18-JUVENILE COURT-CRIMI

NAL JURISDICTION - STATUTE-CONSTRUC

Wadsworth v. U. P. Ry. Co., 18 Colo. 600, 33 13. INFANTS Pac. 515, 23 L. R. A. 812, 36 Am. St. Rep. TION. 309. The plaintiff here declared that he That the Legislature did not intend to grant could make no better case, and that he elect-general criminal jurisdiction to the juvenile ed to stand by his case as already made. court under the grant of criminal jurisdiction Under this statement, and with the views of in certain cases in Laws 1907, p. 330, § 19, is also evidenced by the fact that, if general crimithe court as announced, a new trial would nal jurisdiction existed in the juvenile court, have been a useless and expensive proceed-county judges, frequently unlearned in law, ing, for it could produce only the same result, and, as was well said in the Wads

worth Case:

would be called upon to try criminal cases when sitting as judges of the juvenile court, under their power so to do in cases of sickness or disability of the judge of the juvenile court, as provided for by section 18.

"The bringing of the whole record to this court [Ed. Note.-For other cases, see Infants, for review, including the bill of exceptions containing all the testimony offered, given or re- Cent. Dig. § 18; Dec. Dig. 18.] ceived on the trial,' clearly indicates that the 4. CRIMINAL LAW 84-DISTRICT COURTintention of the parties was to treat the action PUBLIC POLICY-STATUTE-CONSTRUCTION. of the court as though the court had dismissed The fact that the important duty of enforc the action or granted a nonsuit on the ground ing the criminal laws has always been delegatthat plaintiff had failed to prove a sufficient ed by the people to the district court since the case for the jury.' That such was the under- earliest territorial legislation requires the carestanding and intention of plaintiff, as well as ful scrutiny and restriction of any statute dethe defendant, is confirmed by the fact that the rogatory of such jurisdiction in the district assignments of error and argument of counsel court. in this court extend to the conclusions of the

trial court upon the evidence, the pleadings, and the statutes upon which the action is founded. The Code of Civil Procedure contemplates that the substance and not the mere form of judicial proceedings shall be regarded in determining the rights of parties. Hence we shall review this cause according to the intention of the parties, as above stated, since it is obvious that the ends of justice will be thereby accomplished."

The judgment is reversed, with instruction to try the cause in conformity with the views

herein expressed.

TELLER, J., not participating.

(60 Colo. 230)

COLIAS. PEOPLE. (No. 8172.) (Supreme Court of Colorado. Nov. 1, 1915. Rehearing Denied Dec. 6, 1915.)

1. INFANTS 18-JUVENILE COURT CRIMI

NAL JURISDICTION-EXTENT.

The juvenile court has no jurisdiction to try an adult for the crime against nature committed on a minor under Laws 1907, p. 330, 8 19, providing for a liberal construction of section 2 of the act so as to give the juvenile court concurrent jurisdiction with the district court in any criminal case against an adult person for a crime where the offense is against the person, or involves the morals of a minor, since section 2 limits the criminal jurisdiction of the juvenile court to cases in which the disposition, custody, or control of a minor or other person is involved under certain acts concerning minor's parents, etc., and does not confer general criminal jurisdiction.

[Ed. Note. For other cases, see Infants, Cent. Dig. § 18; Dec. Dig. 18.]

2. INFANTS 18-JUVENILE COURT-CRIMINAL JURISDICTION - STATUTE CONSTRUC

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 115-124; Dec. Dig.

84.]

Error to Juvenile Court, City and County of Denver; Ben B. Lindsey, Judge.

Bill Colias was convicted of the crime against nature, and brings error. Judgment

reversed.

John A. De Weese and Isham R. Howze, both of Denver, for plaintiff in error. Fred Farrar, Atty. Gen., and Frank C. West, Asst. Atty. Gen., for the People.

