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(41 Colo. 29)

neglect or refusal of the company or its BUTTERFLY-TERRIBLE GOLD MINING officers to transfer his stock upon the books CO. et al. v. BRIND.

of the company. We shall not undertake to

determine whether mandamus does or does (Supreme Court of Colorado. Oct. 7, 1907.)

not lie to compel the transfer. The authori1. MANDAMUS -- COMPLAINT - TRANSFERS OF STOCK.

ties are conflicting, and there are no authorUnder Mills' Ann. St. $ 450, providing that

ities of this state to guide us, and we precorporate stock shall be transferable as per. fer to base our decision upon another branch sonalty as provided by the by-laws, a complaint

of the case, which is conclusive of the plainin mandamus to compel a corporation to transfer stock to petitioner, which fails to allege that

tiff's rights on this appeal. Section 480, he complied with the by-laws of the corpora Mills' Ann. St., provides that the shares of tion as to the transfer of stock, is bad.

stock "shall not be less than one dollar nor 2. CORPORATIONS-CORPORATE BOOKS-RIGHT more than one hundred dollars each, and TO INSPECT STATUTES.

shall be deemed personal property and transUnder Mills' Ann. St. $ 508, requiring the

ferable as such in the manner provided by officers of every corporation to keep books at the office of the corporation for the inspection of the by-laws.” Although the complaint alstockholders and creditors and their represen leges that the plaintiff became the purchaser tatives, etc., only stockholders and creditors and

of certain shares of stock in the company; their representatives are entitled to inspect the books.

and that he made a demand upon the com[Ed. Note.-For cases in point, ste Cent. Dig. pany and its officers, at the office of the comvol. 12, Corporations, SS 674-685.]

pany, to transfer the stock and to issue other

stock as he directed, no mention whatever is Appeal from District Court, Arapa hoe

made by the writ concerning the by-laws of County; Booth M. Malone, Judge.

the company, nor is there any allegation Jandamus by J. Fitz Brind against the

that the plaintiff has complied with the byButterfly-Terrible Gold Mining Company and

laws of the company in reference to the others. From a judgment making the alter

transfer of stock. The plaintiff has, therenative writ permanent, respondents appeal.

fore, failed to make the essential averments Reversed.

showing that under the by-laws of the corEdwd. D. Upham, for appellant.

poration he is entitled to the transfer of

the stock mentioned. STEELE, C. J. The alternative writ of Section 308. Mills' Ann. St., makes it the mandamus issued by the district court of duty of the directors and trustees of corporaArapahoe county required the defendants to tions to keep certain books at the office of forthwith allow the petitioner to examine, the company open during usual business inspect, and make extracts from the books, hours for the inspection of stockholders and accounts, and papers of said corporation, creditors of the company and their personal and to forthwith issue and transfer 1,000 representatives, and that such stockholder, shares of stock to and in the name of the creditor, or representative shall have the petitioner upon the books of said company, right to make extracts from such books, etc. and to issue new certificates to him there. The statute further provides that no transfor, upon petitioner's request and his sur fer o: stock shall be valid for any purpose render of his present certificate for can whatever, except to render the person 10 cellation and transfer. To the alternative whom it shall be transferred liable for the writ the defendants demurred upon the debts of the company, unless it shall have ground that it does not state facts sufficient been entered on the books of the company to constitute a cause of action against the re- ! within 60 days from the date of such transspondents, or either of them, and that the fer, by an entry showing from and to whom petitioner is not entitled to the relief sought transferred. From this it appears very clear to be obtained. The demurrer was over that only stockholders and creditors and ruled, the defendants were given five days their personal representatives are entitled in which to plead, and within the time the to such inspection. What our ruling would defendants elected to stand on the demurrer, be in a proceeding to compel an inspection, and thereupon judgment was entered that the where it clearly appears that the assignee alternative writ be made permanent, at the is entitled under the statute and the by-laws respondents' costs, from which judgment the of the corporation to a transfer of stock and respondents appealed to the Court of Ap a record thereof on the books of the compeals.

