children, the defendants, could not affect the title of said grantees. There clearly was no express trust, because there is no pretense that there was any writing creating a trust; and, from the facts and circumstances as shown, there was no constructive or implied trust. They occupied the position simply of grantees from a father to his children, and had a right to stand upon the title conveyed.

2. The action would seem to be barred by the statute of limitations. As already shown, John Tully had neither legal nor equitable title after his conveyance to his children, and there is no trust relation, so as to save the operation of the statute of limitations. Nougues v. Newlands, 118 Cal. 102, 50 Pac. 386; Broder v. Conklin, 121 Cal. 286, 53 Pac. 699. And if fraud were relied upon as the basis of the action, more than three years had elapsed after all the transactions had taken place and were known to the plaintiffs. The deed to Mrs. Tully was September 20, 1894, and the complaint on which the judgment was rendered, as well as the second amended complaint, was filed December, 1898. Code Civ. Proc. § 338; Anderson v. Mayers, 50 Cal. 525; Meeks v. Railroad Co., 61 Cal. 149; Peiser v. Griffin, 125 Cal. 9, 57 Pac. 690.

The demurrer to the complaint was properly sustained. The judgment is affirmed.

We concur: HARRISON, J.; GAROUTTE, J.

(29 Colo. 503)

McDONALD et al. v. PEOPLE, to Use of FRANCIS et al.

(Supreme Court of Colorado. May 5, 1902.) ACTION ON GUARDIAN'S BOND COMPLAINT -SUFFICIENCY AFFIRMATIVE DEFENSE RECORD OF FORMER TRIAL-REHEARING.

1. In an action on a guardian's bond, one of the conditions of which was to "faithfully discharge the office and trust of such guardian according to law," a complaint alleging that the guardian had converted moneys to her own use belonging to her wards; that her estate had been finally settled; and that the conservator appointed to take charge of the same after she was adjudged insane had failed to pay to the present guardian a part of the sum which she had wrongfully used,-was sufficient, although it did not aver that an accounting had been made by the guardian, and an order of court rendered which had not been complied with.

2. In an action on a guardian's bond for the conversion of funds belonging to the minors, a plea that the guardian had paid out moneys for necessaries for the minors, and was entitled to compensation out of the trust funds, was not an affirmative defense, but merely a denial of the charge of conversion; and defendant's motion for judgment on the pleadings was properly denied.

3. Where a ruling denying defendant's motion for judgment on the pleadings was correct, though based upon an erroneous assumption that the defenses were affirmative, defendant cannot complain of this error, for which he was responsible.

4. An alleged error appearing in the record of the proceedings in a former trial of the same case cannot be considered, as it is no part of the record, made at the trial below, now before the court.

5. Grounds for reversal not pointed out on the original hearing will not be considered on rehearing.

Steele, J., dissenting.

Error to Pueblo county court.

Action on a guardian's bond by the people, for the use of Bessie Francis and another, against W. H. McDonald and another. From a judgment for plaintiff, defendants bring error. Affirmed.

Action by defendant in error as plaintiff, for the use of his wards, against plaintiffs in error as defendants, sureties on the bond of the former guardian of the minor wards. From a judgment against them, the sureties bring the case here for review on error.

M. J. Galligan, for plaintiffs in error. L. A. Cram and Arrington & McAliney, for defendant in error.

PER CURIAM. In the original opinion filed, we affirmed the judgment of the trial court. A rehearing was granted. Upon a reconsideration of the case, we are satisfied the judgment was correct. We shall not, however, discuss all of the questions raised by defendants, and determined in the former opinion, for the reason that, except as to those now determined, they are obviously without merit.

