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PER CURIAM. The questions submitted call for a definition of the words "internal improvements," as used in section 12 of the enabling act, being section 193, 1 Mills' Ann. St., and which reads: "That five per centum of the proceeds of the sales of agricultural public lands lying within said state, which shall be sold by the United States subsequent to the admission of said state into the Union, after deducting all the expenses incident to the same, shall be paid to the said state for the purpose of making such internal improvements within said state as the legislature thereof may direct,"-and also the meaning to be given to the same term as used in section 2378, Rev. St. U. S. 1878. In other words, does the phrase as therein used include "public buildings, such as asylums, statehouses, universities, and colleges, or any other public institution of a like character," so that the proceeds derived from the sources mentioned in these acts may be applied to their construction? As we said in Re Internal Improvements, 18 Colo. 317, 32 Pac. 611, "the enabling act does not specify what kind of improvements shall be considered internal improvements; hence we must consider the sense in which these words are used in American legislation." Therefore, if they have by common legislative usage and judicial construction acquired a fixed historical meaning, such meaning must control, rather than the etymological definition of the words themselves. That the various state institutions referred to are internal improvements in the general signification of that phrase will not be disputed; but, nevertheless, it has been uniformly held that they do not fall within the category of "internal improvements" contemplated by that term as used in legislative and constitutional enactments. The cases in which this distinction has been made arose under constitutional provisions (Supreme Court of Colorado. absolutely prohibiting states from engaging in any "works of internal improvement"; and, while recognizing every other species of improvements of a public nature as being within the meaning of the phrase "internal improvement" as therein used, they except those which are built for and used by the state in its sovereign capacity, "such as a state capitol, state university, penitentiaries, reformatories, asylums, quarantine buildings, and the like," for education, the prevention of crime, charity, and the preservation of the public health are all recognized functions of state government. Rippe v. Becker, 56 Minn. 100, 57 N. W. 331; Leavenworth Co. v. Miller, 7 Kan. 479. That the buildings named are not such internal improvements as are contemplated in section 12 is evident, also, from other provisions of the enabling act, whereby donations of public lands are specifically made for public buildings,-among them section 8, which donates 50 sections for a capitol building; section 9, 50 sections for the purpose of erecting a suitable building for a penitentiary or state prison; section 10,

72 sections for the use and support of a state university; section 11 donates certain salt springs, together with 6 sections of land ad joining, to be used and disposed of on such terms, conditions, and regulations as the leg islature shall direct; section 12, 5 per cent. of the proceeds of sales of agricultural public lands for internal improvements. By these provisions several separate and distinct do nations are made for specified purposes, and the proceeds 'derived therefrom constitute trust funds, to be applied thereto. For the purpose of preserving and administering these trusts, section 10 of article 9 of our state constitution provides that "the general assembly shall, at the earliest practicable period, provide by law that the several grants of land made by congress to the state shall be judiciously located and carefully preserved and held in trust subject to disposal, for the use and benefit of the respective objects for which said grants of land were made." It is therefore apparent that neither congress in making the grants, nor the framers of the constitution in providing for their preservation and administration, intended that either of these funds should be diverted to any other purpose than that for which it is provided, and, therefore, that the proceeds derived under section 12 should not be applied to the erection of any buildings of the class thus specifically provided for. Our conclusion is that the appropriation provided in section 3 of the act submitted is not warranted unler the terms of section 12 of the enabling act, and we also feel constrained to answer the second question in the negative.

(23 Colo. 494) CATLIN LAND & CANAL CO et al. v. BURKE.

April 5, 1897.)

APPEAL-AFFIRMANCE.

The judgment must be affirmed where no error appears in the record proper, and the errors assigned depend on the evidence, and the bill of exceptions containing the evidence has been stricken from the files.

Appeal from district court, Bent county. Action between the Catlin Land & Canal Company and others and W. C. Burke, receiver of the La Junta & Lamar Land Company. From a judgment for the receiver, the Catlin Land & Canal Company appeals. Affirmed.

Kilgore & Hess, for appellant. Charles E. Gast and Henry A. Dubbs, for appellee.

