracts—Material Chances.</p> <p>Where after a building is turned oyer to the owner by the contractor it is insisted by the owner that certain parts of the work are not according to contract and changes are made to make the work comply with the contract, the changes are a part of the construction and the time within which a mechanic’s lien must be filed would date from the time the changes were completed.</p> <p>2. Mechanics’ Liens — Evidence—Burden of Proof.</p> <p>In an action to enforce a mechanic’s lien the burden is on the plaintiff to show that the lien was filed within thirty days after the work was completed.</p> <p>3. Evidence — Sales—Book Entries.</p> <p>Where a transaction evidenced by a book entry is not the subject-matter of the action, but is sought to be introduced as a collateral fact to fix by inference the date of the transaction in dispute, it was error to admit in evidence the books of a mercantile firm to prove the date a sale was made upon evidence of the foreman that the entry was made from a slip furnished by the salesman and that it was the custom of the firm never to make an entry on the books until after or at the time the goods were delivered, without producing the clerk who made the sale to show that the sale was made and the goods delivered at the time the slip was made.</p>

<p>1. Water Rights — Adjudicating Priorities — Review—Practice.</p> <p>On an application under section 2425, Mills’ Ann. Stats., for review of a decree adjudicating water rights, the court has authority to vacate the decree pending the determination of the review. And where an' order vacating the decree was entered and the application for review was afterwards dismissed, the court should have re-entered the original decree.</p> <p>2. Same — Abandonment—Laches.</p> <p>Where an application for review of a decree adjudicating water rights was filed in due time and a referee was appointed to take additional testimony and after the referee had qualified and entered upon the discharge of his duties the applicants withdrew the matters from his consideration and requested him to recall his publication of notice to take testimony, and at next term of court counsel for petitioners stated that there was no report to make as petitioners had not pursued their rights under the order and no further action was taken in the proceeding for more than seven years when petitioners again applied for the appointment of a referee, petitioners had abandoned their rights to a review by their laches in failing to prosecute their action as well as by specific abandonment, and their application was properly dismissed.</p> <p>3. Same — Sufficiency of Petition.</p> <p>A petition for a review of a decree adjudicating water rights under section 2425, Mills’ Ann. Stats., must show on its face that the parties are entitled to a review by reason of facts and conditions alleged therein, which if true, the decree should be modified.</p>

<p>1. Practice — Evidence—Order of Proof.</p> <p>The order of proof is largely -within the discretion of the trial court, and in an action by an attorney for fees the fact that plaintiff was permitted to call other attorneys as expert witnesses on rebuttal to show the reasonable value of the services which should have been shown on the main case is not reversible error.</p> <p>2. Practice — Evidence—Expert Witnesses — Attorneys’ Fees.</p> <p>In an action by an attorney for fees, where other attorneys were called as experts to prove the value of the services, it was not competent for the stenographer to read to the witnesses plaintiff’s testimony and ask them to base their opinion of the value of the services on the testimony, but the opinions should have been based upon hypothetical questions propounded by counsel, and it was still more erroneous to read to the witnesses only part of plaintiff’s testimony and permit them to base their opinions upon what they heard read.</p> <p>3. Practice — Juries—Coercion.</p> <p>It was reversible error for the court to call in a jury that were deliberating on a case and tell them that they would be confined for several days, naming the time, unless they agreed on a verdict, and would receive but one meal a day.</p> <p>4. Pleading — Practice—Contracts—Quantum Meruit.</p> <p>In an action by an attorney for fees where the complaint alleged an agreement to pay plaintiff a good fee, it was not an allegation of an express contract and evidence was admissible to prove the reasonable value of the services.</p>

<p>1. Taxes — Payment must be in Money.</p> <p>Taxes can only be paid in money. Tbe acceptance of a check by the treasurer and the marking of taxes as paid on the books, and the delivery of a receipt is not payment, nor is it conclusive against the county in a controversy between the taxpayer and the county authorities, and where such check is not paid the treasurer may proceed to enforce the collection by advertisement and sale.</p> <p>2. Same — Payment os' Less than was Due.</p> <p>Where one having some contract interest in land gave a check for the taxes and they were marked on the books as paid, and the check was carried for some time by the treasurer as a cash item, but not being paid the land was advertised for sale when the real owner took up the check and gave its own check therefor which was paid, the owner had no right of action against the county to recover back the amount of its check. And the fact that the county accepted less than was actually due in principal and penalties to avoid trouble, could in no manner establish the owner’s right to recover back what it did pay.</p>

