Volume 164 — Colorado Reports

1. <bold>WILLS</bold> — <italic>Rule — Construction — Intent — Entirety — Court — Duty — Law —</italic><italic>Public Policy.</italic> The cardinal rule in the construction of a will is that the court shall determine the actual intent of the testator from the instrument in its entirety and, having ascertained that intent, shall carry it out, provided that the testator's intent conforms to law and public policy. 2. <italic>Evidence — Intent — Probate Court — Supreme Court — Instrument —</italic><italic>Findings — Effect.</italic> Where the only evidence presented to the probate court pertaining to testator's intent consisted of the last will and testament itself and Supreme Court had instrument before it, <italic>held</italic>, under such circumstances, Supreme Court was not bound by probate court's findings. 3. <bold>TRIAL</bold> — <italic>Written Instrument — Construction — Law.</italic> The construction of a written instrument is a question of law.<page_number>Page 26</page_number> 4. <bold>WILLS</bold> — <italic>Construction — Intent — Section of Instrument — Executrix —</italic><italic>Payment — Taxes — Contribution.</italic> In action by executrix seeking construction of certain language employed in testator's will, reviewing court is of the view that testator's intent finds clear manifestation in that section of the instrument which directs executrix to pay all succession, estate and death taxes that may be levied by reason of his death without any right to require contribution from any person. 5. <italic>Legacies — Taxes — Deduction — Testator — Payment — Remainder of</italic><italic>Estate.</italic> A testator has the undisputed power to direct that legacies be paid to the legatees without deduction for death taxes; hence, in such case the taxes, unless otherwise provided for, are paid out of what the testator intends as the remainder of his estate. 6. <bold>TAXATION</bold> — <italic>Taxes — Payment — Executrix — Federal — State.</italic> Federal estate taxes and state inheritance and succession taxes must be paid by the executrix under the pertinent provisions of the Internal Revenue Code and the Colorado Revised Statutes. 7. <bold>EXECUTORS AND ADMINISTRATORS</bold> — <italic>Taxes — Administration — Claim.</italic> An executrix may treat federal estate taxes and state inheritance and succession taxes as a part of the cost of administration and as a claim against the estate. 8. <bold>WILLS</bold> — <italic>Taxes — Claims — Contributions — Abatements — Bequests —</italic><italic>Devises — Payment — Assets — Provision.</italic> Federal estate taxes and state inheritance and succession taxes as claims against the estate are satisfied by contributions or abatements from bequests and devises of a testator's will or by payment from estate assets if the testator so provides. 9. <italic>Executrix — Taxation — Contribution — Remaining — Intent — Bequests —</italic><italic>— Residuary — Payment.</italic> Where testator's will directed his executrix to pay all estate taxes without any right to require contribution, from any person, testator's use of word "remaining" in last dispositive section of will manifested testator's intent that specific bequests to wife and sons were not to be part of residuary estate and that estate and inheritance taxes should be paid only from residuary estate. 10. <bold>APPEAL AND ERROR</bold> — <italic>Distributive Share — Adverse — Will — Aggrieved —</italic><italic>— Individual Capacity.</italic> Where decree of probate court adversely affected executrix' distributive share under the testator's will, <italic>held</italic>, in such instance she thereby acquired status as an aggrieved party entitled to bring writ of error in her individual capacity.<page_number>Page 27</page_number>

1. <bold>DIVORCE</bold> — <italic>Alimony — Discretion — Review — Abuse.</italic> Awarding of alimony and fixing the amount thereof rests within the sound discretion of the trial court, and its judgment in this regard will not be disturbed on review unless there has been a clear abuse of discretion.<page_number>Page 81</page_number> 2. <italic>Alimony — Award — Discretion — Seven Children — Household.</italic> Trial court did not abuse its discretion in adjudging that divorced husband pay $100 per month to former wife as permanent alimony where wife had seven children, two of whom were begot by husband, and would have full-time job tending household. 3. <italic>Attorney Fees — Award — Propriety — Addition — Partial Payment.</italic> Trial court did not err in connection with its award of attorney's fees to former wife's attorney in amount of $500 in addition to sum of $175 which divorced husband had theretofore paid as partial payment on any such fees ultimately awarded. 4. <italic>Attorney Fees — Award — Discretion.</italic> Award of attorney fees is a matter which lies within the sound discretion of the trial court. 5. <italic>Security — Orders — Enforcement — Statute.</italic> Under C.R.S. 1963, 46-1-5(3), a trial court has power to require security to be given to insure enforcement of its orders. 6. <bold>PARENT AND CHILD</bold> — <italic>Support — Insurance — Irrevocable Beneficiaries —</italic><italic>Minors — Propriety.</italic> Where trial court ordered husband to keep in full force and effect insurance policies in which his children were to be the irrevocable beneficiaries to the extent of a specific sum for each of his children until such time as they were no longer minors, <italic>held</italic>,such order was beyond the bounds of propriety of the trial court. 7. <italic>Insurance — Life — Duty — Father.</italic> A father is not under any legal duty to take out an insurance policy on his life in favor of a child. 8. <bold>DIVORCE</bold> — <italic>Division of Property — Propriety — Profit — Wife — Home —</italic><italic>Items.</italic> Reviewing court finds no error in order of trial court regarding division of property, particularly with reference to that part of order that permits wife to retain $2000 profit realized from sale of home which she had owned at time of marriage and on which husband had made payments; especially, in light of disposition of other property items owned by the parties.