PER CURIAM. The assignments of error in this cause are based upon a bill of exceptions which was stricken from the files, upon motion of appellee. See Canal Co. v. Burke, 22 Colo. 419, 45 Pac. 387. The question as to whether there is error in the decree depends upon the evidence, which is not before us. In the record proper no error appears, and the judgment of the district court must therefore be affirmed. Affirmed.

(23 Colo. 534)

WELLS v. SCHUSTER-HAX NAT. BANK. (Supreme Court of Colorado. April 5, 1897.) CREDITORS' SUITS--JUDGMENTS-MERGER--FRAUDU. LENT CONVEYANCES-INTENT-CONSIDERATION-KNOWLEDGE OF GRANTEE.

1. Though a judgment debtor's equitable interest in land previously conveyed by him in fraud of the judgment creditor may be sold under execution sued out under such judgment, the creditor may first get an adjudication as to such interest by creditors' bill.

2. Where a judgment creditor sues in Colorado to set aside a conveyance of property there, executed by a debtor who, in Missouri, has since made a general assignment for creditors, it will be presumed, in support of plaintiff's and against the assignee's right to sue, that the common law still prevails in Missouri.

3. Where a creditor sued to recover a money judgment in a foreign court on a judgment rendered in a court of Colorado, so that he might share pro rata with other creditors under a general assignment made by the debtor in the foreign state, and the judgment was not paid in full, the local judgment was not merged, but might constitute the evidence, and the basis to support a local action to set aside a conveyance previously made by the debtor in fraud of creditors.

4. A conveyance in the nature of a gift may be in fraud of the grantor's creditors, though the grantee did not participate in the fraud.

5. Though under Gen. St. 1883, § 1529 (Mills' Ann. St. § 2033), a conveyance is not fraudulent solely because it is voluntary, and though a prior indebtedness of the grantor is not conclusive evidence that a voluntary conveyance is fraudulent, where the grantor's prior indebtedness and the voluntary conveyance of the bulk of his property necessarily result in delaying creditors, the conveyance is a legal fraud, though no specific intent to defraud exists.

Appeal from district court, Arapahoe county. Action by the Schuster-Hax National Bank against Eddie Elvira Wells. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Wells, Taylor & Taylor, for appellant. Wolcott & Vaile, for appellee.

CAMPBELL, J. The complaint in this action is in the nature of a creditors' bill to set aside an alleged fraudulent conveyance, and subject the property so conveyed to the satisfaction of the judgment. In August, 1891, a judgment was obtained in the district court of Arapahoe county, Colo., by the Schuster-Hax National Bank against Isaac T. Hosea for about $8,000, and the property in controversy here was then impressed with the lien thereof. The present action to subject this property to the satisfaction of that judgment was brought in March, 1892, and the cause of action was based upon the prior judgment in the same court. While the present action was pending, and in July, 1892, suit upon the judgment rendered in 1891 in Colorado was brought in the circuit court of Buchanan county, Mo., and a money judgment there obtained against Hosea, upon which payments have been made, leaving, however, a balance due at the time the present action was begun. The obtaining of this second judgment is set up as a defense by a supplemental answer filed by

the defendant in September, 1893. Upon issues joined the trial court made findings in favor of the plaintiff, and ordered the property sold and applied upon the judgment. The propositions upon which the appellant here (defendant below) relies for reversal are: First, plaintiff showed no title to assail the conveyance in question; second, the district court erred in sustaining the demurrer to the defendant's supplemental answer; third, the evidence fails to show such a case as entitles the plaintiff to the relief prayed for.