pany, and that the officers willfully refuse to We shall consider but one assignment of make such transfer and record, we cannot error, that which relates to the overruling of the demurrer to the alternative writ of In our opinion, the demurrer to the commandamus. The appellants contend that plaint should have been sustained; and for the transfer of stock of a corporation cannot this reason the judgment of the district be compelled by, mandamus, that the holder court is reversed. of the stock has another remedy, and that he may recover damages for the inexcusable CASWELL and MAXWELL, JJ., concur.

say.

(41 Colo. 68)

LEMMON v. BEATTIE, Sheriff. (Supreme Court of Colorado. Oct. 7, 1907.) 1. EXECUTION - PROPERTY SUBJECT TO EXECUTION.

The interest of one in personal property, to be subject to levy under execution, must be a vested interest at the time of the levy.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 21, Execution, $ 76.] 2. SAME.

An owner delivered sheep to J. and G. as lessees in a lease binding them to return to the owner at the expiration of the lease the sheep received, together with a half of the increase. A year thereafter G. retired, and F. became a lessee with J. A memorandum signed by the parties recited that J. should bear the loss, and receive the gain during the year. Held, that J.'s interest for the year was not fixed and vesied and was not subject to levy.

(Ed. Note.-For cases in point, see Cent. Dig. vol. 21, Execution, 8 76.] 3. REPLEVIN-EVIDEXCE-ADMISSIBILITY.

A lessee of sheep agreed to return at the expiration of the term the sheep received, together with half of the increase. Held, in replevin by the lessor against the sheriff who had levied on the sheep as the property of the lessee, that evidence was admissible that during the term the interest of the lessee was agreed on, to show that certain sheep were set off to the lessee under the lease, thereby rendering the same subject to levy.

crease shall be divided at the expiration of the lease. One year after the making of the lease, by the consent of the parties, Gooch was allowed to retire, and Wels Fredericksen became a party to the lease, and lessee with Johnson, and upon the lease the following memorandum, signed by all of the parties, appears: "It is understood and agreed between all parties that now, one year after the making of this lease, Nels Fredericksen becomes a full partner with I. M. Johnson in this lease until expiration thereof, October 15,· 1903. Said Johnson agrees to bear all loss, if any, and receives the gain, if any. from the time of the first making of this lease to the present time, October 15, 1902; and said Fredericksen will receive his full share of any gain by reason of the wool clip of 1903, and increase of same season, and will also bear his full share of any loss, if any, during this last year of this lease from October 15, 1902, to October 15, 1903."

The principal controversy arises over the construction of this memorandum of agreement indorsed upon the lease. It is contended, and the court so held, that by this agreement the interest of Johnson in the sheep was vested and determined, and that his interest was subject to the levy. It is not dis

Appeal from District Court, Logun County; puted that the interest of Johnson, to be

E. E. Armour, Judge.

Action by F. F. Lemmon against David Beattie, sheriff of Logan county. From a judgment for defendant, plaintiff appeals. Reversed.

W. L. Hays and Quitman Brown, for appellant. McConley & Burke, for appellee.

subject to levy under execution, must be a fixed and vested interest at the time of the levy; and the defendant concedes that, unless it shall be determined that Johnson's interest was a fixed and determinable interest, the judgment must be reversed. We cannot place the same construction upon this memorandum as that placed by the trial judge. Our construction of the agreement is that, as between Johnson and Fredericksen, it was agreed that the gains and losses during the period of the lease should be apportioned in the manner stated in the agreement, but that the agreement does not, in any manner, in our opinion, relieve Johnson of the obligation to account to Lemmon, the plaintiff and lessor, for his full share of the sheep, as provided in the lease, during the year from October 15, 1901, to October 15, 1902, out of any interest that he might have in the sheep at the end of the term of the lease. This being true, it follows that Johnson's interest in the lease at the time of the levy was not subject to levy.