1. <bold>DIVORCE</bold> — <italic>Instruction — Mental Cruelty — Disjunctive — Conjunctive —</italic><italic>Use — Propriety.</italic> In action by husband for divorce on ground of cruelty, where trial court's instruction defining "mental cruelty" provided, in part, that mental cruelty may be inflicted by use of words or acts of conduct which constitutes quarreling or fault finding and which are such as to affect health, well-being "<italic>or</italic> peace of mind of either of the parties," <italic>held</italic>,trial court did not err in using disjunctive word "or" in aforementioned quotation instead of conjunctive word "and." 2. <italic>Acts — Destruction — Peace of Mind — Health — Cruelty — Statute.</italic> Acts which tend to destroy the peace of mind are well calculated to impair health and endanger life and are sufficient grounds under the statute setting forth cruelty as a ground for divorce. 3. <italic>Condonation — Confession and Avoidance — Affirmative — Pleading.</italic> In a divorce action, the defense of condonation is in the nature of confession and avoidance and therefore should be affirmatively pled. 4. <italic>Instruction — Condonation — Refusal — Propriety.</italic> In divorce action by husband against wife, record reflects that under circumstances of<page_number>Page 100</page_number> instant case trial court did not err in its refusal to give instruction on condonation. 5. <italic>Evidence — Sufficiency — Jury — Verdict — Propriety — Contradiction.</italic> In divorce action by husband against wife, record reflects sufficient evidence of cruelty on wife's part to require submission of matter to jury and to support verdict in favor of husband which jury thereafter returned, notwithstanding fact that wife contradicted much of her husband's testimony.

1. <bold>SCHOOLS AND SCHOOL DISTRICTS</bold> — <italic>Employment — Discharged Teacher — Breach</italic><italic>— Contract — Validity — Appeal and Error.</italic> In action by discharged teacher against school district for alleged breach of contract of employment, reviewing court is of the view that under the circumstances of the instant case there never was a valid and binding contract between the parties; hence, trial court erred in its entry of judgment in behalf of discharged teacher.<page_number>Page 174</page_number> 2. <italic>Teachers — Employment — Power — School Board — Exclusive — Statute.</italic> Under C.R.S. 1963, 123-10-19, the power to employ teachers and fix their wages is exclusively vested in the school board, and not in any other body or official. 3. <bold>MUNICIPAL CORPORATIONS</bold> — <italic>District — Delegation — Powers and Functions —</italic><italic>Ministerial or Administrative — Standard — Discretion — Subordinate.</italic> A municipal corporation, or a quasi-municipal corporation such as a district, may delegate to subordinate officers and boards powers and functions which are ministerial or administrative in nature, where there is a fixed and certain standard or rule which leaves little or nothing to the judgment or discretion of the subordinate. 4. <italic>Powers — Legislative — Judicial — Judgment — Discretion — Statute —</italic><italic>Delegation — Authorization — Legislature.</italic> Legislative or judicial powers, involving judgment and discretion on the part of the municipal body, which have been vested by statute in a municipal corporation may <italic>not</italic> be delegated unless such has been expressly authorized by the legislature. 5. <bold>SCHOOLS AND SCHOOL DISTRICTS</bold> — <italic>Teachers — Employment — Power —</italic><italic>Legislative — Judicial — Discretion — Delegation.</italic> The power to employ teachers and fix their wages is not a mere ministerial or administrative matter, where little or no judgment or discretion is involved, but on the contrary is a legislative or judicial power involving the exercise of considerable discretion; hence, such power cannot be delegated. 6. <italic>Employment — Teachers — Power — School Board — Exclusive — Delegation</italic><italic>— Intent — Legislature.</italic> The power to employ teachers has been conferred by the legislature exclusively on the school board, and therefore it cannot be delegated; and to hold to the contrary would thwart the obvious intent of the legislature and would amount to nothing more than pure judicial legislation. 7. <italic>Board — Delegation — Power to Employ — Superintendent — Defense of</italic><italic>Action — Discharged Teacher.</italic> Reviewing court is of the view that notwithstanding the fact that school board purportedly delegated its power to employ teachers to the superintendent, yet, such does not preclude school district from defending the action brought by discharged teacher on ground that school board could not lawfully delegate this power to its superintendent. 8. <italic>Board — Power — Hiring of Teachers — Shifting of Responsibility —</italic><italic>Prohibition — Statute.</italic> School Board empowered by statute to hire teachers,<page_number>Page 175</page_number> cannot escape such statutory duty by completely shifting the responsibility to its superintendent.

