Page images

The ap

Arapahoe. From a judgment overruling a clerk, nor fixed any salary which should be demurrer to the complaint, defendant ap- paid the clerk, either out of the fee fund or peals. Reversed.

out of the general fund of the county. As we Goudy & Twitchell, for appellant. Isham

read the law, it was a definite and specific R. Howze, for appellee.

provision, which limited the justice to the re

ceipt of the salary named, to wit, $3,000 per BISSELL, J. · This suit was begun by the year, with the further limitation that this appellee, Clapp, against the county commis- salary, if paid at all, must be paid out of sioners of Arapahoe county, to recover $85

the fees of his office or the fee fund, which is a month for three months --February, March, made up of the various sums collected from and April, 1895,-for services alleged to have litigants in the suits commenced in his court been rendered to Isham R. Howze, justice of and the $60 per month to which he is entitled the peace, who was elected for a term begin- for unpaid costs in criminal cases. ning in January, 1894, and ending in January, peliant attempts from sections 19 and 20 of 1896. The complaint stated the rendition of the act to deduce an authority to appoint a services as clerk to the justice, and a resolu- clerk, and compel the county to pay the saltion of the board of county commissioners, ary which he should agree to pay him. We antecedently adopted, which provided that are unable to so read the act. Section 19 the compensation of Clapp as clerk should be simply provides that all of the various offi$85 a month. The plaintiff further stated cers who collect fees which they are bound to that he had ever since May, 1894, acted as pay into the county treasury, and which clerk of the justice, and received the compen- make up the fee funds out of which their sation paid by the board until the Sth of Feb- salaries are to be paid, must keep an account ruary, 1895. The complaint likewise stated of all fees earned, payments received, and exthe amount of fees paid into the county penditures made on account of clerk hire. treasury by the justice, which appeared to be Section 20 provides that the county judge, less than the $250 per month provided by the clerk of the county court, county treasurer, salary bill of 1891, except that it stated there sheriff, justice, and constable should make a were various unpaid fees in criminal cases report to the chairman of the board of county which had not been paid by the defendants, commissioners, under oath, of all the fees, and the county had paid the justice only commissions, and emoluments, and of all $60 per month for the various uncollected necessary expenses of clerk hire and other sums due from the defendants in that class expenses, for the month ending at the time of prosecutions. The county demurred to the the report was made. We are unable to see complaint, and the court entered judgment that this phraseology of section 20 necessarily on the demurrer for the plaintiff for the sum implies that the justice has authority to apwhich he claimed.

point a clerk; or, if that authority may be The case lies within very narrow limits, therefrom deduced, we are unable to conand the only question raised by the record is clude the clerk's compensation is payable out as to the right of the plaintiff to collect from of any other fund than that which is made the county the amount alleged to be due up of the fees and emoluments of the office. him as his compensation, which was alleged Several of the officers named are accorded to be a reasonable sum for his services, and the right to appoint assistants, deputies, and concerning the authority of the justice to ap- clerks, which rebuts the contention that it point a clerk, and compel the county to pay was the evident intention of the legislature him. As we read the law, there is no pro- to confer on the justice the power to appoint vision of statute which authorizes a justice a clerk. If that position be not well taken, to appoint a clerk, and require the county to it contains nothing which compels us to conpay his compensation. The act of 1891, clude that, if the authority must be assumed which turned the various offices in this state to be granted, the justice can compel the from offices which were to be paid by the fees county to pay the clerk's compensation, uncollected into offices where the incumbents less it is both alleged and proven that the fee were entitled to a specific salary, was passed fund resulting from his business is ample by the legislature in 1891. Sess. Laws 1891, both to pay the justice and the clerk. This p. 200. That act specified the fees which is especially rebutted by the allegations of might be charged by all the various officers the complaint, and we are unable to discover included within its provisions, and of course any legislative authority which would justify limited the amounts which those officials the board in either hiring or paying a clerk could collect, and which should make the who might be employed by any justice. This fund out of which their salaries should come. whole discussion is entirely outside of the Another act, passed at the same time, which general question as to the authority of the is found in the same Session Laws (page 307), commissioners of the county to direct and fixed the salaries of justices in counties of control the expenditure of the county's funds, the various classes in the state. No question and determine the purposes to which they is made respecting the salary which Howze shall be devoted. It simply results from the was entitled to under that act. This was legislation which evidently intended that the $3,000 per annum. Neither of these acts spe- various officers named should charge specific cifically authorized the justice to employ a fees for definite work, which should be paid into the county treasury, and the fund re- half that was realized, and, if title to the land sulting therefrom should constitute a fee