Testimony was offered on the part of the defendant tending to show that at or about the time of the change of lessees a division of the sheep was made, and Johnson's interest set off to him by the lessor. This testimony the court declined to receive. In this we think the court erred. It was entirely competent, in our opinion, for the purpose of showing that during the term of the lease the interest of Johnson had been agreed upon and determined. And if, by mutual consent, certain of the sheep were set off to Johnson in the year 1902, in full settlement and satisfaction of the terms of the lease, then

STEELE, C. J. The plaintiff and appellant, being the owner of a certain flock of sheep, brought suit against the sheriff of Logan county in an action of replevin to recover the possession of the sheep and for damages for their unlawful detention. The defendant justified under an execution issued from the county court of Logan county against I. M. Johnson for the sum of about $200. The sheep were worth about $500. The jury returned a verdict in favor of the defendant, and further found that the value of the interest of Johnson in the sheep, at the time of the taking, was $203. The judgment was for the return of the sheep, or, in the alternative, that the defendant recover of plaintiff the sum of $205, from which judgment the plaintiff appealed to the Court of Appeals.

The sheep were owned by the plaintiff, and were delivered to Johnson and one Gooch as lessees on or about the 1st of October, 1901. This condition is contained in the lease : "The same number and the same ages of sheep as received in this lease are to be returned to the party of the first part, with half of the increase, in good condition and free from disease, at the expiration of this lease.” The lease also provides that the in

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Johnson had a fixed and determinable interest which was subject to lery under execution.

The judgment is reversed.

CASWELL and MAXWELL, JJ., concur.

(41 Colo. 72)

MITCHELL V. MITCIIELL. (Supreme Court of Colorado. Oct. 7, 1907.) 1. APPEAL-REVIEW-HARMLESS ERROR.

Where, in an action to cancel a deed as a forgery, and its record, the court submitted to a jury the question whether plaintiff signed the deed, which was answered in the negative, it is a sufficient answer, to complaints to various rulings as to the evidence, misconduct of the jury, and failure to submit interrogatories, that the court, though it called the jury, was not bound by their findings; it not only having approved the jury's findings, but made its own, that plaintiff's name was a forgery. 2 DEEDS - FORGERY OF SIGNATURE

SIGNATURE – EviDENCE.

Evidence, in an action to cancel a deed as a forgery, and its record, held to warrant a finding that the signature to the deed and the certificate of acknowledgment were forgeries.

[Ed. Note. For cases in point, see Cent. Dig. vol. 16, Deeds, $ 615.) 3. CANCELLATION OF INSTRUMENTS-PLEADING -DEFENSE.

It cannot properly be pleaded as a defense, or as ground for affirmative relief, in an action to cancel a deed as a forgery, and its record, that plaintiff held title to the land in trust for defendant, in that defendant paid the purchase money and took title in plaintiff's name as a matter of convenience.

Appeal from District Court, City and County of Denver; P. L. Palmer, Judge.

Action by Nellie Mitchell y. Walter C. Mitchell. Judgment for plaintiff, and defendant appeals. Affirmed.

Geo. W. Taylor, for appellant. O'Donnell, Toney & Graham and R. T. VeXeal, for appellee.

it to defendant, and defendant from receiving it, and that, upon final hearing, it be canceled, and its record held for naught. The answer denies the material averments of the complaint, and in the original answer, large portions of which were, on plaintiff's motion, stricken, and in the amended answer, which met with a similar order, the defendant sets out, as a defense and also by crosscomplaint, that the tax-title deed to the plaintiff and under which she claims, and whatever interest she has in that and other property, is held in trust for the defendant, resulting from the fact that he paid the purchase money and expenses and took title to all such lands in plaintiff's name as a matter of convenience. Defendant prays to have plaintiff's action dismissed, and as affirmative relief to have the lands in question, as well as other lands, declared to be trust property, and that she be ordered to convey the same to him. The findings were in plaintiff's favor, and a decree passed canceling the record of the deed. Defendant appeals.

