Volume 23 — New Mexico Reports

C. Mecbem, Judge. Action by William M. Borrowdale and others against the Board of County Commissioners of the County of Socorro. Judgment for defendant dismissing the complaint on demurrer thereto, and plaintiffs appeal. STATEMENT OP PACTS.

Design to kill should be apparent to the assailed; danger should be viewed from standpoint of assailed person and not a reasonable man. Whar. ITom. § 286; Dawson v. State, 148 Ala. 612, 4 So. 803; Turner v. State, 4 Oklañ Or. 164, 11 Pac. 988; Browilee v. State, (Tex.) 878 S'.

Action by Richard J. Bolles against the Pecos Irrigation Company. Decree for plaintiff, and defendant appeals. Suit to recover price paid by appellee for water rights is not proper reined)''. AViggins Perry Co. vs. Ry. Co. 142 TJ. S. 396; Brockart vs. Ry. Co. 93 la. 136, 6 N. W. 406; Salt River, etc., Co. vs. Nellsen, 85 Pac. 117; Lublecke vs. Cabinet Co., 118 N. W. 456; 5th Thompson on Corporations, Sec. 6092-3; Hoard vs. R. R. Co. 123 H. S., 222.

Appeal fom District Court, Santa Fé County; Mechem, Judge. Action by State of New Mexico against Morgan O. Llewellyn and the Southwestern Surety Insurance Company. Judgment for plaintiff, and defendants appeal. Bond of defendant was not required by law and consequently was without consideration and' void. C. 101, Code 1915; Sec. 5091, 5092, 4151, Code 1915. 2 Lewis-Sutherland S'tat. Const.

Arnold Cason was convicted of the larceny and branding of cattle, and he appeals. Evidence failed to establish corpus delicti. 25 Cyc. 120. Certificate of brand is not prima facie evidence that person named therein'was owher of the saíne. Terr. v. Meredith, 14 N. M. 291; Chestnut v. People, 42 Pac. 659; 2 Cyc. 325. Certificate of brand is prima facie evidence that person named therein was owner thereof at date of recording, Terr. v. Meredith, 14 N. M. 293.

Suit for injunction by H. B. Cartwright & Bro. and others against the United States Bank & Trust Compaq, United States Bank & Trust Company, trustee, Frederick Muller and Francis C. Wilson, in which… Held: and approved the action of the officers of the bank in arranging the extension of two years for the payment of the purchase price of the grant. The minutes set out in detail the foregoing action on the part of the bank and Smith and Stebbins and Cartwright.

' Suit by Charles 'B. Morrill, receiver of the People’s Savings Bank & Trust Company, against Charles S. Harris. Judgment for plaintiff, and defendant appeals. Original articles of incorporation, showing total stock had been subscribed, were admissible in evidence to show lack of consideration for note involved herein. 8 C. J. Sec. 1339 and cases; Thompson on Corps. Sec. 580; See. 431, Code 1915; Thompson v. Beño Sav. Bank, 19 Nev. 103; 1 Cook on Corps.

Juan Rodriguez was convicted of murder in the first degree, and he appeals. Juror with fixed, definite and unqualified opinion as to the guilt or innocence of defendant, or merits of case in civil action, such as will take evidence to remove, is disqualified, though he beieves he could 'try case on law and evidence. State v. Riley, 78 Pad 1001; Turner v. State, 69 S’.

C. Abbott, Judge. Action by R. P. Hopkins against Albert N. Norton and others. From a judgment for plaintiff, defendants appeal. (Devoted to merits). A i£broadside” exception to findings raises no question on appeal. Groover v. Indinan, 60 Ga., 406. Appeal of Overseers of Poor, 138 Pa. S't., 109; 20 Atl., 944. Knox v. Moore, 41 S. C., 355; 19 S. E., 683. ¡Bell v. U. P. Ejo Co., 194 Fed., 366.

