Volume 22 — Colorado Court of Appeals Reports

<p>Appeal from Larimer District Court. Hon. James E. Garrigues, Judge.</p>

<p>1. Appeals — Separate-—-Consolidation of. The action of the supreme court in consolidating appeals, while pending in that court, will in the court of appeals be regarded as final. *</p> <p>2. Pleadings — Waiver of Objections by Answer. All objections to the complaint, except that it fails to state sufficient facts, waived by an answer to the merits.</p> <p>3. --•. Construction. The complaint is to be taken in its entirety and receive a liberal construction.</p> <p>A complaint against a manufacturing company and a railway company, for negligence in constructing, maintaining and operating trains upon a switch track, within the premises of the manufacturing company, with poles set in such proximity thereto as to endanger the lives of those operating the trains, and charging the death of a brakeman, occasioned by reason thereof, held to state a joint cause of action against the two corporations.</p> <p>4. -- Allegations Not Proven, and eliminated by instruction from the consideration of the jury will not be regarded in construing the complaint.</p> <p>5. Master and Servant — Master’s Duty as to the Place of Work. The master is bound only to ordinary care to make the place where the servant works reasonably safe.</p> <p>But he is under this duty even where the place of the servant’s employment is upon the premises of another.</p> <p>The master may be presumed to be informed of a condition of his premises involving danger to the servant there employed, where such condition has existed for a time sufficient to enable the master, or his servant charged with his duty in that behalf, to have learned of the danger and- corrected the defect, by the exercise of reasonable care.</p> <p>But the master is not under an absolute duty in this respect.</p> <p>In an action against a railway company for the death of a servant, attributed to alleged defects in the place, of employment, an instruction that it was the duty of the defendant “to provide for its employes a reasonably safe place to work,” was held error.</p> <p>6. -Duty to Servants of Another Master. A manufacturing company which maintains in its premises railway tracks where by its request and invitation a railway company switches cars, bringing freight to, and removing freight from, such premises, is- under duty to the servants of the railway company to exercise reasonable care to make such premises reasonably safe for their use.</p> <p>7. -Servant’s Assumption of Risk. The servant assumes the risk of injury from defects and 'dangers in the place of his employment, not only when they are ordinarily incident to the work, but extraordinary defects and dangers, of which he is, by any means informed, or which are so patent and obvious as to be readily observed, and the danger of which he understands and appreciates. •</p> <p>The negligence charged against the master in respect of such defects, the obviousness of the danger, and whether the servant knew of it, are questions for the jury.</p> <p>8. Negligence — A Question for the Jury. Only in a very clear case should the court charge that a given state of facts is negligence in law. In an action against a manufacturing company and a railway company, charging joint negligence in erecting and maintaining upon the premises of the former a pole in such proximity to certain railway tracks as to endanger the lives of those operating cars thereon, and the operation and switching of cars thereon by the railway company at the request of the manufacturing company, occasioning the death of a brakeman, it was held that the evidence did not justify a charge that the erection of the pole, or allowing it to remain in such proximity to the track, was negligence per se.</p> <p>The instruction was held especially injurious to the railway company in view of the undisputed fact that it had nothing to do with the erection of the pole, and there was no evidence of any right on its part to remove it.</p> <p>Reference in the instruction to the fact that the pole was “not a necessary part of or an appliance or convenience or connection in the use of the track,” was held to plainly tend to the prejudice of the railway company.</p> <p>9. Instructions — Conflicting. Where instructions conflict it is impossible to know by which the jury were controlled; therefore, instructions which are in direct conflict, one of which is false in law, constitute fatal error, even though the other is without fault.</p> <p>10. -Invading the Province 'of the Jury. An instruction which assumes to declare as matter of law, what is in fact a question for the jury, is fatal error.</p> <p>11. Appeals — Error Presumed Injurious. Where the instructions upon the controlling issue are in direct conflict, and the evidence in the record is such that it is impossible to say that the jury were not misled, prejudice will be presumed.</p>

<p>Appeal from Larimer District Court. Hon. Jambs E. Gtarrigues, Judge.</p>

<p>1. Appeai.s — Verdict on Conflicting Evidence, is conclusive, if no error is discovered in the admission or exclusion of evidence or the charge of the court.</p> <p>2. Contract — Assent. One who has entered into an agreement in writing for an exchange of lands, after full examination of the paper and days of deliberation, will not, as against the broker who effected the change and sues for his commissions, be heard to say that he was not satisfied with the exchange, no substantial defect appearing in the title to the lands which he was to receive, even though he subscribed the writing upon the express condition that the broker should not receive the commission unless he, the contracting party, should be fully satisfied with the exchange.</p> <p>3. - Waiver of Performance. The parties to a contract may waive strict performance thereof.</p> <p>4. Instructions — Not Referring the Jury to the Evidence. It is not required that every instruction shouid by express words require the jury to find “from the evidence.”</p> <p>5. Witnesses — Competency—Lawyer and Client. The statute (Rev. Stat., Sec. 7274), was intended to protect the client against the publication by the attorney of confidential communications made by the former to the latter. Where the client voluntarily testifies as to such matters, the attorney may be examined in relation thereto.</p> <p>An attorney is a competent witness in behalf of his client in the very cause whi-ch he prosecutes or defends. '</p>