1. The cause of action is equitable in its nature. The court called to its aid a jury and submitted to it but one question-whether the plaintiff had signed the deed purporting to convey away her title to the defendant —which was answered in the negative. The defendant complains of various rulings of the court in relation to the evidence, to alleged misconduct of the jury, and failure of the court to submit interrogatories tendered by him. A sufficient answer is that the court, although it might, as, in fact, it did, call to its aid a jury, is not bound by their finding, but night, if it saw fit, disregard the same and make findings of its own. The court, however, not only approved the jury's finding, but made one of its own, that plaintiff's name was forged to the deed and certificate of acknowledgment. There is no merit in defendant's assignments upon this branch of the case.

2. The principal objection to the decree which the defendant urges on this review is that there was not sufficient evidence of the forgery charged. An examination of the record discloses that the evidence, upon the as sumption that the court believed the plaintiff's witnesses, is abundantly sufficient to a moral certainty to show that plaintiff's name was forged to the deed.

3. It is also argued that the proof is likewise defective, in that it was not made suffciently to appear that the certificate of acknowledgment was forged. The proof should be decisive, explicit, and clear upon this point. Plaintiff positively denies that she ever signed or acknowledged the deed, or authorized any one to do either act for her and several experts declared that her signature was forged. The defendant and one of his own witnesses, in testifying to the alleged act of plaintiff in siguing the deed, do not

CAMPBELL, J. Action to cancel a deed. The parties are husband and wife. The plaintiff wife in her complaint says that she has title acquired by tax deed from the county treasurer to certain real estate; that her husband, the defendant, caused to be recorded in the office of the county clerk and recorder an instrument in writing, purporting to be a quitclaim deed signed and acknowledged by her, conveying the same property to him. Plaintiff alleges that she never signed or acknowledged or delivered the deed; that her signature thereto is false and forged, and the certificate of acknowledgment is either a forgery or put to the instrument without her knowledge or consent, and without her having appeared before the acknowledging officer. It further being charged that the alleged forged instrument is still in the possession of the county clerk and recorder, and bears on its face eridence of forgery, the plaintiff prays that the officer be restrained from delivering

claim that the notary was then present,

(41 Colo. 209) though the certificate says that the acknowl

LIPP v. GOOD et al. edgment was taken at that time. Indeed, de

(Supreme Conrt of Colorado. Oct. 7, 1907.) fendant makes no contention, except in argu

ASSIGNMENT - MONEY DUE- RIGHTS OF ACment, that the plaintiff ever acknowledged the

TION-PARTNERSHIP CLAIM. deed. No such issue seems to have been rais Where the assignment to plaintiff by J. and ed at the trial. Besides, it appears in the de 0. of a claim of a partnershin designated as fendant's pleading that, in such business

J. & O., and composed of J., O., and plaintiff,

against the defendants, was made in good faith transactions between him and his wife, it was

and not to avoid Laws 1897, p. 219, c. Oj, customary for him to produce for her signa- providing that any partnership doing business ture blank deeds to which certificates of ac

in the state under any name except the personal

names of its members, which fails to file an knowledgment had theretofore been prepar

affidavit with the county clerk giving the names ed, and afterwards to insert in the body of of all composing the firm, could not prosecute the deed a description of the property intend

any suit for the collection of its debts, the claim

became thereby the individual property of plained to be conveyed. The court was fully war

tiff, who may sue thereon as an individual to ranted in finding that the signature to the recover from defendants. deed and the certificate of acknowledgment

Error to Gilpin County Court; Flor Ashwere forgeries.

baugh, Judge. 4. There is no merit to the point that the

Action by A. Lipp against George S. Good tax deed was not delivered to plaintiff. De

and others. From a judgment for plaintiff, fendant himself says that be received the

defendants bring error. Affirmed. deed and caused it to be recorded, but for the purpose considered in the next assignment.

