Volume 24 — Colorado Court of Appeals Reports

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

<p>Appeal from Larimer District Court. Hon. James E. G-arrigues, Judge.</p>

<p>1. Trial — Pleading and Evidence. Evidence of matters nowhere alleged in the pleading is not to he admitted.</p> <p>2. Principal and Agent — Duty and Disabilities of Agent. A broker is employed to find a purchaser of mining property for a price named, and is to receive a special commission. Without informing his principal he attempts to sell the property for a very much larger sum. Held a palpable violation of the duty which he owed to the' principal. Held further that if he had succeeded in his effort the principal might have recovered from him, not only what he had received above the price fixed in his employment, but the promised commission as well.</p> <p>3. Quantum Meruit — For Services Rendered. Whoever sues upon a quantum meruit for services rendered must establish the employment, the rendition of the service, and the reasonable value thereof.</p> <p>The evidence examined and held insufficient upon all points.</p> <p>4. Appeal- — Judgment. Where, by the plaintiff’s own testimony, and by documentary testimony not susceptible of alteration or explanation, it appears that the plaintiff’s case is without a merit, a judgment in his favor will be reversed, and the court below directed to enter judgment for defendant.</p>

<p>Error to the Denver District Court. Hon. G-reeley W. Whiteord, Judge.</p>

<p>1. Use and Occupation. The owner of lands occupied hy another against his will is entitled to' recover the reasonable value of such use and occupation.</p> <p>Defendant’s ancestor, having conveyed certain premises to plaintiff, afterwards instituted an action- to annul the conveyance, as obtained by fraud. By the final decree of the district court, the conveyance was sustained. Pending this action defendant occupied the premises. She was held liable to plaintiff for the reasonable-value of such occupancy.</p> <p>2. Trial — Directing Verdict. Where the plaintiff establishes a clear title to the relief which he demands the court should direct the verdict.</p> <p>3. Demand — 'Where Necessary. The owner of lands occupied by another under a false claim of right is not under any requirement to make demand for rents, as a condition precedent to an action for use and occupation.</p> <p>4. Trials — Pleading and Evidence. Plaintiff declared as at common law for the use and occupation of lands. In fact defendant’s occupation was tortious, and this appeared hy the answer and reply. Upon the trial no objection was made to the sufficiency of the complaint, or that the evidence presented by plaintiff was inadmissible thereunder. Held that any insufficiency or lack of form in the complaint was cured.</p>

<p>Appeal from Boulder District Court. Hon. Harry P. Gamble, Judge.</p> <p> Motion to Re-Enter as Pending on Error, and for Supersedeas. </p>

<p>Appeals — Judgment Amended. The judgment entered at a former day so amended as to apply to only the party appealing.</p>

<p>1. Appeals — Presumptions. It is presumed that conflicts in the evidence were resolved by the jury in favor of the successful party.</p> <p>2. Master and Servant — Duty of Master to Avoid Exposing Servant to Unnecessary Perils. One who, controlling a passenger elevator, directs the servant to clean the top of the car while in use, is under duty to exercise at least reasonable care to provide a competent and careful pilot, and to take every reasonable .precaution, through such pilot, to so operate the car as to avoid injury to the other servant.</p> <p>Clear notice and warning should be given of every contemplated movement of the car.</p> <p>3. - Contributory Negligence of Servant — Intoxication, is not negligence unless it occasions or contributes to the injury complained of.</p> <p>4. -Assumption of Risk. The servant assumes all risks ordinarily and naturally incident to the service, but not those which result from the master’s failure to use reasonable care in providing reasonably safe machinery and appliances, a reasonably safe place for the servant’s work, other competent servants, or his failure to use reasonable care to prevent injury to the servant.</p> <p>5. Instructions — As to an Issue Not Proven. A party is not entitled to an instruction upon an issue made by the pleadings, but sustained by no evidence.</p> <p>6. -Assuming Facts, which are for the jury are properly refused; or those given in other words; or those which mistake the law.</p>

<p>Pleading — What Must Be Specially Pleaded. In an action of ejectment defendant pleads a prior decree quieting Ms title, but fails to show that the title then in question was identical with that presented in the ejectment suit. Reply, a general denial, not assailing the judgments so pleaded. Plaintiff may produce the judgment roll showing that the decree was void.</p> <p>The court below having improperly vacated the prior judgment, its judgment was modified, following Empire Oo. v. LumeMus, post.</p>

<p>1. Judgment — Record as Evidence. Where a judgment is relied upon as an estoppel, or as an adjudication of facts, not only the judgment entry, but the judgment roll, must be produced.</p> <p>2. Pleading — What Must Be Specially Pleaded. It is error to vacate, as void, a judgment valid upon its face, not referred to in the pleadings, and the judgment roll of which is not produced.</p> <p>Where plaintiff desires to set aside a tax deed, or a decree of court, the better practice is to assail it in the complaint, or in the reply if it is pleaded in the answer.</p> <p>3. Tax Deed — Amended Deed — Construction. A tax deed was excluded as void upon its face, because showing a sale to the county, and an assignment of the certificate made by the county clerk after the lapse of more than three years from the date of the sale. A second deed, issued upon the same sale, failed to show either the date of the assignment or what officer made it, but did show that it was authórized by the county commissioners during the same month appearing in the first deed. Held, that the two deeds were to be taken together, and that the latter deed was properly excluded.</p> <p>4. Appeals — Judgment. The judgment of the district court in an action of ejectment vacated and áet aside a decree of the county court, valid upon its face, quieting title in defendant, which was not mentioned in the pleadings, and this, without the production of the judgment roll. On appeal this judgment was modified and limited to r statement that the decree was .without effect as to the plaintiff’s title.</p>

<p>Appeal from, Eagle District Court. Hon. Chables- Cavendee, Judge.</p>

<p>Appeal from Larimer District Court. Hon. Habby P. Gamble, Judge.</p>

<p>1. Conteact — Modification■ — Effect, The modification of a contract as to the prices to he paid for different items of the work contracted for, made by mutual consent, does not make a new contract.</p> <p>2. Appeals — Findings of the Court Beloio, will not be disturbed unless the appellant affirmatively shows prejudicial error.</p>

<p>Appeal from Turna District Court. HoN. H. P. Burke, Judge.</p>

<p>1. Quieting Title — Plaintiff’s Title — Evidence — Trustee’s Deed■ — Recitations. A deed of trust described the trustee as the Nebraska Loan & Trust Co. A deed purporting to he executed by the same company, in pursuance of the sale under the powers of the trust deed, declared in the attestation clause that -the grantor had caused “its corporate seal to be attached,” and the certificate of acknowledgment, appended thereto, stated that the Nebraska Loan & Trust Co., by, etc., “second vice-president, personally known to me to be the person and officer who executed,” etc., acknowledged the same as “the act and deed of said corporation.” Held sufficient, prima facie, to put the defendant to proof of his title, though no evidence was given of the incorporation of the Nebraska company, its powers, or its compliance with the statutes of this state.</p> <p>Plaintiff is only required to show possession, or, in case of vacant lands, such title as upon its face confers constructive possession.</p> <p>2. -Defendant’s Title. It is the defendant and not the plaintiff who must stand or fall upon his own title.</p>

