Arapahoe. From a judgment overruling a demurrer to the complaint, defendant appeals. Reversed..

Goudy & Twitchell, for appellant. Isham R. Howze, for appellee.

BISSELL, J. This suit was begun by the appellee, Clapp, against the county commissioners of Arapahoe county, to recover $85 a month for three months,-February, March, and April, 1895,-for services alleged to have been rendered to Isham R. Howze, justice of the peace, who was elected for a term beginning in January, 1894, and ending in January, 1896. The complaint stated the rendition of services as clerk to the justice, and a resolution of the board of county commissioners, antecedently adopted, which provided that the compensation of Clapp as clerk should be $85 a month. The plaintiff further stated that he had ever since May, 1894, acted as clerk of the justice, and received the compensation paid by the board until the 8th of February, 1895. The complaint likewise stated the amount of fees paid into the county treasury by the justice, which appeared to be less than the $250 per month provided by the salary bill of 1891, except that it stated there were various unpaid fees in criminal cases which had not been paid by the defendants, and the county had paid the justice only $60 per month for the various uncollected sums due from the defendants in that class of prosecutions. The county demurred to the complaint, and the court entered judgment on the demurrer for the plaintiff for the sum which he claimed.

The case lies within very narrow limits, and the only question raised by the record is as to the right of the plaintiff to collect from the county the amount alleged to be due him as his compensation, which was alleged to be a reasonable sum for his services, and concerning the authority of the justice to appoint a clerk, and compel the county to pay him. As we read the law, there is no provision of statute which authorizes a justice to appoint a clerk, and require the county to pay his compensation. The act of 1891, which turned the various offices in this state from offices which were to be paid by the fees collected into offices where the incumbents were entitled to a specific salary, was passed by the legislature in 1891. Sess. Laws 1891, p. 200. That act specified the fees which might be charged by all the various officers included within its provisions, and of course limited the amounts which those officials could collect, and which should make the fund out of which their salaries should come. Another act, passed at the same time, which is found in the same Session Laws (page 307), fixed the salaries of justices in counties of the various classes in the state. No question is made respecting the salary which Howze was entitled to under that act. This was $3,000 per annum. Neither of these acts specifically authorized the justice to employ a

clerk, nor fixed any salary which should be paid the clerk, either out of the fee fund or out of the general fund of the county. As we read the law, it was a definite and specific provision, which limited the justice to the receipt of the salary named, to wit, $3,000 per year, with the further limitation that this salary, if paid at all, must be paid out of the fees of his office or the fee fund, which is made up of the various sums collected from litigants in the suits commenced in his court and the $60 per month to which he is entitled for unpaid costs in criminal cases. The appellant attempts from sections 19 and 20 of the act to deduce an authority to appoint a clerk, and compel the county to pay the salary which he should agree to pay him. We are unable to so read the act. Section 19 simply provides that all of the various officers who collect fees which they are bound to pay into the county treasury, and which make up the fee funds out of which their salaries are to be paid, must keep an account of all fees earned, payments received, and expenditures made on account of clerk hire. Section 20 provides that the county judge, clerk of the county court, county treasurer, sheriff, justice, and constable should make a report to the chairman of the board of county commissioners, under oath, of all the fees, commissions, and emoluments, and of all necessary expenses of clerk hire and other expenses, for the month ending at the time the report was made. We are unable to see that this phraseology of section 20 necessarily implies that the justice has authority to ap point a clerk; or, if that authority may be therefrom deduced, we are unable to conclude the clerk's compensation is payable out of any other fund than that which is made up of the fees and emoluments of the office. Several of the officers named are accorded the right to appoint assistants, deputies, and clerks, which rebuts the contention that it was the evident intention of the legislature to confer on the justice the power to appoint a clerk. If that position be not well taken, it contains nothing which compels us to conclude that, if the authority must be assumed to be granted, the justice can compel the county to pay the clerk's compensation, unless it is both alleged and proven that the fee fund resulting from his business is ample both to pay the justice and the clerk. This