H. A. Hicks and Wm. C. Matthews, for 5. This assignment is that the court struck plaintiffs in error. from defendant's pleadings, and refused his offer of proof to show, not only as a defense, STEELE, C. J. It was shown at the trial but as new matter entitling him to an affirma or admitted by the pleadings that the defendtive decree, that plaintiff held title to this ants were and are contractors engaged in the and other property in trust for his benefit. construction work upon a railroad known The object of the action is, not to establish as the "Denver, Northwestern & Pacific Railpleintiff's title to lands, or to quiet it, but to road"; that the plaintiff was a member of cancel the record of a forged deed purporting the copartnership of Jones & O'Brien, conto convey it. The cause of action is based up

sisting of plaintiff, Lee Jones, and Robert on defendant's wrong, on a tort committed by O'Brien, and that they were subcontractors him against her, not on a breach of contract.

under said defendants; that on the 19th of The matters set up which the defendant

June, 1903, the plaintiff, acting for and on claims to be a defense, and also to entitle him

behalf of the copartnership, had a settlement to equitable relief, did not grow out of the with the defendants of all indebtedness, and transaction set up in the complaint. No

that the said defendants at that time agreed cause of action arising out of contract is al

that they would pay to the said firm of Jones leged in the complaint; hence, any other

& O'Brien $300 on the 25th of June, 1903, cause of action, arising also upon contract

and $734.37 on July 23th; that on the same and existing in favor of the defendant at the

day Lee Jones and Robert O'Brien assigned time of the commencement of the action, was

to the plaintiff all their right, title, and innot proper to be inserted in the answer, either

terest in and to the sum of $300 and in and as a defense, or as ground for affirmative re

to the sum of $731.37 mentioned in the said lief. The only effect of the decree is to can

agreement; and that on the same day the decel the record of the forged deed. It would fendants paid to the plaintiff the sum of be a novel doctrine to hold that one who is

$300, and gave him a written obligation to the equitable owner of property, the legal

pay the sum of $734.37. The plaintiff showtitle to which is in another, may, in order to ed the written contract of settlement, the get the legal title in himself, forge the name

assignment to him of the claim against the of the legal owner to a deed purporting to defendants by the other members of the firm, convey it. If the plaintiff holds this and oth

and showed an agreement in writing on the er property of defendant in trust, the defend

part of the defendants to pay him the sum ant is at liberty to establish, if he can, his

of $734.37, and testified that the said sum rights in the proper forum and in an appro had not been paid. At the close of the plainpriate, but not in the pending, action.

tiff's testimony defendants moved for a nonThe conclusions which we have reached

suit, which was denied. The defendants of seem so fundamental and elemental that we

fered no testimony, and the court instructed have not cited cases in their support. Per the jury to return a verdict for the plaintiff. ceiving no prejudicial error in the record, the

Thereupon the jury returned a verdict for judgment is affirmed.

the plaintiff for the sum of $734.37 and inAffirmed.

terest, and judgment was entered thereon,

and the case was taken to the Court of ApSTEELE, C. J., and GABBERT, J., concur. peals by writ of error.

The points principally relied upon by the plaintiffs in error are that the plaintiff is not entitled to recover, because it does not appear that the firm of Jones & O'Brien ever filed the statement required by Laws 1897, p. 249, c. 65, and, further, that the debt from the defendants was due and owing to the firm of Jones & O'Brien, that they were the real parties in interest, and that the plaintiff cannot maintain the action individually. It does not appear that the assignment from Lee Jones and Robert O'Brien to the plaintiff was for the purpose of evading the statute; but the assignment appears to have been made in good faith by two of the members of the firm to the third member of the firm, and no reason has been stated in the briefs or authorities cited showing why the members of the firm may not in such manner convey to another member of the firm all their right, title, and interest in a debt due and owing the firm. When such assignment is made, it converts firm property into the individual property of the assignee; and it is entirely competent then for the assignee to maintain an action as an individual to recover the debt. The claim of the firm of Jones & O'Brien against the defendants having been assigned, the suit is properly maintainable by the assignee, the plaintiff here.