Counsel for defendants contends the complaint is insufficient because it does not allege an accounting by the former guardian previous to the bringing of this action. Ordinarily, it is true that, before an action can be maintained against the sureties on a guardian's bond, it must be alleged that an accounting has been made by the guardian, and an order of court rendered in relation to the trust fund, which has not been complied with by the guardian. This rule obtains for the reason that the sureties on a bond of this character are not liable to the beneficiaries until a breach of its conditions. Where, however, as in the case at bar, facts are averred from which it appears there has been a breach of the conditions of the bond, on the part of a guardian, of a character which makes it necessary to resort to the bond in order to protect the interests of the wards, the rule is satisfied. Gebhard v. Smith, 1 Colo. App. 342, 29 Pac. 303. In the complaint it is alleged that subsequent to the appointment of the former guardian she was adjudged insane, and a conservator appointed to take charge of her estate; that prior to this action she had received and converted to her own use moneys belonging to the minors; that shortly after the appointment of the present guardian he demanded of the conservator the possession of any funds or personal property, belonging to the minors, that had been received by the former guardian, which request had not been com

plied with; that her estate has been finally settled, and the conservator has paid the present guardian only a part of the moneys alleged to have been wrongfully converted by the former guardian, which is all that has ever been paid on this account. One of the conditions of the bond is that the guardian "shall faithfully discharge the office and trust of such guardian according to law." The conversion of moneys to her own use belonging to her wards was certainly a failure to discharge the trust which she undertook according to law. It being further charged that her estate has been finally settled, and that the conservator of her estate had failed to pay the present guardian a part of the sum which she had wrongfully used, and there is nothing further to be had from the estate, the only recourse is to call upon the sureties to answer for the default of their principal. For answer, the defendants denied the allegations of the complaint. They also pleaded several special defenses, to which plaintiff interposed demurrers, which were sustained. Plaintiff also moved to strike a portion of the defense pleaded in paragraph 5 of the answer, which was sustained. This paragraph as it then stood, and also paragraph 3, which was not attacked, denied that the former guardian had wrongfully converted, in whole or in part, the money sued for, and further pleaded that she had expended this money for the support and maintenance of her wards, who were her children; which sum, together with the compensation to which she would be entitled as guardian, amounted to $2,000, for which the defendants asked a credit to offset any and all claims which the minors might have against them as sureties on their former guardian's bond. No further plea was filed to this answer, and defendants moved for judgment on the pleadings for the reason, as they claim, that under the uncontroverted facts in their answer they were entitled to judgment. This motion was overruled. Plaintiff then offered evidence in support of the averments of the complaint. Defendants offered none.

The only further question we shall consider on the merits, as originally presented, is the one which relates to the alleged error of the trial court in denying the motion for a judgment on the pleadings. It is said, in the argument for defendants, that the demurrers to the several defenses were sustained upon the theory that no credit for necessaries furnished the minors could be allowed without a previous order of the court having jurisdiction of the guardianship matter to that effect. For this reason, it is urged, the court virtually denied the defendants the right to introduce evidence to prove that necessaries had been furnished the minors, by their former guardian, out of the funds belonging to them in her hands. So far as the record is concerned, it is not disclosed upon what theory the trial court denied the

motion for judgment. If this ruling was correct, then it is immaterial what reason the court may have given, or had in mind, for reaching the conclusion announced, unless by the record it affirmatively appears that, on account of an incorrect reason, the party against whom the ruling was made was thereby prejudiced. The action was for a conversion of funds belonging to the minors. In their different defenses, which were allowed to stand, this conversion was denied by the defendants. In two of them, they pleaded that the former guardian had expended money for the benefit of her wards. These pleas added nothing to the denials. If she had lawfully expended the moneys claimed, or was legally entitled to retain the trust funds, then there was no wrongful conversion. The statement that the former guardian had paid out moneys for necessaries for the minors, or was entitled to compensation out of the trust funds, did not constitute, as counsel assume, an affirmative defense. If this were true, and, as pleaded, evidence supporting this plea was admissible, it merely denied the charge of conversion. In Mott v. Baxter (Colo. App.) 68 Pac. 220, it was said, quoting from Bliss, Code Pl. (2d Ed.) § 333: "A statement of facts, by way of defense, which are merely inconsistent with those stated by the plaintiff, is in effect a denial. It is not new matter; it admits nothing; it simply contradicts." So that the trial court was clearly right in denying the motion for judgment, because the defenses upon which it was based were nothing more than a denial of the averments of the complaint. Whether or not, as urged by counsel for defendants, they were entitled to prove that the whole or any part of the money sued for had been expended by the former guardian in the purchase of necessaries for the minors, is not presented for determination. They offered no testimony to prove this character of defense. If they had, and the trial court had refused to receive it, the question then would have been presented for our determination. Conceding, however, that the court treated the defenses as affirmative upon which counsel for the sureties relied in support of the motion for judgment on the pleadings, they cannot complain. The court committed this error because of the erroneous views of counsel in assuming that the defenses were affirmative when they were not. The ruling, however, was correct, though based upon a reason which was not sound; but counsel cannot complain of an error in this respect for which he is responsible; otherwise, he would be permitted to take advantage of his own mistake.