was secured, then one-half of said land, each fund, out of which the salaries and expenses

party on a financial accounting to be responsible

for an equal proportion of the expenses, etc., of the various officers should be paid. This **provided the venture is a success, but, unless seems to be the necessary result of the opin- it is, R. is not to be responsible for any other ion of the supreme court rendered in response

or further sum than he has already advanced.”

Held not to create a partnership. to a resolution of the senate subsequent to the time of the passage of the various acts re

Error to district court', Arapahoe county. ferred to. In re Compensation of County

Action by Elisha B. Cravens against HarJudges, 18 Colo. 272, 32 Pac. 519.

ry H. Lee and others, to enjoin the sale of We are unable to see that the resolution

land under a trust deed, and for general realleged to have been adopted by the board

lief. There was a decree granting part of the of county commissioners was effective for

relief asked, and Harry H. Lee and cerThe purpose of creating a liability against the

tain of the other defendants bring error. Recounty. The complaint contains no allega

versed. tions that the resolution was for a fixed pe- Thomas Hartzell and Bryant & Lee, for riod, or a definite time, or that the plaintiff plaintiffs in error. A. S. Blake and A. M. was employed thereunder by the board or Stevenson, for defendant in error First Naby the justice in accordance with it, or for tional Bank of Glenwood Springs. A. P. any specific period. Under these circumstan- | Rittenhouse, for other defendants in error. (es we deem the resolution ineffective for the purpose of giving the plaintiff a cause of ac- THOMSON, J. In April, 1881, Elisha B. tion against the county. For these reasons Cravens settled upon a tract of land near the judgment of the court overruling the de- Glenwood Springs, Colo., under the pre-empmurrer was erroneous, and it must therefore tion laws of the United States, for the purbe reversed. Reversed.

pose of acquiring title to the land from the government. On the 29th day of August,

18855, he tendered to the register and receiver 9 Colo. App. 272)

of the proper land office proof of the settleLEE et al. v. CRAVENS et al..

ment and improvement required by law,

together with the requisite fees and charges. (Court of Appeals of Colorado. Feb. 8, 1897.)

On the day of making the tender contests TRUSTS-AUTHORITY OF TRUSTEE-PARTNERSHIP — What CossTITUTES.

were instituted in the land office, against his 1. A pre-emptioner employed T. to obtain

application for patent, by sundry persons, title to the land, which was in contest, and to

and on the same day he became involved conduct other litigation, which required money in an altercation with one Fuller, and shot to be advanced; and, to bind the land for mon- and killed him. A prosecution for murder my advanced or procured by T., he confessed judgment in T.'s favcr for a large sum.

followed, and Cravens employed Joseph W. borrowed of R., agreeing to divide the profits

Taylor as his attorney to represent him in with him. A patent was procured for the pre- the contests in the land office and to defend emptioner, and, to effect a settlement between

him in the criminal prosecution. The conT. and R., it was decided that the patentee should convey the land to C. in trust; that

tests against the pre-emption claim and the corporation should be formed; and that one- criminal prosecution were conducted withi half of the stock should be issued to R. An

persistence and determination, and necessiordinary warranty deed was executed to C., and recorded, and C. executed a declaration of

tated the outlay by Cravens of considerable trust, which was retained by T., and not re

sums of money. He was without means, corded, in which C. agreed to convey to the and was compelled to rely upon his prospeccorporation, and to receive and hold the stock

tive title to secure the requisite funds. In for the purposes to be appointed by T., and the confessed judgment was then canceled. After