As to the first proposition, before this action was begun, Hosea, the judgment debtor, in conformity with the laws of Missouri (in which state both he and plaintiff resided), conveyed all of his estate for the benefit of his creditors. The assignee accepted the trust, and was proceeding therewith. This being true, it is argued that only the assignee could institute this action to assail the conveyance now brought in question, even if the same was impeachable. To this are cited Voorhees v. Carpenter, 127 Ind. 300, 26 N. E. 838; Freem. Ex'ns, § 431, note 5. At the common law an assignee under an assignment for the benefit of creditors took only that interest in the property which the debtor had at the time of the assignment. From this it follows that property previously conveyed, though in fraud of creditors, did not pass, and the creditors, not the assignee, were the ones to sue to set it aside. 1 Am. & Eng. Enc. Law, 854; Heinrichs v. Woods, 7 Mo. App. 236; Roan v. 'Winn, 93 Mo. 503, 4 S. W. 736. Though this equitable interest may be sold under execution sued out under the first judgment, this does not preclude the creditor from first getting an adjudication as to the debtor's interest therein. O'Connell v. Taney, 16 Colo. 353, 27 Pac. 888. The appellant, however, contends that by sections 14, 18, pp. 46, 47, Sess. Laws 1885 (1 Mills' Ann. St. §§ 182, 186), in this state the assignee, and not the creditor, has the sole right to demand and sue for the property fraudulently conveyed before the date of the assignment; and we are told that this court, in the absence of proof to the contrary, will presume that the law of Missouri in this particular is the same as our own. In Wolf v. Burke, 18 Colo. 264, 32 Pac. 427, this court has expressly held to the contrary, and, if presumptions are to govern, they would be that the common law still prevails in Missouri. If it does, the creditor in this case would have the right to institute this action. We are not called upon to determine what the assignee's rights are by the law of this state, for under the decisions of the courts of review of Missouri, supra, as well as the presumption which this court must indulge, the creditor, not the assignee, has the right to bring this action. Kermott v. Ayer, 11 Mich. 181; Ellis v. Maxson, 19 Mich. 186.

Second. The appellant contends that, when the creditor recovered the judgment in the Missouri court upon the prior Colorado judgment, the latter became merged in the former, and thereafter was extinguished for all

purposes whatever. It has been expressly held in Gould v. Hayden, 63 Ind. 443, that a judgment recovered in a court of one state upon a judgment previously rendered in a court of a sister state merges the latter. Freem. Judgm. (4th Ed.) § 216, approves this view, and to the same effect is the text in 15 Am. & Eng. Enc. Law, 336. The contrary doctrine is announced in other authorities, and proceeds upon the theory originally given for the rule that merger takes place only where a security or indebtedness of an inferior passes into one of a superior degree. Weeks v. Pearson, 5 N. H. 324; Mumford v. Stocker, 1 Cow. 178; Bates v. Lyons, 7 Paige, 85; 2 Black, Judgm. § 864; Hogg v. Charlton, 25 Pa. St. 200; McLean v. McLean, 90 N. C. 530; Andrews v. Smith, 9 Wend. 54. It is said, however, that the later authorities predicate this doctrine of merger upon the ground that the allowance of a new suit is superfluous, and a vexatious encouragement to litigation injurious to the defendant, and of no benefit to the plaintiff. Without further pursuing the inquiry, we content ourselves by saying that it seems more in consonance with principle to base the doctrine upon the reason originally given for its establishment; and that, so long as the indebtedness is unsatisfied, successive suits in different states may be prosecuted. But, whatever be the correct general rule, there are numerous exceptions to and qualifications of it, and it has been said that it should not be allowed to prevail to accomplish manifest injustice. Freem. Judgm. § 223 et seq.; Lawton v. Perry, 40 S. C. 255, 274, 18 S. E. 861; 2 Black, Judgm. 677. Neither does the doctrine apply unless the identical cause of action has passed into judgment, and the object is the same in both actions in a suit between the same parties or their privies. Id. 674; 1 Freem. Judgm. § 216. See, also, Barnes v. Beighly, 9 Colo. 475-481, 12 Pac. 906. In the Missouri case the action was between the judgment creditor and the judgment debtor. The subject-matter was the Colorado judgment. The cause of action was the failure and refusal of the debtor to pay it. The object of the action was to recover a money judgment, apparently that it might prorate with the claims of other creditors under the assignment. In the case at bar the suit is between the judgment creditor and the grantee of the debtor. The subject-matter is the same as in the Missouri case, but the cause of action here is the fraud of the judgment debtor in conveying the property, and the concurring legal fraud of the grantee in withdrawing it from the lien of the judgment. The object of the action is not to recover another money judgment,Indeed, such a general judgment could not be rendered in this character of action,-but merely to subject the property fraudulently conveyed to the satisfaction of the indebtedness represented by the former judgment. Barnes v. Beighly, supra. Under all the authorities, so far as we have examined, and

