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(23 Colo. 534)

the defendant in September, 1893. Upon isWELLS V. SCHUSTER-HAX NAT. BANK. sues joined the trial court made findings in

faror of the plaintiff, and ordered the prop(Supreme Court of Colorado. · April 5, 1897.)

erty sold and applied upon the judgment. CRENITORS' Suits--JUDGMENTS-MERGER--FRAUDU.


here (defendant below) relies for reversal are: 1. Though a judgment debtor's equitable in- First, plaintiff showed no title to assail the terest in land previously conveyed by him in

conveyance in question; second, the district fraud of the judgment creditor may be sold un

court erred in sustaining the demurrer to the der execution sued out under such judgment, the creditor may first get an adjudication as to

defendant's supplemental answer; third, the such interest by creditors' bill.

evidence fails to show such a case as entitles 2. Where a judgment creditor sues in Colo

the plaintiff to the relief prayed for. rado to set aside a conveyance of property there, executed by a debtor who, in Missouri, has since

As to the first proposition, before this action made a general assignment for creditors, it will was begun, Hosea, the judgment debtor, in be presumed, in support of plaintiff's and against conformity with the laws of Missouri (in the assignee's right to sue, that the common law

which state both he and plamtiff resided), constill prevails in Missouri. 3. Where a creditor sued to recover a money

veyed all of his estate for the benefit of his judgment in a foreign court on a judgment ren- creditors. The assignee accepted the trust, dered in a court of Colorado, so that he might

and was proceeding therewith. This being share pro rata with other creditors under a general assignment made by the debtor in the

true, it is argued that only the assignee could foreign state, and the judgment was not paid in institute this action to assail the conveyance full, the local judgment was not merged, but now brought in question, even if the same was might constitute the evidence, and the basis to support a local action to set aside a conveyance

impeachable. To this are cited Voorhees v. previously made by the debtor in fraud of cred- Carpenter, 127 Ind. 300, 26 N. E. 838; Freem. itors.

Ex'ns, $ $31, note 5. At the common law an 4. A conveyance in the nature of a gift may be

assignee under an assignment for the benefit in fraud of the grantor's creditors, though the grantee did not participate in the fraud.

of creditors took only that interest in the prop5. Though under Gen. St. 1883, $ 1529 (Mills' erty which the debtor had at the time of the Ann. St. $ 2033), a conveyance is not fraudulent assignment. From this it follows that propsolely because it is voluntary, and though a prior indebtedness of the grantor is not conclusive

erty previously conveyed, though in fraud of evidence that a voluntary conveyance is fraudu

creditors, did not pass, and the creditors, not lent, where the grantor's prior indebtedness and the assignee, were the ones to sue to set it the voluntary conveyance of the bulk of his aside. 1 Am. & Eng. Enc. Law, 854; Heinproperty necessarily result in delaying creditors, the conveyance is a legal fraud, though no spe

richs v. Woods, 7 Mo. App. 236; Roan v. 'Winn, cific intent to defraud exists.

93 Mo. 503, 4 S. W. 736. Though this equi

table interest may be sold under execution Appeal from district court, Arapahoe county.

sued out under the first judgment, this does not Action by the Schuster-Hax National Bank

preclude the creditor from first getting an adagainst Eddie Elvira Wells. From a judg

judication as to the debtor's interest therein. ment in favor of plaintiff, defendant appeals.

O'Connell v. Taney, 16 Colo. 353, 27 Pac. 888. Affirmed.

The appellant, however, contends that by secWells, Taylor & Taylor, for appellant. Wol- tions 14, 18, pp. 46, 47, Sess. Laws 1885 (1 cott & Vaile, for appellee.

Mills' Ann. St. $$ 182, 186), in this state the as

signee, and not the creditor, has the sole right CAMPBELL, J. The complaint in this ac- to demand and sue for the property fraudtion is in the nature of a creditors' bill to set ulently conveyed before the date of the asaside an alleged fraudulent conveyance, and signment; and we are told that this court, in subject the property so conveyed to the satis- | the absence of proof to the contrary, will prefaction of the judgment. In August, 1891, a sume that the law of Missouri in this particujudgment was obtained in the district court of lar is the same as our own. In Wolf v. Burke, Arapahoe county, Colo., by the Schuster-Hax 18 Colo. 261, 32 Pac. 427, this court has exNational Bank against Isaac T. Hosea for pressly held to the contrary, and, if presumpabout $8,000, and the property in controversy tions are to govern, they would be that the comhere was then impressed with the lien there- mon law still prevails in Missouri. If it does, of. The present action to subject this prop- the creditor in this case would have the right erty to the satisfaction of that judgment was to institute this action. We are not called upbrought in March, 1892, and the cause of ac- on to determine what the assignee's rights are tion was based upon the prior judgment in the by the law of this state, for under the decisions same court. While the present action was of the courts of review of Missouri, supra, as pending, and in July, 1892, suit upon the judg. well as the presumption which this court must ment rendered in 1891 in Colorado