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

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

<p>1. Appeals — Abstract. Where the charge of the court is not set out in the abstract, it will be assumed that the jury were properly instructed.</p> <p>2. Trial — Conduct of Judge Presiding. The judge presiding in a litigated cause should exercise great caution and self-restraint in the exercise of his authority.</p> <p>In an action for negligence, in which, at the end of a trial occupying two days the plaintiff recovered a verdict, the judge presiding, on the first day of the trial, called before him two witnesses who had been examined for the defense, denounced them as wilful perjurers and ordered them to give bail to answer to that charge. The jury had been excused, but this proceeding was had in the presence of the parties, their counsel, and all connected with the cause, and an account of it was published in one of the newspapers of the city on the same evening. The evidence of negligence was vague and unsatisfactory. The defense gave no satisfactory explanation of the circumstances shown in the testimony for the plaintiff. Considering that the drastic action of his honor must have had the effect not only to terrorize the witnesses in question, but to overawe other witnesses whom the defendant might have desired to call, and that thereby the defendant might have suffered prejudice, the judgment was reversed, and a new trial awarded.</p>

<p>•Quieting Title — Limitation — Laches. No statute limits the time within which the action may he instituted; nor is laches available as a defense.</p>

<p>Appeal from Rio Grande District Court. Hon. Charles A. Pike, Judge.</p>

<p>1. Specific Performance — Conditional Tender of Payment. Vendee of lands who, in tendering payment of the agreed price, demands a .conveyance not warranted by the agreement of purchase is not entitled to specific performance. ' .</p> <p>2.. Landlord and Tenant — Option to Tenant to Purchase. Lessee of lands, with an option of purchase, tenders payment of the stipulated purchase money, with a condition as to the terms of the deed not warranted by the provisions of. the option. He is not entitled to" retain possession beyond the period of his lease. . - • ■</p> <p>3. Appeals — Appellant Must Show Error. Where, upon the whole record, no error to the prejudice of the appellant is made to appear, the judgment will he affirmed.</p>

<p>1. Pbactice — Objection to Sufficiency of Complaint First Taken at Trial. The practice of first objecting to the sufficiency of the complaint upon the trial condemned.</p> <p>2. Pleading — Aider by Pleading Over. Matters omitted from the complaint may be supplied by the answer.</p> <p>3. Ibbigating Company — Duty to Stockholders. A corporation organized for the purpose of supplying water to its stockholders by means .of reservoirs and ditches is charged by the law with the duties of reasonable care and diligence in procuring and storing the water, keeping Us works in repair, and making ratable distribution of the water. When the land of a particular stockholder is so situated that it can be irrigated from certain reservoirs only, it is the duty of the corporation, if by reasonable care it is practicable, without prejudice to other stockholders, to retain in such reservoirs water sufficient to irrigate the lands of such stockholder; and if without excuse it fails in this duty, it is liable to the stockholder for any injury which may result.</p> <p>The defendant owned three reservoirs. From only the upper two could plaintiff’s lands be irrigated. Early in the season of irrigation, according to evidence given for the plaintiff, the water was drawn from the two upper reservoirs into the third, below plaintiff’s land, and there remained stored through the entire season, while plaintiff’s crops were perishing. Meanwhile, water was not distributed to the shareholders according to their respective’ holdings, but each received according to his needs, and it appeared that those cultivating the lands of the president of the corporation had an abundance. Held, that under these circumstances plaintiff was not to he strictly limited to his ratable share, and that the jury were warranted in a verdict for plaintiff.</p> <p>4. Appeals — Harmless Error. An improper instruction manifestly favorable to the defeated party is harmless.</p>

<p>1. Appeal — Verdict on Conflicting Evidence, will not be disturbed.</p> <p>2. -Appeal Where No Appeal Lies. Appeal from a judgment for less than $500, in a cause not involving a franchise or freehold, no error appearing, and appellee having failed to enter his appearance, judgment was affirmed under rule 1 of this court.</p>

<p>1. Appeals — Law of the Case. The opinion, of the supreme court in a former appeal in the same cause is the law of the case in á second appeal, upon substantially the same pleadings and evidence as in the first.</p> <p>2. Evidence — Admissions — Former Testimony of Party. The testimony of one of several joint plaintiffs, given in the first trial of a cause, may be. read for the defendant at the second trial as an admission against interest, even though the party so testifying is present in court at such second trial.'</p> <p>Sec. 7284 of the Revised Statutes has not the effect to deprive a party of the advantage of prior admissions by an adversary.</p> <p>3. Fraternal Societies — Collection of Membership Lues. Fraternal societies make their own laws and regulations. There is no provision of law for the collection of the dues of members by legal proceedings.</p> <p>It is essential that they enforce such a discipline among their members that the subordinate bodies of which the order is composed may promptly collect their dues.</p>

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

<p>1. Contract' — Construction — When Consummated. A contract is consummated when the minds of the parties meet linderstandingly in the same sense.</p> <p>Appellee purchased of appellant a certain block of lots in an addition to the City of Boulder. He dealt with reference to a plat delivered to him by appellant, showing the block to contain fourteen lots. A written agreement of sale was framed, describing the property as “Block Two (2)” in the addition, ‘.‘according to the recorded plat thereof.” In fact, no plat was then recorded. Later a new agreement was executed and accepted, bearing the same date, and in the same words as the original, save in respect to the signature, in which a clerical mistake had occurred. Held, that the contract was consummated at the date of the original agreement, and, the block being made to contain only twelve lots by the plat afterwards recorded, appellee was held en-, titled to a corresponding diminution in the price.</p> <p>2. Maxims — Falsa Demonstrate. A contract was entered into for the purchase of a certain block of lots, in a certain townsite, describing the premises as “Block Two (2),” etc., “according to the recorded plat.” No plat was then of record, and the purchaser dealt according to and upon the fact of a blueprint exhibited to him by the seller, as the true plat of such townsite. The purchaser was entitled to the premises described in the blueprint as Block 2, the phrase “according to the recorded plat” being rejected as false demonstration.</p> <p>3. Evidence — Parol Admissible. Parol evidence is admissible to show the circumstances attending the execution of a writing.</p> <p>4. Vendos and Vendee — Vendor Unable to Convey in Part — Abatement of Price. One who agrees to convey a body of land for a specified consideration, and, by his own act, renders himself incapable of wholly fulfilling his contract, may, at suit of the purchaser, be required to convey all that he is able to convey, with an abatement in the agreed price equal to the difference in value between what was agreed for and what is conveyed.</p>

<p>Tax Titles — Deeds — Acknowledgment. A treasurer’s deed not acknowledged substantially as prescribed by statute, is void. The acknowledgment must, be made by the person who executed the conveyance, and this must appear from the instrument itself. A deed purporting to be executed by the treasurer in person, bearing a certificate that it was acknowledged by his deputy, must be rejected.</p> <p>That the initials of the deputy appear below the signature of the treasurer will not be received .to raise the presumption that in fact the deed was subscribed by the deputy.</p>