pursuance of authority given him for the wards the pre-emptioner and T. agreed that, in purpose by Cravens, Taylor proceeded to necase T. decided not to have the land conveyed gotiate loans and employ assistance. For the to the corporation, he might have it conveyed

purpose of securing the repayment of monso as to secure hir self or his assigns. Though the company was formed, R. agreed to accept eys advanced, and defraying the expenses of T.'s note for a certitin sum, and assign his con- the litigation, contracts were from time to tract. From the time the judgment was con

time entered into between Cravens and Tayfessed, T. had full control of the land for the purpose of discharging the debts contracted

lor, which will receive more specific notice for the pre-emptioner. Held, that a trust deed hereafter. In July, 1888, for the purpose of executed by C. to a third person, by T.'s direc- protecting Taylor, and securing persons from tion, to secure T.'s note, was not in excess of C.'s authority.

whom money had been obtained, as well as 2. A contract between T. and R. recited that making provision for obligations to be inC., who was without funds, had employed T. curred in the future, and in order that the to secure titl to land; that T. was compelled

land might be bound for the indebtedness, to advance C. money to pay the expenses of litigation, etc.; and that R. had loaned T. large

Cravens confessed a judgment in the district suns to pay such expenses; and then provided court of Pitkin county in favor of Taylor for that T. and R. should be equally interested in $103,500. Among the contracts made by all that was made out of the venture; that when the litigation was settled R. should have one

Taylor was one with Joseph Reynolds on the

220 day of August, 1889, affecting money be1 Rehearing denied March 22, 1897.

fore that time loaned by Reynolds to Tay



lor for the purposes of the litigation. This gotiation, and assign him the contract becontract cuts an important figure in the case tween himself and Reynolds, he would pay before us, and will receive special attention it, and thus end the dispute. This proposihereafter. In February, 1891, Reynolds died, tion was accepted. Shortly afterwards Tayand E. M. Dickey became the administrator lor notified Thomas that he was unable to of his estate, his sole heir being his widow, obtain the money, and proposed to give his Mary E. Reynolds. · In April, 92, the liti