<p>Appeal from Boulder District Court. Hon. James E. Grabrigues, Judge.</p>

<p>1. Pleadings — Construction. On general demurrer the complaint must be liberally construed. General allegations showing a right of action suffice.</p> <p>2. -Answer — Evasive Denials. The 'first defense of the answer traversed every allegation of the complaint “except as expressly herein admitted.” Nothing indicated what was intended by this exception. Held evasive, if attacked by demurrer or motion; but no exception being taken to it, it was accepted as putting in issue the material allegations of the complaint.</p> <p>3. - Answer — Separate Defenses, must each be regarded as if standing alone, and complete in itself, unless it distinctly and intelligently refers to what is elsewhere stated.</p> <p>4. --- Conclusions of Law. An averment that the court in which a certain judgment was rendered “was without jurisdiction to render the judgment” is a mere conclusion of law.</p> <p>5. ' - Certainty — Relevancy. The complaint alleged that a certain, promissory note had been levied upon by the sheriff under garnishee process in favor of defendant and against plaintiff, and by order of the court had been turned over to the sheriff for sale, that defendant prevented the sale and induced the sheriff to turn the note over to him, and converted it. Neither the complaint nor the answer suggested that defendant claimed the note through any execution sale. Averments of the reply that defendant “never recovered any judgment” against plaintiff, and “no execution ever issued against her,” held irrelevant and immaterial to the defenses presented by the answer.</p> <p>So, averments of the reply that defendant “never became the owner” of a certain judgment, nowhere else mentioned or alluded to, or in any way connected with the supposed right of action.</p> <p>6. -Judgment on the Pleadings. Even though the defendant moves for judgment on the pleadings, and his motion is denied, he cannot be condemned in damages, without evidence, where he has interposed the general denial.</p> <p>7. Judgments — Presumption of Jurisdiction. Whoever would question the judgment of a court of general jurisdiction for want of jurisdiction of- the person must definitely negative every fact and process by which jurisdiction might have been obtained. A mere averment, in questioning a judgment reviving a former judgment, that “no order to show cause why said judgment should not be revived was ever issued,” not denying the service of process in other form, or voluntary appearance, is wholly insufficient.</p> <p>8. -Presumption of Regularity. Nothing appearing to the contrary, it must be presumed that the district court in permitting the filing of a substituted return to a writ previously executed, and lost from the files, acted in the due exercise of its lawful powers.</p> <p>9. Appeals — Questions Not Presented Below, will not be considered.</p> <p>10. -Entire Judgment Against Two Erroneous as to One, will be reversed as to both.</p> <p>11. Maxims — Wrong-doer Shall Not Save Advantage of Sis Own Wrong. A promissory note is in the hands of the sheriff, to be sold on execution against the payee. The plaintiff in the execution prevents the sale and induces the sheriff to deliver the note to him. In an action by the payee for the conversion of the note, he will not be heard to say that it is in the custody of the law.</p>

<p>Appeal from Kit Carson District Court. Iíow. W. S. Morris, Judge.</p>

<p>Appeal from Larimer District Court. Hon. James E. Garrigues, Judge.</p>

<p>Appeal from El Paso District Court. Hon. John W. Sheaeor, Judge.</p>

<p>Appeal from Denver District Court. Hon. George W. Aleen, Judge.</p>

<p>Appeal from Eagle District Court. Hon. .Chas. Oavender, Judge.</p>

<p>Appeal from Phillips District Court. Hon. H. P. Burke, Judge.</p>

<p>1. Tax Title — Void Deed. A tax deed which shows upon its ■ face that the land was struck off to the county on the day upon which it was first offered is void. Bryant v. Miller, 48 Colo. 192, followed.</p> <p>2. - Lands Assessed Jointly and Sold in Parcels. The sale in parcels of a body_ of land assessed as a whole is a violation of the statute (Mills’ Stat., sec. 3888, Rev. Stat., sec. 5713). One contesting the sale is not required to prove that he has sustained damage by this violation of the statute.</p>

<p>Appeal from Boulder County Court. Hon. E. J. Ingram, Judge.</p>

<p>Appeal from Denver District Court. Hon. George W. Allen, Judge.</p>

<p>Appeal from Gilpin District Court. Hon. Charles ■ C. McCall, Judge.</p>

<p>An appeal in a case not appealable dismissed without prejudice, neither party, after notice, suggesting any disposition of the cause.</p>

<p>Appeal from San Miguel District Court. Hon. Sprigg Shackleford, Judge.</p>

<p>1. Practice — Injunction—Evidence. Where it is sought to enjoin the establishment and carrying on, in proximity to plaintiff’s dwelling, of a business lawful in itself, but which, it is alleged will, if carried on in the manner proposed be offensive and injurious to the health of plaintiff’s family, it is necessary and proper for the court to hear testimony as to the effect of what is so proposed. .</p> <p>2. Nuisance — 'Nxiisance per se. Where the court upon hearing testimony finds that the business sought to be enjoined is a nuisance, such as should be enjoined, the question of nuisance per se is not presented.</p> <p>3.. -Public — Private—Remedies. The keeping of swine is in itself a lawful business, but to maintain 'a place where hogs are fed upon offensive garbage, and which is conducted in such manner as not only to be offensive, but to probably occasion disease, is ■ both a public and private nuisance, and may be proceeded against by indictment, or one sustaining a special injury may have an injunction, or an action for damages.</p> <p>4. Injunction- — Anticipated Injuries. An injunction may be awarded to prevent the creation of a nuisance, as well as to suppress one already in being; but in such case the bill must set forth both the character of the nuisance and the character of the injury which it is claimed will result therefrom. And the case must be a clear one; though -absolute certainty that the anticipated injury will result is not required.</p>

<p>Appeal from El Paso District Court. Hon. W. S. Morris, Judge."</p>

<p>1. Court oe Appeals — Jurisdiction. This court has the same jurisdiction to entertain and determine, as a writ of error, an appeal, in a non-appealable case, which before the organization of this court was vested in the Supreme Court by sec. 423 of the Revised Code of 1908.</p> <p>Hurlbut, J., dissents.</p> <p>2. Appeal Wi-iere No Appeal Lies — Entry as "Writ of Error-Limitation — General Appearance — Effect. By general appearance in an appeal, and joining issue on the merits even after the lapse of the three years allowed by the statute (Mills’ Code, sec. 401, Rev. Code 1908, sec. 436), within which to sue out a writ of error the appellee waives the statutory limitation. Where application is made to enter the cause as a writ of error, appellee will not be heard to urge the lapse of the statutory appeal.</p> <p>3. Statutes — Construction. In the interpretation of a statute the legislative purpose and the objects sought to be accomplished by the enactment are to be always borne in mind. And it is not to be admitted that an unjust or unnatural consequence was contemplated by the legislature, unless this intention is too plain to admit of a doubt.</p> <p>And the court should not adopt an interpretation which produces absurd, unreasonable, unjust, or oppressive results, if such interpretation can be avoided.</p>

<p>Appeal from Pueblo District Court, Hon. Charles S. Essex, Judge.</p>

<p>Appeal entered as a writ of error on the authority of Western Lumber & Pole Co. v. City of Golden, ante.</p>

<p>1. Names- — Idem, Sonans. Names of identical sound in pronunciation, though of different orthography, are regarded as identical. This doctrine applies to records, judgments and the like.</p> <p>Brooks is not idem sonans with Brooke.</p> <p>2. -Judgment — Substituted, Service. Where on a bill to quiet title the decree goes by default, upon mere • publication of the summons, in which Brooks is named as defendant, those claiming under Brooke are not affected unless there is evidence of the identity in fact of Brooks with Brooke.</p> <p>3. Tax Title — Void Deed. A tax deed void on its face does not set in motion the five years statute of limitation.-</p> <p>4. Limitation — Payment of Taxes. To avail of the payment of .taxes under color of title as a defense to a bill to quiet title to lands, the defendant must show payment of all taxes legally assessed against the lands for seven successive years.</p>