<p>1. Boundary Lines — Magnetic Variations.</p> <p>Where the boundary line of a county called to run “ due south” to a certain point “thence south” to a river, the entire line should be construed as running due south according to the magnetic meridian, making allowance for the magnetic variation.</p> <p>2. County Boundaries — Statutory Construction.</p> <p>Where a statute divides a territory into counties, the different sections of the statute each defining the boundaries of a county, the different sections are not to be construed in pari materia like different acts passed on the same subject, nor like a statute with many sections treating on the same subject, but the different sections are to be construed like patents or grants or segregations of different date where the older in time must be first satisfied and concludes the junior in case of conflict. So the boundary line of a county first established by a statute must control in case of conflict with a county whose boundaries are defined by a subsequent section of the same statute.</p> <p>3. Boundaries.</p> <p>In the location of boundary lines, calls for natural objects and artificial monuments will always control courses and distances.</p> <p>4. County Boundaries — Erroneous Calls.</p> <p>Where the west line of a county as defined by statute calls to run south from a well established point to a river, and another county defined by a subsequent section of the same statute begins at a well established point on the same river several miles helow the point where the west line of the former county if run south would intersect the river, and in closing the boundaries of the later county the statute. calls for the west line of the former and thence south with said line to the river, thence up the river to the place of beginning, the words “ up the river ” should be rejected from the closing call and the call read as thence down the river to the beginning, rather than change the course of the west line of the former county so as to intersect the river at a point helow the beginning point of the latter.</p>

<p> Error to the District Court of Montrose County. </p>

<p> Appeal from the District Court of Arapahoe County. </p>

<p> Appeal from the District Court of Arapahoe County. </p>

<p> Appeal from the District Court of Arapahoe County. </p>

<p> Appeal from the District Court of A rapahoe County. </p>

<p> Error to the District Court of El Paso County. </p>

<p>1. Practice —Certiorari Proceedings.</p> <p>Certiorari proceedings are regulated by the code but in no general particular do they differ from the proceedings which prevailed before the enactment of the code, and they are controlled by the same principles which formerly controlled its exercise.</p> <p>2. Certiobabi — Contempt.</p> <p>The sole object of certiorari proceedings is to review the action of the lower court. The proceedings are not had on the merits of the controversy, and in reviewing contempt proceedings by certiorari the reviewing court will go no further than to determine whether the court below had jurisdiction to proceed.</p> <p>3. Same — Injury—Payment oe Fine.</p> <p>One who sues out a.writ of certiorari must show that the proceedings attacked will injure him and that the effect of the writ will be to change the judgment and alter his status. Certiorari will not lie to review a contempt proceeding after the petitioner has paid the fine imposed and has been released.</p>

<p> Appeal from the County Court of Boulder County. </p>

In October, 1891, Collins and Kilham were the owners in fee of certain property in Arapahoe county.

<p>1. Sales — Inspection oe Goods — Expebss Contbact — Mabket Pbice — Evidence—Fbaud.</p> <p>The rule that a purchaser who inspects goods before buying and agrees to pay a certain price therefor, cannot introduce evidence to show the market value of such goods in defense of an action for the purchase price, does not apply where the seller was guilty of fraud in the sale of the goods.</p> <p>2. Sales — Caveat Emptob — Fbaud.</p> <p>The doctrine of caveat empior which applies to a purchaser who inspects the goods before purchasing and where no express warranty is made by the seller, does not apply where the sale was induced by fraudulent representations of the seller.</p>