note for the amount, and secure it by a gation in the land office terminated, and a trust deed on the property. This proposition United States patent was issued to Cravens was also accepted, and Taylor thereupon for the land. After the issue of the patent, made his note for $15,500, payable to ThomDickey took steps to bring about a settle- as representing the estate, due in 18 ment between the estate and Taylor, of the months, with interest at 6 per cent. per anmatters embraced in the contract between num; and Reed, at Taylor's direction, exeTaylor and Reynolds, and for that purpose cuted a deed conveying the land to Harry H. employed Charles S. Thomas as the attor- Lee, as trustee, to secure the payment of the ney of the estate. In pursuance of negotia- note. The note was made, and the trust tions looking to the settlement, it was de- deed executed, on the 3d day of August, 1892. cided at Cravens should convey the land After the conveyance by Cra ens to Reed, to Clinton Reed in trust; that a corporation entry of satisfaction of the judgment conshould be organized, to be called the Glen- fessed by Cravens to Taylor was made upon wood Land & Improvement Company, with the record. On the 22d day of December, a capital stock of 150,000 shares, of one dol- 1892, Reed, by Taylor's direction, conveyed lar each; that upon its organization Reed the land to John H. Fesler, in trust, to seshould convey the land to the company; and cure a note of that date made by Taylor that one-half of the stock should be issued to to H. R. Kamm for $10,225. This note was the estate of Reynolds. The land was ac- discounted for Kamm by the First National cordingly conveyed to Reed, who thereupon Bank of Glenwood Springs, which thus beexecuted a declaration of trust, in which he came its owner. Shortly after this, Reed, agreed to convey the land to the corporation, acting in pursuance of Taylor's instructions, and to receive the entire capital stock, and conveyed the land by warranty deed to Ed. hold it in trust for the uses and purposes to T. Taylor, and the latter subsequently conbe designated and appointed by Taylor, and veyed it to Joseph W. Taylor. On the 16th distribute it to such persons as Taylor should day of March, 1894, default having been direct. The deed to Reed was an ordinary made by Joseph W. Taylor in the payment Warranty deed, and purported to vest the of his note to Mr. Thomas, the trustee, Harry title absolutely in him. The deed was placed H. Lee, at the request of Mr. Thomas, adon record, but the declaration of trust was vertised the land for sale pursuant to the aunot. A certificate of incorporation of the Glen- thority vested in him by the trust deed. On wood Land & Improvement Company was the 19th day of April, 1894, Elisha B. Craexecuted, but the land was never conveyed vens commenced this action against Lee, to the company. After the incorporation of Thomas, Joseph W. Taylor, Reed, and others, the company, Thomas, in behalf of the es- alleging that the trust deed from Reed to tate, applied to Taylor to complete the trans- Lee was in excess of the authority of Reed action in accordance with the agreement he in the premises; that at the time of its ex had made. Taylor produced a statement 'ecution all persons connected with the transshowing the expenses incurred in acquiring action had knowledge of the limitation upon the title to the land, amounting to something Reed's authority; that the conduct of the over $76,000, claiming that there was due to proceedings in behalf of Cravens was an enhim from the estate a sum in excess of $13,- terprise in which Joseph W. Taylor and Jo000, and proposing to direct a conveyance seph Reynolds were co-partners under the from Reed to the company, on condition that'| firm name of Taylor & Reynolds; and that the estate would pay him that sum. At- there were outstanding unsatisfied debts of tached to the statement was a contract sign- the partnership. The prayer was for genered by Taylor and Cravens, dated June 8, al relief, and for an order enjoining the sale 1892, which provided, among other things, of the property by Lee. Mary E. Reynolds, that, in case Taylor should decide not to the First National Bank of Glenwood have the land conveyed to the company, he Springs, and a number of persons who were might have it conveyed so as to secure to alleged to be general creditors of the parthimself or his assigns 14/15 thereof. The nership were made parties defendant. The representatives of the estate questioned the defendants severally filed their answers and correctness of the statement and the indebt- cross-complaints. As to some of the defendedness to Taylor, and declined to pay the ants these pleadings were dismissed by the money. He then proposed that if the estate court, and by its leave petitions in interwould accept the amount which Reynolds vention were substituted. Errors are assignhad loaned, amounting to $14,700, together ed upon these rulings, but we do not find it with $250 advanced by the estate to pay the necessary to make them the subject of incost of incorporating the company, and Mr. vestigation. Thomas' charges for his services in the ne- Upon the final hearing the following find

[ocr errors]