indulge, the creditor, not the assignee, has the brought in the circuit court of Buchanan coun- right to bring this action. Kermott v. Ayer, ty, Mo., and a money judgment there obtain- 11 Mich. 181; Ellis v. Maxson, 19 Mich. 186. ed against Hosea, upon which payments have Second. The appellant contends that, when been made, leaving, however, a balance due at the creditor recovered the judgment in the the time the present action was begun. The Missouri court upon the prior Colorado judgobtaining of this second judgment is set up as ment, the latter became merged in the fora defense by a supplemental answer filed by mer, and thereafter was extinguished for all


purposes whatever. It has been expressly under the facts of this case, the prior Coloheld in Gould v. Hayden, 63 Ind. 413, that rado judgment may constitute the evidence & judgment recovered in a court of one state and the basis to support the present action. upon a judgment previously rendered in a See, further, in support of the conclusions court of a sister state merges the latter. reached upon this branch of the case: MuFreem. Judgm. (4th Ed.) § 216, approves this lock v. Wilson, 19 Colo. 296, 35 Pac. 532; view, and to the same effect is the text in 15 | Arnett v. Coffey, 1 Colo. App. 34, 27 Pac. 614: Am. & Eng. Enc. Law, 336. The contrary Bank v. Brown, 112 Ind. 474, 14 N. E. 358; doctrine is announced in other authorities, and Bank v. Townsend, 114 Ind. 534, 17 N. E. proceeds upon the theory originally given for 116; Jackson v. Shaffer, 11 Johns. *513; the rule that merger takes place only where Carter V. Colman, 12 Ired. 274; Nickerson & security or indebtedness of an inferior pass- v. Stage Co., 10 Cal. 520; Story, Confi. Laws es into one of a superior degree. Weeks v. (Bigelow's 8th Ed.) § 599a. Pearson, 5 N. H. 324; Mumford v. Stocker, The last proposition is that the proof was 1 Cow. 178; Bates v. Lyons, 7 Paige, 85; insufficient to make out the alleged fraud. 2 Black, Judgm. & 864; Hogg v. Charlton, 25 That the conveyance was voluntary, and Pa. St. 200; McLean V. McLean, 90 N. C. that Hosea was, at the time, largely indebt530; Andrews V. Smith, 9 Wend. 54. It is ed to plaintiff, are conceded facts. The deed said, however, that the later authorities pred- was made during the first part of January, icate this doctrine of merger upon the ground 1891, and was intended as a settlement by that the allowance of a new suit is supertlu- the father for his daughter. He was enous, and a vexatious encouragement to litiga- gaged, with a partner by the name of tion injurious to the defendant, and of no Scholtz, in the wholesale hardware business benefit to the plaintiff. Without further pur- in the city of St. Joseph, and his interest suing the inquiry, we content ourselves by therein comprised about all the property be saying that it seems. more in consonance with owned. For two or three years previous to principle to base the doctrine upon the reason the conveyance he had not given his personoriginally given for its establishment; and al attention thereto, but devoted his time and that, so long as the indebtedness is unsatisfied, energies to the management of a large essuccessive suits in different states may be tate, of which he was administrator. About prosecuted. But, whatever be the correct three months after this conveyance, learngeneral rule, there are numerous exceptions ing of the financial embarrassment of his to and qualifications of it, and it has been partner, and realizing also that they were said that it should not be allowed to prevail unable then to pay their firm debts as they to accomplish manifest injustice. Freem. matured, Hosea bought out his partner's inJudgm. § 223 et seq.; Lawton v. Perry, 40 terests, giving him $300 therefor, subject to S. C. 255, 274, 18 S. E. 861; 2 Black, Judgm. the partnership liability, intending to con677. Neither does the doctrine apply unless tinue the business in his own name, and pay the identical cause of action has passed into the liabilities. Three days after this purjudgment, and the object is the same in both chase, owing to his illness, and probably to actions in a suit between the same parties other causes, Hosea made an assignment for or their privies. Id. 674; 1 Freem. Judgm. the benefit of his creditors. According to his 8 216. See, also, Barnes v. Beighly, 9 Colo. own statement, his financial condition then 475–481, 12 Pac. 906. In the Missouri case was the, same as on the day he made the the action was between the judgment cred- conveyance to his daughter. The nominal itor and the judgment debtor. The sub- assets of the partnership, both at the time ject-matter was the Colorado judgment. The of the conveyance and of the assignment. cause of action was the failure and refusal were in excess of the liabilities. The failure of the debtor to pay it. The object of the ac- was not due to an accident, or a calamity, tion was to recover a money judgment, ap- or to causes other than those so frequently parently that it might piorate with the claims occurring as incident to business life. Wheth of other creditors under the assignment. In er due to his own improvidence, to his inat. the case at bar the suit is between the judg. tention to his own affairs, or mismanagement creditor and the grantee of the debtor. ment of his partner, or to the fluctuations in The subject-matter is the same as in the Mis- value of the property, or inability to realize souri case, but the cause of action here is the upon outstanding or worthless accounts, does fraud of the judgment debtor in conveying not definitely appear; but probably all of the property, and the concurring legal 'fraud these causes contributed to the insolvency. of the grantee in withdrawing it from the lien Hosea says in his own testimony that when of the judgment. The object of the action he bought out his partner the business was is not to recover another money judgment.- in such a condition that the debts of the Indeed, such a general judgment could not be firm could not be paid. He also testifies that rendered in this character of action,-but the partnership did not have funds on hand merely to subject the property fraudulently to meet its maturing obligations, and that conveyed to the satisfaction of the indebted- the results of the assignment would have ness represented by the former judgment. been the same in January as they were prov. Barnes v. Beighly, supra. Under all the au- en to be in the following April. thorities, so far as we have examined, and Upon the evidence in this case, equally in