<p>1. Wills — Duty of Testator to Family. A testator is under no. duty to provide for collateral relatives. Even the parent may disinherit a child.</p> <p>2. -Execution — Presence of Attesting Witnesses. If in the act of attesting the will the witnesses are where the testator can see them if he desires, they are in his presence within the meaning of the statute. (Mills’ Stat., Rev. Sup., 4664; Rev. Stat., Sec. 7071.)</p> <p>3. -Bequest of Testator. There is no requirement in the statute (Rev. Stat., Sec. 7071) that the testator should request the witnesses to attest the will.</p> <p>4. Pkobate — Contest — Competency of Witnesses. Brothers and sisters of the devisee are competent witnesses to sustain the will. (Mills’ Stat., Sec. 4816; Rev. Stat., Sec. 7267.)</p> <p>5. - Credit of Witnesses.• The law does not impute to relatives of interested parties, testifying in a will contest, less integrity than other witnesses, hut their testimony is received with caution.</p> <p>6. -Letters of Testator. Where contestants of a will alleged that the testator was of unsound mind and had been unable to transact business for years prior to the execution of the testament, letters of the deceased written during that period are admissible upon such issue.</p> <p>7. - Letters of Contestant. Self-serving letters of the contestant are not admissible in his behalf. (Rev. Stat., Sec. 7267.)</p> <p>8. -Evidence — Experts’ Testimony is not entitled to greater weight than that of non-professional witnesses. The attention of the jury-should not be specially called to it, either in the way of commendation or condemnation.</p> <p>9. - Examination of Witness — Hypothetical Question. A hypothetical question assuming facts not established by evidence, and which no evidence tends to establish, must be excluded.</p> <p>10. New Tkial — Oral Testimony at Hearing. Whether in considering a motion for a new trial oral testimony shall be received is in the discretion of the court. (Mills’ Code, Sec. 217; Rev. Code, Sec. 236.)</p> <p>11. Appeals — Harmless Error. In a will contest a witness is exhaustively examined as to his impression of the mental condition of the testator. To exclude a question propounded on cross examination, as to whether, in his opinion, a matter spoken of in his testimony indicated a sound mind, is harmless.</p> <p>Or to exclude testimony as to matters established by other testimony.</p> <p>And error in the improper admission of testimony is cured by its subsequent admission without objection.</p> <p>The refusal of an instruction given in other and better form is not error.</p> <p>Or the refusal of an instruction directing the attention of the jury to particular evidence, when they are charged to consider all the evidence.</p>

<p>Appeal from Denver District Court. PIon. Harry C. Riddle, Judge.</p>

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

<p>1. Appeals — Objections Not Taken Below, are looked upon with disfavor, e. p., a general objection to the complaint for .want of a sufficient statement of facts, not calling attention to particular matters proven but not alleged.</p> <p>2. -Harmless Error. The omission from the complaint of a fact which was proven below without objection will be disregarded.</p> <p>3. Pleadings — Certainty. A complaint in an action to remove a cloud from a title, assailing a tax deed, should point out the precise defects in the proceedings which are complained of.</p> <p>But the lack of particularity in this respect is to be met by a motion to make more specific.</p> <p>4. Tax Titles — Removing Cloud From Title — Offer to Refund Taxes. Failure to tender a return of the taxes paid by defendant is waived by an answer claiming title under the tax deed.</p>

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

<p>1. Payment — By Chech. A check upon a bank which has no funds of the drawer, and has consented to meet the check only by draft on another bank which will only give credit therefor, is no payment.</p> <p>2. Sale — Purchaser’s Refusal to Accept• — Seller’s Remedy. Where upon executory agreement for the sale of chattels the purchaser refuses to perform his contract, the seller may (1) store the goods for him, and recover the full contract price, or (2) retain the goods and recover the difference between the agreed price and the market price at the time and place specified in the agreement for delivery, or (3) he may sell the goods at the best price obtainable and recover of the purchaser the loss sustained, measured, in general, by the difference between the contract price and the proceeds of the sale.</p> <p>And where neither title or possession has passed, the seller is not required to give notice to the purchaser of his intention to resell the goods, as a condition precedent to his right to recover what is lost thereby. Magnes v. Sioux City Co., 14 Colo. App., 219, followed.</p> <p>Nor is it necessary that the particular goods, the subject-matter of the contract, should, before the purchaser’s refusal to accept, have been segregated and set apart.</p> <p>And if the place of delivery affords no market, the vendor may send’ the goods to the nearest and most available market. One purpose of the re-sale is to establish the true value of the goods, at the time, and not leave this to future controversy; therefore, the subject-matter of the contract being a number of lambs on foot, the place of delivery being Grant, N. M., where there was no market; and the lambs being shipped to Denver and sold there, the market price being clearly established, the fact that some of those actually delivered on re-sale were not fully up to the requirements of the contract, and that some died while in transit, and that some were shipped from another place than that specified for the delivery — the expense of the shipment not being increased — was held unimportant.</p>

<p>Appeal from Weld District Court. Hon. James E. Garrigtjes, Judge.</p>

<p>1. Judgment — Against One Not in Being at the institution of the action, is void.</p> <p>2. Evidence — Admission in Pleading, that a certain action was instituted, and decree given therein, but alleging that the defendant named in the action was dead before its institution, is not an admission of the jurisdiction of the court in which the decree was given.</p> <p>3. Words and Phrases — “Unmarried.” A stipulation made during the trial of a bill to quiet the title to land, that a person named, the former proprietor of the lands, “died unmarried,” imports that he never married, and left no descendants.</p> <p>4. Tax Title — Void Deed. A treasurer’s deed which fails to describe the lands sold, is void.</p>

<p>1. Damages — Punitive. Where the master exercises reasonable care in selecting and employing the servant he is not charged with punitive damages for the torts or neglects of the servant, not authorized or afterwards ratified by him.</p> <p>2. Negligence — Ordinary Care, depends on the circumstances of the particular case.</p> <p>3. - Traveler at Railway Crossing. A traveler whose vehicle breaks down, or -is stalled, upon a railway crossing is bound only to ordinary diligence to avoid injury' from passing trains; and it seems that the railway company is bound only to the same degree of diligence to avoid doing him injury.</p> <p>Plaintiffs wagon, heavily loaded, broke down upon a crossing of defendant’s railway. While plaintiff was transferring the load to another wagon defendant’s train, having taken water at a stand-pipe 1,000 feet from the crossing, proceeded at speed, without giving any signal, or keeping any outlook, crashing into and destroying the wagons as they stood upon the crossing. Defendant’s servants in charge of the train knew that the crossing was constantly thronged with passing teams. It was near mid-day, and the crossing was in plain view of the fireman upon the engine, almost from the moment of leaving the stand-pipe.. Held defendant was chargeable with negligence.</p> <p>That the jury might have found that plaintiff was entitled to assume that the servants of defendant would see and -take notice of his perilous position, and stopped the train in time to avoid doing him injury; and that he was not to be declared guilty of contributory negligence, as matter of law, in failing to signal the train.</p> <p>4. Contributory Negligence — Pleasure of Proof Required to Establish, is the same as required to establish negligence of the defendant.</p> <p>5. Appeals — Harmless Error. Action for negligence. The court charged that if after becoming aware of the dangerous position of plaintiff, defendant’s engineer did not “exercise all diligence” to avoid an accident, they should find for the plaintiff. The jury might have found upon the evidence, either that the engineer exercised no care at all, or that he did everything possible to avoid the accident. Under the evidence there was no middle ground. The error in the instruction was declared harmless.</p> <p>6. -Judgment. The judgment below being erroneous in part, the cause was remanded with directions to the court below to modify its judgment, eliminating the erroneous allowance.</p>