ings were made and decree rendered: "First. follows: Phillip B. Thompson, Jr., $1,230; That Jos. W. Taylor and Jos. Reynolds were William A. Stone, $750; Mary L. Minor, partners in the business and enterprise of $1,400. For which amounts said interveners obtaining patent to lots (2), three (3), four have liens on said land prior to said Lee and (4), and five (5), in sec. six, township nine S., Thomas trust deed, and prior to said Kamm R. 89 W., Garfield county, Colorado, being trust deed, except $4,194.59 thereof. Twelfth. the land described in the pleadings herein. That the liens of said interveners and of Second. That the partners were by the terms said First National Bank of Glenwood of the partnership to be equally interested Springs for said $4,191.59 are of equal priin all that was realized out of the enterprise, ority; and in case said land is sold for cash and equally liable for the expenses incident by the defendant Harry H. Lee, in pursuto the business of the partnership, including ance of the power in his trust deed, then out the expenses connected with defending said of the proceeds the claim of said interveners Cravens on the prosecution for murder, re- and of said bank, to the extent of $4,191.59, ferred to in the pleadings. Third. That, as are to be first paid, in case so much is rebetween the partners, the affairs of the part- ceived, and, if not, what is received is to nership were settled on August 3, 1892, by be paid pro rata on said claims of said interJos. W. Taylor executing to C. S. Thomas, veners and said portion of said bank's claim; for the benefit of the estate of said Joseph the costs of this action, however, to be first Reynolds, the note for $15,500 referred to in paid out of such proceeds; and, in case said the pleadings, and causing the same to be sale is not for cash, then said interveners secured by a trust deed upon the land, being shall have a lien upon said land for their the trust deed mentioned in the pleadings respective claims, said bank to the extent of herein as having been executed by Clinton $4,194.59, and said land shall be sold to satReed to Harry H. Lee to secure said note. isfy the same. Thirteenth. That as to the Fourth. That before the execution of that plaintiff herein this action is ordered distrust deed Cravens had conveyed the land in missed, to which order the plaintiff excepts. trust to Clinton Reed, for the purpose of | Fourteenth. That the cross bill, counterpaying the expenses of the litigation attend- claim, and cross complaint of Joseph W. ing the obtaining patent to the same, and Taylor to the answer of Lee, Thomas, and the expenses of his defense on the prosecu- Reynolds is dismissed without prejudice. It tion for murder above referred to. Fifth. is therefore ordered, adjudged, and decreed That said land became the assets of said that the interveners and the First National partnership, subject to the debts of the part- Bank of Glenwood Springs have first and nership contracted in obtaining said patent prior liens upon said lots two, three, four, and conducting said defense. Sixth. That and five, in section six, township nine S., R. the legitimate claims of the interveners are 89 west, Garfield county, Colorado, the said prior liens upon said land, and take preced- Phillip B. Thompson, Jr., for the sum of ence to the said trust deed executed to $1,250, the said William A. Stone for the Harry H. Lee to secure said Thomas note. sum of $750, the said Mary L. Minor for the Seventh. That on December 22, 1892, said sum of $1,460, and the said the First National Jos. W. Taylor borrowed from one H. R. Bank of Glenwood Springs for the sum of Kamm, of Glenwood Springs, Colo., the sum $1,194.59; said liens to be of equal priority of $10,225, and executed his note therefor, and precedence to the trust deed referred to and caused the same to be secured by a trust in the pleadings herein as having been exedeed on the property, which said note and cuted to the defendant Harry H. Lee to setrust deed are now the property of the de- cure the payment of said note referred to in fendant the First National Bank of Glen- the pleadings herein for the sum of $15,500, wood Springs, Colo. Eighth. That, in so far executed by the defendant Joseph W. Taylor as the money so borrowed was applied to to C. S. Thomas for the use and benefit of the payment of the debts. of said partner- the state of Joseph Reynolds, deceased. ship, said First National bank of Glenwood And it is further ordered, adjudged, and deSprings is subrogated to the rights of the creed that said land be sold to pay the creditors paid, and such amounts so paid are amounts of said claims and liens of said ina prior lien on said land, and take preced- terveners and said bank, and that said sale ence to said trust deed executed as afore- be conducted in the manner provided by the said to Harry H. Lee. Ninth. That, of the statute of the state of Colorado for the sale money so borrowed, $4,191.59 was used in of real estate on execution, and that execupaying legitimate debts against said partner- tion issue out of this court for such sale; ship, and to that extent said bank is subro- provided, said claims are not paid within gated to the rights of the creditors paid, ninety days from the date hereof. It is furand has a prior lien on said land, taking ther ordered, adjudged, and decreed that in precedence to said Thomas' trust deed. case the defendant Harry H. Lee sells said Tenth. That the debts so paid were: Joseph lard under and by virtue of the power conF. Clement, $2,241.59; E. B. Cravens, $850; tained in said trust deed, for cash, the proBarney Napier, $330; Louis Schwartz, $313; ceeds of such sale shall be applied-First, to taxes, $160. Eleventh. That there is due the payment of the costs of this action; and, from said partnership to said interveners as 1 second, to the payment of said interveners'

48 P.-11

claims and said bank's claim to the extent tion, however, is also raised by Cravens, and of $4,194.59, in case so much cash shall be will be considered. received, and, if not, then what is received The bank does not contest the authority of is to be applied to the payment of the claims Reed to execute the deeds. On the contrary, of said interveners, and to that portion of it relies on that authority to give effect to its said bank's claim so made a lien as afore- own trust deed. But it maintains that the said, pro rata. But in case such sale shall relations between Taylor and Reynolds were not be for cash, then the claims of said in- those of partners; that the partnership esterveners and said bank, to the extent of tate could not be incumbered in favor of one $4,194.59, shall be and are hereby made a of the partners to the prejudice of creditors; lien upon said land, and said land shall be that, therefore, the trust deed to Lee was sold to satisfy the same, including the costs without avail as against creditors; and that, as above ordered, except as to the costs by virtue of the trust deed to Fesler, the caused by the plaintiff herein, which shall bank was entitled to the payment of the be paid by him."