telligent and honest men might reasonably proportion to the nominal assets of her fadiffer in their conclusion. It is strongly con- ther than was the amount which Gwynn tended that, had not the assignment been conveyed to his wife in proportion to his asmade, and had the property been disposed sets, yet the principle announced in the case of in the ordinary course of trade by the of Gwynn v. Butler, supra, we think is departnership firm, all of the debts would have cisive of this. There it was said: “But a been paid, and a balance realized. Under voluntary conveyance—that is, a conveyance the facts of this case, and, moreover, gen- not supported by a valuable considerationerally, this is not the true test of solvency. | by a husband to his wife, which is intended Here $2,500 of the firm's money were taken or which tends to defraud existing creditors by Hosea. Land was purchased therewith, of the husband, cannot be upheld against and the same conveyed as a settlement upon such creditors. If the husband be insolvent his daughter. A debtor has no right to give at the time of making such conveyance, or away a portion of his property, and leave an if, by reason of such conveyance, he is reninsufficient amount for his creditors. They dered unable to pay his existing debts, the should not be called upon to suffer from the wife's title will be deemed fraudulent, and hazards of his speculations, or from his the property thus conveyed may be subjectfinancial arrangements, or improvident con- ed to the pay ent of such debts." There is duct of business. He must, before making enough legal evidence to support the findings such a settlement, make adequate provision of the trial court. It is not manifestly for his existing creditors, so that in the ordi- against the weight of the evidence; and, nary course prescribed by law for the collec- while it may be a matter of regret that detion of debts these debts will be paid. fendant must lose this land, yet it is in acBump, Fraud. Conv. (Gray's 4th Ed.) § 257 cordance with the well-settled rule of this et seq. In the absence of a statute, a yol- court that we should not reverse a judgment untary conveyance is considered as prima merely because, had we been the triors of facie evidence of intent to delay, hinder, or the facts, a different conclusion might have defraud creditors. Bump, Fraud. Cony. 8 been reached. The judgment is affirmed. Af247, and cases cited. Under our statute, med. however (Gen. St. 1883, § 1529; Mills' Ann. St. § 2033), the intent is a question of fact,

(24 Colo. 113) and not of law; and no conveyance is to be adjudged fraudulent solely upon the ground

SMITH v. SMITH (SMITH, Intervener). that it was not founded upon a valuable con- (Supreme Court of Colorado. May 3, 1897.) sideration. Thomas v. Mackey, 3 Colo. 390; SUPREME COURT - JCRISDICTION - ACTION TO SET Burdsall v. Waggoner, 4 Colo. 261; Burr v.