<p>Appeal from Denver District Court. Hon. Greeley W. Whitford, Judge.</p>

<p>1. Trial — General Finding. A general finding upon the issues raised by the complaint and answer may sustain a decree in favor of plaintiff, even though there is no finding upon the issues presented by a cross-complaint.</p> <p>2. Appeals and Whits of Error — Defective Findings — Objections Not Taken Beloio. Defective findings are waived unless at the time of the trial attention is called to the defect, and a more full and complete finding requested.</p> <p>3. Specific Performance — Decree—Directions as to Payment. Bill for specific performance by vendee against vendor and another who had taken the title with notice. A decree in favor of the complainant made no provision as to whom payment should be made. The decree was modified so as to allow payment into court, if differences should arise between the two defendants, as to the disposition of the purchase money, and as so modified was affirmed.</p>

<p>Appeal from Denver District Court. Hon. Carlton M. Bliss, Judge.</p>

<p>Motion to remand denied on authority ■ of Monte Vista Canal Co. v. Centennial Irrigation Co., post.</p>

<p>Appeal from Denver District Court. Hon. George W. Allen, Judge.</p>

<p>Appeal from Otero District Court. Hon. J. E. Rizer, Judge.</p>

<p>1. Set Oee — BanJc and Depositor — Receiver. The mutual, liabilities of bank and depositor are to be set off against each other, and the depositor’s right to the set-off is not impaired by the bank’s insolvency.</p> <p>Appellant was receiver of an insolvent bank. Appellee was a depositor therein, and had a credit at the date of the failure. He had previously executed his note to the bank for a larger amount. The bank had pledged this, with other negotiable paper, to another bank, as collateral security for a loan. Appellee, reserving his right of set-off, had paid this note to the pledgee bank, and certain of the collaterals pledged by the insolvent bank had been returned to the receiver. An order that the receiver should collect the collateral so returned, and make pro rata payment out of the proceeds, to the appellee and other depositors similarly situated, in proportion to their ' several deposits, was affirmed.</p> <p>2. Evidence — Agreed Case — Court Not Restricted to. In considering the petition of a depositor in an insolvent bank against ’ the receiver thereof, to be allowed his deposit as a set-off against his promissory note, which, reserving the right of set-off, he has paid to another bank holding it as pledgee of the payee bank, the court is not limited to the facts set forth in an agreement of counsel upon which the petition is heard. The petition being presented and heard in the cause in which the receiver was appointed, the court may take into consideration other material facts appearing by the record.</p>

<p>Judgment affirmed on the authority of Hall, Receiver, v. Burrell, post.</p>

<p>Appeal from Otero District Court. Hon. J. E. Rizer, Judge.</p>

<p>Appeal from Otero District Court. Hon. J. E. Rizer, Judge.</p>

<p>1. Judgment — When a Bar. Under the provisions of the code (Rev. Code, secs. 183, 184) a judgment of non-suit, for the failure to establish by testimony a case sufficient to go to the jury is no bar to a subsequent action upon the same cause of action.</p> <p>2. Contbact — Meeting of Minds. Promise by an aged and infirm gentleman to his niece, who at his request has assumed the position of his housekeeper, that he will convey certain real estate to her, there being no agreement that it shall be in full satisfaction of the services to be rendered by her, is no bar to an action for the value of such service.</p> <p>3. -■ Modification of Contract. A niece enters into the service of her uncle as his housekeeper. In her action against his estate for the value of her services it was contended that by her agreement, she was to remain with him during his life time, and that she had broken her agreement by contracting marriage and quitting his household before his death. But it appearing that the uncle had consented to the marriage, and thereafter as well as before had frequently expressed an intention to reward his niece, this was held to evidence a modification of the contract by mutual agreement.</p> <p>4. - Contract for Personal Services' — Breach—Quantum meruit. Agreement by uncle to vest his niece with certain real estate, either by conveyance or will, in consideration of personal services rendered to him. He dies without performing the contract. The niece may recover against his estate 'the value of her services.</p> <p>5. Limitations — When the Statute Begins to Run. Where by agreement personal services are to be compensated only at the death of the party receiving them, the action accrues upon his. death, and the statute runs from the same date.</p>

<p>Appeal from El Paso District Court. Hon. J. W. Sheafor, Judge.</p>

<p>1. Pleadings — Complaint—One Good Cause of Action. A demurrer interposed to the complaint as a whole is properly overruled if any count states a cause of action.</p> <p>2. Public Oeeioer — Liability to County for Fees Collected. Prior to the Salaries Act (Laws 1891, 307) a public officer was entitled to all the fees and emoluments of his office. Under sec. 22 of that act (Rev. Stat., sec. 2554) as modified by sec. 15, art. 14 of the constitution, the fees collected by the officer up to the amount of his salary belong to him. He is required to pay into the county treasury only the surplus.</p> <p>3. -Liability for Failure to Collect or Tax Fees. No statute renders a county judge liable to the county for fees which he has not collected; nor is he liable for the mere failure to tax fees for services rendered. He is only liable under the statute' for a failure to collect. The provisions of sec. 23 of the Salaries Act (Laws 1891, 314, Rev. Stat., sec. 2550) are to be strictly construed. The penalty is not to be imposed in cases .not within the statute, nor beyond the limit prescribed.</p> <p>4. Appeals — Presumptions. Where there is no hill of exceptions it will be presumed that the evidence sustained the findings and judgment, provided that under any condition of proofs the judgment is within the allegations of the complaint.</p> <p>5. -Abstract. Where the printed abstract of the record fails to show the date of the institution of the suit a plea of the statute of limitations will not be considered.</p> <p>C. -Judgment. The judgment being excessive in amount was reversed, thé costs of the appeal taxed to the appellee with directions to the court below to enter judgment for the proper sum.</p>

<p>1. Public Officer — Liability for Fees Collected for Services Rendered Under the Acts of Congress. Under sec. 15, art XIV of the constitution, immediately upon the taking effect of the Salaries Act (Laws 1891, 307) the salary prescribed by law for the officers therein named became the sole compensation of the officer. Everything above the amount of his salary received by the officer for services performed in his official capacity it was his duty to turn into the county treasury.</p> <p>A judge of the county court is liable to account to the county for fees received by him under the authority of the acts of Congress, for oaths administered, affidavits taken, and proofs made before him, in his official capacity, relating to the entry of public lands, even though such services could not have been compelled, nor the officer required to exact or collect the fee. That the fee prescribed by the act of congress is less than that prescribed by the statute of the state is not material.</p> <p>2. Constitutional Law. Sec. 15 of art. XIV of the Constitution was not self-executing. Legislation was required to give it effect.</p>