debt due it before distribution to the other All the parties to the proceeding are dissat- creditors, isfied with the decree, and desire its reversal. The discussion between counsel embraces

The argument in behalf of the alleged gen- a number of other questions, but the conclueral creditors is based on the two hypotheses, sions which we have reached on the two --that Reed had no authority to execute ei- principal ones render reference to the others ther the trust deed to Lee or that to Fesler, unnecessary. We shall, then, first consider and that Taylor and Reynolds were co-part- the question of the validity of the trust deed ners. Upon the first hypothesis both trust executed by Reed to Lee. deeds were void; and on the second, the trust The deed from Cravens to Reed was a wardeed to Lee was an appropriation of partner- ranty deed in the ordinary form. There was ship assets by one of the partners, and was nothing about it to indicate that the contherefore without effect as against creditors veyance to Reed was not absolute. The decof the firm. These two positions appear to laration of trust executed by Reed was on a us to be fatally antagonistic. The claims of separate piece of paper. It would seem to these creditors were for services. There was have remained in the possession of Taylor. evidence tending to show that they were em- There was no evidence that it was ever deployed by Cravens himself, and, if such was livered to Cravens. Mr. Thomas testified the fact, it is a matter of no concern to them that, until the filing of the complaint, he whether there was a partnership or not. never had any knowledge, from any source. But their pleadings allege employment by of any written declaration of trust from the partnership. They claim as creditors of Reed to Cravens; and his testimony was unthe partnership, and the only relief sought is contradicted. There was no evidence or preagainst the partnership. They allege that tense that any other person connected with the land constitutes the assets of the partner- the estate of Reynolds ever heard of the inship estate, and they seek to subject it to strument. Whatever may have been done the payment of their claims. The authority with the declaration of trust after its execuby which Reed executed the two trust deeds tion, it seems to have remained in a condiand that by which he made the deed to Ed. tion of “innocuous desuetude.” From the T. Taylor was the same. If he had no au- subsequent conduct of Taylor and Cravens, thority to make the former, he had none to it does not appear that it was regarded as make the latter, and it was therefore also of any importance by either of them. By void. Ed. T. Taylor, having no title, could the contract of June 8, 1892, between Craconvey none to Joseph W. Taylor, and the vens and Taylor, the conditions of the trust legal title would be still in Reed, Cravens re- were changed, and it was left to Taylor's maining the equitable owner. The judgment option whether he should direct the conveyconfessed by Cravens to Joseph W. Taylor ance of the land to the corporation or diswas satisfied by the latter upon the execu- pose of it otherwise. Mr. Taylor testified tion by the former of the deed to Reed. If, that this contract was signed by Cravens uptherefore, all these deeds and conveyances on condition that the Reynolds estate would should be adjudged invalid, the partnership pay the sum which he claimed was due him estate would have no assets. By overthrow- from it; but the evidence is that, if there was ing the title held by Joseph W. Taylor, the such a condition, Thomas was in ignorance alleged surviving partner, the creditors would of it. On June 16, 1893, Reed conveyed the defeat themselves, and render their claims property to Ed. T. Taylor, and on August 21, against the partnership worthless. On the 1893, the latter conveyed it to Joseph W. Taysupposition of a partnership, in order that lor. Both conveyances were made subject the relief they seek in this proceeding may to the trust deed to Lee and that to Fesler. be of any value, the deeds which they assail On August 21, 1893, Mr. Taylor, in an invesmust be upheld, in so far as the authority of tigation of the sufficiency of a bond given in Reed to make them is concerned. It does a cause pending in court, upon which he was not seem to us to be in accordance with the surety, stated that he had a deed to the fitness of things that an onslaught upon the Glenwood Springs property; that he owned deeds should come from them.

The ques

it, and had at all times owned it; that the

« PreviousContinue »