<p>1. Tax Titles — Void Deed. A tax deed which shows upon its face that non-contiguous lands were sold to the county ..for a gross sum, is void.</p> <p>So, the county! being the purchaser, if it appears that the certificate was assigned by the county clerk more than three years after the date of the sale.</p> <p>2. -Limitation. Tha five years’ statute of limitations (Rev. Stat., See. 5733) is no bar to an action to quiet title. A void deed does not set the statute in motion.</p> <p>3. --Payment of Taxes. One claiming vacant lands must, in order to avail of the seven years’ limitation (Rev. Stat., Sec. 4090) show that seven full years intervened. between the first payment of taxes and the institution of the action, of the paramount owner.</p>

<p>1. Appeals — Abstract. Where the appellant fails to insert in his abstract either the evidence, or the charge of the court, and the transcript shows that no exceptions were saved to the instructions, no objection taken to the testimony offered for the appellee, and no exceptions reserved to the rulings of the court upon appellant’s objection to testimony, the court will not review the judgment.</p> <p>2. Teial — Upon a Theory Variant From the Complaint, by consent of the parties, waives defects in the complaint.</p>

<p>Tax Titles — Notice of Sale — Description of Land. Ejectment for a quarter-section of land. The defendant claimed under a tax deed. The assessment roll upon which the tax sale was based described the tract in question as containing 160 acres; the notice of the tax sale, as published, described it as 36 acres; the notice posted by the treasurer as 60 acres.</p> <p>The sale was had under the statute of 1891 (Laws 1891, 286, Sec. 6).</p> <p>Held that there was a substantial departure from the statute, fatal to' the validity of the sale,</p>

<p>Error to the Rio Grande District Court. Hon. Charles , C. Holbrook, Judge.</p>

<p>Error to Denver .District. Court. Hon. Harry C. Riddle, Judge.</p>

<p>1. Landlord and Tenant — Lease Construed. A lease of farm, lands provided that the landlord should furnish three horses, and that the tenant should “feed all teams at his own expense.”</p> <p>Held that the tenant was not entitled to charge the landlord for the care and feed of an animal actually worked and used on the premises, no matter how worthless.</p> <p>2. Trial — Pleading and Evidence — Matters Not in Issue. To receive evidence of misconduct of plaintiff toward defendant, nowhere alleged in the pleading is error.</p>

<p>Appeal from Kit Carson District Court. Hon. John W. Sheafor, Judge.</p>

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

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

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

<p>1. Time — Computation. Fractions of a day are not regarded in computing the time during which process must be in the hands of the sheriff, in order to warrant publication. (Mills’ Code, Sec. 382; Rev. Code, See. 416.) The first day is excluded and the last included. Service of summons by publication. The summons was issued May 1st and returned May 11th, not found. Held sufficient to warrant publication.</p> <p>2. Trial — Stipulation of Counsel — Mistake. Stipulations of counsel as to the facts of the cause will not be vacated upon ány lower grounds than would warrant the rescission of a contract, e. g., fraud, collusion, surprise, mistake, or the like.</p> <p>And application should be seasonably made in the trial court. Plaintiff in ejectment stipulated that one Z, from whom he derived title, was defendant in a certain cause named, and that in said action before Z’s conveyance a decree was entered quieting the title in defendant. The record produced showed that in fact'Z was not a party to that action. No suggestion of a mistake was made in the court below, nor was error directly assigned thereon. Held that plaintiff was concluded by the stipulation.</p>

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

<p>Appeal from Kiowa District Court. Hon. J. E. Rizejr, Judge.</p>

<p>The evidence being insufficient' to support a judgment for plaintiff, who was the plaintiff in error, the judgment of the district court on a directed verdict affirmed.</p>

<p>Deed of Tkust — Recitals of Trustee’s Reed, are, where the deed of trust so provides, prima facie evidence of the facts recited, e. g., the deed being executed by a substitute trustee, the recitations thereof that one W. was at a date named the holder of the promissory note mentioned in the deed of trust, that the original trustee was a nonresident of the state, and therefore unable to act, and that W. had appointed as substitute trustee the grantor in the deed, were held prima facie evidence of the facts so recited.</p>

<p>1. Partnership — Definition. A partnership is a contract expressed or implied, between two or more competent persons, to place their effects, labor and skill, or some of these, in business, and divide the profits and bear the losses, in certain proportions. There must be a unity of interest in the prosecution of the business; and whether or not a partnership exists depends on the intention of the parties.</p> <p>2. --Buréen of Proof. The burden of establishing a partnership is upon the one who asserts it.</p> <p>3. -Between Husband and Wife — Evidence. Much more evidence is required to establish a partnership between husband and wife than between persons not sustaining that relation. That the wife assists the husband, e. g., by keeping the books, and making out and receipting the bills, and that, in speaking of the business, she uses the plural pronoun, “we,” is not alone sufficient to establish a partnership against the explicit denials "of both husband and wife.</p> <p>4. Evidence — Opinions. The question being asked as to the existence of a partnership between the defendants, it is error to permit the plaintiff to state that the defendants were partners. Such a statement is merely the conclusion of the witness.</p> <p>5. - Conversation by Telephone. A party to the action may testify to a conversation with his adversary, by telephone, relating to the matter in issue; and,-as showing acquaintance with his voice, he may testify to previous like conversations had with such adversary.</p> <p>A bystander may testify to the conversation so far as he heard it.</p> <p>6. Instructions — Exceptions to. Error in an instruction, to which no exception was saved, is without influence upon an appeal.</p>

<p>1. Evidence — Possession of Lands' — Presumption. Proof of title raises a presumption of possession.</p> <p>2. Appeal — Harmless Error. Bill ‘to quiet title, plaintiff averring possession. This averment was denied, and no evidence upon the question was given by either party. But defendant showed no title. Held that having no right, judgment for the plaintiff was not to his prejudice.</p>