under the facts of this case, the prior Colorado judgment may constitute the evidence and the basis to support the present action. See, further, in support of the conclusions reached upon this branch of the case: Mulock v. Wilson, 19 Colo. 296, 35 Pac. 532; Arnett v. Coffey, 1 Colo. App. 34, 27 Pac. 614: Bank v. Brown, 112 Ind. 474, 14 N. E. 358; Bank v. Townsend, 114 Ind. 534, 17 N. E. 116; Jackson V. Shaffer, 11 Johns. *513; Carter v. Colman, 12 Ired. 274; Nickerson v. Stage Co., 10 Cal. 520; Story, Confl. Laws (Bigelow's 8th Ed.) § 599a.

The last proposition is that the proof was insufficient to make out the alleged fraud. That the conveyance was voluntary, and that Hosea was, at the time, largely indebted to plaintiff, are conceded facts. The deed was made during the first part of January, 1891, and was intended as a settlement by the father for his daughter. He was engaged, with a partner by the name of Scholtz, in the wholesale hardware business in the city of St. Joseph, and his interest therein comprised about all the property he owned. For two or three years previous to the conveyance he had not given his personal attention thereto, but devoted his time and energies to the management of a large estate, of which he was administrator. About three months after this conveyance, learning of the financial embarrassment of his partner, and realizing also that they were unable then to pay their firm debts as they matured, Hosea bought out his partner's interests, giving him $300 therefor, subject to the partnership liability, intending to continue the business in his own name, and pay the liabilities. Three days after this purchase, owing to his illness, and probably to other causes, Hosea made an assignment for the benefit of his creditors. According to his own statement, his financial condition then was the same as on the day he made the conveyance to his daughter. The nominal assets of the partnership, both at the time of the conveyance and of the assignment. were in excess of the liabilities. The failure was not due to an accident, or a calamity, or to causes other than those so frequently occurring as incident to business life. Wheth er due to his own improvidence, to his inat tention to his own affairs, or mismanagement of his partner, or to the fluctuations in value of the property, or inability to realize upon outstanding or worthless accounts, does not definitely appear; but probably all of these causes contributed to the insolvency. Hosea says in his own testimony that when he bought out his partner the business was in such a condition that the debts of the firm could not be paid. He also testifies that the partnership did not have funds on hand to meet its maturing obligations, and that the results of the assignment would have been the same in January as they were proven to be in the following April.

Upon the evidence in this case, equally in

telligent and honest men might reasonably differ in their conclusion. It is strongly contended that, had not the assignment been made, and had the property been disposed of in the ordinary course of trade by the partnership firm, all of the debts would have been paid, and a balance realized. Under the facts of this case, and, moreover, generally, this is not the true test of solvency. Here $2,500 of the firm's money were taken by Hosea. Land was purchased therewith, and the same conveyed as a settlement upon his daughter. A debtor has no right to give away a portion of his property, and leave an insufficient amount for his creditors. They should not be called upon to suffer from the hazards of his speculations, or from his financial arrangements, or improvident conduct of business. He must, before making such a settlement, make adequate provision for his existing creditors, so that in the ordinary course prescribed by law for the collection of debts these debts will be paid. Bump, Fraud. Conv. (Gray's 4th Ed.) § 257 et seq. In the absence of a statute, a voluntary conveyance is considered as prima facie evidence of intent to delay, hinder, or defraud creditors. Bump, Fraud. Conv. § 247, and cases cited. Under our statute, however (Gen. St. 1883, § 1529; Mills' Ann. St. § 2033), the intent is a question of fact, and not of law; and no conveyance is to be adjudged fraudulent solely upon the ground that it was not founded upon a valuable consideration. Thomas v. Mackey, 3 Colo. 390; Burdsall v. Waggoner, 4 Colo. 261; Burr v. Clement, 9 Colo. 1, 9 Pac. 633. It may be, and doubtless is, true that no corrupt motive prompted Hosea in making the settlement; nor was there any participation in the wrongful intent, if any, upon the part of the grantee. But where, as here, the conveyance is in the nature of a gift, it is not necessary to show participation in the fraud by the grantee. Wilcoxen v. Morgan, 2 Colo. 473; Mulock v. Wilson, supra; Gwynn v. Butler, 17 Colo. 114, 28 Pac. 466. Prior indebtedness, it is also true, is not conclusive evidence of fraud, but only presumptive evidence; and, as we have seen, in our state fraud is always a question of fact in a case like this. See, also, Lloyd v. Fulton, 91 U. S. 479. But it is not alone Hosea's previous indebtedness, and the voluntary character of the conveyance, that constitute the fraud in the case at bar. These facts, together with the necessary result in delaying creditors, make it a legal fraud, though no specific intent to defraud existed. In such a case the question of intention is a deduction from the facts proved. Knapp v. Day, 4 Colo. App. 21, 34 Pac. 1008. "The question of intention is only a conclusion or deduction from the facts as disclosed. If the result of the transaction was fraud, the law supplies the intention, or proceeds regardless of the intention." While the value of the property settled upon the defendant in this case is much less in