Action for specific performance by the Eio Mimbres Irrigation Company against Bobert P. Ervein, Commissioner, with cross-complaint by defendant. Judgment for plaintiff in part, and for defendant upon its cross-complaint and plaintiff appeals. A cross complaint is not a defense to complaint. Sec. 4115 Code 19915; 4116, Code 1915; Agua Pura Co. v. Mayor, 10 N. M. 6; La Mesa Com. Ditch v. Appelzoeller, 140 Pac. 1055; 1, Sutherland Code PI. Secs. 655, 654; Stand. Ene. Pro., 296.

Suit by the First National Bank of Santa Fe against James W. Norment. Judgment for plaintiff, motion for new trial overruled, and defendant brings error. (Devoted to merits.) Exceptions to findings, being general, raised nothing; consequently none of the questions argued are properly before the court. Fullen v. Fullen, 21 N. M. 212, 225, 153 Pac. 294;.

Action for specific performance by the Board of Education of the. City of Boswell against the Citizens’ National Bank of Boswell, N. M-, and the First National Bank of Eoswell, N. M. Decree for plaintiff and defendants appeal. The power conferred on Boards of Education by the Constitution and laws of this state is specifically to borrow money for certain purposes, but they are not thereby or otherwise authorized to issue negotiable bonds.

C. Mechem, Judge. Suit for specific performance by Catherine Hill against Martha E. Hart and others. Decree for plaintiff, and defendants appeal. The note and contract constituted a complete transaction and parol evidence was inadmissible to vary terms thereof. Locke v. Murdoch, 151 Pac. 298. “Where a contract is partly printed and partly in writing, the written matter must prevail over the printed in ease of conflict between them.

Action bjr W. E. Ecelcs, artesian well supervisor of Chaves County, N. M., to foreclose a lien against land of E. P. and C. G-. Ditto. Judgment for plaintiff, with direction for foreclosure of lien, and defendants appeal. The statute in question is unconstitutional. Norwood v. Baker, 172 D. S. 269; Chicago, etc., Co. v. Chicago, 166 II. S. 226; Lathrop v. City of Eacine, (Wis.) 97 N. W. 192; Hutcheson v. Storrie (Tex. Sup.) 51 S'. W. 848; White v. Tacoma, 109 Fed. 32.

Foster Blacklock was convicted of unlawfully injuring a building, and he appeals. As to criminal intent. State v. Alva, 18 N. M. 143; People v. Devine, 30 Pac. 378; State v. Chaves, 19 N. M. 575; Bajdrouse v. ITrquides, 105 Pac. 1066. Conviction will not be upheld if there is no substantial evidence to support it. State v. Griggs, 150 Pac. 921; State v. Graves, 157 Pac. 166. STATEMENT O PPACTS.

Action by the First National 'Bank of Albuquerque against the Town of Tome. Judgment for plaintiff, and defendant appeals. Title to unallotted lands in Tome Grant passed in common to the community of the town upon confirmation and patent by U. S'. Bond v. Barela heirs, 229 U. S. 492; U. S. v. Sandavol, 167 U. S. 278. Under laws of Spain and Mexico prefects had no power to make grants of public land'. Ohm. v. San Francisco, 92 Cal. 451; Rio Arriba L. & C. Co. v. TJ.

Action of forcible entry and detainer by W. R. Springer against J. R. Wasson. Judgment for plaintiff on a trial de novo upon an appeal from.the judgment of a justice’s court for plaintiff, and defendant appeals. STATEMENT OP PACTS.

Proceedings by the State of New Mexico, filed by the Attorney General, to wind up the affairs of the People’s Savings Bank & Trust Company, an insolvent corporation, with claim against the receiver by the American Surety Company of New York. From a judgment of the district court, dismissing exceptions of the surety company to the referee’s decision and sustaining his decision, the surety company appeals.

Action by the Berrendo Irrigated Farms Company against George Jacobs and Elizabeth Jacobs, with counterclaim by defendants. Judgment for defendants for $500 on their counter-claim, after a remittitur of $499 had been filed, and plaintiff appeals. Party must elect to either affirm or disaffirm the contract.