<p>Appeal from Montrose District Court. Hon. Speigg Shackleeoed, Judge.</p>

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

<p>1. Statutes — Construed. Sec. 255 of the code applies only to a plaintiff in possession.</p> <p>2. Cloud Upon Title- — Bill to Remove. It has always been the law in this state that, without the aid of any statute, one claiming title to unoccupied lands may maintain an action to remove a cloud therefrom.</p> <p>3. ■ — — Parties. Lands were conveyed upon trust to dispose thereof and distribute the proceeds between the trustee and the plaintiffs. The trustee refusing to execute the trust, the other beneficiaries therein may, without joining him, have an action to set aside a tax title acquired by a stranger; and this without calling upon the trustee to move in the premises.</p> <p>4. - Coming in of New Parties — Effect. In the same case the trustee having appeared, answered, and filed his cross-complaint praying the removal of the cloud upon the title, this was held to cure any possible defect in the frame of the suit, so far as related to the extinguishment of the tax title.</p> <p>5. Pleading — Cross-Complaint Against Co-Defendant. The cross-complaint provided for in the code (Rev. Code, secs. 62, 63) is equivalent to a cross bill in equity. One defendant may exhibit a cross-complaint against a co-defendant, seeking -affirmative relief.</p> <p>6. -- Waiver. A defendant in an equity suit who answers both the original complaint and a cross-complaint exhibited against him by co-defendant, will not be heard to deny the right and duty of the court to grant full relief.</p> <p>7. Cloud Upon Title to Personalty — -Bill to Remove. An action may be maintained to remove a cloud from a title to personalty.</p> <p>8. Equitable Conversion — The Doctrine of, is an invention of the equity courts for effectuating the intentions of the donor of a trust, not to defeat them. It extends only to those who claim from the same source of title as the trustee, as beneficiary, or through the same instrument, directly from or under the author thereof. It cannot be invoked by one who claims paramount title from another source, which, if sustained, extinguishes the trust estate.</p> <p>9. Evidence — Conveyances — Copy of Record. A deed conveyed lands upon trust that the grantee should dispose thereof, and distribute the proceeds between himself and others named. In an action by the other beneficiaries against a stranger to remove a cloud upon the title, the trustee being also a defendant, gave a deposition in which he testified to tlie loss of tlie deed. Held sufficient to admit a copy of tlie record of tlie deed under Rev. Stat., sec. 695.</p> <p>10. -Possession of Lands,, Xs prima facie evidence of title in' the occupant.</p> <p>11. Appeals — Harmless Error. The improper admission of evidence offered by plaintiffs is cured by its subsequent offer by a defendant, opposed in interest to its co-defendant, and its admission without objection from such co-defendant.,</p> <p>12. Tax Titles — Void Deed. A treasurer’s deed which recites only that copies of one publication of the newspaper containing the notice of the sale were delivered to each subscriber in the county where the lands are situate is void.</p> <p>13. --- Recovery of Taxes, paid by the claimant under the tax title is not allowed without proof of the amount paid. The burden is upon him to prove the amount.</p> <p>14. Limitations — The Five Years’ Statute (Rev. Stat., sec. 5733) is no bar to an action to remove a cloud upon the title to land.</p>

<p>Appeal from Weld District Court. Hon. Harry P. Gamble, Judge.</p>

<p>. Appeal from El Paso District Court. ITon. James Owen, Judge.</p>

<p>Error to Weld District Court. IIon. Harry P. Gamble, Judge.</p>

<p>Verdict — Construed. Defendants gave bond to plaintiff conditioned that the principal therein should return to the registry of the court whereof plaintiff was clerk so much of $1,000, received by him, as, in a cause to be afterwards instituted, it might be determined that he was not entitled to retain as his fee as an attorney in a certain cause theretofore depending. The action being afterwards instituted, the jury rendered a verdict in favor of the attorney, in the sum of $200.00. These facts appearing by the answer in an action upon the bond, held, that the plaintiff was entitled to judgment on the pleadings; that the verdict imported that the entire fee to which the attorney was entitled was $200.00, and not that sum in addition to the $1,000; that the answer presented no issue of fact.</p>

<p>IAppeal from Chaffee District Court. pion, Judge. Hon. Lee Cham-</p>

<p>1. Master and Servant — -When the Relation Exists. The switching crew of a railway company was accustomed to operate cars and engines upon certain tracks, the property of, and within the private premises of, a mining company, hut connected with those of the railroad company. The crew so employed were in the general service of the railway company, operated under its rules, were borne upon its payrolls, and the cars and engines were the property of that company. Held that though while so employed, the crew acted under the direction of the mining company as to where cars should be set, they were still the servants of the railroad company, and that company was liable for their neglects.</p> <p>2. Railroad Company — Movement of Trains. A railway company switching cars within the premises of a mining company at a time when, as those in charge of the work are aware, the employes of the mining company are liable to be upon or in proximity to the tracks, are under a manifest duty to give a signal or warning when a car is to be set in motion; failing in this the railway company is liable for an injury to a servant of the mining company, who, without fault upon his part, is injured by the neglect.</p> <p>3. Evidence — Affirmative and Negative Testimony. The question being whether the bell of the locomotive was ringing before and at the time of an accident, the affirmative testimony of witnesses that it toas ringing is not necessarily to be preferred to that of others, who, with equal opportunities, did not hear it. The question is for the jury.</p> <p>4. Contributory Negligence — Evidence. Action for an injury attributed to negligence in the operation of defendant’s locomotive1 in switching. Defense, contributory negligence. The evidence examined, and held that the question was properly left to the jury.</p> <p>5. Instructions — Duty to Pray. Where in an action for negligence plaintiff gives no evidence of certain particulars of negligence charged in the complaint it is the duty of defendant’s counsel to apply to the court for an instruction withdrawing these matters from the attention of the jury; and it is the duty of the court to give such instruction.</p> <p>G. -Exceptions to, must be taken before the jury retires.</p> <p>7. Appeals — Prejudicial Error Must Affirmatively Appear, and the burden is upon the appellant to show error.</p> <p>8. Bill oe Exceptions — Construction. The bill of exceptions is construed most strongly against the excepting party.</p>

<p>1. Cojttkacts — Hard Bargain. A purchase not induced by any fraud or imposition on the part of the vendor is not relieved against for the mistake of the purchaser.</p> <p>2. Appeals — Jiidgment. Judgment for plaintiff reversed and the court below directed to dismiss the action.</p>

<p>1. Equity — Removing Oloud Upon Title — Parties. Tlie holder of a promissory note secured by a deed of trust of lands may sue to remove a cloud upon tlie title to the land.</p> <p>2. Judgment — Record as Evidence. The record of a decree quieting the title to lands is not admissible as evidence of the title unless accompanied by the antecedent proceedings leading up to the decree.</p> <p>3. Tax Title — Void Deed. A treasurer’s deed founded upon a sale to the county and an assignment of the certificate of purchase, by the county clerk, more than three years after the date of the sale, is void.</p> <p>4. Limitations — The Five Tears’ Statute (Rev. Stat., sec. 5733) is no bar to a bill to remove a cloud upon the title to lands.</p> <p>5. - The Seven Tears’ Statute (Rev. Stat., sec. 4090) commenced its course, where a treasurer’s deed is relied upon, with the recording of the deed.</p>