is especially rebutted by the allegations of the complaint, and we are unable to discover any legislative authority which would justify the board in either hiring or paying a clerk who might be employed by any justice. This whole discussion is entirely outside of the general question as to the authority of the commissioners of the county to direct and control the expenditure of the county's funds, and determine the purposes to which they shall be devoted. It simply results from the legislation which evidently intended that the various officers named should charge specific fees for definite work, which should be paid

into the county treasury, and the fund resulting therefrom should constitute a fee fund, out of which the salaries and expenses of the various officers should be paid. This seems to be the necessary result of the opinion of the supreme court rendered in response to a resolution of the senate subsequent to the time of the passage of the various acts referred to. In re Compensation of County Judges, 18 Colo. 272, 32 Pac. 549.

We are unable to see that the resolution alleged to have been adopted by the board of county commissioners was effective for the purpose of creating a liability against the county. The complaint contains no allegations that the resolution was for a fixed period, or a definite time, or that the plaintiff was employed thereunder by the board or by the justice in accordance with it, or for any specific period. Under these circumstances we deem the resolution ineffective for the purpose of giving the plaintiff a cause of action against the county. For these reasons the judgment of the court overruling the demurrer was erroneous, and it must therefore be reversed. Reversed.

An

1. A pre-emptioner employed T. to obtain title to the land, which was in contest, and to conduct other litigation, which required money to be advanced; and, to bind the land for money advanced or procured by T., he confessed judgment in T.'s faver for a large sum. T. borrowed of R., agreeing to divide the profits with him. A patent was procured for the preemptioner, and, to effect a settlement between T. and R., it was decided that the patentee should convey the land to C. in trust; that a corporation should be formed; and that onehalf of the stock should be issued to R. ordinary warranty deed was executed to C., and recorded, and C. executed a declaration of trust, which was retained by T., and not recorded, in which C. agreed to convey to the corporation, and to receive and hold the stock for the purposes to be appointed by T., and the confessed judgment was then canceled. Afterwards the pre-emptioner and T. agreed that, in case T. decided not to have the land conveyed to the corporation, he might have it conveyed so as to secure him self or his assigns. Though the company was formed, R. agreed to accept T.'s note for a certain sum, and assign his contract. From the time the judgment was confessed, T. had full control of the land for the purpose of discharging the debts contracted for the pre-emptioner. Held, that a trust deed executed by C. to a third person, by T.'s direction, to secure T.'s note, was not in excess of C.'s authority.

2. A contract between T. and R. recited that C., who was without funds, had employed T. to secure title to land; that T. was compelled to advance C. money to pay the expenses of litigation, etc.; and that R. had loaned T. large sums to pay such expenses; and then provided that T. and R. should be equally interested in all that was made out of the venture; that when the litigation was settled R. should have one

1 Rehearing denied March 22, 1897.

half that was realized, and, if title to the land was secured, then one-half of said land, each party on a financial accounting to be responsible for an equal proportion of the expenses, etc., "provided the venture is a success, but, unless it is, R. is not to be responsible for any other or further sum than he has already advanced." Held not to create a partnership.

Error to district court, Arapahoe county. Action by Elisha B. Cravens against Harry H. Lee and others, to enjoin the sale of land under a trust deed, and for general relief. There was a decree granting part of the relief asked, and Harry H. Lee and certain of the other defendants bring error. Reversed.

Thomas Hartzell and Bryant & Lee, for plaintiffs in error. A. S. Blake and A. M. Stevenson, for defendant in error First National Bank of Glenwood Springs. A. P. Rittenhouse, for other defendants in error.