■Quo warranto by tbe state of New Mexico on relation of tbe Northwestern Colonization & Improvement Company of Chihuahua, against Luis Huller and others. Judgment for relator on the pleadings, and defendants appeal. Where the object is to oust individuals from the exer-cise of corporate franchises or against a corporation for usurping a franchise the statute of 9 Anne has no application.

<p>Appeal from District Court, McKinley County; Raynolds, Judge.</p> <p>Suit to quiet title by Cornelia J. Maxwell against Gregory Rage and wife. Decree for defendants, and plaintiff appeals.</p>

Suit by W. W. Watson against the First National Bank of Roswell, G. A. Davisosn, John Morry, Jr., Alice C. Morrow, J. R. Morrow, and another. Decree for plaintiff against the defendants named, and they appeal. A mortgagor of real estate, who has conveyed the mortgaged premises by warranty deed, cannot maintain an action to redeem.

Action by the Pecos Valley Lumber Company against George Freidenbloom. Judgment against defendant by default, defendant’s motion to set aside a sale under execution on condition, and plaintiff appeals. Whether liens existed on property or not there was no fraud or impropriety in advertising property for sale subject to them. Daugherty v. Gangloff, 144 S. W. 434; Cake v. Cake, 26 Atl. 781; Hardwick v. Jones, 65 Mo. 54.

Guillermo Barela and another were convicted of arson, and they .appealed. Testimony tending to show the similarity between foot prints made by appellant’s shoes and prints found near scene of crime was held erroneous in Stokes v. State, 5 Baxt. 30 Rm. R. 72; Cooper v. State, 86 Ala. 610, 11 Am. St. Rep. 393; State v. Jacobs, 5 Jones, 259; Blackwell v. State, 3 Crim. Law Magazine 393; People v. McCoy, 45 ITow. Pr. 216; Day, et al. v. State of Georgia, 63. Ga. 688.

Action for injunction by John Stalick and the Gallup Cold Storage Company against the Town of Gallup and others. Judgment for plaintiffs, and defendants appeal. Under Sec. 3564, sub. div. 18, Code 19J5, the power of municipalities to license, regulate or prohibit the sale of intoxicating liquor is unlimited. 28 Oyc. 149; Denehy v. Chicago, 120 El: 627; Cooley Const. Lim. 201; McQuillin on Mun. Corps. Sec. 724; Gunnarssohn v. Sterling, 92 111. 569.

Action for injunction by G. C. Smith and others against Antonio Lucero, Secretary of State. Bill dismissed and plaintiffs appeal. The doctrine of the Kelley-Marron Case, 21 N. M. 239 is not applicable here. The resolution proposing a constitutional amendment is governed by the article providing therefor, and not by procedure elsewhere provided. Commonwealth v. Griest, 186 Pa. 387, 50 L. B. A. 586.

Mandamus by the State of Mew Mexico, on relation of Frank W. Clancy, against H. L. Hall, as Treasurer of the State of New Mexico. Judgment for relator, and defendant appeals. . Boundary bill conflicts with constitution of H. S', in that it attempts to prescribe settlement of boundary dispute between states. Bhode Island v. Mass., 12 Pet. 651.

<p>SYLLABUS BY THE COURT.</p> <p>1. A convict is entitled to notice and an opportunity to be heard upon the question as to whether he has violated the conditions upon which the sentence against him has been suspended, where, as in this case, the suspension, was during good behavior, which necessarily involves a question of fact. In proceedings to determine such a question,, no particular formalities need be observed, and the convict is not entitled to a jury trial, except upon the question of his identity with the person, originally sentenced, if such question is raised. P. 435</p> <p>2. A suspended sentence can be enforced after the time for which the sentence was originally imposed has expired.</p> <p>P. 434</p>

<p>Appeal from District Court, Bernalillo County; Raj'nolcls, Judge.</p> <p>Action by D. F. McDonald against Leopoldo Mazon and Mazon Estate, Incorporated. Judgment for plaintiff, and defendants appeal.</p>

Action for ejectment by W. T. Chilton against 85 Mining Company. Motion to dismiss the .action and to render judgment for defendant overruled, and judgment for plaintiff, and defendant appeals. General denial was sufficient to authorize appellant to prove any facts showing that statements constituting appellee’s cause of action were untrue. Jones v. Bush, 156 Mo. 364; Dickman v. Young, 87 Mo. App. 530; Kirk v. Kane, 87 Mo. App. 274; Westbay v. Milligan, 74 Mo.