<p>1. Constitutional Law — Article XX — Effect. Immediately on the talcing effect of article XX of the constitution, the power to grant franchises to occupy the streets, alleys or public places of the City of Denver was transferred from the city council to the qualified tax paying electors of the new municipality.</p> <p>An ordinance of the city council adopted subsequent to the constitutional amendment, and prior to the adoption of the charter thereunder, granting to a railway company the right to occupy certain streets and alleys, was without effect, either as a grant or as a mere permit or license; it conferred no right whatever.</p> <p>2. Railway Company — Power to Change Route. The power of a railway company to change its route is not an absolute one; nor can it be exercised at will, and without regard to the rights of third persons who would be injured by the change.</p> <p>3. Public Stbeets — Obstruction—Injunction—Who May Complain. The threatened obstruction of a public street, without lawful authority, and causing serious special injury and diminution in value to a property occupied for the purposes of business, entitles the owner of such property to an injunction, even although the property so damnified is at some distance from the place of the obstruction. Such an obstruction interfering with passage and diverting traffic is a nuisance and the injury is irreparable at law.</p>

<p>1. Statute of Limitations — Trust Deed. The statute of limitations does not bar the execution of the power of sale contained in a deed of trust, even though an action for the debt secured thereby is barred.</p> <p>2. Trust Deed — Who May Question the Execution of the Power of Sale. One claiming only a tax title to lands is not in position to question the authority of one assuming, as successor in trust, to execute the power of sale in a trust deed thereof from the original owner.</p> <p>3. Tax Title — Void Deed. A tax deed showing the sale of several non-contiguous tracts for a gross sum is void upon its face.</p> <p>So, a deed based upon a sale to the county, and an assignment of the certificate by the county clerk more than three years after the date of the sale, no authority for such assignment being shown.</p> <p>Or a deed based upon a sale to the county where it does not appear that' the land was offered by the treasurer on any day previous to that on which it was sold.</p> <p>Or a deed executed by the treasurer of the county in which the land was situate at the date of the sale, it appearing by the face of the deed that at the date thereof it lay in a different county.</p> <p>Or a deed showing that the lands were offered-on two different dates, not showing on which of the two the'‘sale occurred.</p> <p>Ór a deed which, fails to disclose the amount of taxes due on any one of several non-contiguous tracts included in the same sale.</p> <p>4. Quieting Title — Plaintiff’s Possession, need not he proven, though in issue, if no possession is shown in any other, and the plaintiff shows title in fee. The constructive possession which the law assumes in such case suffices.</p> <p>5. -Laches. Long delay in assailing a tax title will not impair the right of the original owner to have his title quieted where it appears that the defendant acquired the tax title for a triffling sum and presumptively with notice of its questionable character.</p>

<p>1. Water Right — Nature of the Right. A water right is gained by appropriation, and is usufructuary in character. The appropriator has no property in the channel of the stream, nor in the water of the stream as it flows naturally therein. The water right is distinct from the ditch or other structure by which the water is conveyed. A water right is a freehold in land. _</p> <p>2. -■ Change of Point of Diversion. The right of the appropriator to change the point of diversion existed before the statute, and in this state has always been recognized. It is a property right, qualified by the condition that the change shall not injuriously affect the vested rights of others. The public officers charged with the distribution of water are not permitted to recognize this right, or change the point of diversion in any case until permission is granted by the proper court.</p> <p>3. Appeals — When Is a Freehold Involved? A freehold is never involved within the meaning of the statute conferring jurisdiction to review a judgment on appeal, unless such judgment necessarily deprives one of a freehold, or confers it upon another. The actual effect of the judgment in the particular case is the test.</p> <p>Where an irrigating company petitioned for the right to change the point of diversion of the water to which it was entitled, admitting the freehold of certain other irrigating companies, protestants, and the decree granted accordingly, in no manner assumed to impair or diminish in quantity the property of any of those objecting, but declared that no' right of the respondents would be injuriously affected, held that the freehold was not involved.</p> <p>And a freehold was held not involved in an appeal by certain shareholders in the petitioning company where the only question was whether the conditions imposed by the decree were sufficient for their protection.</p>

<p>Appeal from Costilla District Court. Hon. Charles C. Holbrook, Judge.</p>

<p>1. Appeals — Transcript—Affidavit to Supplement. The certificate to the transcript of record sent up from the trial court is not to be supplemented by an affidavit showing that a paper not embodied in the transcript was in fact certified to this court by the clerk Of the trial court.</p> <p>2. - Practice — Withdrawing Bill of Exceptions. It -seems that where what appears to be the appellant’s bill of exceptions, but without attestation of the judge of the court below, is embodied in the transcript, the same may on motion be withdrawn for amendment. But where the appellant’s bill of exceptions was not tendered to the judge below until after the lapse of the time allowed to file it, and it was then withdrawn for submission to the attorneys of the appellee, and under a date three months later it bore their approval but was never allowed or signed by the judge, nor certified to this court by the clerk below, it was striken off on motion, without prejudice to appellant’s right to apply to the court below for further action. Leave was also given to withdraw the transcript for a period named, and a further period was allowed to appellant to apply for leave to file a supplemental transcript.</p>

<p>Judgment affirmed on the authority of Hall v. Burrell, ante.</p>

<p>An appeal transferred from tlie supreme court to this court, in a cause in which no appeal lay to the former court, will, where no appearance has been entered for the appellee, be dismissed. The transfer of the cause does not affect its status.</p>

<p>1. Tax Titles — Tax Deed — Void. A tax deed showing on its face the sale of several non-eontiguous paz’cels of land en masse for a gross sum, or that, the sale being made to the county, the certificate was assigned by the county clerk more than three years after the tax sale, is void.</p> <p>2. ’ --Deed Not Observing Statutory Form. A tax deed omitting material recitations set down in the statutory form, e. g.’ that the lands had not been redeemed, is no evidence of title.</p> <p>3. Limitations' — Void Deed. A deed void upon its face does not set in motion the five years statute of limitations (Rev. Stat., sec. 5733).</p> <p>4. -Adverse Possession, can not be established by infei’ence or implication. An admission that defendant was in possession of the land for some time prior to the institution of the action is not sufficient.</p> <p>5. --Pleading. The statute of limitations must be expressly pleaded.</p> <p>6. - Constructive Possession of Lands. A void deed does not confer constructive possession of land. The paramount owner is in law, deemed to continue in possession until actual entry and possession taken by another, or until payment of taxes for the requisite period, concurrent with color of title made in good faith, as provided by the statute (Rev. Stat., sec. 4090) shall, in the case of vacant lands, have become equivalent in law to an actual ouster.</p>