THOMSON, J. In April, 1884, Elisha B. Cravens settled upon a tract of land near Glenwood Springs, Colo., under the pre-emption laws of the United States, for the purpose of acquiring title to the land from the government. On the 29th day of August, 1885, he tendered to the register and receiver of the proper land office proof of the settlement and improvement required by law, together with the requisite fees and charges. On the day of making the tender contests were instituted in the land office, against his application for patent, by sundry persons, and on the same day he became involved in an altercation with one Fuller, and shot and killed him. A prosecution for murder followed, and Cravens employed Joseph W. Taylor as his attorney to represent him in the contests in the land office and to defend him in the criminal prosecution. The contests against the pre-emption claim and the criminal prosecution were conducted with persistence and determination, and necessitated the outlay by Cravens of considerable sums of money. He was without means, and was compelled to rely upon his prospective title to secure the requisite funds. In pursuance of authority given him for the purpose by Cravens, Taylor proceeded to negotiate loans and employ assistance. For the purpose of securing the repayment of moneys advanced, and defraying the expenses of the litigation, contracts were from time to time entered into between Cravens and Taylor, which will receive more specific notice hereafter. In July, 1888, for the purpose of protecting Taylor, and securing persons from whom money had been obtained, as well as making provision for obligations to be incurred in the future, and in order that the land might be bound for the indebtedness, Cravens confessed a judgment in the district court of Pitkin county in favor of Taylor for $103,500. Among the contracts made by Taylor was one with Joseph Reynolds on the 22d day of August, 1889, affecting money before that time loaned by Reynolds to Tay

lor for the purposes of the litigation. This contract cuts an important figure in the case before us, and will receive special attention hereafter. In February, 1891, Reynolds died, and E. M. Dickey became the administrator of his estate, his sole heir being his widow, Mary E. Reynolds. In April, 1892, the litigation in the land office terminated, and a United States patent was issued to Cravens for the land. After the issue of the patent, Dickey took steps to bring about a settlement between the estate and Taylor, of the matters embraced in the contract between Taylor and Reynolds, and for that purpose employed Charles S. Thomas as the attorney of the estate. In pursuance of negotiations looking to the settlement, it was decided that Cravens should convey the land to Clinton Reed in trust; that a corporation should be organized, to be called the Glenwood Land & Improvement Company, with a capital stock of 150,000 shares, of one dollar each; that upon its organization Reed should convey the land to the company; and that one-half of the stock should be issued to the estate of Reynolds. The land was accordingly conveyed to Reed, who thereupon executed a declaration of trust, in which he agreed to convey the land to the corporation, and to receive the entire capital stock, and hold it in trust for the uses and purposes to be designated and appointed by Taylor, and distribute it to such persons as Taylor should direct. The deed to Reed was an ordinary warranty deed, and purported to vest the title absolutely in him. The deed was placed on record, but the declaration of trust was not. A certificate of incorporation of the Glenwood Land & Improvement Company was executed, but the land was never conveyed to the company. After the incorporation of the company, Thomas, in behalf of the estate, applied to Taylor to complete the transaction in accordance with the agreement he had made. Taylor produced a statement showing the expenses incurred in acquiring the title to the land, amounting to something over $76,000, claiming that there was due to him from the estate a sum in excess of $13,000, and proposing to direct a conveyance from Reed to the company, on condition that the estate would pay him that sum. Attached to the statement was a contract signed by Taylor and Cravens, dated June 8, 1892, which provided, among other things, that, in case Taylor should decide not to have the land conveyed to the company, he might have it conveyed so as to secure to himself or his assigns 14/15 thereof. The representatives of the estate questioned the correctness of the statement and the indebtedness to Taylor, and declined to pay the money. He then proposed that if the estate would accept the amount which Reynolds had loaned, amounting to $14,700, together with $250 advanced by the estate to pay the cost of incorporating the company, and Mr. Thomas' charges for his services in the ne