ASIDE DECREE OF DIVORCE. Clement, 9 Colo. 1, 9 Pac. 633. It may be,

1. The supreme court has no jurisdiction to re

view on error a judgment dismissing plaintiff's and doubtless is, true that no corrupt motive

complaint in an action against the administraprompted Hosea in making the settlement; tor of her former husband and one claiming to

there any participation in the be his sole heir to set aside a decree of divorce wrongful intent, if any, upon the part of the

obtained by deceased against plaintiff, in the ab

sence of any constitutional provision or statute grantee. But where, as here, the convey- giving it jurisdiction. ance is in the nature of a gift, it is not nec- 2. A freehold is not involved in such case, essary to show participation in the fraud by

within Sess. Laws 1891, p. 118, declaring that

no writ of error from or appeal to the supreme the grantee. Wilcoxen v. Morgan, 2 Colo.

court shall lie unless the judgment exceeds 473; Mulock v. Wilson, supra; Gwynn v. $2,500 besides costs, provided such limitation Butler, 17 Colo. 114, 28 Pac. 466. Prior in- shall not apply where the matter in controversy

relates to a franchise or freehold; and this, debtedness, it is also true, is not conclusive

though deceased died seised of real property. evidence of fraud, but only presumptive evidence; and, as we have seen, in our state

Error to district court, Arapahoe county. fraud is always a question of fact in a case

Action by Jessie C. Smith against Edna like this. See, also, Lloyd v. Fulton, 91 U. S.

May Smith, administratrix of the estate of 479. But it is not alone Hosea's previous in

Minor C. Smith, deceased, in which Benjamin

F. Smith intervened. There was a judgdebtedness, and the voluntary character of the conveyance, that constitute the fraud in

ment dismissing the complaint on plaintiff's the case at bar. These facts, together with

election to stand thereby after a demurrer the necessary result in delaying creditors,

to it was sustained, and she brings error. make it a legal fraud, though no specific in

Dismissed. tent to defraud existed. In such a case the Jacoway & Hunt, for plaintiff in error. question of intention is a deduction from the Erastus W. Smith, for Benjamin F. Smith. facts proved. Knappy. Day, 4 Colo. App. 21, 34 Pac. 1008. "The question of intention CAMPBELL, J. On the 28th day of April, is only a conclusion or deduction from the 1894, in the county court of Arapahoe counfacts as disclosed. If the result of the trans- ty, Minor C. Smith obtained a decree of diaction was fraud, the law supplies the inten- vorce against his wife, Jessie C. Smith. On tion, or proceeds regardless of the intention.” the 13th day of the following June he died, While the value of the property settled upon leaving no children. The object of this acthe defendant in this case is much less in tion, begun June 26, 1894, by Jessie C. Smith,



claiming to be the widow of Minor C. Smith, pass to her, not as the result of the decree was to obtain a decree of court to set aside annulling the prior decree of divorce, but and cancel said decree of divorce; and Edna in virtue of an order of distribution made May Smith, who was appointed administra- by the county court in the probate proceed. trix of his estate, was made defendant. Dur- ings after all the debts were paid and tbe ing the pendency of the action an order of administration closed. The writ of error, court was entered, apparently by consent of therefore, is dismissed without prejudice, parties, certainly without objection, permit- with leave to the plaintiff in error, if she ting Benjamin F. Smith, the father of Minor sees fit, to withdraw the transcript of the C. Smith, and who claimed to be his sole heir record and printed abstracts and her briefs. at law, to file a petition of intervention, upon Writ of error dismissed. the ground that as such heir he had an interest in the litigation adverse to the plaintiff. To an amended complaint a joint de

(23 Colo. 40) murrer was filed by the defendant and the in- BENNET NORTH COLORADO tervener, the ground being that the facts SPRINGS LAND & IMPROVEset forth therein did not constitute a cause

MENT CO. of action. This demurrer was sustained,

(Supreme Court of Colorado. April 5, 1897.) and, the plaintiff electing to stand thereby,

TENANCY IN COMMON-FURCHASE OF CO-TESANT'S judgment was entered dismissing the com