TELLER, J. [1] Plaintiff in error was convicted in the juvenile court of the crime against nature, committed upon a minor, and sentenced to the penitentiary for not less than 10 nor more than 20 years. Timely objection was made to the jurisdiction, and it is here urged that the statute (chapter 149, Laws of 1907), creating the juvenile court, does not confer upon it jurisdiction to try this case. The second section of that statute defines with considerable detail, the jurisdiction of the court, as follows:

"Such courts shall have original jurisdiction in all criminal cases or other actions or proceedings in which the disposition, custody or control of any child or minor, or any other person, may be involved under the acts concerning delinquent, dependent or neglected children, or any other acts, statute or law of this state now or hereafter existing concerning dependent, delinquent or neglected children, or which may in any manner concern or relate to the person, liberty, protection, correction, morality, control, adoption or disposition of any infant, child or minor, or the duties to, or responsibility for such infant, child or minor, of any parent, guardian or any other person, corporation or institution whatsoever."

The part of section 19 upon which the state relies to support the jurisdiction of the juvenile court reads as follows:

"This act shall be liberally construed so that the jurisdiction of the court, as defined by section two (2), shall be concurrent with the district court in any criminal case against a minor, and also any criminal case against an adult

TIONS-BREACH-NECESSITY OF DEMAND.

forum which is best equipped for the pur- 13. DEEDS 168-CONDITIONS AND RESTRICpose, and to the district court has been committed that duty since the earliest legislation on the subject in our territorial days. Any statute making an exception to this general rule should be carefully scrutinized, and so construed that the exception be not extended beyond the manifest intent of the law, considered in its entirety.

Where a deed contained a condition that intoxicating liquor should never be sold on the premises, and provided that upon an adjudication of a court of competent jurisdiction that such condition and covenant had been violated the title to the premises thereby conveyed should revert to, and revest in, the grantor, its successors and assigns, a demand for possession or a claim or entry upon the land by the granIn the case at bar there was involved nei-tion to forfeit the grantee's title to the lots, as tor was not essential before instituting an acther the disposition, custody, nor control of a minor; nor did it arise under any of the acts named in the statute in question. For these reasons we are of the opinion that the court erred in overruling the motion to quash the information for want of jurisdiction.

The judgment is therefore reversed, and the cause remanded, with directions to quash the information.

Reversed and remanded.

GABBERT, C. J., and HILL, J., concur.

(60 Colo. 315)

FUSHA et al. v. DACONO TOWNSITE CO. (No. 8309.)

(Supreme Court of Colorado. Dec. 6, 1915.) 1. DEEDS 147—CONDITIONS AND RESTRICTIONS-VALIDITY IN GENERAL.

Every owner of real estate in fee simple has the legal right to dispose of it either absolutely or conditionally and to regulate the manner in which it shall be used and occupied as he may deem just and proper, providing the conditions and restrictions imposed are not violative of the public good or subversive of the public interests, and, if conditions in a deed are made in good faith for a valuable consideration and do not stipulate for anything malum in se or malum prohibitum, they do not contravene public policy and should be enforced.

[Ed. Note.-For other cases, see Deeds, Cent. Dig. 88 473-477; Dec. Dig. 147.]

2. DEEDS 150-CONDITIONS AND RESTRICTIONS-VALIDITY-USE OF PROPERTY.

A townsite company, the stockholders of which owned a controlling interest in another corporation engaged in mining adjacent to the townsite, to induce workmen and employés of the coal company to make their homes in the proposed town, constructed houses thereon to be sold to such employés, and for that purpose procured a loan from a brewing company secured by a deed of trust on all the townsite property except two certain blocks and two lots in other blocks, and as a part of the transaction, and to effectuate a scheme to restrict and limit the traffic in intoxicating liquors, agreed to convey such lots to the brewing company, and to insert, in all other deeds conveying lots, a condition that intoxicating liquors should never be sold on the premises except by druggists for medicinal purposes. Held, that such condition in conveyances of lots did not contravene public policy, and was valid and enforceable, as it was not intended to exclude absolutely the sale of intoxicating liquors, or to prevent competition therein in a broad and general sense, or in any way to control prices to the detriment of the public, especially as the business of selling intoxicating liquor at retail has never been a matter of common right nor a lawful trade except under such authority as is specially conferred by the sovereignty.