gotiation, and assign him the contract between himself and Reynolds, he would pay it, and thus end the dispute. This proposi tion was accepted. Shortly afterwards Taylor notified Thomas that he was unable to obtain the money, and proposed to give his own note for the amount, and secure it by a trust deed on the property. This proposition was also accepted, and Taylor thereupon made his note for $15,500, payable to Thomas as representing the estate, due in 18 months, with interest at 6 per cent. per annum; and Reed, at Taylor's direction, executed a deed conveying the land to Harry H. Lee, as trustee, to secure the payment of the note. The note was made, and the trust deed executed, on the 3d day of August, 1892. After the conveyance by Cravens to Reed, entry of satisfaction of the judgment confessed by Cravens to Taylor was made upon the record. On the 22d day of December, 1892, Reed, by Taylor's direction, conveyed the land to John H. Fesler, in trust, to secure a note of that date made by Taylor to H. R. Kamm for $10,225. This note was discounted for Kamm by the First National Bank of Glenwood Springs, which thus became its owner. Shortly after this, Reed, acting in pursuance of Taylor's instructions, conveyed the land by warranty deed to Ed. T. Taylor, and the latter subsequently conveyed it to Joseph W. Taylor. On the 16th day of March, 1894, default having been made by Joseph W. Taylor in the payment of his note to Mr. Thomas, the trustee, Harry H. Lee, at the request of Mr. Thomas, advertised the land for sale pursuant to the authority vested in him by the trust deed. On the 19th day of April, 1894, Elisha B. Cravens commenced this action against Lee, Thomas, Joseph W. Taylor, Reed, and others, alleging that the trust deed from Reed to Lee was in excess of the authority of Reed in the premises; that at the time of its ex ecution all persons connected with the transaction had knowledge of the limitation upon Reed's authority; that the conduct of the proceedings in behalf of Cravens was an enterprise in which Joseph W. Taylor and Joseph Reynolds were co-partners under the firm name of Taylor & Reynolds; and that there were outstanding unsatisfied debts of the partnership. The prayer was for general relief, and for an order enjoining the sale of the property by Lee. Mary E. Reynolds, the First National Bank of Glenwood Springs, and a number of persons who were alleged to be general creditors of the partnership were made parties defendant. The defendants severally filed their answers and cross-complaints. As to some of the defendants these pleadings were dismissed by the court, and by its leave petitions in intervention were substituted. Errors are assigned upon these rulings, but we do not find it necessary to make them the subject of investigation.

Upon the final hearing the following find

ings were made and decree rendered: "First. That Jos. W. Taylor and Jos. Reynolds were partners in the business and enterprise of obtaining patent to lots (2), three (3), four (4), and five (5), in sec. six, township nine S., R. 89 W., Garfield county, Colorado, being the land described in the pleadings herein. Second. That the partners were by the terms of the partnership to be equally interested in all that was realized out of the enterprise, and equally liable for the expenses incident to the business of the partnership, including the expenses connected with defending said Cravens on the prosecution for murder, referred to in the pleadings. Third. That, as between the partners, the affairs of the partnership were settled on August 3, 1892, by Jos. W. Taylor executing to C. S. Thomas, for the benefit of the estate of said Joseph Reynolds, the note for $15,500 referred to in the pleadings, and causing the same to be secured by a trust deed upon the land, being the trust deed mentioned in the pleadings herein as having been executed by Clinton Reed to Harry H. Lee to secure said note. Fourth. That before the execution of that trust deed Cravens had conveyed the land in trust to Clinton Reed, for the purpose of paying the expenses of the litigation attending the obtaining patent to the same, and the expenses of his defense on the prosecution for murder above referred to. Fifth. That said land became the assets of said partnership, subject to the debts of the partnership contracted in obtaining said patent and conducting said defense. Sixth. That the legitimate claims of the interveners are prior liens upon said land, and take precedence to the said trust deed executed to Harry H. Lee to secure said Thomas note. Seventh. That on December 22, 1892, said Jos. W. Taylor borrowed from one H. R. Kamm, of Glenwood Springs, Colo., the sum of $10,225, and executed his note therefor, and caused the same to be secured by a trust deed on the property, which said note and trust deed are now the property of the defendant the First National Bank of Glenwood Springs, Colo. Eighth. That, in so far as the money so borrowed was applied to the payment of the debts of said partnership, said First National bank of Glenwood Springs is subrogated to the rights of the creditors paid, and such amounts so paid are a prior lien on said land, and take precedence to said trust deed executed as aforesaid to Harry H. Lee. Ninth. That, of the money so borrowed, $4,194.59 was used in paying legitimate debts against said partnership, and to that extent said bank is subrogated to the rights of the creditors paid, and has a prior lien on said land, taking precedence to said Thomas' trust deed. Tenth. That the debts so paid were: Joseph F. Clement, $2,241.59; E. B. Cravens, $850; Barney Napier, $330; Louis Schwartz, $313; taxes, $460. Eleventh. That there is due from said partnership to said interveners as 48 P.-11