<p>Appeal from Boulder District Court. Hon. James E. G-arrigues, Judge.</p>

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

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

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

<p>1. Contracts — Offer and Acceptance. The acceptance by one party of the previous offer of another must, to be effectual, be unequivocal and unconditional, and must be made before the offer is withdrawn.</p> <p>2. - Construed. The defendant being the owner of a section of land, subscribed a writing describing it, giving the acreage, and containing the words, “Terms of sale, one-half cash, balance one and two years. Lowest amount to bind the bargain, $500,” agreeing further to furnish an abstract of title, and make a warranty deed, etc. These provisions were followed by authority to the plaintiffs to sell the land, fixing the commission, and a statement that plaintiffs would “use their best efforts, at their own expense, to dispose of said land.” The paper was not signed by plaintiffs. Held in the nature of an employment, rather than a contract of sale.</p> <p>Later, plaintiffs transmitted to defendant a telegraphic message as follows: “Your terms of trade accepted. Send abstracts.” Confirming this telegram plaintiffs wrote, * * * “We take the entire section at $27 per acre net to you; you accept the 172 acres of Arkansas land at $30 per acre * * * and we pay you $5,000 cash at the' time of the transfer.” Held not an acceptance of the terms offered in the writing, and evidence that plaintiffs were not acting thereunder, but in pursuance of some negotiation subsequent thereto.</p> <p>3. Specific Performance — Indefinite Contract. A paper referring'to the sale of lands, but expressing no consideration, indefinite as to the purchaser, as to the time of payment of deferred installments of the purchase money, containing no express agreement to sell, and no agreement at all by any one to purchase, will not be specifically enforced.</p>

<p>1. Evidence — Judicial Notice, taken, that one riding a bicycle at three miles an hour has complete control of the wheel; that it can be stopped at will, or turned to right or left, and the rider dismount without danger of a fall, and that one so riding may pass over an ordinary depression of three or four inches in depth, and eighteen inches in length, without material disturbance of wheel or rider.</p> <p>2. Municipal Corporations — Duty as to Maintenance of Streets. A city is not required to maintain its streets in perfect condition, but only in a condition reasonably safe for passage.</p> <p>The evidence held insufficient to charge.the city with neglect of its duty.</p> <p>3. Trial — The Order of Evidence, is in the discretion of the court. Held proper to elicit from an officer of defendant, or re-examination, an admission of the plaintiff, without laying any foundation, e. g., by an examination as to time, place,, and persons present.</p> <p>4. Appeals — Harmless Error. Where the jury are properly instructed upon all material questions involved in the action, and substantial justice is accomplished, the refusal of instructions prayed by the defeated party will be disregarded.</p> <p>5. Contributory Negligence — In Any Degree, bars the plaintiffs’ action.</p> <p>An instruction that if the conduct of plaintiff contributed “in any degree” to the injury complained of, there could be no recovery, approved, though it was said that the words quoted might well have been omitted.</p>

<p>Appeal from Washington District Court. ITon. IT. P. Burke, Judge.</p>

<p>1. Tax Titles' — Void Deed. A treasurer’s deed showing upon its face that it is founded upon a sale to the county, and an assignment of the certificate of purchase by the county clerk, more than three years after the date of the sale, is void.</p> <p>2. Ejectment — Plaintiff Recovers Upon the Strength of Sis Own Title. Whatever may be the condition of defendant’s title, the plaintiff not showing any title in himself has no right to annoy, him. And the defendant is at liberty to make objection to any defect in the plaintiff’s chain of title, even though he pleads a title derived from a different source, and a title' which appears upon its face to be an empty one.</p> <p>3. Trust Deed — Trustee’s Deed — Recitations. In ejectment plaintiff gave in evidence a deed of trust of the land in controversy for securing the payment of a promissory note mentioned therein. He then offered a trustee’s deed executed by the trustee named in such deed of trust reciting a deed of trust between the same parties and bearing the same date with that offered in evidence for the security of the same person, but recorded on a different date, and at a different place. It was shown that there was, in fact, a deed of trust corresponding as to date and place of record with that recited in the trustee’s deed and purporting to be executed by the same grantor in the deed of trust offered by plaintiff to the same trustee, and to convey the same land, but securing a different sum of money, to a different creditor. Seld that, prima facie, the trustee’s deed offered by plaintiff was not executed pursuant to the deed of trust upon which he relied, and, there being no evidence to explain these discrepancies, that plaintiff showed no title.</p> <p>4. Limitations — Void Deed. One claiming under a treasurer’s deed void upon its face cannot avail of the five years’ statute of limitations (Rev. Stat., sec. 5733). ■</p>

<p>Appeal from Denver District Court. Hon. James Owen, Judge.</p>

<p>1. Tax Titles — Tax Deed as Evidence. A treasurer’s deed is not evidence of title unless it affirmatively appears that every step prescribed by the statute was regularly taken.</p> <p>A deed which fails to show that notice was given by the tax purchaser of his intention to apply for a deed, as required by the statute (Rev. Stat., sec. 5727), and proof thereof made, or that the assessed valuation was such that notice was hot required, is not prima facie evidence of title, and is not admissible in evidence without proof of the notice, or that it .was not required.</p> <p>The setting-forth of the deed in haec verba hy the opposing party in his pleadings does not supply the defect of such preliminary proofs. 2. Limitations — Five Years’ Statute. A tax deed does not set in motion the five years’ statute of limitations (Rev. Stat., sec. 5733) where there is no recitation of notice given of the tax purchaser’s intention to apply for his deed, or that the assessed valuation is such that notice is not required.</p>

<p>1. Judgment — Misnomer of Defendant. Where, in judicial proceedings, the defendant is personally served or appears, the omission of, or a variance in, the middle name or initial will be disregarded. But a decree quieting the title to lands, given by default, upon publication of the summons all the proceedings describing the defendant as A. L. Deleplane is without effect as to Albert S'. Deleplane.</p> <p>2. Names — Initials. The middle name, or the initial thereof, is material as a distinguishing identification of the person. No presumption will be indulged that Albert S. and A. L. are the same person.</p>

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

<p>1. Specific Performance — Certainty of Contract. To specific perform-, anee it is required, not only that the contract should be certain and complete in all its terms, but each of its terms must be so clearly and exactly expressed that the court may proceed with reasonable certainty.</p> <p>2. -Par tial •Enforcement, is allowed only when justice and equity to all parties can be accomplished.</p> <p>An agreement provided (1) that plaintiff should assign to defendant an option upon a certain ranch and the water rights thereto appurtenant, and provide an “adequate water supply” for the land, “using the water now going with the land, and such additions thereto as may be necessary to irrigate all of the land” which defendant might' cultivate; (2) 'that defendant, upon consummation of the purchase of the land, pursuant to the option, should “transfer or enter into an agreement to transfer” to plaintiff all such water rights and “put the entire tillable portion of the tract into an irrigation district,” afterwards to be organized; (3) that plaintiff would, upon the formation of the irrigation district, transfer to defendant bonds thereof, “representing the acreage placed in the district” by defendant, and “enter into an agreement to furnish” defendant “sufficient water to water all of the land that was or should be in cultivation at any time before water could be furnished therefor, under the irrigation district.” Considering that the parties might never agree as to what would be “an adequate water supply,” or as to what additions to the existing supply would be necessary, or as to what land defendant might be cultivating, that if the first part of the contract should be enforced and the irrigation district never organized, the defendant would own the land and the plaintiff the water rights, with no agreement between them as to how or upon what terms water should be furnished, that if disagreements as to these matters should arise the court would be powerless to compel them to enter into any contract, that these and many other obstacles, possible under the terms of the writing, presented an impossible barrier to specific performance of any feature of the agreement.</p> <p>3.--Damages. Held in the same case that plaintiff might proceed for damages.</p>