1. <bold>WORKMEN'S COMPENSATION</bold> — <italic>Commission — Denial of Claim — Referee — Award</italic><italic>— Brick Mason.</italic> Under circumstances of instant case, trial court erred in setting aside order of the Commission which denied his claim and ordered Commission to adopt original award of referee who determined that claimant, a brick mason, was injured in an accident arising out of and in the course of his employment. 2. <italic>Finding — Order — Award — Commission — Attack — Time Limitation —</italic><italic>Statute.</italic> C.R.S. 1963, 81-14-7 and 81-14-8 provide that any action to set aside any finding, order, or award of the Commission must be brought within 20 days after the final finding, order or award entered by the Commission. 3. <italic>Denial — Attack — Twenty Days — Loss of Review — Order — Finality —</italic><italic>Reopening.</italic> Where claimant failed to attack the award denying him compensation within 20 days, he thereby lost his right to review and the order of the Commission became final for all purposes, unless reopened by Commission on its own motion. 4. <italic>Reopening of Case — Commission — Permissive — Statute.</italic> C.R.S. 1963, 81-14-19 is a permissive statute; it permits, but does not require<page_number>Page 241</page_number> the Commission to reopen a case upon certain grounds. 5. <bold>STATUTES</bold> — <italic>Rewrite — Supreme Court — Lack of Power.</italic> It is not within the power of the Supreme Court to rewrite a statute. 6. <italic>Supreme Court — Interference — Statute — Exceptions.</italic> Supreme Court will not interfere with Commission's actions under C.R.S. 1963, 81-14-19, except in case of fraud or abuse of discretion. 7. <italic>Reopen — Denial — Substitution — Action — Review — Loss — Discretion</italic><italic>— Propriety.</italic> Where Commission refused to reopen claimant's case to permit him to substitute action under C.R.S. 1963, 81-14-19 for the right to review granted him by C.R.S. 1963, 81-14-7, which he lost by inaction, <italic>held</italic>, such refusal by Commission does not amount to an abuse of discretion.