Judge. Will Crosby was convicted of the larceny of two head of cattle, and he appeals. STATEMENT OP PACTS. The appellant, Will Crosby, was indicted in Chaves County for the crime of larceny of two head of cattle, the property of the South Springs Ranch & Cattle Co., was convicted and sentenced to a term in the penitentiary and the payment of a fine.

Suit for injunction by John H. Barry and others against the Board of Education of the City of Clovis, State of New Mexico, and A. Z. Rogers. Judgment for defendants, and plaintiffs appeal. Creation of debt against' school district after proposition has been submitted to electors thereof. 33 Cyc. 990; 15 Cyc. 322; Board of Education v City National Bank of Roswell, 167 Pac. 715.

Action for injunction by the Board of County Commissioners of the County of Lea against the Board of County Commissioners of the County of Chaves and Ben C. Davisson, Treasurer and ex officio Collector of Chaves County. Judgment for plaintiff, and defendants appeal. Old county is entitled to taxes assessed before separation. In re Fremont County, 54 Pac. 1085.

Action to quiet title by Eli Knight against Rhoda Pair-less. Judgment for defendant, and plaintiff appeals. Af- Tax deed must recite previous proceedings.

D. Leib, Judge. Ejectment by S'eon Locke against the Trustees of New Mexico Reform School. Demurrer to plea in abatement sustained, and judgment for plaintiff, and defendant appeals. The trustees of the reform school being merely agency of the State this suit is one against the State, without its consent.

Action by Frances Peterson against Frank A. Foley, as administrator of the estate of Elsie H. Peterson, deceased. Judgment for defendant dismissing the petition» and plaintiff appeals.

Suit for injunction by Jarett O. Janes against the West Puerto de Luna Community Ditch. Demurrer to complaint overruled, decree for plaintiff, and defendant appeals.

<p>SYLLABUS BY THE COURT.</p> <p>“Open court” ordinarily denotes a court in session organized for the transaction of judicial business. As used in section 4471, Code 1915, it anticipates the presence of the appellee or his attorney before the court. Held, that issuance and service of citation are rendered unnecessary, where record discloses that appellee contested question concerning right of appeal, . and was before court when appeal was allowed.</p>

Action by tbe M. B. Goldenberg Company against the El Paso & Southwestern Company. From a default judgment in the district court on appeal from a judgment in justice’s court for plaintiff» defendant appeals. STATEMENT OF FACTS On February 27, 1915, the appellee filed a complaint against appellant, in the justice court of precinct No. 1, Quay county, seeking to recover damages in the sum of $150.

Quo warranto by the State of New Mexico, on relation of F. W. Clancy, Attorney General, against B. M. Porter and others. From a judgment dismissing the proceeding, relator appeals. Action of County Commissioners in incorporation a village is subject to attack on ground petition therefor was signed by less than qualified electors.

Action by Carlton Northcutt against W. H. King and Delbert King, copartners under the firm of King & Son. Judgment for defendants dismissing the cause, and plaintiff appeals. STATEMENT OP PACTS. On May 12, 1913, the appellant instituted a suit in the district court of Otero county, N. M., on judgment obtained in the state of Colorado on March 21, 1905.

William E. Parsons was convicted of embezzlement, and he appeals.

Action by R! C. Ross and P. A. Marcelino, as trustees for R. C. Ross and another, against Robert A. Lewis and another. Judgment for defendants, and plaintiffs appeal. STATEMENT OF FACTS. This is an action for conversion.

<p>Appeal from District Court, Chaves County; McClure, Judge.</p> <p>Action by L. B. Craig against W. II. Henning and others. Judgment for defendants upon a directed verdict, and plaintiff appeals.</p>

Suit by Sylvestre Mirabal against the Albuquerque Wool Scouring Mills, First National Bank of Albuquerque, and others, for an adjudication of insolvency, and for an injunction against the Albuquerque Wool Scouring Mills.