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

<p>Appccd from Larimer District Court. ITon. H. P. Gamble, Judge.</p>

<p>1. Tax .Title — Void Deed. A treasurer’s deed which, shows upon its face that the lands were struck off to the county on the same day on which they were first offered; or which,' being based upon a sale to the county and an assignment of the certificate, fails to show by what officer the assignment was made; or which fails to show the .date of the sale, is void.</p> <p>2. - Sale to a County — Assignment of the Certificate. A tax deed which, showing a sale of the land to the county, recites an assignment of the certificate of purchase by the county “by its proper officers” is not a compliance with the statute (Rev. Stat., sec. 5729).</p> <p>3. •- Second Sale After Sale to County Not Redeemed. Under Rev. Stat., sec. 5713, a sale for taxes, though upon due advertisement, after a sale of the same lands to the county which is still unredeemed and the lands unsold, is void.</p> <p>4. -Evidence Aliunde to Show Compliance With the Statute, the Deed Being Void Upon Its Face, is not admissible upon the hearing of a bill to quiet the title asserted under such deed. In an action to reform the deed, it may be otherwise.</p>

<p>Tax Titles — Tam Sale — Effect. A tax sale regular in all thing's, and the deed of the treasurer executed pursuant thereto, extinguishes existing titles and vests paramount title in the grantee.</p>

<p>Appeal from Washington County Court. Hon. Ira M. Barnhouse, Judge.</p>

<p>1. Trial — Upon Issues Variant From the Pleading.' Where, by consent of the parties, the sole question tried in the court below is one not presented by the pleadings, the defeated party will not be heard to complain, upon appeal, that the judgment is without the issues.</p> <p>2. Water Rights — Natural Stream Used as a Conduit — Bight of Appropriator. An appropriator who uses the channel of a natural stream to convey the water of his appropriation is entitled to take from the stream only such volume as he may measure, recapture from the stream, and actually apply to beneficial uses, due allowance being made for loss in transit from the point of measurement to the point of recaption. What he fails to so apply may be distributed to other appropriators, according to their priorities.</p> <p>3. Injunction — When Allowed. Equity will not award an injunction to enforce a right, or prevent a wrong, in the abstract, without proof of a well-grounded apprehension of immediate or future injury.</p>

<p>Error to Denver District Court. ITon. IT. C. Riddle, Judge.</p>

<p>1. Benefit Societies- — Consolidation — Rights of Members. Where two fraternal benefit societies of the same general purpose consolidate, adopting for the consolidated body the name and charter rights of one of them, the consolidated body agreeing to account for the funds it will receive from the original societies, with future receipts from the membership of each, “according to the respective contracts of the members,” and “for the equitable and complete protection of the memberships” of each of the orders, and an estimate or accounting has been had for the purpose of the consolidation, and the consolidated order issues to the members of one of the original societies a certificate or rider to his policy, agreeing to assume liabilities under the contracts held by them, it may well be inferred, without proof upon the question, that whatever was necessary to be done on the part of the original society to consummate the consolidation was done, and that its funds and securities were received by the consolidated body.</p> <p>. 2. - Surrender Values. Where, in such case, the consolidated body recognizes the liability of its funds for death losses, under certificates issued by one of the original societies, the same funds are subject to the payment of surrender values if there is no stipulation to the contrary in the agreement of consolidation.</p> <p>3. -Right of Member to Resort to the Courts. Where, in the constitution of a benefit society, and the statute controlling it, there is nothing requiring a member to present his claim and exhaust all remedies within the order, before applying to the courts a member whose right is denied may at once institute his action.</p>

<p>Error to Mesa District Court. Hon. Sprigg Shackleford, Judge.</p>

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

<p>X. Sale — Merchant’s Stock in Bulk — Executory Contract — Effect Upon the Title. Sale of a merchant’s stock in bulk,.to be consummated only after compliance with the statute (Rev. Stat., sees. 2678, 2679). Though possession is delivered, the title remains in the vendor.</p> <p>2. -Purchaser Refusing to Proceed — Vendor’s Rights. Where the purchaser of a merchant’s stock, in bulk, having made a deposit and received possession, refuses to complete the purchase and surrenders the goods, the seller, if he would insist upon his right, must hold all the goods' ready for delivery upon payment of the residue of the stipulated price. If he resumes business and disposes of a substantial part of the stock he can neither enforce specific performance nor demand damages.</p> <p>And the mere acceptance of possession waives the right to specific performance.</p> <p>3. •-■ Damages. Where, in such case, the seller is entitled to damages he ordinarily recovers the difference between the contract price, and the market value at the time and place of delivery.</p> <p>4. -Purchaser’s Action for Deposit. The purchase of a merchant’s stock is rescinded by the purchaser for alleged frauds of the seller inducing the purchase. He surrenders possession, which the vendor accepts, resuming business and disposing of a substantial part of the stock. The purchaser recovers his deposit.</p> <p>5. Pleadings — Judgment Upon. Where the complaint exhibits a cause of action and there is no counter-claim for the' damages to which, alone, as appears by the answer, defendant is entitled, the plaintiff may have judgment upon the pleadings.</p> <p>6. - Construed. The answer as to a certain sum demanded in the complaint averred that defendant “has not sufficient knowledge upon which to base a belief and prays strict proof in respect thereto.” Held sufficient to raise an issue.</p> <p>7. Intebest — When Allowed. Executory sale of a stock of merchandise and a deposit made by the purchaser. The latter alleging fraud upon the part of the seller abandoned the sale and sued for his deposit. He was allowed interest from the date of the sale.</p> <p>8. Appeals-1-Partial Error — Judgment. The judgment being found excessive, the cause was remanded with directions to the court below to enter judgment for the sum found to be due, and award him a new trial as to the residue.</p>

<p>1. Limitations — Action to Quiet Title. The provisions of section 4073 of the Revised Statutes have no application to a bill to quiet the title to lands.</p> <p>2. Judgment — Record of Judgment Entry as Evidence. The record of a decree assuming to quiet the title to lands is no evidence of title, unless accompanied by the judgment roll.</p>