<p>1. Husband and Wipe — Fraudulent Conveyance — Preferred Creditor.</p> <p>Where a husband while solvent donated property to his wife and after-wards the property was sold and the husband borrowed the money received from the sale promising to pay it back, and after he became insolvent he deeded to his wife other property in part payment of the debt, the conveyance was not fraudulent as to other creditors. An insolvent hnsband who is indebted to his wife may make her a preferred creditor.</p> <p>2. Conveyances — Acceptance.</p> <p>It is essential to the validity of every deed or conveyance that it be accepted by the grantee.</p> <p>3. Same — Delivery to Stranger — Relation back, of Acceptance.</p> <p>Where a deed is made and delivered to a stranger for the use of the grantee, upon its acceptance by the grantee, as between the grantor and grantee the acceptance will r'elate hack to the time of the delivery to the stranger, hut there is no actual transfer of the property until the acceptance, and if between the date of the deed and its acceptance, rights of third parties attach to the property, those rights will he superior to, and prevail over, the title of the grantee subsequently accepting the deed. Such grantee takes the title subject to such liens as have been created, or conveyances as have been executed before it becomes actually vested in him.</p> <p>4. Same — Conveyance in Pereormance of Contract to Convey.</p> <p>Where a deed is executed in performance of a contract by the grantor to convey the land to the grantee, the contract contains the assent of the grantee to its execution and it is not necessary that the deed he actually delivered to the grantee or that the grantee have personal knowledge of the deed at the time of its execution, hut where there is no previous understanding that the deed shall be executed and the grantee had no knowledge of its execution no title would pass till the actual delivery to and acceptance by the grantee.</p> <p>5. Conveyance — Delivery—Piling fob Record.</p> <p>The filing of a deed for record, by the grantor, does not of itself constitute delivery unless the recorder is the agent of the grantee to receive the deed.</p> <p>6. Same.</p> <p>Where a husband was indebted to his wife and she had requested him to deed to her property in satisfaction of the debt hut he had not agreed to do so and there was no understanding or agreement between them as to such conveyance, and the husband without the knowledge of the wife deeded to her property in part payment of the debt and filed the deeds for record, and after they had been filed for record, hut before they were delivered to the wife, other creditors of the husband attached the property, the attachment lien was superior to and took precedence of the wife’s title.</p> <p>7. ■ Parties — Fraudulent Conveyance — Proper Judgment on Wrong Ground — Immaterial Error.</p> <p>To sustain a judgment setting aside a conveyance on the ground that it was fraudulent, the grantor is a necessary party to the action, but where a wife brought suit to quiet title to land conveyed to her by her husband and the defendant answered by denying title in the wife and alleging a fraudulent conveyance by the husband to the wife and the trial court found that the conveyance was fraudulent , and gave judgment for the defendant, but the finding of fraud was not warranted by the facts, and the judgment, though given upon a wrong ground, was correct as the defendant’s lien was superior to plaintiff’s title and no other judgment would have been proper, the failure to make the husband a party was immaterial.</p>

<p> Appeal from the District Court of El Paso County. </p>

<p>1. Appellate Practice — Abstract of Record — Instructions.</p> <p>Assignments of error based upon instructions given will notbe considered .when tlie instructions are not printed in the abstract of record and no reference is made to any particular one.</p> <p>2. Same.</p> <p>Where the abstract of record does not contain the pleading or evidence, or the instructions given, assignments of error based on instructions requested and refused will not be considered although they correctly state, generally, abstract propositions of law. .</p> <p>3. Appellate Practice — Abstract of Record — Evidence.</p> <p>Where the abstract of record does not contain the pleading nor the entire evidence, the appellate court will not consider the question as to whether the verdict was sustained by sufficient evidence.</p> <p>4 Practice — Pleading—Presumption.</p> <p>Upon an assignment of error that the court permitted plaintiff to file a replication during the course of the trial, in the absence of any suggestion to the trial court or to the appellate court that appellant suffered injury thereby, it will be presumed that there was no abuse of discretion by the trial court.</p>

<p>1. Pleading — Amendment—Change oe Cause oe Action.</p> <p>Where a plaintiff commenced suit for a certain sum alleged to be due from defendant for work and labor performed and provisions and board furnished between certain dates, an amended complaint which sets out more fully the entire account between the parties between the dates named, alleging an indebtedness for a much larger sum and crediting payments, showing a balance equal to the amount alleged in the original complaint is not a change of the cause of action.</p> <p>2. Pbactioe — Pleading—Amendment—Change oe Cause oe Action — Waiveb by Answeb.</p> <p>By answering an amended complaint a defendant waives the right to afterwards object that by the amendment plaintiff has changed his cause of action.</p> <p>3. Practice — Continuance—Discretion oe Court.</p> <p>The granting or refusing a' continuance is a matter within the discretion of the trial court and before the appellate court will reverse a case because of the ruling of the court on an application for continuance it must affirmatively appear that there was an abuse of discretion.</p> <p>4. Continuance — Admission of Testimony of Absent Witness.</p> <p>Where the adverse party offers to admit that an absent witness if present would testify as alleged in an application for continuance, it is not an abuse of discretion to deny a motion for continuance on account of the absence of such witness.</p> <p>5. Practice — Continuance—Diligence.</p> <p>Where a defendant agreed by stipulation to waive service of notice of trial and consented to a trial of the case at any time when reached upon a regular call of the docket, he must have known what evidence was necessary to his defense and on an application for continuance must show that he used proper diligence to procure the testimony for which the continuance is asked.</p> <p>6. Practice — Evidence—Instructions—Harmless Error.</p> <p>In an action against an employer for work and labor performed and board furnished to his employes where the evidence clearly shows that the labor was performed and the board was furnished at the instance and request of defendant, an instruction which told the jury that if they found that plaintiff performed work and labor and furnished board to the employes of defendant to the use and benefit of defendant, but failed to instruct that it must be at the request of defendant, if error at all is harmless.</p> <p>7. Evidence — Hearsay—Confirmance—Harmless Error.</p> <p>In an action against a company for board furnished men doing work for the company under a foreman or contractor it was error to admit in evidence what such foreman or contractor told plaintiff that defendant’s superintendent had said about the board of the men, but where the superintendent afterwards confirmed to plaintiff whatthe foreman had told him the error was harmless.</p> <p>8. Statute of Frauds — Promise to Pay Debt of Another — Employer’s Promise to pay Board of Employees.</p> <p>Where an employer having control of the funds out of which payment is to be made, promises in the first instance to pay- the board of its employes, the promise is not one to answer for the debt of another so as to come within the statute of frauds requiring such promises to be in writing, hut is a primary undertaking of the employer.</p> <p>9. Same.</p> <p>Where an employer having control of the funds out of which paymentis to be made promises to pay the board of its employés, in the absence of evidence to the contrary, it will be presumed that it retained sufficient of the funds to pay the board and that it is liable for such board as for money received for the benefit of one who furnished board under such promise.</p> <p>10. Corporations — Practice—Proof of Incorporation.</p> <p>Where a defendant corporation appears, answers and defends at the trial, it cannot object that plaintiff failed to prove it was a corporation.</p> <p>11. Interest — Accounts.</p> <p>An. account bears interest from the time it is due and payable.</p> <p>12. Appellate Practice — Abstract op Record — Presumption op Regularity op Judgment.</p> <p>Where the abstract of record does not contain all the evidence it must be presumed that the evidence was sufficient to sustain the judgment.</p>