Juan County; E. C. Abbott, Judge. Action by J. Allen Johnson against the Town of Farmington, T. L. L.oftns, and others. Judgment in favor of the Town of Farmington, and for plaintiff against the other defendants, and they bring error.

Complaint by the State of New Mexico against Melvin W. Mills and others. From a judgment dismissing the complaint, the State appeals. Any security given by principal debtor immediately inures to benefit of creditor of surety. Green v. McDonald, 70 Vt. 372, 377; Moses v. Murgatroyd, 1 Johns.

Action by Ray Walters against C. G. Ditto, with cross-complaint by defendant. Judgment for defendant upon the cross-complaint, and for plaintiff for the difference, and plaintiff appeals.

Action by Charles B. Morrill, receiver of the People’s Savings Bank & Trust Company, against M. D. Mastin and the Capital Savings Investment company. Judgment for plaintiff upon a directed verdict, and defendants appeal.

Suit by George H, Buss against the Kemp Lumber Company, John H. Fox, and another. Judgment for plaintiff, and the Kemp Lumber Company appeals. Contract is clear and requires no special construction. Daniels on Negotiable Instruments (Calvert Ed.) 1215; Angelí on Limitations 6th Ed. 103; Douthitt v Farrell, 60 Kan. 196, 56 Pac. 9; Manitoba Mortg. & Investment Co. v. Dally, 10 Man. L. Rep. 425; Dodge v. Signor, 18 Tex. Civ.

<p>Appeal from District Court, Bernalillo County; Raynolds, Judge.</p> <p>Proceeding by Rosenwald Bros. Company, a corporation, for the correction of assessment books. From a judgment for plaintiff, the State of New Mexico appeals.</p>

Proceeding by D. S. Rosenwald and S. U. Rosenwald, doing business under the name of the New Mexico Cigar Company, for a reduction of an assessment. Prom an order granting relief, the State of New Mexico appeals. •

<p>Appeal from District Court, Socorro County; Mechem, Judge.</p> <p>Proceeding by the Atchison, Topeka & Santa Pe Railway Company against the Staté of New Mexico. Judgment for plaintiff, and defendant appeals.</p>

It is well settled that a promise to pay tlie debt of another in consideration merely of forbearance by the creditor to sne the original debtor or to make an attachment or levy an execution without any new or original consideration moving to the promisor and beneficial to him is within the statute of frauds and must be in writing. Statute of frauds must be pleaded.

Equitable action by B. G. Glaser against Wm. IT. Dannelley. Judgment for plaintiff, and defendant appeals. Conditions in contract were dependent and concurrent and must have been performed by appellee before bringing suit. 3 Elliott on Conts. Sec. 2045; 2 Elliott on Conts, Sec. 1547, 2047; Ink v. Rohrig, 122 N. W. 594; 9 Cyc. 643; Appleton v. Chase, 19 Me. 74; Shinn v. Roberts (N. J.), 1 Spencer 435; 43 Am. eDc. 636; McCoy’s Adm’rs. v. Bixbee’s Adm’rs., 6 O. 610; 27 Am.

<p>Appeal from District Court, Socorro County; Mechem, Judge.</p> <p>Mandamus eases by the State of New Mexico, on the relation of J. B. Woods and the Board of County Commissioners of Socorro County ¡ against Max M. Montoya, Treasurer of Socorro County, N. M.</p>

Thomas A. Riddle was convicted of the larceny of neat cattle, and he appeals. Evidence is insufficient, to sustain verdict. Terr. v. Yalles, 15 N. M. 228; State v. Griggs, 20 N. M. Prejudicial impression remained notwithstanding withdrawal of erroneous testimony. 38 Cyc. .1443. It has been uniformly held in this jurisdiction that a verdict will not be set aside when it is supported by substantial evidence.