follows: Phillip B. Thompson, Jr., $1,250; William A. Stone, $750; Mary L. Minor, $1,400. For which amounts said interveners have liens on said land prior to said Lee and Thomas trust deed, and prior to said Kamm trust deed, except $4,194.59 thereof. Twelfth. That the liens of said interveners and of said First National Bank of Glenwood Springs for said $4,194.59 are of equal priority; and in case said land is sold for cash by the defendant Harry H. Lee, in pursuance of the power in his trust deed, then out of the proceeds the claim of said interveners and of said bank, to the extent of $4,194.59, are to be first paid, in case so much is received, and, if not, what is received is to be paid pro rata on said claims of said interveners and said portion of said bank's claim; the costs of this action, however, to be first paid out of such proceeds; and, in case said sale is not for cash, then said interveners shall have a lien upon said land for their respective claims, said bank to the extent of $4,194.59, and said land shall be sold to satisfy the same. Thirteenth. That as to the plaintiff herein this action is ordered dismissed, to which order the plaintiff excepts. Fourteenth. That the cross bill, counterclaim, and cross complaint of Joseph W. Taylor to the answer of Lee, Thomas, and Reynolds is dismissed without prejudice. It is therefore ordered, adjudged, and decreed that the interveners and the First National Bank of Glenwood Springs have first and prior liens upon said lots two, three, four, and five, in section six, township nine S., R. 89 west, Garfield county, Colorado, the said Phillip B. Thompson, Jr., for the sum of $1,250, the said William A. Stone for the sum of $750, the said Mary L. Minor for the sum of $1,460, and the said the First National Bank of Glenwood Springs for the sum of $4,194.59; said liens to be of equal priority and precedence to the trust deed referred to in the pleadings herein as having been executed to the defendant Harry H. Lee to secure the payment of said note referred to in the pleadings herein for the sum of $15,500, executed by the defendant Joseph W. Taylor to C. S. Thomas for the use and benefit of the estate of Joseph Reynolds, deceased. And it is further ordered, adjudged, and decreed that said land be sold to pay the amounts of said claims and liens of said interveners and said bank, and that said sale be conducted in the manner provided by the statute of the state of Colorado for the sale of real estate on execution, and that execution issue out of this court for such sale; provided, said claims are not paid within ninety days from the date hereof. It is further ordered, adjudged, and decreed that in case the defendant Harry H. Lee sells said lard under and by virtue of the power contained in said trust deed, for cash, the proceeds of such sale shall be applied-First, to the payment of the costs of this action; and, second, to the payment of said interveners'

claims and said bank's claim to the extent of $4,194.59, in case so much cash shall be received, and, if not, then what is received is to be applied to the payment of the claims of said interveners, and to that portion of said bank's claim so made a lien as aforesaid, pro rata. But in case such sale shall not be for cash, then the claims of said interveners and said bank, to the extent of $4,194.59, shall be and are hereby made a lien upon said land, and said land shall be sold to satisfy the same, including the costs as above ordered, except as to the costs caused by the plaintiff herein, which shall be paid by him."

All the parties to the proceeding are dissatisfied with the decree, and desire its reversal.