<p>1. Bills and Notes — Evidence—Contempobaneous Pabol AgbeeMENT.</p> <p>In an action on a promissory note by an indorsee after maturity, a parol contemporaneous agreement that the note was to be paid out of the proceeds of a mining venture and if there were no earnings the note was to be returned and canceled was admissible in evidence in defense.</p> <p>2. Same — Pabtial Payments — Admissions.</p> <p>In an action on a promissory note by an indorsee after maturity, where the payers introduced in defense evidence of a contemporaneous parol agreement tending to show that the note was payable out of the proceeds of a mining venture and its payment conditioned on the earnings thereof, and plaintiff’s evidence showed several partial payments on the note, it was reversible error to refuse to permit ' plaintiff to show what the defendants said when the partial payments were made where such admissions tended to contradict defendant’s defense, and this rule is applicable to a trial by the court as well as one by a jury.</p>

<p>1. Contracts — Mortgages—Assumption of Payment by Grantee.</p> <p>Where a mortgagor transferred the mortgaged premises to his wife without an express assumption of the mortgage debt by her, and she deeded the premises to defendant with a clause in the deed whereby defendant assumed the payment of the mortgage debt, it was a contract on defendant’s part to pay the debt and the mortgagee could maintain an action directly against defendant for the entire debt or for a deficiency thereof after foreclosure.</p> <p>2. Same — Consideration—Presumption.</p> <p>Where mortgaged premises are conveyed by the mortgagor for an expressed consideration and in the deed the grantee expressly assumes the payment of the mortgage debt, it will be presumed that the amount assumed is a part of the purchase price.</p> <p>3. Practice — Pleading—Evidence—Admissions.</p> <p>An admission of a fact in an answer is sufficient proof of the fact against the defendant, notwithstanding the answer including the admission is denied by plaintiff’s replication.</p>

<p>1. Mortgages — Impairment of Security — Damage.</p> <p>A mortgagee or beneficiary in a deed of trust may maintain an action for damages for tbe impairment of bis security by cutting and removing the timber from the mortgaged premises.</p> <p>2. Same — Action Before Foreclosure.</p> <p>An action by a mortgagee for damages for the impairment of his security may be maintained before as well as after foreclosure.</p>