<p>SYLLABUS BY THE COURT.</p> <p>Over-valuation of property assessed for taxation purposes is a good defense to an action brought by the state to recover alleged delinquent taxes, where payment of the amount legally due is pleaded, and resort is had to the legal and statutory remedies to avoid the excessive assessment.</p>

Condemnation proceeding by Hal Young and another against Waverly G. Dugger. From a judgment dismissing the petition, plaintiff’s appeal. Right of eminent domain may be exercised to obtain easement over lands for ditch purposes. Sec. 5656, 2098, Code 1915. Condemnation is purely statutory, and property must be taken for a public use only. Leyba v. Armijo, 11 N. M. 441; Albuquerque L. & Irr. Co. v. Gutierrez, ■10 N. M. 237; Albuquerque v. Garcia, 17 N. M. 450; Fallbrook Irr.

D. Leib, Judge. Action by J. M. Scarbrough against J. E. Wooten. Prom a judgment of the district court affirming a judgment of justic court for plaintiff, defendant appeals. No damages can be recovered for trespass by animals running at large. ITill v. Winkler, 21 N. M. 5 Par. 39 Code 1915. Pact that stock is in charge of herder is no evidence that trespass is willful. 81 Am. St. E. 451. Chapter 94, Laws 1909 is unconstitutional because local and special eglislation.

Proceeding by W. R. Eccles, Artesian Well Supervisor of Chaves County, against A. O. Will. From a judgment of the district court giving precedence to the lien of defendant’s mortgage over the statutory lien, the plaintiff brings error. Mortgage lien is not superior to lien of Supervisor in expending money in making well repairs. Secs. 265, 266 Code 1915. Secs. 3319 and 3322 Code 1915.

Action for divorce by Joseph A. Klasner against Lillie1 C. Klasner. Decree for plaintiff, requiring the payment of alimony and ordering ■ equal division of community property, and defendant appeals.

<p>SYLLABUS BY THE COURT.</p> <p>Under a statute making a promise of marriage an essential element of seduction, a promise of marriage, conditioned upon pregnancy resulting from tlie intercourse, will not amount to seduction.</p>

<p>Appeal from District Court, Chaves County; McClure, Judge.</p> <p>Action by L. B. Craig against J. IT. Henning and others. Judgment for defendants dismissing the complaint, and plaintiff appeals.</p>

Action to quiet title by Antonio G-. Sedillo against Emilio Baca, as administrator of the estate of Rufina Baca de Sedillo, and others. Judgment for defendants dismissing the action, and plaintiff appeals.

Suit by tlie Vermont Farm Maclaine Compaiay against C. W. Asia. Demurrer to second amended answer sustained, and judgment for plaintiff, and defendant appeals.

( Prank McGheewas convicted of murder in the second degree, and he appeals. The dying declaration was inadmissable because the facts included therein were not in dispute. State v. Valencia, 19 N. M. 113; Stewart v. State, 2 Lea (Tenn.) 598; State v. Johnson 118 Mo. 491; Binfield v. State, 19 N. W/607; State v. McKnight, 21 N. M. 14. It is no objection to admission of dying declaration that exigencies of case do not require it.

<p>SYLLABUS BY THE COURT.</p> <p>Venue may be established like any other fact, and it may be found upon circumstantial evidence. Evidence examined and held sufficient to establish venue.</p>

<p>Appeal from District Court, Curry County; McClure, Judge.</p> <p>Action by H. S. Crawford against A. L. Gurley and another. Judgment for plaintiff, and defendants appeal.</p>

Action by Andrew Morstad against the Atchison, Topeka & Santa Fe Eailway Company. Judgment for plaintiff, motion for new trial denied, and defendant appeals. As to care required of master in selection of servants. see: Holland v. Tenn. Coal, etc. Co. 12 L. E. A. 232; Jackson v. Shillinger Bros. Co. 148 N. W. 735; 3 Labatt’s M. & S. Sec. 1088. No action can be supported for damages arising from mere accident. 1 Thompson Comm. L. of Neg.