1. <bold>CRIMINAL LAW</bold> — <italic>Venue — Burden of Proof.</italic> The burden is on the People to prove venue in a criminal case. 2. <italic>Kidnapping — Assault — Rape — Venue — Instruction — Slight Evidence —</italic><italic>— Sufficiency — Circumstantial.</italic> In a prosecution for kidnapping and assault with intent to commit rape, where defendant offers no evidence on venue and tenders no instruction, slight evidence is sufficient to establish venue and such evidence may be circumstantial. 3. <bold>KIDNAPPING</bold> — <italic>Venue — County — Commission — Taken or Kept —</italic><italic>Confinement —</italic><page_number>Page 284</page_number><italic>— Restraint.</italic> Venue is a kidnapping case may be either in the county in which the offense was committed or in any county through which the person kidnapped was taken or kept while under confinement or restraint. 4. <bold>CRIMINAL LAW</bold> — <italic>Venue — Place — Offense.</italic> Generally, venue in a criminal case lies in the county where the offense was committed. 5. <italic>Credibility — Testimony — Jury — Witness.</italic> In a criminal prosecution, the credibility of the testimony given by a complaining witness is for the jury to determine. 6. <bold>KIDNAPPING</bold> — <italic>Rape — Assault — Jury — Witness — Evidence — Guilt.</italic> In prosecution for kidnapping and assault with intent to commit rape, where jury believed testimony of complaining witness, under such circumstance there was sufficient evidence to support the guilty verdict. 7. <bold>CRIMINAL LAW</bold> — <italic>Kidnapping — Assault — Rape — Continuance — Denial —</italic><italic>Preparation — Defense — Discretion.</italic> In a prosecution for kidnapping and assault with intent to commit rape, where defendant moved for a continuance six days before trial on the ground that he had been unable to locate and interview complaining witness <italic>held</italic>, under circumstances of instant case, trial court's denial of his motion was neither an abuse of discretion nor a deprivation of opportunity for him to adequately prepare his defense. 8. <italic>Continuance — Discretion of Court.</italic> The granting of a motion for continuance lies within the sound discretion of the trial court. 9. <bold>RAPE</bold> — <italic>Assault — Kidnapping — Clothing — Identification — Sufficiency.</italic> Where victim of assault with intent to commit rape and kidnapping testified that certain clothing introduced in evidence looked like that which she wore on night she was victimized, <italic>held</italic>, under the circumstances, such identification was sufficient. 10. <bold>CRIMINAL LAW</bold> — <italic>Clothing — Chain of Custody — Admissibility —</italic><italic>Foundation — Identity — Condition — Proof.</italic> It is not necessary to establish a chain of custody of certain clothing in a criminal prosecution in order to lay a proper foundation for admission of such clothing into evidence, if identity and condition can be established by a witness. 11. <italic>Kidnapping — Assault — Rape — Blood-stained Clothing — Corroboration</italic><italic>— Force — Evidence.</italic> In prosecution for kidnapping and<page_number>Page 285</page_number> assault with intent to commit rape, blood-stained clothing of victim was admissible to corroborate her testimony concerning the force used by defendant; and defendant's admission that his victim did bleed as result of his actions did not give him the right to demand exclusion of such clothing from evidence. 12. <bold>SEARCHES AND SEIZURES</bold> — <italic>Kidnapping — Assault — Rape — Clothing —</italic><italic>Admissibility.</italic> In prosecution for kidnapping and assault with intent to commit rape, there is no merit to defendant's contention that his clothing was inadmissible because it was taken by an illegal search and seizure. 13. <bold>CRIMINAL LAW</bold> — <italic>Evidence — Cumulative — Rejection.</italic> The fact that evidence is cumulative is not, per se, grounds for its rejection. 14. <italic>Kidnapping — Rape — Photographs — Clothing — Admissibility —</italic><italic>Prison Garb — Evidence — Exclusion.</italic> Reviewing court is of the view that in prosecution for kidnapping and assault with intent to commit rape photographs showing defendant wearing a certain type of clothing which defendant has denominated "prison garb" were not of such prejudicial nature as to warrant their exclusion from evidence. 15. <italic>Kidnapping — Rape — Co-defendant — Courtroom — Identification —</italic><italic>Procedure — Prejudice — Propriety.</italic> In prosecution for kidnapping and assault with intent to commit rape, where co-defendant, who had been endorsed as a witness but whose trial had been set for a later date, was brought into courtroom during victim's testimony for identification purposes, <italic>held</italic>, such procedure was the only means left open to the district attorney, and defendant was not prejudiced thereby. 16. <italic>Rape — Instruction — Intoxication — Substantially the Same —</italic><italic>Briefer — Verbiage — Propriety.</italic> In prosecution for kidnapping and assault with intent to commit rape, where instruction on intoxication given by Court was substantially the same as defendant's tendered instruction, though considerably briefer, <italic>held</italic>, under such circumstances, there was no error since there is no requirement that instructions be given in the particular verbiage tendered by defendant. 17. <bold>KIDNAPPING</bold> — <italic>Evidence — Definitions — Statute — General Verdict — One</italic><italic>Form — Election — People — Counts — One Crime.</italic> In prosecution kidnapping, where evidence in case brings conduct of defendant within definitions contained in both sections of pertinent statute, <italic>held</italic>, under such circumstances, it was not error for the court to submit one form of general verdict — and not two — on the crime of kidnapping; and neither was any<page_number>Page 286</page_number> election required of the People as to which of two counts on kidnapping to submit to the jury, since only one crime was charged.