<p> Appeal from the District Court of Arapahoe County. </p>

<p>1. Venue — Application fob Change — Residence of Defendants.</p> <p>In an action against two defendants an application to change the venue to another county on the ground that one of the defendants resides in the county to which the change is sought, is insufficient unless it also negatives the residence of the other defendant in the county in which the action is brought.</p> <p>2. Same.</p> <p>In an action against two defendants, an application to change the place of trial which alleged that one of the defendants resided in the county to which the change was sought, and that the other defendant was not within the state was insufficient, as an allegation that one of the defendants was not within the state at the time the application was made did not negative'the fact of his residence in the county in which the action was brought, but was entirely consistent with such residence.</p> <p>3. Venue — Application fob Change — Action fob Goods Sold.</p> <p>In an action for the price of apples alleged to have been sold and delivered in the county in which the action was brought,.an application for change of place of trial on the ground of the residence of defendant in another county, which fails to negative the allegation that the apples were sold and delivered in the county in which suit was brought was insufficient and was properly denied.</p> <p>4. Same — Pbesumptions.</p> <p>An application to change the place of trial of a cause from one county to another must negative every hypothesis in favor of the county in which the action was commenced, and it will be presumed that the county in which the action is commenced is the proper county for trial, unless the contrary is shown.</p> <p>5. Practice — Pleading—Amendment—Change of Cause of Action-Sales.</p> <p>In an action for the price of apples where the original complaint alleged a sale of the apples to defendants, an amended complaint which alleged that the apples were delivered to defendants to be sold by them, they guaranteeing to plaintiff a specified sum to be paid within a specified time, was not a change of the cause of action. The cause of action alleged in the amended complaint was a sale and not a consignment on commission.</p> <p>6. Same — Parties—Partnership.</p> <p>Where an action was brought against a partnership under the proper partnership name and against one partner who was served with summons, an amendment setting forth the name of another partner and making him a party to the action was not a change of the cause of action by changing the parties to the contract sued on, where the partnership named in the amendment and the contract sued on were the same as those named in the original.</p> <p>7. Practice — Appearance.</p> <p>Where a party defendant who was not served with summons voluntarily appeared and applied for a change of venue to another county and moved to strike out an amended complaint without limiting his appearance in either motion, he entered a general appearance to the action and became as completely subject to the jurisdiction of the court as if he had been personally served with summons.</p> <p>8. Practice — Default—Judgment-.</p> <p>Where an action was brought upon an agreement to pay a specified sum and the time fixed for answer expired and none was made, it was proper not only to enter defendant’s default hut also at same time to enter final judgment.</p>

<p>1. Appellate Pbactice — Findings of Tbial Coubt — Evidence-Depositions.</p> <p>The rule that the appellate court is concluded by the finding of the trial court or verdict of jury upon conflicting evidence does not apply where the finding or verdict is upon depositions or other written evidence. In such case the appellate court will decide for itself upon which side the preponderance is.</p> <p>2. Evidence — Agency—Opinion of Witness — Legal Conclusion.</p> <p>Whether or not, an agency exists, or one has power to act for another, is a question of law to be determined from the facts; and the mere opinion or statement of a witness that one is an agent or representative of another is a legal conclusion and of no value as evidence of agency.</p> <p>3. Bills and Notes — Payment—Agency.</p> <p>A loan company dealing in mortgage securities took in its own name a negotiable note with interest coupons secured by a trust deed upon real estate, and immediately indorsed and transferred the note and coupons guaranteeing the payment of the coupons at maturity and the principal note within two years after maturity. The purchaser returned some of the coupons to the loan company in settlement of a debt, others were sold in the market and the remainder were sent by the purchaser to its bankers for collection as they fell due and were presented to and paid by the loan company on the days they fell due, all of such coupons being paid by the loan company before being collected from the borrower. The borrower had no notice of the transfer of the note, and at maturity paid the principal of the note to the loan company, who shortly thereafter failed without having paid off the note. The loan company was never in possession of the note after its transfer. Held that the loan company was not the agent of the holder of the note for its collection, and the payment made to the loan company was not a payment of the note.</p> <p>4. Same.</p> <p>In order that a payment by a borrower to a loan company of a note that has been transferred by the company before maturity shall be adjudged a payment of the note where the loan company fails to pay the money to the holder, it devolves on the borrower to prove cither ah actual agency on the part of the loan company to collect the note or facts which would estop the holder of the note from denying such agency.</p>

<p> Appeal from, the District Court of Chaffee County. </p>

<p> Appeal from the District Court of Conejos County. </p>

<p> Appeal from the District Court of Pueblo County. </p>

<p> Error to the County Court of Clear Creek County. </p>

<p>jError to the District Court of Bent County.'</p>

<p>1. Evidence — Sales—Bills and Notes.</p> <p>Plaintiff bought of defendant a bicycle which he afterwards returned, for which defendant gave him a receipt agreeing to credit a certain sum upon the purchase price of any wheel plaintiff might select from defendant’s stock. Defendant refusing to comply with his agreement, plaintiff brought suit upon the receipt. Held, that the receipt possessed the elements of a property note and entitled plaintiff to a credit on the purchase price of any wheel he might select from the stock when demand was made, and evidence as to the character and value of wheels defendant was dealing in at the time the receipt was given was immaterial and properly rejected.</p> <p>2. Sales — Receipt fob Retobned Goods — Cbedit on otheb Pub-chase — Demand—Reasonable Time.</p> <p>Where plaintiff bought of defendant a bicycle which he returned, defendant giving a receipt therefor, agreeing to credit a certain sum upon the purchase price of any wheel plaintiff might select from his stock without specifying any time when demand or payment should be made, the receipt was payable on demand within a reasonable time, and what was a reasonable time was a question of fact to be determined by the court under the particular circumstances of the case, and the finding of the trial court upon that question will not he disturbed on appeal.</p> <p>3. ' Same — Tender.</p> <p>Where a dealer gives a receipt for a returned bicycle with an agreement to credit its value upon the purchase price of any wheel to be selected by the purchaser from the stock of the dealer, and the purchaser fails to exercise his right within a reasonable time, the dealer cannot repudiate his contract and escape liability thereon without tendering the amount due in a wheel of his own selection.</p> <p>4. Same.</p> <p>Where a dealer gave a purchaser a receipt for a returned bicycle with an agreement to credit the value on any wheel in stock that might be selected by the purchaser, after the purchaser had selected a wheel and demanded the credit thereon, it was too late for the dealer to satisfy his agreement by the return of the old wheel to the purchaser, if he ever had such right.</p>