The argument in behalf of the alleged general creditors is based on the two hypotheses, -that Reed had no authority to execute either the trust deed to Lee or that to Fesler, and that Taylor and Reynolds were co-partners. Upon the first hypothesis both trust deeds were void; and on the second, the trust deed to Lee was an appropriation of partnership assets by one of the partners, and was therefore without effect as against creditors of the firm. These two positions appear to us to be fatally antagonistic. The claims of these creditors were for services. There was evidence tending to show that they were employed by Cravens himself, and, if such was the fact, it is a matter of no concern to them whether there was a partnership or not. But their pleadings allege employment by the partnership. They claim as creditors of the partnership, and the only relief sought is against the partnership. They allege that the land constitutes the assets of the partnership estate, and they seek to subject it to the payment of their claims. The authority by which Reed executed the two trust deeds and that by which he made the deed to Ed. T. Taylor was the same. If he had no authority to make the former, he had none to make the latter, and it was therefore also void. Ed. T. Taylor, having no title, could convey none to Joseph W. Taylor, and the legal title would be still in Reed, Cravens remaining the equitable owner. The judgment confessed by Cravens to Joseph W. Taylor was satisfied by the latter upon the execution by the former of the deed to Reed. therefore, all these deeds and conveyances should be adjudged invalid, the partnership estate would have no assets. By overthrowing the title held by Joseph W. Taylor, the alleged surviving partner, the creditors would defeat themselves, and render their claims against the partnership worthless. On the supposition of a partnership, in order that the relief they seek in this proceeding may be of any value, the deeds which they assail must be upheld, in so far as the authority of Reed to make them is concerned. It does not seem to us to be in accordance with the fitness of things that an onslaught upon the deeds should come from them.

If,

The ques

tion, however, is also raised by Cravens, and will be considered.

The bank does not contest the authority of Reed to execute the deeds. On the contrary, it relies on that authority to give effect to its own trust deed. But it maintains that the relations between Taylor and Reynolds were those of partners; that the partnership estate could not be incumbered in favor of one of the partners to the prejudice of creditors; that, therefore, the trust deed to Lee was without avail as against creditors; and that, by virtue of the trust deed to Fesler, the bank was entitled to the payment of the Idebt due it before distribution to the other creditors.

The discussion between counsel embraces a number of other questions, but the conclusions which we have reached on the two principal ones render reference to the others unnecessary. We shall, then, first consider the question of the validity of the trust deed executed by Reed to Lee.

The deed from Cravens to Reed was a warranty deed in the ordinary form. There was nothing about it to indicate that the conveyance to Reed was not absolute. The declaration of trust executed by Reed was on a separate piece of paper. It would seem to have remained in the possession of Taylor. There was no evidence that it was ever delivered to Cravens. Mr. Thomas testified that, until the filing of the complaint, he never had any knowledge, from any source, of any written declaration of trust from Reed to Cravens; and his testimony was uncontradicted. There was no evidence or pretense that any other person connected with the estate of Reynolds ever heard of the instrument. Whatever may have been done with the declaration of trust after its execution, it seems to have remained in a condition of "innocuous desuetude." From the subsequent conduct of Taylor and Cravens, it does not appear that it was regarded as of any importance by either of them. By the contract of June 8, 1892, between Cravens and Taylor, the conditions of the trust were changed, and it was left to Taylor's option whether he should direct the conveyance of the land to the corporation or dispose of it otherwise. Mr. Taylor testified that this contract was signed by Cravens up-. on condition that the Reynolds estate would pay the sum which he claimed was due him from it; but the evidence is that, if there was such a condition, Thomas was in ignorance of it. On June 16, 1893, Reed conveyed the property to Ed. T. Taylor, and on August 21, 1893, the latter conveyed it to Joseph W. Taylor. Both conveyances were made subject to the trust deed to Lee and that to Fesler. On August 21, 1893, Mr. Taylor, in an investigation of the sufficiency of a bond given in a cause pending in court, upon which he was surety, stated that he had a deed to the Glenwood Springs property; that he owned it, and had at all times owned it; that the