[Ed. Note.-For other cases, see Deeds, Cent. Dig. $$ 450, 480; Dec. Dig.

150.]

an action and adjudication were essential to reinvest the title in the grantor.

[Ed. Note.-For other cases, see Deeds, Cent. Dig. §§ 526-533; Dec. Dig.

168.]

Error to District Court, Weld County; Neil F. Graham, Judge.

Action by the Dacono Townsite Company against J. F. Fusha and others. Judgment for plaintiff and defendants bring error. Affirmed.

William H. Dickson, of Denver, for plaintiffs in error. Delph E. Carpenter, Herbert M. Baker, and I. S. Smith, all of Greeley, for defendant in error.

WHITE, J. This case involves the right of a grantor in a deed to enforce the forfeiture of the title to certain lots, because of the violation of a clause in the instrument of conveyance prohibiting the sale of intoxicating liquors upon the premises, except by druggists, for medicinal purposes. The position of the parties in the trial court was the reverse of what it is here, and judgment of forfeiture was entered in favor of the plaintiff corporation, which was the grantor in the deed, and against the defendants, who had acquired their respective rights in the premises through deeds from the original grantee or his assigns. The defendants, plaintiffs in error here, concede the violation of the clause restricting the sale of liquor, but claimed in the court below, and here contend: (1) That such prohibitive and forfeiture clause in the deed of conveyance to their grantor was inserted therein, by the plaintiff, for the purpose of creating a monopoly in the sale of intoxicating liquors within the territorial limits of the townsite and is therefore null and void: (2) that the plaintiff, having failed to demand of defendants possession of the premises before commencing its suit, cannot maintain the action.

[1, 2] 1. It is an elementary principle of law that every owner of real estate, in fee simple, has the legal right to dispose of it either absolutely or conditionally, or to regulate the manner in which the same shall be used and occupied as he may deem best and proper, provided, however, that the conditions and restrictions imposed are not violative of the public good or subversive of the public interests. Therefore, if conditions in a deed are made in good faith for a valuable consideration and nothing malum in se or malum prohibitum is stipulated for, they do

not contravene public policy and should be the brewing company and the deed here inenforced. Tested by these rules, we find volved, together with the acts of the parties nothing obnoxious in the deed under consider- in the premises, were not intended to, and did ation. not, prevent competition in its broad and general sense, or in any wise control prices to the detriment of the public. Every regulation of trade is, in a sense, a restraint thereon, but it does not necessarily follow that such regulation is invalid. If the regulation is unreasonable, it is void; if it is not unreasonable and is founded on a legal consideration, and seems necessary for the protection of the interests of the party in favor of whom it is imposed, and does not materially prejudice the interests of the public, the law upholds it. Freudenthal v. Espey, 45 Colo. 488, 495, 102 Pac. 280, 26 L. R. A. (N. S.) 961. The case of Whealkate Min. Co. v. Mulari, 152 Mich. 607, 116 N. W. 360, 18 L. R. A. (N. S.) 147, is directly in point, and conclusive of this branch of the controversy.

The plaintiff corporation was organized February 9, 1906, and thereafter, on April 4th of the same year, acquired ownership of a quarter section of land which it afterwards platted into a townsite in which the lots in question are situate. The stockholders of the plaintiff corporation owned a controlling interest in another corporation which owned and was engaged in operating coal mines on land adjacent to the townsite, which was then unoccupied. The plaintiff, as an inducement to the workmen and employés of the coal company to make their homes in the proposed town, undertook to construct a number of cottages on the townsite to be sold to such employés, and for this purpose procured a loan for a considerable sum of money from a certain brewing company, for which it executed its note payable five years after date, secured by a deed of trust on all the townsite property, except two certain blocks and two lots in other blocks. As a part of this transaction, and to effectuate the plan and scheme of the plaintiff corporation to restrict and limit the traffic in intoxicating liquors in the village, it further agreed to convey the two lots aforesaid in fee simple to the brewing company, and to insert, in all other deeds whereby it conveyed lots in such townsite, a condition that intoxicating liquors should never, except by druggists for medicinal purposes, be sold on the premises, and upon violation of the condition by the grantee in any such deed or his heirs, executors, administrators, or assigns, the title to the lots so conveyed should revert and reinvest in the townsite company. The plaintiff had no purpose or intention of excluding absolutely the sale of intoxicating liquors in the village, but only to restrict the

same.