<p> Appeal from the District Court of El Paso County. </p>

<p>1. Pleading — Practice—Action Against Executor de son tort.</p> <p>A complaint which alleged that defendant was an executor de son tort of the estate of deceased; that as executor he had, without authority, taken possession of deceased’s property consisting of a large sum of money, a house and lot and personal property; that deceased, being an invalid, employed plaintiff to care for him, for which he promised to pay plaintiff a certain sum and that he died without paying him; that plaintiff had demanded payment of defendant which was refused, states a cause of action good as against a general demurrer.</p>

<p> Appeal from the District Court of Arapahoe County. </p>

<p> Appeal from the District Court of El Paso County. </p>

<p>Appeal from the District Court of Gunnison County.</p>

<p> Appeal from the County Court of Boulder County. </p>

<p>1. Contracts — Continuing Guaranty.</p> <p>Where defendant requested plaintiffs in writing to furnish a party conducting a hotel with groceries without limiting the request in any way as to time or amount, the order was a continuing one upon which defendant was liable until he notified plaintiffs that he would no longer be responsible.</p>

<p>1. Partnership — Contracts—Authority of one Partner to Bind Firm.</p> <p>One partner can bind tbe firm and liis copartners only by such contracts as are within the scope of the partnership business, or so closely related thereto as to permit third parties to lawfully assume the existence of authority to bind the firm, unless there be specific antecedent authority from the copartners, or the contract is ratified by the copartners after it is entered into.</p> <p>2. Same — Burden of Proof.</p> <p>Where a plaintiff sues on a partnership contract not within the scope of the business of the firm, the burden is on him to prove authority on the part of the signing partner or facts from which a ratification can be presumed.</p> <p>3. Same — Evidence—Statement of Signing Partner.</p> <p>The authority of one partner to bind his copartners to a contract not within the scope of the firm business cannot be shown by the statement of the contracting partner, nor can it be presumed because of any collateral or incidental benefit to the firm unless some direct profit has come from the contract which the firm has appropriated.</p> <p>4. Contracts — Guaranty—Consideration.</p> <p>Where a guaranty of the performance of a contract is made at the time or prior to the execution of the contract, the original consideration of the contract is sufficient to support the guaranty, but where the guaranty is subsequent to the execution of the original contract, there must be some new consideration moving between the parties to bind tbe guarantor.</p> <p>5. Same — Evidence.</p> <p>In an action upon a guaranty of a contract of lease, where the evidence was conflicting as to whether the guaranty was executed before or after the lease was executed and delivered, and the lessee had taken possession thereunder, it was error to reject evidence offered by the defendant, guarantor, to show that there was no new considerar tion to support the guaranty.</p> <p>6. Partnership — Contracts—Guaranty—Instructions.</p> <p>In an action on a lease contract against the tenant and against a partnership firm as guarantors where the evidence showed that the guaranty was unauthorized by the firm, it was error for the court to funish two forms of verdict, one for the plaintiff and one ior the defendants, and refuse at defendants’ request to give to the jury a form of verdict whereby they might find for the plaintiff as against the tenant and in favor of the guarantor defendants.</p>