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

<p>Appeal from Washington District Court. TIon. IT. P. Burke, Judge.</p>

<p>1. Pleading — Demttrrer. A demurrer alleging ambiguity, uncertainty, etc., and not in any way attempting to show wherein the alleged defect consists will be disregarded (Rev. Code, sec. 57).</p> <p>2. -Laches. That the claims asserted by a complaint may appear stale, and the plaintiff’s conduct extraordinary, ought not, ordinarily, to be determined upon general demurrer.</p> <p>3. District Court — Jurisdiction. A bill against the heirs, devisees and executor of.a decedent, to establish a trust in lands purchased by such decedent with moneys of the plaintiff in decedent’s hands, as plaintiff’s trustee, lies in the district court. The provisions of sec. 7206 of the Revised Statutes are without effect to exclude the jurisdiction.</p> <p>4. Statute of Frauds — Pleading. A bill to establish a trust in lands need not show that the contract or promise upon which plaintiff relies is evidenced by any writing. As against a general demurrer it will be assumed, nothing to the contrary appearing in the complaint, that plaintiff will prove a writing.</p> <p>And, though the complaint sets up a particular writing, it will not be assumed that this will be the only evidence to support the action.</p> <p>5. --- A Resulting Trust in Lands, may be established by oral testimony.</p>

<p>1. Tax Titles — Void Deed. A tax deed fair upon its face may be invalidated by evidence aliunde, e. g., that the land was assessed as a quarter section, and was sold in separate forty-acre tracts; or that no proper affidavit of the posting of the notice of sale, as required by statute (Rev. Stat., sec. 5708), was filed.</p> <p>2. Judgment — Who Concluded. A decree quieting title to lands is without effect as to those who were not parties to the cause, nor claiming under those named as defendants therein.</p> <p>3. Quieting Title — Unlcnown Persons. It seems that unknown persons may, under the code (sec. 50), be made parties to a suit to. quiet the title to lands, and may be concluded by the decree therein.</p> <p>4. -Disclaimer of Bole Defendant, charges the plaintiff with notice of the absence of the necessary parties, and puts him upon inquiry.</p> <p>5. Conveyance — Construed. Certain lands situate in Logan county were in question. They were granted to the Union Pacific Railway Company by letters patent Feb. 26th, A. D. 1897. The action being an equitable one to remove a cloud upon the title, the defendant relied upon a decree against the Union Pacific Railway Company quieting title thereto; and, to show title in that company, he produced a deed executed to the Union Pacific Railroad Company by a master in chancery under the foreclosure of a sinking fund mortgage, describing the lands conveyed as “all the lands in parcel two, as in said decree defined situate, etc., and not heretofore sold and conveyed by the Union Pacific Railroad Company * * * and not released by the trustee of said sinking fund mortgage.” What lands were included in “parcel two” was not shown, and it appeared that, in fact, years prior to the master’s deed, the Union Pacific Railway Company had conveyed the land in question to the ancestor of plaintiff, and the trustee of the mortgage had united therein, releasing the mortgage. Held that the master’s deed, by its express terms, excluded the lands in controversy.</p> <p>6. --- Not of Record, — Bona Fide Purchaser. One claiming lands under a tax title, and a decree quieting the title against a former owner who had previously conveyed the lands by deed not of record, is not a bona fide purchaser within Revised Statutes, sec. 694.</p>

<p>Contract — Rescission. Purchaser of live stock assumes possession and ships the animals to market in another state, consigned to brokers of his own selection. The animals being offered at this market, one having no apparent authority in the premises raises a false question as to the title, not disturbing the possession, and the brokers sell thefn in the open market. An attempted rescission of the sale by the purchaser for the pretended defect in the title is without effect. He is liable to the seller for the contract price.</p>

<p>1. Attachment — Levy on Lands. Under sec. 115 of the code, a writ of attachment is not effectually levied upon lands unless a copy of the writ, with a description of the lands taken, is filed with the recorder in the county. The mere filing of a certificate of the levy is without effect as to subsequent purchasers.</p> <p>2. Appeals- — Finding Upon Conflicting Evidence, sufficient in law, concludes the court of review.</p> <p>3. Trial by Jury — Equity Causes. All issues joined in an equity cause are tried by the court. The presiding judge may, in his discretion, submit questions of fact to a jury, but their verdict is merely advisory, and the presiding justice may reject it if not approved by his conscience.</p> <p>4. Judgment — Collateral Attack. An insufficient and void levy of an attachment upon lands is made and the plaintiff in the action recovers judgment. One not a party to that action institutes a suit in equity to set aside, as a cloud upon his title, such void and insufficient levy. The latter action is not an attack upon the judgment in the former.</p>

<p>1. Tax Titles' — Void Deed. A tax deed, based upon a sale to the county, is void upon its face if it fails to show that the land was offered on the day immediately preceding the day of the sale, and this, even though it literally pursues the form prescribed by the statute.</p> <p>A tax deed recited an offer of the lands on the 15th day of December; that no bid was offered therefor, and that “having passed such property for the time” the treasurer “did re-offer it at the beginning of the sale next day, and until he became satisfied that no more sales * * * could he effected * * * thereupon said treasurer hid off in the name of said county all the lands.” Held void upon its face for failing to show an offer of the land on any day other than that on which they were sold.</p> <p>A deed showing a sale to the county' and an assignment of the certificate of purchase by the county, “by its proper officers,” but not showing by name or official title what officer made the assignment, is void upon its face.</p> <p>2. -Evidence — Aliuncle the Deed, to show the regularity of all proceedings antecedent to the sale, is not admissible to contradict the positive recitals of a deed void upon its face.</p> <p>3. Limitations' — Seven Years’ Actual Residence.- To sustain a defense under Rev. Stat., sec. 4087, the defendant must be in possession, must have been an actual resident upon the land for seven successive years before the institution of the action, and must have had, during all that time, a connected title deducible of record.</p> <p>4. - The Five Years’ Statute. Section 3904 of Mills’ Statutes (Rev. Stat., sec. 5733) is not available in an action to quiet title.</p> <p>5. Pleadings' — Amendment. To reject an amendment which assumes to set up facts, the evidence of which is inadmissible, or a defense contradicted by the record and impossible of establishment, involves no error.</p>

<p>1. Appeals — Motion to Strike Bill of Exceptions — Time. The transcript olthe record, and the bill of exceptions, were filed here January 9, A. D. 1911; the abstract of the record, March 18th, A. D. 1911, and appellant’s brief, April 5, A. D. 1911. July 22, A. D. 1913, áppellee filed a motion to strike out the bill of exceptions because never filed in the office of the clerk of the lower court. Doubted if the motion was in apt time.</p> <p>2. - Leave to Withdraw the Bill of Exceptions, so as to enable appellant to procure the clerk’s certificate to the filing thereof in the court below, granted; and held, there being no dispute as to the authenticity of the document, no memorandum in the court a quo, is necessary to entitle the appellant to supply the omission.</p>

<p>Appeal from Weld District Court. Hon. Neil F. Graham, Judge.</p>

<p>Appeal from Weld District Court. Hon. Neil F. Graham, Judg’e.</p>