[3] 2. Demand for possession, claim, or entry upon the land was not essential before instituting the action. By the terms of the deed the grantee held the land by a defeasible title. The conveyance was upon condition that intoxicating liquors should never be sold upon the premises, except by druggists for medicinal purposes, and it was expressly provided therein that:

"In case of and upon the adjudication of a tion and covenant has been violated by said court of competent jurisdiction that this condisecond party, his heirs, executors, administrators or assigns, the title to the premises hereby conveyed, and every part thereof, shall revert to and revest in said first party, its successors and assigns."

So an action and adjudication of the court was essential to reinvest the title to the premises in the plaintiff. The pleadings were disposed of the entire controversy and desufficient for this purpose, and the decree termined the rights of the parties in the premises. The judgment is therefore af

firmed.

Judgment affirmed.

GABBERT, C. J., and BAILEY, J., concur.

(171 Cal. 329)

GUERNSEY v. DOUGLAS et al. (Sac. 2243.) (Supreme Court of California. Nov. 15, 1915. Rehearing Denied Dec. 13, 1915.)

It conveyed in fee simple the aforesaid lots to the brewing company before selling any other lots, and inserted in all subsequent conveyances the said prohibition clause and condition of forfeiture, all of which was known to the defendants and to those under whom they claim, at the time their respective interests in the premises were acquired. The business of selling intoxicating liquor at retail has never been "of common right" in this state, nor has it been a "lawful trade," except under such authority as was specially conferred by the sovereignty. Indeed, in the sale thereof it has always been recognized that the interests of society require strict regulation, which may extend to absolute prohibition. It may therefore be doubtful whether contracts restricting the sale of intoxicating liquors in a town should ever be considered against public policy, unless so specifically declared by legislation. Sell v. Branen, 70 lots. Ill. App. 471, 473. However, be that as it [Ed. Note. For other cases, see Homestead, may, we are satisfied that the contract with Cent. Dig. § 91; Dec. Dig. 63.]

1. HOMESTEAD 63-ESTABLISHMENT-EXTENT OF HOMESTEAD.

Where defendant, seeking to establish homestead in certain lots, resided in a house on one of them, which was sufficient in size for the convenient use and enjoyment of the house as a home, and never resided on the other four, and neither the four lots nor any part thereof were then, or ever, necessary for the use and enjoyment of the house, or home, on the one lot, the

homestead character did not attach to the four

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

2. BANKRUPTCY 303-EXEMPTIONS-HOME- bankrupt, made within four months prior to the filing of his petition in bankruptcy, with intent to hinder, delay, or defraud his creditors, shall be null and void as against creditors, except as to purchasers in good faith and for a present fair consideration, and that the property so conveyed, if not exempt from execution, remains a part of his assets, and may be recovered by the trustee.

A discharge in bankruptcy has no effect on situated on lot 8; that said lot was sufficient the right of the trustee to recover property, un-in size for the convenient use and enjoyment less all debts and expenses have been paid. of such house as a home; that they never resided on the other four lots; and that neither said four lots, nor any part thereof, were then, or ever, necessary for the use and enjoyment of the house or home on lot 8. These findings fully support the conclusion that the homestead character did not attach Gregg v. Bostwick, 33

Subdivision (e) of section 67 of the Bank-horse feed some wild grass growing thereon. rupt Act of the United States (U. S. Comp. This use, however, was for purposes of St. 1913, § 9651) provides that all conveyances his trade rather than in connection with his of his property by a person adjudged a home. It all took place after the filing of the