<p>1. Attachment — Redelivbby Bond — Retukn of Damaged Pbop- ■ EETY.</p> <p>Where property, released from an attachment under a forthcoming bond is damaged from use by the defendant after the execution of the bond, its return to the officer in such damaged condition is not a return of substantially the same property and constitutes a breach of the bond.</p> <p>2. Same — Measube of Damage.</p> <p>In an action by an attachment plaintiff upon a redelivery bond where ' the property had been returned to the officer in a damaged condition resulting from use by the attachment defendant, the measure of plaintiff’s damage was the diminution in value of the goods between the date of their release and the date of their return to the attaching officer, not to exceed the unpaid residue of the judgment.</p> <p>3. Same — Estoppel.</p> <p>Where attached property has been released on a redelivery bond and the identical property is returned to the sheriff, it is the right of the bondsmen to have the property sold and the proceeds applied on the j udgment and neither the officer nor the plaintiff can refuse to accept the return of the property on account of damage or diminution in value, nor is the plaintiff estopped by such acceptance to sue upon the bond for damage to the property resulting from use by the defendant after it has been released to him under the bond.</p> <p>4. Same — Selling Phice Conclusive of Value.</p> <p>Where attached property has been released on a redelivery bond and after judgment sustaining the attachment the property is returned to the officer and the property is regularly and fairly sold as provided by statute and the proceeds applied on the judgment, as between the parties, the selling price is conclusive of the value thereof, and in an action by an attachment plaintiff upon a redelivery -bond for damage to the property from use by the defendant after the execution of the bond, an instruction that undertakes to charge plaintiff with the value of the property returned regardless of the amount it brought at the sale is erroneous, and the fact that the plaintiff was the purchaser at the sale is of no significance.</p>

<p> Appeal from the County Court of Phillips County. </p>

<p> Appeal from the District Court of Elbert County. </p>

<p>1. Interest — Bank Deposit — Demand.</p> <p>Unless there is some agreement or usage to the contrary, money deposited in bank subject to draft does not draw interest until demand is made and the bank has defaulted in its payment.</p> <p>2. Same — Temporary Suspension — Receiver.</p> <p>The fact that a bank is temporarily suspended and its assets are temporarily in the hands of a receiver appointed by the government does not excuse a depositor from making demand so as to render the account due and cause it to draw interest without demand.</p> <p>3. Same.</p> <p>The relation between a bank and its depositor is that of debtor and creditor the debt becoming due and payable on demand, and even though a bank may be unable to pay, and a demand therefore be excusable to that extent, still there must be some notice by the depositor of his intention of terminating the relation of debtor and creditor by declaring the maturity of the debt before he can recover interest on his deposit.</p>

<p>1. Mechanics’ Liens — Contracts—Owners.</p> <p>In order to support a mechanic’s lien under a contract, the contract must he made with the owner of the property sought to be subjected to the lien.</p> <p>2. Same — Possession—Pleading.</p> <p>Where a complaint in an action to foreclose a mechanic’s lien shows on its face that parties with whom the contract of employment under which the lien is claimed was made were not the owners of the property the complaint is insufficient to state a cause of action. And the allegation that the parties with whom the contract was made were lawfully in possession of the property would. not cure the defect since no presumption of ownership can be indulged from the fact of possession against the positive allegation of the complaint that the ownership was in another person.</p> <p>3. Mechanics’ Liens — Ownership—Grantor’s Lien.</p> <p>A grantor’s lien, or the right of a grantor to pursue the property for the purchase money is not such interest in or ownership of the property as will support a mechanic’s lien.</p> <p>4. Mechanics’ Liens — Contracts—Amendment op Law.</p> <p>Where a party contracted to do certain services in relation to real estate which under the law as it existed at the date of the contract would not entitle'liim to a mechanic’s lien, the fact that he continued his services under the contract until after the-law was amended giving a mechanic’s lien for the character of service he was performing, would not entitle him to a lien. And the fact that the contract was terminable at the option of the parties would not warrant the construction that it was a new contract made from month to month.</p> <p>5. Mechanics’ Liens — Ownership—After Acquired Title.</p> <p>Where a party claims a mechanic’s lien under a contract made with persons who were not the owners nor had any interest in the real estate that would support the lien, the fact that the persons with whom he contracted afterwards acquired ownership would not entitle him to a lien under his contract.</p>