<p>1. Notice — Lis Pendens. Notice of the pendency of a suit involving title to land, filed after the recording of a conveyance, is no notice to the grantee in such conveyance (Mills Code, sec. 36, Rev. Code, sec. 38).</p> <p>2. Judgment — Upon Whom Binding. A decree quieting title to lands is without effect as to one who, not having notice of the pendency of the suit, purchases from a defendant to the cause, by conveyance recorded before the filing of any notice of the pendency of such action.</p> <p>3. Tax Titles — Void Deed. A treasurer’s deed of lands sold for taxes, reciting a sale to the county, ,ai|d an assignment of the certificate of purchase by the county clerk after the expiration of three years from the date of the sale is void.</p>

<p>Appeal from Washington District Court. Hon. H. P. Burke, Judge.</p>

<p>Appeal from Yuma County Court. Hon. J. S. Hendrie, Judge.</p>

<p>Appeal from Yuma District Court. Hon. H. P. Burke, Judge.</p>

<p>Appeal from Yuma District Court. Hon. H. P. Burke, Judge.</p>

<p>1. Fraternal Societies — Benefit Certificate a Policy of Life Insurance. It is settled law in this state that the benefit certificate o£ a fraternal order, is, so far as regards the insurance features thereof, a policy of life insurance, and subject to the same statutory regulations and limitations as those of old line and mutual assessment companies, unless expressly excepted therefrom by statute, and that the act of April 11, 1903 (Laws 1903, c. 119) applies thereto.</p> <p>2. LnpE Insurance — Suicide as a Defense — Statute Construed. It seems that under sec. 1, and clause 1 of sec. 73, of chapter 193 of - the Laws of 1907 (Rev. Stat., secs. 3087, 3160) suicide of the insured would be' a defense to an action upon a certificate issued by a fraternal order, since that enactment.</p> <p>But policies issued, while the prior enactment was in force (Laws 1903, c. 119), are controlled by that enactment.</p> <p>That" statute not only made void any provision of the policy exonerating the insurer, in case of suicide of the insured, but in-legal contemplation the statutory prohibition was substituted therefor, and became an affirmative covenant of the insured that the defense should never be made. The act of 1907 is not to be accepted as a legislative construction of the act of 19 03,op-posed to that of the supreme court, but rather as a' recognition of that interpretation as of universal application to contracts of insurance, and as a positive enactment limiting the prohibited features of the policy to insurance companies, other than those named in sec. 73 of the Insurance Code.</p> <p>And the repeal of the act of 1903 by the act of 1907 did not affect benefit certificates issued prior to such appeal, nor as to these revive a defense which the statute had taken away.</p> <p>3. -• Waiver of Statute. The parties to the contract of life insurance can not by any prior or contemporaneous agreement waive the statutory inhibition against the defense of suicide.</p> <p>i. Statute — Repeal—Effect. The repeal of a statute which has become a constituent part of a contract will not be construed as retroactive, unless the legislative intention that it should so operate is clearly shown.</p> <p>5. Constitutional Law — Particular Statutes. The statute providing that the suicide of the holder of a life policy whether voluntary or not, shall not be a defense to an action upon the policy (Laws 1903, c. 119) is not in contravention of any provision of the state or federal constitution.</p>

<p>Appeals — Appeal Doclcetecl as a Writ of Error. In an appeal to the supreme court in a cause where no appeal was allowed by law, the appellee appeared and filed his brief and the cause was ready for final Rearing. In tliis condition it was transferred to this court. On motion to dismiss, the appeal was docketed as a writ of error, under sec. 423, Rev. Code.</p>

<p>1. Principal and Agent — Ratification. If one would repudiate the acts of another who, without authority, has assumed to contract for him, he must repudiate them in toto. Ratification of any part of the transaction ratifies it as a whole. One assuming to act for plaintiff, but without authority, sold to defendants, in plaintiff’s absence, certain real property, and obtained from defendants a sum of money which was applied upon certain encumbrances upon the property, and other moneys which by the terms of the purchase were in full of the sum for which defendants were accountable to plaintiff. Plaintiff’s wife and another, at. the same time, executed to defendants a bond conditioned for the conveyance of the property. Plaintiff upon returning to his home assented to the transaction, and to defendant’s possession and occupancy of the premises, received and retained what had been paid, and though, later, complaining of the conduct of the agent, and repudiating the bond, promised to protect plaintiffs in their purchase. Held a ratification of the sale, • and, whether as effected by the oral dealings with the broker, or under the bond, was immaterial; that defendants were entitled to specific performance.</p> <p>2. Specific Performance — Of Sale of Corporate Stock, allowed.</p> <p>3. Fraud — Who May Complain of. One who has ratified the sale of his land by a broker who acted without authority and sustained towards him no fiduciary relation can not complain of misrepresentations made by the broker to the purchaser, nor his misrepresentations to others who, without authority, assumed to represent and act for the land owner in consumating the sale.</p>

<p>Appeals — Freehold Involved — Remanding Cause. An action seeking to enjoin a cloud upon the title to lands does not involve the freehold. No appeal lies from a decree in such cause.</p>

<p>Appeal from Denver District Court. Hon. Greeley W. Whitford, Judge.</p>

<p>Appeal from Denver District Court. Hon. George W. Allen, Judge.</p>

<p>Appeal from Washington District Court. Host. H. P. Burke, Judge.</p>

<p>1. Contracts — Construction—For the Court. It seems that the interpretation of a contract is for the court, even though the contract he entirely hy parol.</p> <p>2. - Construe cl. Plaintiff, through the defendant, a stock broker, purchased stock in a mining corporation. The purchase was made upon the broker’s recommendation, and upon his promise, as alleged, that he “would see her out with her money and good interest.” Held that the contract was one of indemnity; that t-he broker’s liability depended upon the purchaser’s sustaining loss hy depreciation of the stock, or by its failure to so advance that she would receive the equivalent of interest upon her investment; that in order to a recovery plaintiff must show a loss; and that her recovery would he measured by the difference between the amount paid for the stock and its highest value within a reasonable time after the purchase, less hy any dividends received; that plaintiff was entitled to a reasonable time after the purchase, within which to determine whether she would then sell or wait for an advance; and that the failure of the plaintiff to avail herself of opportunities to realize upon the investment within a reasonable time, might he a complete defense to her action.</p> <p>3. -Reasonable time, depends upon the nature of the subject matter of the transaction, e. g. in the case of a transaction in mining stocks, the fluctuating and uncertain value of such investments is to be considered.</p> <p>The question is for the jury under appropriate instructions.</p> <p>4. Evidence — Admissibility. Where it is sought to charge a broker upon his contract to indemnify a customer against loss in the purchase of mining stocks, upon his recommendation, he is entitled to show the market value of the stock, within a reasonable time after the purchase.</p>