INTEREST - Tax SALE-VOID DEED AS plaint. To reverse this judgment of the dis

COLOR OF TITLE--Evidence. trict court the plaintiff prosecutes this writ 1. Where a tenant in common is not required of error.

to pay the taxes on the interests of his curten

ants, he may buy in for his own benefit, at tai It is manifest that this court has not juris

sale, the undivided interest of a co-tenant. diction to determine this cause upon this 2. Though a tax deed based on a sale which writ of error. Although the defendants in took place at the office of the clerk and recorder,

instead of at the office of the county treasurer, as error do not question the jurisdiction of this

required by statute, and on the second Monday court, yet such appellate jurisdiction, where of July, instead of the first Monday, is void, it none exists by law, may not be conferred by furnishes sufficient color of title to support a agreement of the parties, or by acquiescence

claim of limitations if it is executed by the proper upon the part of the defendant in error. Ju

officer, correctly describes the property and

shows a complete sale and the expiration of the risdiction, if it attaches at all, is because period of redemption. the constitution, or some statute of the state, 3. An objection that certificates of an abstract has given it. It is not conferred by our con

company offered to prove payment of taxes were

not the best evidence of such payment is waired stitution; and the general assembly, by stat- if not taken when the evidence was introduced. ute, has provided that: “No writ of error from, or appeal to, the supreme court shall

Appeal from district court, El Paso county. lie to review the final judgment of any in

Action by Hiram P. Bennet against the ferior court, unless the judgment

North Colorado Springs Land & Improvement exceeds two thousand five hundred dollars,

Company. Judgment for defendant, and exclusive of costs. Provided, this limitation

plaintiff appeals. Affirmed. shall not apply where the matter in contro- Appellant instituted this action in the disversy relates to a franchise or freehold, nor trict court, alleging that he was the owner by where the construction of a provision of the letters patent from the United States of an constitution of the state or of the United undivided two-ninths interest in 1,720 acres of States is necessary to the determination of land in El Paso county, Colo., particularly dea case." Sess. Laws 1891, p. 118. By the scribing the same. Plaintiff alleges that he is judgment of the district court the action was entitled to the possession of the premises, but merely dismissed, and costs against the that the defendant wrongfully withholds the plaintiff awarded; so the amount of the same, to his damage in the sum of $10,000. A judgment does not confer jurisdiction. Nei- number of parties were named as defendants ther is any constitutional question involved, in this complaint, but, as the controversy is nor does the controversy relate to a fran- only between the plaintiff and the North Colochise or freehold. That a freehold is not rado Springs Land & Improvement Company, involved is apparent from two considera- the other defendants will not be mentioned. tions. There is no allegation in the amend- The company appeared, and filed an answer, ed complaint that Minor C. Smith died seised admitting that patent issued to the plaintiff or possessed of any real property; but, if for the land in controversy. All other allegasuch fact was made to appear in this record, tions of the complaint are denied. For a the necessary effect of the judgment of the third defense, the defendant alleges title by district court in this action would not be to tax deed from John Potter, county treasurer, take the title from one of the parties, or executed and delivered on July 1, 1881. De vest it in the other. Even if the decree of fendant alleges that it has been in the quiet, divorce had been held void, and judgment peaceable, and undisputed possession of the had gone for the plaintiff, the effect of the property from that date, and for more than judgment so declaring would be merely to five successive years has paid all taxes legally make the plaintiff the sole heir at law; and, assessed thereon. For a fourth defense, the if her husband left any real estate, it would defendant alleges that the two-ninths inter


est in the premises claimed by plaintiff was the eighth day of July, A. D. 1878, expose to sold upon the 8th day of July, 1878, for the public sale, at the office of the clerk and re taxes legally assessed thereon for the year corder in the county aforesaid, in substantial 1877; that, in pursuance of such sale, a tax conformity with the requirements of the statdeed was issued to John Sharratt on July 21, ute in such cases made and provided, the real 1881; and that plaintiff had brought no ac- property above described, for the payment of tion within five years from the execution and the taxes, interest, and costs then due and redelivery of said tax deed. For a fifth defense, maining unpaid on said property. And wherethe defendant alleges that plaintiff ought not as, at the time and place aforesaid, Joseph to claim ownership of said two-ninths interest, Sharratt, of the county of El Paso and state of Lecause he had notice of assessment and levy Colorado, having offered to pay the sum of one of taxes, advertisement for sale, and took no hundred twenty-one dollars and fifty-five steps to pay the same; knowingly allowed the cents, being the whole amount of taxes, intersame to be sold, and took no steps to redeem est, and costs then due and remaining unpaid before the issuance of said tax deed, or with- on said property, for all of the lands above dein five years thereafter; that he has paid no scribed, which was the least quantity bid for, taxes since that date. A replication was filed and payment of said sum having been made to the new matters set up in the answer, and by him to the said treasurer, the said property upon these allegations the cause was tried to was stricken off to him at that price. And the court, without the intervention of a jury. whereas, the said Joseph Sharratt has paid