<p>1. Appellate Practice — Parties.</p> <p>Where a judgment is rendered against two or more persons any one of them may appeal and if necessary may use the names of the others, but where only one party has any real interest affected by the judgment and the-others are merely trustees to whom it is a matter of indifference what judgment is rendered, on appeal by the interested party, it is not necessary to join or use the names of the others.</p> <p>2. Judgments — Foreclosure Proceedings — Jurisdiction—Collateral Attack.</p> <p>A deed in a foreclosure proceeding is dependent upon the decree for its validity and where the record shows that the court was without jurisdiction to render the decree, the decree and all subsequent proceedings which derive their authority from the decree are void and may be collaterally attacked.</p> <p>3. Same.</p> <p>In a foreclosure proceeding the court has no jurisdiction to order the sale of property not mentioned in the complaint and not included in the mortgage sought to be foreclosed and the decree is void so far as it affects such property.</p> <p>4. Summons — Foreign Corporations — Return.</p> <p>Service of summons upon a foreign corporation can only be made by delivering a copy of the writ to an agent of the corporation found in the county in which the action is brought, or to a stockholder in that county if no such agent shall be found. Under no condition can service of summons be made upon the vice president of a foreign corporation. If service is made upon a stockholder the return must not only show that the copy was delivered to a stockholder but it must also show that no agent of the corporation could be found in the couuty.</p> <p>5. Same — Evidence.</p> <p>Where in a foreclosure proceeding return of summons showed that service was made upon the vice president of a foreign corporation, in a collateral attack upon the proceedings, evidence that the corporation had an agent at the time in the county where the action was brought, duly appointed in compliance with the statute, upon whom process might have been served, was immaterial and was properly excluded, since the invalidity of the service was shown by the return.</p> <p>6. Foreclosure Decree — Jurisdiction.</p> <p>A foreclosure decree is void where it appears from the record that the only defendant against whom a foreclosure could be had was not within the j urisdiction of the court.</p> <p>7. Foreclosure Proceedings — Jurisdiction—Void Decree — Evidence — Records.</p> <p>In an action to remove a cloud upon title where plaintiff claimed under a foreclosure sale, the records of the foreclosure proceedings were competent and admissible evidence on behalf of defendant to show that in the foreclosure proceeding the court had no jurisdiction and that the foreclosure was therefore void.</p> <p>8. Action to Remove Cloud or Quiet Title — Pleading and Proof —Title.</p> <p>Plaintiff must allege and prove title in himself in order to maintain an action either in equity to remove cloud from title or under the code to quiet title.</p> <p>9. Same — Void Foreclosure Sale — Assignment of Mortgage.</p> <p>One claiming title under a void foreclosure sale cannot maintain an action to remove a cloud from his title, but where the purchaser in good faith paid his money which went to the benefit of the mortgagee, the foreclosure operated as an equitable assignment of the mortgage and the purchaser or his grantee became subrogated to all the rights of the mortgagee and may maintain an action to cancel a fictitious mortgage which constitutes an apparent prior lien and to establish the priority of his own mortgage lien.</p>

<p> Appeal from the District Court of Arapahoe County. </p>

<p>1. Attachment — Feaudulent Conveyance — Evidence — Statements of Agent.</p> <p>In a contest between an attaching creditor and another creditor claiming under bill of sale from the debtor, over a stock of goods, where the attaching creditor charged that the transfer was made to defraud creditors, statements made to the attaching creditor by a person in possession and charge of the store after the transfer, were admissible and competent evidence without proof that he was the agent of the purchasing creditor for any particular purpose. And a telegram sent by the purchasing creditor to his agent in possession in which the agent was directed to ship the goods and to state to the attaching creditor that an explanation of the shipment would be made in a letter, was .also competent and admissible as evidence.-</p> <p>2. Same — Hearsay.</p> <p>In a contest between an attaching creditor and a creditor claiming under a'bill of sale wherein it was claimed by the attaching creditor that the sale was in fraud of creditors, evidence by the purchaser of what some one else had told him about the attachment and advising him to come at once and arrange matters was inadmissible.</p> <p>3. Appellate Practice — Instructions—Exceptions. ■</p> <p>Where instructions were given orally and in one general charge without division into paragraphs or specific parts, a general objection and exception at the conclusion of the charge, in the form “ to the giving of which and every one of which the plaintiff excepted" is wholly unavailable to save any question for the purpose of an appeal.</p> <p>4. Fraudulent Conveyance — Assignee of Claim.</p> <p>Where a creditor of an insolvent debtor assigns his claim after a transfer by the debtor of his property, the assignee of the creditor cannot attack the transfer by the debtor on the ground that it was made for the purpose of defrauding creditors.</p>

<p> Error to the District Court of Arapahoe County. </p>

<p>1. Life Insurance — Mutual Fraternal Societies — Suspension— Reinstatement.</p> <p>Where a member of a mutual fraternal insurance association was suspended for nonpayment of assessments, in order to recover upon the lapsed policy it is necessary for the beneficiary to show that the assured had been reinstated before death or had done all that was required by the by-laws of the association to entitle her to reinstatement.</p> <p>2. Same.</p> <p>Where a member of a mutual fraternal insurance association was suspended for nonpayment of assessments and made application for reinstatement and was furnished with a statement of the amount - due for reinstatement and blanks to be filled out which she filled out and sent with the money to the association and the blanks stated that she was in good health which was confirmed by the certificate of a physician on a general inspection, which certificate was immediately returned by the officers of the company and she was a'dvised that under the circumstances she would have to furnish a complete physical examination and statement, the same as in case of an original application, and upon examination by a physician she was discovered to be suffering from a.n organic disease from which she shortly thereafter died, and the application was refused, a complaint setting forth these facts is insufficient to state a cause of action unless it shows that the certificate furnished was an actual compliance with the by-laws of the society to entitle her to reinstatement.</p>