For the reasons given, the judgment is affirmed.

STEELE, C. J. A judgment was rendered in the county court of Routt county against H. J. Coulter, and within the time fixed by the court for filing a bill of exceptions a bill was tendered to the county judge; who declined to sign it upon the ground that the statement contained in the bill that it contained all the evidence offered was not correct. Thereafter the defendant sought to preserve a bill of exceptions by the affidavits of two disinterested persons who were present at the trial of the cause. Section 385 of the Civil Code (Mills' Ann. Code) authorizes the proving and attesting of a bill of exceptions when the judge neglects or refuses to sign and seal such bill. It also provides that, when it is sought to preserve a bill of exceptions by affidavits, "the opposite party shall have timely notice thereof, and may, within a reasonable time thereafter file counter affidavits, and the Supreme Court shall, upon notice and such proof as may be necessary, determine and settle what is the true bill in that behalf.” We cannot consider the bill presented, however, because it does not appear that notice was served upon the opposite party, as required by the Code. There appears attached to the bill a notice, addressed to the attorney for the plaintiff, stating that the bill had been prepared and that the affidavits had been filed; but there is no proof that such notice was ever served.

As there is no proper bill before us, and as the assignments of error do not relate to matters which can be determined from an inspection of the record proper, the judgment is affirmed.

CASWELL and MAXWELL, JJ., concur.

CASWELL and MAXWELL, JJ., concur.

,

(41 Colo. 168)

COULTER V. HAMILTON et al. (Supreme Court of Colorado. Oct. 7, 1907.) 1. EXCEPTIONS, BILL OF -- PRESENTATION BY AFFIDAVIT-NOTICE-NECESSITY.

Under Mills' Ann. Code, $ 385, providing that when a judge refuses to sign a bill of exceptions, and it is sought to preserve a bill by affidavits, the opposite party shall have timely notice thereof, a bill so preserved cannot be considered, unless it appears that such notice was served.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 21, Exceptions, Bill of, $$ 77, 93.] 2. APPEAL -- INSUFFICIENT BILL OF EXCEPTIONS-AFFIRMANCE.

Where there is no proper bill of exceptions, and the assignments of error do not relate to matters determinable from an inspection of the record proper, the judgment must be affirmed.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 3, Appeal and Error, & 4454.]

Error to Routt County Court; Chas. W. Burnham, Judge.

Action by Fred Hamilton and another against H. J. Coulter. From a judgment for plaintiffs, defendant brings error. Affirmed.

John A. Coulter and Morrison & De Soto, for plaintiff in error. Wells B. McClelland, for defendants in error.

91 P.-70

(41 Colo. 169) GOODE V. RIO GRANDE SAMPLING CO.

(Supreme Court of Colorado. Oct. 7, 1907.) FRAUDULENT CONVEYANCES-BANK DEPOSIT ASSIGNMENT.

Plaintiff having sued certain bank depositors, and being about to garnish the deposit, the depositors ascertained the fact, and, desiring bail on a criminal charge, made a check for $1,000, which was to have been delivered to B. on condition that he would sign the depositors' bond. This he refused to do, whereupon the depositors, on the day the deposit was garnished, assigned $1,000 of the deposit to intervener, antedating the assignment two days, in consideration of his furnishing bond and employing an attorney, etc., to defend them. Intervener did not furnish the bond, and paid out on the face of the assignment only $150. Held sufficient to show that the assignment was for the benefit of the depositors and a fraudulent attempt to defeat the lien of the judgment and garnishment.

Appeal from District Court. Teller County ; Louis W. Cunningham, Judge.

Action by the Rio Grande Sampling Company against George Goode. From a judgment for plaintiff, defendant appeals. Af. firmed

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