1. <bold>EMINENT DOMAIN</bold> — <italic>Terminal Company — Condemnation — Purchase — Other</italic><italic>Property — Damaged Tract.</italic> Where terminal company expended large sum of money to buy certain other property to avoid consequences of untoward predicament in which Department of Highways had placed it through condemnation proceedings, and Department sought to have such other property considered as part of tract which was damaged by condemnation proceedings in order to decrease amount payable by reason of diminution in market value of residue, <italic>held</italic>, since such "other property" was not damaged by condemnation proceedings, it was therefore not residual property. 2. <italic>Condemnation — Sui Generis — Statutory — Constitution.</italic> Condemnation proceedings are sui generis and statutory, encircled by the constitution.<page_number>Page 355</page_number> 3. <italic>Condemnation — Report — Compliance — Statute — Right-of-Way —</italic><italic>Evidence — Directions — Surplusage.</italic> Report of commission in condemnation proceedings by Department of Highways to acquire a parcel of land as a right-of-way — based upon the evidence presented — was in compliance with the mandate of C.R.S. 1963, 50-1-18; hence, the directions of the trial court requiring more, to that extent, were surplusage not affecting the substantial rights of the parties and therefore not prejudicial. 4. <bold>EVIDENCE</bold> — <italic>Witnesses — Testimony — Documents — Personal Knowledge —</italic><italic>Hearsay — Objection — Negative.</italic> Where witnesses who testified with reference to certain documents had prepared them from personal knowledge and were under oath and cross-examined, <italic>held</italic>, under such circumstances, objection of hearsay did not exist. 5. <italic>Admissibility — State — Favor — Civil Actions — Statute — Rules.</italic> Colorado favors the admissibility and not the rejection of evidence in civil actions in accordance with the most convenient methods prescribed by statute and the rules of evidence. 6. <bold>EMINENT DOMAIN</bold> — <italic>Documents — Technical — Expert Witnesses —</italic><italic>Condemnation — Right-of-Way — Admissibility.</italic> Documents dealing with technical matters, containing summaries and tabulations prepared by terminal company's expert witnesses in condemnation proceedings involving the acquisition of a parcel of land as a right-of-way by Department of Highways, were competent and admissible as evidence. 7. <italic>Curtailment of Evidence — Condemnation — Layout — Parking — Terminals</italic><italic>— Leeway — Appeal and Error.</italic> Curtailment by commission of evidence, offered by Department of Highways in condemnation proceedings to show physical layout and methods of parking of comparable motor carrier terminals, was not error; actually, it gave considerable leeway for presentation of such evidence in the ten-day trial. 8. <italic>Terminal Company — Lease and Option — Basis — Opinion — Market</italic><italic>Value — Property — Qualified — Appeal and Error.</italic> Witness called by terminal company to consider a lease and option to purchase among many real estate sale and purchase transactions, as a basis for his opinion of the market value of the company's property, was qualified to testify; hence, there was no prejudicial error committed by commission on this point. 9. <italic>Attorney Fees — Costs — Constitution.</italic> Attorneys' fees are not included within the meaning of "costs" as applied to Article II, Section<page_number>Page 356</page_number> 15 of the Colorado constitution and are not recoverable in eminent domain proceedings.