<p>1. Evidence — Judicial Notice — Municipal Ordinance. The courts will not judicially notice the provisions of a municipal ordinance.</p> <p>2. Negligence — A Question for the Jury. In an action for an injury attributed to the negligence of defendant’s servant in driving ■ a team and colliding with plaintiff while riding a bicycle upon the public streets, an instruction that “it was plaintiff’s duty, at his peril, to keep out of the way of defendant’s team in case they should be suddenly turned to the right” would be a clear usurpation of the province of the jury.</p> <p>So, an instruction that the “swerving of defendant’s team to the right, in stopping, would be justifiable, though plaintiff was riding by his side.”</p> <p>So, an instruction which exonerates the driver, if he “did not know” of plaintiff’s situation, in time to have avoided the collision, omitting the qualification that the driver, by due care, might have known of it.</p> <p>3. Instructions — Construction. The charge of the court is to be taken as a whole. An instruction, which by itself, might be erroneous, may be qualified by what appears in another part of the charge.</p> <p>4. New Trial — Passion or Prejudice. That the jury give credit to the witnesses examined for one party, rejecting .the adversary testimony, is not evidence that they act 'from passion or prejudice.</p>

<p>«1. Contracts — Construction. A contract should be construed as a whole and in the light of known physical facts concerning the matter affected by the agreement.</p> <p>2. - Conduct of Parties. The conduct of the parties to a contract, while engaged in its performance, before controversy arises, is the best indication of what the parties intended thereby.</p> <p>3. - Construed. A land owner being entitled to four cubic feet of water per second of time, granted to an irrigating company a right of way over his land, along the line of his ditch, the company agreeing to enlarge, maintain, and operate the ditch “in such manner that at all times « * * at least four cubic feet of water will run through the same upon the land” * * * and to deliver ^‘during all such time, * * * upon the land * * * four cubic feet of'water per second of time * * * at such places upon said land,” not exceeding eleven in number, as the land owner should designate, and from boxes of such capacity as the land owner might prescribe, provided the total capacity of all. the boxes should not exceed four cubic feet per second of time, and that the land owner should have the right, at all times, to open and close the boxes as he might desire. The company accordingly constructed and placed ten boxes in the ditch, at places designated or consented to by the land owner, and the same were operated and used for several years. By reason of the broken and uneven surface of the land it was necessary, in order to properly irrigate it, that the specified number of boxes should be set and maintained. Held that it was manifest from the terms used that the land owner was not intending to relinquish any right or privilege which he then enjoyed; that the boxes must be of such size as to give a head, and permit the passage of a sufficient volume of water to perform efficient service; that it was not a reasonable construction of the contract that the land owner should be required to use all of the boxes at one time; that he was not to be confined to boxes so small that the total capacity would be only four cubic feet per second; that he.was entitled to enjoy at all times four cubic feet of water per second of time, through such of the boxes as he might elect to use, and the boxes must be of such size as to enable him to draw the specified volume of water through airy part of them.</p> <p>4. Injunction — Decree. At suit of those holding" under the land owner the irrigating company was enjoined from interfering with or preventing plaintiffs from opening or closing any or all of the boxes, at the same time, or otherwise; and the plaintiffs were enjoined from diverting to the land, at any one .time, more than four cubic feet of water per second. Held that the latter- clause of the decree was not sufficiently specific; that it should have confined the plaintiff to the use of boxes, at one time, the total capacity of which should not exceed four cubic feet of water per second of time.</p>

<p>Appeal from Washington District Court. Hon. H. P. Burke, Judge.</p>

<p>Appeal from Denver District Court. How. Carlton M. Bliss, Judge.</p>

<p>Appeal from Fremont District Court. Hon. Lee Champion, Judge.</p>

<p>Appeal from Arapahoe District Court. Hon. Charles McCall, Judge.</p>

<p>Executors and Administrators — Right to Control Litigation. The personal representative to a decedent, who in that capacity has instituted a litigation, is not to be interfered with therein, by the heirs' of the decedent, unless some sufficient cause for such interference is shown.</p>

<p>1. Appeals — Freehold Involved — Remand. An appeal from the district court, in a will contest, was transferred from the supreme court to this court. On motion to remand it appeared that substantially all the property of the testator consisted of an interest in the unsettled estate of a brother. Inasmuch as it did not appear that the estate of the deceased brother was solvent, nor but that resort to his realty might be necessary to discharge his liabilities, so that no share of the land of the deceased brother would ever pass to the testator, or those claiming under him, it was held that a freehold was not necessarily involved.</p> <p>2. -- Amount in Controversy. On motion to remand an appeal transferred from the supreme court to this court, the reason assigned being that the judgment amounts to more than $5,000 exclusive of costs, the record presented no finding of the value involved, nor any testimony upon the point save the opinion of one witness, not supported by satisfactory reasons. The motion was denied and the court expressed the opinion that whoever would claim a right or benefit dependent entirely Upon the values involved must see to it that the trial court makes a specific finding, and renders a judgment accordingly.</p> <p>3. - That the clerk of the court of appeals is one of the appellees and the presiding judge one of the. attorneys for the appellees is no ground to remand the appeal.</p>