proportion to the nominal assets of her father than was the amount which Gwynn conveyed to his wife in proportion to his assets, yet the principle announced in the case of Gwynn v. Butler, supra, we think is decisive of this. There it was said: "But a voluntary conveyance-that is, a conveyance not supported by a valuable considerationby a husband to his wife, which is intended or which tends to defraud existing creditors of the husband, cannot be upheld against such creditors. If the husband be insolvent at the time of making such conveyance, or if, by reason of such conveyance, he is rendered unable to pay his existing debts, the wife's title will be deemed fraudulent, and the property thus conveyed may be subjected to the payment of such debts." There is enough legal evidence to support the findings of the trial court. It is not manifestly against the weight of the evidence; and, while it may be a matter of regret that defendant must lose this land, yet it is in accordance with the well-settled rule of this court that we should not reverse a judgment merely because, had we been the triors of the facts, a different conclusion might have been reached. The judgment is affirmed. Affirmed.

(24 Colo. 113)

SMITH V. SMITH (SMITH, Intervener). (Supreme Court of Colorado. May 3, 1897.)

SUPREME COURT — JURISDICTION—ACTION TO SET ASIDE DECREE OF DIVORCE.

1. The supreme court has no jurisdiction to review on error a judgment dismissing plaintiff's complaint in an action against the administrator of her former husband and one claiming to be his sole heir to set aside a decree of divorce obtained by deceased against plaintiff, in the absence of any constitutional provision or statute giving it jurisdiction.

2. A freehold is not involved in such case, within Sess. Laws 1891, p. 118, declaring that no writ of error from or appeal to the supreme court shall lie unless the judgment exceeds $2,500 besides costs, provided such limitation shall not apply where the matter in controversy relates to a franchise or freehold; and this, though deceased died seised of real property.

Error to district court, Arapahoe county. Action by Jessie C. Smith against Edna May Smith, administratrix of the estate of Minor C. Smith, deceased, in which Benjamin F. Smith intervened. There was a judg ment dismissing the complaint on plaintiff's election to stand thereby after a demurrer to it was sustained, and she brings error. Dismissed.

Jacoway & Hunt, for plaintiff in error. Erastus W. Smith, for Benjamin F. Smith.

CAMPBELL, J. On the 28th day of April, 1894, in the county court of Arapahoe county, Minor C. Smith obtained a decree of divorce against his wife, Jessie C. Smith. On the 13th day of the following June he died, leaving no children. The object of this action, begun June 26, 1894, by Jessie C. Smith,

claiming to be the widow of Minor C. Smith, was to obtain a decree of court to set aside and cancel said decree of divorce; and Edna May Smith, who was appointed administratrix of his estate, was made defendant. During the pendency of the action an order of court was entered, apparently by consent of parties, certainly without objection, permitting Benjamin F. Smith, the father of Minor C. Smith, and who claimed to be his sole heir at law, to file a petition of intervention, upon the ground that as such heir he had an interest in the litigation adverse to the plaintiff. To an amended complaint a joint demurrer was filed by the defendant and the intervener, the ground being that the facts set forth therein did not constitute a cause of action. This demurrer was sustained, and, the plaintiff electing to stand thereby, judgment was entered dismissing the complaint. To reverse this judgment of the district court the plaintiff prosecutes this writ of error.