1. <bold>MORTGAGES</bold> — <italic>Deed of Trust — Subordination — Agreement — Negative —</italic><italic>Evidence — Finding.</italic> In action to have defendant's deed of trust declared junior and inferior to plaintiff's deed of trust, evidence sustained finding that defendant, holder of second deed of trust on lot, had not agreed to subordinate its deed of trust to plaintiff's original deed of trust. 2. <bold>APPEAL AND ERROR</bold> — <italic>Finding — Trial Court — Conflicting Evidence —</italic><italic>Binding Effect.</italic> A finding made by trial court on conflicting evidence is binding on review. 3. <bold>MORTGAGES</bold> — <italic>Release — Benefit — Mistake of Fact — Equity — Correction —</italic><italic>Deed of Trust.</italic> Ordinarily, a release or cancellation of a deed of trust of record inures to the benefit of a junior lienor; however, where a first deed of trust has been released through a mistake of fact, equity, under<page_number>Page 408</page_number> certain circumstances, will intervene to correct the mistake. 4. <italic>Deed of Trust — Subordination — Absence of Damage — Negligence —</italic><italic>Materiality — Mistake.</italic> In action by plaintiff seeking to have a certain deed of trust for the benefit of defendant declared junior and inferior to the deed of trust held as security by plaintiff, controlling rule is that absent a showing by defendant of a prejudicial change of position and damage to itself, the matter of plaintiff's negligence is not material; in such case, the question is merely whether the act was induced by mistake. 5. <italic>Deed of Trust — First — Second — Inferior — Mistaken Belief —</italic><italic>Reliance — Evidence.</italic> In action to have defendant's deed of trust declared junior and inferior to plaintiff's deed of trust, evidence supports finding that plaintiff, as holder of first deed of trust which was released when borrower executed new promissory note, had relied on <italic>mistaken belief</italic> that defendant, as holder of existing second deed of trust, would retain its second lien status. 6. <italic>Correction — Mistake of Fact — Resistance — Burden — Damage —</italic><italic>Reliance — Superior Lien.</italic> The burden is on the one resisting correction of a mistake of fact in connection with a trust deed lien to show that it has been damaged as a result of reliance on the release of a superior lien. 7. <italic>Trust Deed — Release — Superior Lien — Mistake — Negative — Change</italic><italic>of Position — Reliance — Unfair Advantage — Correction — Status Quo — Lack</italic><italic>of Vigilance.</italic> Where no one is injured by mistaken release of superior trust deed lien and second lien holder has not changed his position in reliance on fact that his lien has been advanced to first priority status, the mistake should not afford junior lienor unwarranted and unfair advantage to detriment of senior lienholder who has made the mistake, and court should correct mistake and return parties to status quo, even though highest degree of vigilance was not used by one releasing superior lien.

1. <bold>DEEDS</bold> — <italic>Builder — Conveyance — Trust Officer — Developer — Retention</italic><italic>and Control — Delivery — Invalidity — Agents — Intent.</italic> Where builder of proposed apartment building executed warranty deed conveying certain lots to trust officer of bank at behest of real estate developer who acquired deed and who retained complete control over both deed and property, <italic>held</italic>, under such circumstances there was no valid delivery of deed from builder to trust officer by virtue of fact that builder had physically given such deed to developer, since both builder and trust officer were controlled agents of developer who never intended such deed to become operative as transfer of title until recorded. 2. <bold>MUNICIPAL CORPORATIONS</bold> — <italic>Builder — Conveyance — Trust Officer —</italic><italic>Delivery — Recordation — Developer — Ordinance — Vacation — Street — Lots —</italic><italic>Record Owner.</italic> Where builder of proposed apartment building at behest of real estate developer executed warranty deed conveying certain lots to trust officer of bank which deed was conveying certain lots to trust officer of bank which deed was neither delivered nor recorded at that time but which was retained by developer who subsequently recorded it after city council had enacted ordinance vacating portion of street fronting lots,<italic>held</italic>, under such circumstances, trial court properly held that effect of vacation ordinance was to vest disputed title to vacated portion in builder<page_number>Page 471</page_number> who was record owner at the time street was vacated. 3. <bold>JUDGMENT</bold> — <italic>Lien — Creditor — Same Footing — Purchaser in Good Faith —</italic><italic>Tests.</italic> The lien of a judgment creditor stands upon the precise footing as that of an innocent purchaser or encumbrancer in good faith, subject to the same tests as to good faith and regularity generally. 4. <bold>VENDOR AND PURCHASER</bold> — <italic>Rights — Bona Fide — Unrecorded Deed —</italic><italic>Interest — — Actual — Apparent.</italic> The right acquired by a bona fide purchaser of real estate without notice of an unrecorded deed are not measured by the actual interest of the seller in the land, but rather by his apparent interest. 5. <italic>Innocent — Negligent Encumbrancer — Suffer.</italic> As between the negligent encumbrancer and the innocent purchaser for value, the former must suffer. 