<p>1. Appeal — Law of Gase. The opinion, announced upon the first appeal, the facts being the same upon a second trial, is the law of the case upon a second appeal.</p> <p>2. Tax Titles — Advertisement of Sale — Affidavit of Publication. An affidavit of the publication of the notice of a tax sale conforming to the statute, is sufficient in form.</p> <p>3. ---— Who May Yerify. The foreman of the publisher of a newspaper, in general charge of only the mechanical department, and whose duties extend merely to the insertion of advertisements, the manner in which they shall appear, the correct printing thereof, and the mailing of the paper to subscribers, but who is never in supervisory control of the paper, or its policy, is not the “printer” within the meaning of the statute (Mills Stat., sec. 3884; Rev. Stat, sec. 5709). His affidavit is not to be accepted as evidence of the publication of the notice of a tax sale.</p> <p>The affidavit, as to its authentication, must conform to the statute in force at the date of the sale.</p> <p>' Where at the date of the sale, the statute requires the affidavit to be made by a person designated, and transmitted to the treasurer immediately after the sale, an affidavit made by a different person, years afterward, under authority of a different and more favorable statute, will not be accepted.</p> <p>4. Statutes — Construed. The manifest purpose of the legislature in secs. 3884, 3885, Mills Stat. (Rev. Stat., secs. 5708, 5709), was that the affidavits there required, deposited with the county clerk, should be a permanent and enduring record of the fact of the publication of the notice of the tax sale; that the affidavit of publication should be made by some person having a proprietary interest in the paper, and in the general control thereof, and of its policy. The words “printer” and “publisher” manifest this intent, and a mere salaried employee, like a typesetter or foreman, is not within the meaning of the statute.</p> <p>5. - Saving Clause.. In view of the saving clause in the Revenue Act of 1902 (Laws 1902, c. 3, sec. 237; Rev. Stat., sec. 5785), the amendment to the previous statute (Mills’ Stat., sec. 3884) affected by sec. 160 of that amendment, is without effect as to a sale made prior to its enactment.</p>

<p>Appeal from Morgan District Court. Hon. H. P Burke, Judge.</p>

<p>Appeal from Summit District Court. Hon. Charles Cavender, Judge.</p>

<p>1. Pleadings — Judgment on the Pleadings. Bill to quiet title. Tlie answer denied both, plaintiff’s title and possession, and averred that “that whatever estate the defendant hath or asserts is based upon a certain treasurer’s deed,” alleging diverse fatal defects therein. The replication denied every allegation of the answer except the allegation that plaintiff held the treasurer’s deed described. Held that inasmuch as both plaintiff’s title and possession was in issue his motion for judgment upon the pleadings was properly denied.</p> <p>2. -Answer — Inconsistent Defenses. Bill to quiet title. Answer denying both plaintiff’s title and possession and containing a cross-complaint alleging that plaintiff asserts title solely under a certain treasurer’s deed, setting forth fatal defects therein. The cross-complaint held not inconsistent with the answer.</p> <p>3. Statute oe Limitations — Pleading. Defendant who with full knowledge of all the facts, goes to trial without pleading the statute of limitations, waives the defense. He may not present the defense by a supplemental answer tendered months after the trial.</p> <p>4. Appeals — Presumptions. Where the evidence produced by the successful party is not preserved in the record its sufficiency will be presumed.</p> <p>5. Tan Title — Void Deed — Taxes Paid to Be Recovered. Where on bill to quiet title plaintiff clainrfed under a void tax deed the amount of taxes paid by him, and the interest and penalties prescribed by the statute should be ascertained by the court, and a decree in favor of defendant should be conditioned upon payment to the plaintiff of the amount so ascertained.</p> <p>In an appeal from a decree omitting this condition the cause was remanded with directions to the court below to hear evidence, make the computation, and require payment of the amount within thirty days.</p>

<p>X. Pleading — Waiver of Demurrer Toy Amendment. The amendment of an answer after a demurrer sustained thereto waives any error in the ruling on the demurrer.</p> <p>2. - Amendment — Discretion of the Court. The allowance or rejection of an amendment to the pleadings is ordinarily committed to the sound discretion of the trial court. Where the record fails to show the reasons upon which the court acted in striking out an answer or counterclaim, the propriety of its action will not he reviewed upon appeal.</p> <p>8.--Repetition, of a pleading already adjudged to he insufficient may be- stricken out on motion.</p> <p>4. Husband and Wife — Right of One Spouse in the Estate of the Other. Neither spouse has any right, vested or inchoate, in the estate of the other. The husband’s consent to the wife’s testamentary disposition of her property is effective as against his creditors, and this even though such consent was given with the active purpose to defeat the right which, the husband surviving the wife, the creditors might otherwise have to resort to the husband’s moiety of the wife’s estate. The creditor has no right to compel the husband to take as against the provisions of the will, and no standing to afterwards question the probate of the will, or the disposition of the wife’s property made thereby.</p> <p>5. Wills — Probate—Effect. The probate of a will relates to the death of the testator, prevents intestacy as to whatever is devised thereby, and is conclusive of the legality and validity of the testament, as against all the world.</p>

<p>Appeal from Denver District Court. Hon. Carlton M. Bliss, Judge.</p>

<p>1. Words and Phrases — “Or.” A conveyance of lands to a trustee named, “or his successor in trust” is not void for uncertainty. “Or” is construed as “and.”</p> <p>2. Trust Deed — Substitution of Trustee — Recitals of Trustee’s Deed. A deed of trust of lands provides that the recitals in the deed of the trustee, executed pursuant to the powers of the trustee, shall be prima facie evidence of the facts stated therein. A deed purporting to be executed by a substitute trustee, reciting his appointment in apparent conformity to the provisions of the deed of trust, by one declared to be the legal holder of the promissory notes secured by the deed of trust, will be accepted as prima facie evidence of the regularity in all respects of the appointment of such substitute.</p> <p>3. Ejectment — Judgment—Cancellation of Tax Deed. The judgment in an action of ejectment may extend to • the cancellation of a void tax deed. Rustin v. M. & M. T. Co., 23 Colo., 351, followed.</p> <p>But the decree must be limited in its effect to the particular lands demanded in the action. It is not to be extended to other lands described in the deed.</p>