** * *

It is manifest that this court has not jurisdiction to determine this cause upon this writ of error. Although the defendants in error do not question the jurisdiction of this court, yet such appellate jurisdiction, where none exists by law, may not be conferred by agreement of the parties, or by acquiescence upon the part of the defendant in error. Jurisdiction, if it attaches at all, is because the constitution, or some statute of the state, has given it. It is not conferred by our constitution; and the general assembly, by statute, has provided that: "No writ of error from, or appeal to, the supreme court shall lie to review the final judgment of any inferior court, unless the judgment exceeds two thousand five hundred dollars, exclusive of costs. Provided, this limitation shall not apply where the matter in controversy relates to a franchise or freehold, nor where the construction of a provision of the constitution of the state or of the United States is necessary to the determination of a case." Sess. Laws 1891, p. 118. By the judgment of the district court the action was merely dismissed, and costs against the plaintiff awarded; so the amount of the judgment does not confer jurisdiction. Neither is any constitutional question involved, nor does the controversy relate to a franchise or freehold. That a freehold is not involved is apparent from two considerations. There is no allegation in the amended complaint that Minor C. Smith died seised or possessed of any real property; but, if such fact was made to appear in this record, the necessary effect of the judgment of the district court in this action would not be to take the title from one of the parties, or vest it in the other. Even if the decree of divorce had been held void, and judgment had gone for the plaintiff, the effect of the judgment so declaring would be merely to make the plaintiff the sole heir at law; and, if her husband left any real estate, it would

pass to her, not as the result of the decree annulling the prior decree of divorce, but in virtue of an order of distribution made by the county court in the probate proceedings after all the debts were paid and the administration closed. The writ of error, therefore, is dismissed without prejudice, with leave to the plaintiff in error, if she sees fit, to withdraw the transcript of the record and printed abstracts and her briefs. Writ of error dismissed.

(23 Colo. 470) BENNET V. NORTH COLORADO SPRINGS LAND & IMPROVEMENT CO.

(Supreme Court of Colorado. April 5, 1897.) TENANCY IN COMMON-FURCHASE OF CO-TENANT'S INTEREST-TAX SALE-VOID DEED AS

COLOR OF TITLE-EVIDENCE.

1. Where a tehant in common is not required to pay the taxes on the interests of his co-tenants, he may buy in for his own benefit, at tax sale, the undivided interest of a co-tenant.

2. Though a tax deed based on a sale which took place at the office of the clerk and recorder, instead of at the office of the county treasurer, as required by statute, and on the second Monday of July, instead of the first Monday, is void, it furnishes sufficient color of title to support a claim of limitations if it is executed by the proper officer, correctly describes the property, and shows a complete sale and the expiration of the period of redemption.

3. An objection that certificates of an abstract company offered to prove payment of taxes were not the best evidence of such payment is waived if not taken when the evidence was introduced.

Appeal from district court, El Paso county. Action by Hiram P. Bennet against the North Colorado Springs Land & Improvement Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Appellant instituted this action in the district court, alleging that he was the owner by letters patent from the United States of an undivided two-ninths interest in 1,720 acres of land in El Paso county, Colo., particularly describing the same. Plaintiff alleges that he is entitled to the possession of the premises, but that the defendant wrongfully withholds the same, to his damage in the sum of $10,000. A number of parties were named as defendants in this complaint, but, as the controversy is only between the plaintiff and the North Colorado Springs Land & Improvement Company, the other defendants will not be mentioned. The company appeared, and filed an answer, admitting that patent issued to the plaintiff for the land in controversy. All other allegations of the complaint are denied. For a third defense, the defendant alleges title by tax deed from John Potter, county treasurer, executed and delivered on July 1, 1881. De fendant alleges that it has been in the quiet, peaceable, and undisputed possession of the property from that date, and for more than five successive years has paid all taxes legally assessed thereon. For a fourth defense, the defendant alleges that the two-ninths inter

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