It is admitted that United States patent was subsequent taxes on said property to the issued to plaintiff, Bennet, to these lands, in amount of twenty-seven dollars and nine the year 1870. In the year 1877 the title to cents. And whereas, more than three years the land stood as follows: Charles F. Miller, have elapsed since the date of said sale, and four-ninths; Henry L. Paul, one-sixth; Joseph the said property has not been redeemed thereSharratt, one-sixth; Olive M. Oakes, one-ninth; from, as provided by law: Yow, therefore, I, Hiram P. Bennet, one-ninth. The land was John Potter, treasurer of the county aforesaid, assessed for taxes in that year as the property for and in consideration of the said sum to of these parties, the two-ninths interest of the treasurer paid as aforesaid, and by virtue Oakes and Bennet being the interest directly of the statute in such cases made and providinvolved in this action. On the 8th day of ed, have granted, bargained, and sold, and by July, 1878, the whole tract was sold for the these presents do grant, bargain, and sell, unto unpaid taxes of 1877. At this sale Joseph the said Joseph Sharratt, heirs and assigns, the Sharratt was the purchaser. Sharratt's pur- real property last hereinbefore described, to chase was regarded by the officers as a pay. have and to hold, unto him, the said Joseph ment of the taxes for the year 1877, upon his Sharratt, heirs and assigns, forever; subject, own interest, leaving five-sixths only of the however, to all the rights of redemption by land subject to redemption. The treasurer minors, insane persons, or idiots provided by executed a certificate of sale in due form, and law. In witness whereof, I, John Potter, treasafter the lapse of the statutory period (three urer as aforesaid, by virtue of the authority years), and on, to wit, the 21st day of July, aforesaid, have hereunto set my hand and seal, 1881, executed and delivered to the purchaser this twenty-first day of July, A. D. 1881. John a tax deed for this two-ninths interest, the bal- Potter, Treasurer." Acknowledged before E. ance of the land having been in the mean- J. Eaton, county clerk, July 21, 1881. This time redeemed from the tax sale. This tax deed was filed for record, and duly recorded, deed reads as follows: “Treasurer's Deed. in the clerk and recorder's office of El Paso Know all men by these presents, that where- county, upon the day of its execution. By this as, the following described real property, viz.: deed Sharratt acquired the two-ninths interest The undivided two-ninths interest in and to of Oakes and Bennet. This, with the onethe following described lands: The south half, sixth interest owned by him, gave him the the west half of northwest quarter, the east ownership of seven-eighteenths, the other ownhalf of northeast quarter, of section nineteen; ers having redeemed previous to the execution the west half of section twenty; the north of the tax deed. In the year 1882 Sharratt half, the southeast quarter, the east half of conveyed three-eighteenths of this interest to southwest quarter, of section thirty; the north- one Louis Dugal, and died in 1883, owning west quarter of the southwest quarter of sec- four-eighteenths. This property descended by tion thirty, and the north half of section thirty- will to Ms. Mary Sharratt Lamoroux and Mrs. one, in township thirteen, range sixty-six, Ann S. Hough, aud the title was subsequently situated in the county of El Paso, and state of vested by various conveyances in the defendColorado,-was subject to taxation for the year ant, the North Colorado Springs Land & ImA. D. 1877. And whereas, the taxes assessed provement Company, appellee herein. The upon said real property for the year aforesaid evidence further shows that appellant, Bennet, remained due and unpaid at the date of the was during all the times mentioned a lawyer sale hereinafter named. And whereas, the of mature years; that at one time he owned treasurer of said county did, on the eighth the whole 1,720 acres of land; and that for a day of July, A. D. 1878, by virtue of the au- time he was actively engaged in looking after thority vested in him by law, at an adjourn- the property. In 1877 he went to Deadwood, ed sale) the sale begun and publicly held on Dak., to engage in the practice of his profes

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