<p>1. Appeals — Harmless Error. Errors not affecting the substantial rights of the complaining party will not be regarded, e. g\, where, in a bill to quiet title, the plaintiff avers title in fee and proves only an equity, defendant showing no title.</p> <p>2. Tax Titles — Deed Construed. A treasurer’s deed recited that the treasurer, “at a tax sale publicly held on the 19th day of October,” exposed to sale the lands described therein “in substantial conformity with the statute;” that no bid was offered for any of the lands, that the treasurer became satisfied that no sale of the lands could be effected and “did bid off at said sale,” in the name of the county, all the said, lands — a line ■ in the printed form, reciting that the treasurer passed the land for the time, and reoffered it on the last day of the. sale, being stricken out. Held to show conclusively that the land was bid in by the county upon the first day upon which it was offered and that the deed was void upon its face.</p> <p>A deed reciting that the treasurer on the 31st day of October, “at an adjourned sale begun and held on the 5th day of October,” exposed to sale, in confornlity with the statute, the lands described therein, that no bid was offered for any of the lands or any portion thereof, “exposed to sale and remaining unsold at said sale,” and that * * * the treasurer “having passed such real property for the time, did offer and reoffer for sale from day to day until the 31st day of October, being the last day of the sale.” Held that the deed either failed to show when the lands were first offered, or that they .were not offered at all until October 31st, and the deed in either case was void on its face.</p> <p>3. -■ Limitations. The seven year limitation (Rev. Stat., sec. 4090) is not available to one claiming under a tax deed not of record for the full term of seven years, at a time when an action for the recovery of the lands is instituted.</p> <p>4. - — — dolor of Title — Payment of Taxes. One asserting title to unoccupied lands, under the statute (Rev. Stat. 1908, sec. 4090) must show (1) Color of title obtained in good faith, (2) Payment of taxes by the holder of such color of title for the full period of seven years; and such color of title and payment of taxes must exist, concurrently without interruption, through the full statutory period. Taxes which are already due and payable when color of title is acquired, and which are afterwards paid, are not to be counted as one of the payments required by the statute.</p> <p>5. Statutes — Construed. Secs. 4089, 4090, Rev. 'Stat. 1908, are in pari materia, and must be construed together.</p> <p>6. Cases Overruled, Explained, or Distinguished. Stephens v. Olay, 17 Colo., 489, explained.</p> <p>7. Mortgagor and Mortgagee — Estate of Mortgagee. The legal title of the mortgagee is recognized only for the benefit of the holder of the mortgage debt. As against all other persons the mortgagor has the legal estate.</p> <p>One who conveys by deed of trust is a mortgagor within the rule.</p> <p>8. Appeal — Judgment. A decree vacating tax deeds containing several parcels of land modified so as to limit its effect in this particular to the lands described in the complaint.</p>

<p>1. Limitations — Payment of Taxes. A payment of taxes upon lands after an action brought for the recovery thereof is not accepted to support a plea of the seven year limitation act.</p> <p>2. Pkocess — Service by Publication — Affidavit. An affidavit to secure publication of the summons in a civil cause, made by the attorney therein, or which fails to give the post office address of the defendant, no explanation being made for the failure of the plaintiff to make the affidavit, and no excuse for the omission to give the defendant’s address, is not a compliance with the statute. (Rev. Code, sec. 45.)</p> <p>A judgment by default upon publication of the summons upon such an affidavit is a nullity and may be assailed collaterally.</p> <p>3. Appeals — Harmless Error. A decree vacating a prior decree which is a mere nullity is not prejudicial, even if erroneous.</p>

<p>Appeal from Washington District Court.. Hon. H. P. Burke, Judge.</p>

<p>1. Limitations — Color of Title. A treasurer’s deed of lands sold for taxes is not color of title until recorded.</p> <p>2. Evidence — Admission in Pleading. An admission in pleading that a tax deed was issued is no admission that it was recorded, or that the same is valid.</p> <p>3. Process — Service of Summons by Publication — Affidavit. A decree given by default, upon mere publication of the summons, upon an affidavit which fails to state the post office address of the defendant, or that it is unknown, and contains no direct statement of the non-residence of the defendant, or of his concealment, or departure from the state, is without validity.</p> <p>3. Judgment — Jurisdiction of the Person — Recitals of the Record. Recitals of a decree by default that “plaintiff’s attorney filed his affidavit showing defendant’s non-residence, and that after diligent search and inquiry he can not ascertain his whereabouts' or post office address,” will not be accepted as conclusive of the matters so recited, where the affidavit upon the files fails to disclose such matters. It will not be inferred that any other affidavit was presented.</p> <p>4. Limitations — Tax Deed — Five Year Statute. The short statute of limitation (Mills’ Stat., sec. 3904; Rev. Stat, sec. 5733) is not available to defendant in an action to quiet title.</p>

<p>1. Trust Deed — Substitution of Trustee — Recitals in Deed of Substitution. When a deed of trust of lands provides for the appointment of a substitute to the trustee, and that the recitals of the trustee’s deed, upon sale made pursuant to the powers contained in the trust deed, shall be prima facie evidence of the truth of the matters recited, evidence aliunde is not required to support a deed by a substitute trustee, even as against one who claims title from a different source.</p> <p>2. Tax Titles — Void Deed. A treasurer’s deed of lands sold for taxes, showing upon its face that the lands were offered upon only one day, and were on that day struck off to the county, is void.</p> <p>3. Limitations — Color of Title. ‘A tax deed becomes color of title only when recorded.</p> <p>4. - Taxes Paid After Action Brought, are of no avail to support a plea of the seven years statute of limitation.</p> <p>5. Pkocess — Constructive Service of Summons, founded upon an affidavit which fails to comply with the statute is without effect. Lougee v. Beeney, ante, followed.</p>

<p>Life Insukauce — Construction of Policy — Change of Beneficiary. A policy of life insurance reserved to tlie insured the right to revoke the appointment .of the beneficiary therein named, and designate another, “by filing, a written notice thereof at the home office of the company, with tlie policy,” and that such change of beneficiary should “take effect upon the endorsement of the same upon the policy.” The insured, two days before his death, directed a change in the beneficiary, and mailed the policy *with notice of the change to the home office of the company. The death occurred before the receipt of these papers by the company. Held that inasmuch as the company’s approval or con; sent was not required to give effect to the change, and the assured had done everything required of him, the failure of the notice to reach the company until after the death of the insured, was immaterial.</p>

<p>1. Appeals — Where An Appeal Lies. Under Rev. Code, sec. 422, no appeal by the successful parties lay to the supreme court from a'money judgment not involving a franchise or freehold. Recovering less than his demand, his remedy was by writ of error.</p> <p>2. - Where a Freehold Is Involved. Where both parties agree that an absolute conveyance was intended as mere security, a decree' declaring that the indebtedness so secured has been fully paid, and that the mortgage be released and discharged, does not involve a freehold, and no appeal lies, even though the creditor claims that the mortgage debt has not been discharged.</p> <p>3. Mortgage — A Mere Lien. A mortgage of lands does not vest title im the mortgagee, but confers a mere lien. An absolute deed intended merely as security has no greater effect than a mortgage with a defeasance expressed.</p>

<p>Error to Larimer District Court. Hon. John I. Mullins, Judge.</p>