<p>Appeal from District Court, Sierra County; Mechem, Judge.</p> <p>Action by Max Hiltscher against Gertrude Minnie Jones. Judgment for defendant on the pleadings, and plaintiff appeals.</p>

Stonewall Jackson Calhoun was convicted of involuntary manslaughter, and he appeals. Motion for continuance should have been granted. Kellyville Coal Co. v. Hill, 94 111., App., 89; Smith v. Wilmington City Ry Co., 40 At., 189; Switzer v. Lottenville, 4 111., App., 219; Bradbury v. Dougherty, 7 Blaekf., 467; Gouring v. Chicago M. & St. Paul Ry.' Co., 47 N. W., 18. Motion for continuance was unsupported except by affidavit of appellant, and consequently was properly overruled.

Eaton and the First National Bank of Delhart, Texas. Judgment for the latter, and the former brings error. O. P. Easterwood, of Clayton, and W. J. Eaton, of Socorro, for plaintiff in error. Joseph Gill, of Clayton, for «defendant in error.

<p>Appeal from District Court, Dona Ana County; Medler, Judge.</p> <p>Action by Louis L. Robinson, as administrator de bonis non of the estate of John Kingston, deceased, against William L. Sawyer. Decree for plaintiff, and defendant appeals.</p> <p>Contract was void. Bank v. Smith, 17 N. M.; Fed Stats. Ann. 533; Camfield v. U. S., 167 U. S. 518; Schwanger v. Mearbry, 59 Cal. 91; Combs v. Miller, 103 Pac. 590; McLaughlin v. Ardmore L. & T. Co., 95 Pac. 779; Garst v. Love, 55 Pac. 19; Chaffee v. Garrett, 16 Ohio 421; Jarvis v. Campbell, 23 Kas. 370; Tandy v. Elmore Cooper L. S. C. Co., 113 Mo. App. 409; Levison v. Ross, 12 L. R. A. (N. .S.) 575, and extended note.</p> <p>As too good faith, party knowing he has no title, see: Vilas v. Prince, 88 Fed. 682; Diffenbock v. Hawks, 115 ü. S. 398; Lindt v. Uihleen, 89 N. W. 214; Reay v. Butler, 95 Cal. 206, 30 Pac. 208 ; Crespin v. ITannavan, 50 Mo. 536; Saxton v. Hunt, 20 N. J. Law 487; Foulke v. Bond, 41 N. J. Law 527; Moore v. Browne, 11 Howard.414, 13 Law 751; Eberts v. Thompson, 16 Wise. 91; Mosley v. Miller, 13 Bush 408; Linthicum v. Thomas, 59 Md. 583.</p> <p>Sale by private parties of unappropriated public domain furnishes no consideration for the contract. Rayner Cattle Co. v. Bedford, 91 Tex. 642, 44 S. W. 410, 45 S. W. 554;' Lamb v. James, 87 Tex. 485, 29 S. W. 647.</p> <p>Transcribed notes of stenographer are not filed and therefore are no part of record. Wade’s App. Pro. Sec. 404; State ex rel Baca v. County Commsrs. 21 N. M. 713.</p> <p>As to title see: Third Nat. Bank v. Smith, 17 N. M. 166, 20 N. M. 264; 27 Cyc. 1153, 1154 and 1155.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Assuming that section 4101, C. L. 1897, is in force, the prima facie case made thereunder by introduction of tax deed held overcome by proof that assessment was made in the name of a person not the owner of the property. P. 697.</p> <p>2. An assessment made in name of stranger to title is irregular under chapter 22, Laws of 1899, and sale under chapter 84, Laws 1913, based upon 'such assessment, held void. P. 698.</p>

<p>Appeal from District Court, Socorro County; Mechem, Judge.</p> <p>Action by Anastacio T. Torres against the Board of County Commissioners, Socorro County. Judgment for plaintiff, and defendant appeals.</p>

<p>In the matter of the increase of 15 cents per ton over and above the rates now in force for the transportation of coal between points in New Mexico by railroad companies operating therein. Proceeding removed to Supreme Court by state corporation commission to secure enforcement of order.</p>