6. <bold>JUDGMENT</bold> — <italic>Creditor — Filing of Transcript — Before Recording of Deed —</italic><italic>Lien — Priority — Grantee.</italic> If before the recording of a deed a judgment creditor, without notice of the conveyance, files a transcript of his judgment, the lien of his judgment becomes superior to the rights of the grantee in the deed. 7. <italic>Vacated Portion of Street — Debtor — Builder — Recorded Lien —</italic><italic>Correction Deed — Lots — Failure to Abolish.</italic> Reviewing court is of the view that title to vacated portion of street in question vested in judgment debtor, the builder of the proposed apartment building, when it became subject to judgment creditors' recorded lien on particular date; and a correction deed, executed by judgment debtor after the stated particular date and intended to include portion of vacated street with lots, did not abolish the lien. 8. <bold>MUNICIPAL CORPORATIONS</bold> — <italic>Record Title — Lots — Vacation of Street —</italic><italic>Ordinance — Recording of Deed — Effect.</italic> Reviewing court is of the view that since record title to lots was in judgment debtor, the builder of the proposed apartment building, at time street was vacated pursuant to ordinance, recording of deed to lots after street vacation served to convey only the lots and not a portion of the already vacated street even though such deed was executed prior to the enactment of the municipal ordinance in question. 9. <bold>REFORMATION OF INSTRUMENTS</bold> — <italic>Prejudice — Judgment Creditor — Without</italic><italic>Notice — Lien — Disputed Property.</italic> Reformation will not lie to the prejudice of a judgment creditor without notice who has a valid lien upon disputed property.<page_number>Page 472</page_number> 10. <bold>JUDGMENT</bold> — <italic>Creditor Without Notice — Lien — Debtor — Superiority —</italic><italic>Third Party — Equitable Interests.</italic> A creditor who, acting in good faith and without notice of equitable interests, acquires a lien under the statutes against the <italic>apparent</italic> interest of his judgment debtor, acquires a valid lien superior to third party's equitable interests.

1. <bold>STATUTES</bold> — <italic>Construction — Whole — Clause — Alone — Doubt — Definition —</italic><italic>Meaning — Plain — Comparison.</italic> It is a basic doctrine of statutory construction that every law is adopted as a whole; and a clause which standing alone gathers to it one meaning, or a meaning of doubtful import, may be defined as to its real meaning or may be made plain by a comparison with other portions of the same law. 2. <bold>BANKS AND BANKING</bold> — <italic>Action — Majority — Quorum — Board — Charter —</italic><italic>Grant — Govern — Statute.</italic> C.R.S. 1963, <cross_reference>14-2-2</cross_reference>(5) in pertinent part states simply and clearly that an action by a majority of a quorum at any meeting of the banking board shall be the action of the board; and since there are no exceptions to its applicability it must therefore be concluded that it governs all acts of the banking board, including the granting of a bank charter. 3. <italic>Quorum — Majority — Vote — Favor — Charter — Approval — Board —</italic><italic>Accord — Law — Validity.</italic> Where five of seven members of banking board constituting a quorum were present at a meeting, and a majority of such<page_number>Page 565</page_number> quorum voted in favor of granting bank charter, <italic>held</italic>, under such circumstances, the granting of the state bank charter as approved by the banking board was in accordance with the law and was therefore valid. 4. <italic>Branch — Prohibition — Business — More Than One Location — Statute.</italic> The statute against branch banking [C.R.S. 1963, 14-3-1(1)] clearly prohibits banks from conducting business at more than one location. 5. <italic>Charter — Use — Authority — Prohibition — More Than One Place.</italic> The duly granted charter of a bank cannot be used as a grant of authority to do business at more than a single place of business. 6. <italic>Approved Charter — Application — Second Charter — Prohibition —</italic><italic>Second Place of Business.</italic> An approved bank having duly granted charter cannot apply for another charter to do business under a second charter at a second place of business. 7. <italic>Code — Permission — Affiliates.</italic> An analysis of pertinent sections of the banking code reveals that the legislature did intend to permit what is known as "affiliate banks." 8. <italic>Contractual Relations — Anticipated — Affiliate Banks — Affiliate</italic><italic>Banking.</italic> Reviewing court is of the view that because of anticipated contractual relations between city bank and airfield bank in question, it could be said that they are "affiliate banks" or engaged in "affiliate banking." 9. <italic>Matter of Law — Board — Grant — Charter — Applicant — Airfield —</italic><italic>Violation — Prohibition — Branch.</italic> Reviewing court is of the view that none of the facts as shown from the record, necessarily and as a matter of law, reveal that the banking board's grant of the state charter to the applicant airfield bank, is in violation of the prohibition against branch banking. 10. <italic>Piercing Corporate Veil — Determination — Branch Banking — Lack of</italic><italic>Warrant.</italic> Reviewing court is of the view that record reveals nothing at variance with the statutory scheme which would invite piercing the corporate veil, nor do facts in instant case warrant exercise of such court power of penetration to determine whether city bank is here engaged in branch banking.