In support of the petition for rehearing there has been filed what purports to be the record and bill of exceptions exhibiting the proceedings in a former trial of this case, from which, it is claimed, it appears the trial court, at that time, ruled that proof of expenditures for necessaries could not be

made unless an order of the county court, allowing the trust fund to be disbursed for this purpose, had previously been secured by the guardian. We cannot consider this record. It is no part of the one made at the trial below, which we are now reviewing.

It is also now claimed that the interest allowed was excessive in that it was computed for a period greater than prayed for in the complaint. It is also said a mistake was made, to the detriment of the defendants, in the amount paid by the conservator, for which they were entitled to credit. No such points were made originally, and we have frequently decided that on rehearing no matters will be considered to which our attention was not directed in the first instance. Orman v. Ryan, 25 Colo. 383, 55 Pac. 168.

The judgment of the county court will stand affirmed as originally directed. The former opinion of Mr. Justice STEELE, affirming the judgment, is withdrawn. Affirmed.

STEELE, J. (dissenting). The case should be reversed. Paragraphs of the answer alleged that the guardian had expended the money of the wards, in good faith, for their care, support, education, and maintenance; and the demurrer thereto, alleging "that it does not state facts sufficient to constitute a defense," should have been overruled, not sustained. Another paragraph contained the allegation of expenditure of the money of the minors in good faith and for their benefit, but, because it also contained a denial of conversion, it was not attacked. To the latter paragraph no replication was filed, for the reason, as I now believe, that the court had held that such expenditures did not constitute a sufficient defense to the action. When the court denied the motion for judgment upon the pleadings, he again held that the defense interposed was not sufficient in law.

There having been two rulings by the court upon the sufficiency of these defenses, I am of opinion that the defendants were not required to offer proof of the expenditures by the guardian. I am also of opinion that the sureties are bound by the judgment mentioned in the complaint, and that, upon proof that a valid judgment has been rendered against the former guardian for money of the wards received and not accounted for, the court should enter judgment against the sureties for the amount due thereon.

(30 Colo. 186)

WOODWORTH v. GORSLINE. (Supreme Court of Colorado. April 7, 1902.)

TROVER-REPLEVIN FROM OFFICER-INCONSISTENT REMEDIES-JUDGMENT IN REPLEVIN-SATISFACTION-APPEAL.

1. One who gives a sheriff a bond of indemnity on his levying on property is jointly liable with him for any wrongful seizure.

2. Where one recovers judgment in replevin against an officer levying on personalty, the 69 P.-45

judgment against the officer is no bar to an action in trover against the obligors in a bond of indemnity given the officer.

3. A judgment in replevin against a sheriff in an action to recover personalty levied on by him is conclusive against the obligors in a bond of indemnity to the sheriff.

4. A sheriff having levied on personalty, judg ment in replevin was recovered against him, and he tendered a return of the goods, which was refused, and plaintiff sued the obligors in a bond of indemnity given the sheriff in trover. Held, that the tender did not satisfy the judgment in replevin, so as to bar the action in tro

ver.

5. Where one recovers a judgment in replevin against a sheriff levying on personalty, a suit in trover against the obligors in a bond of indemnity to the sheriff is not an inconsistent remedy.

6. In trover against the obligors in a bond of indemnity given a sheriff on a levy of execution, testimony of witnesses in a former replevin suit against the officer to recover the property is admissible.

7. Where the record shows that the testimony of witnesses as contained in the bill of exceptions in another cause was read on the trial, it will be presumed on appeal that it was correctly read, and that the bill of exceptions was properly authenticated.

8. Where, in trover, plaintiff has judgment for the value at the time of taking, he is entitled to legal interest from such date to the trial. Appeal from district court, Arapahoe county.

Action by Julia F. Gorsline against Harry A. Woodworth. From a judgment for plaintiff, defendant appeals. Affirmed.

H. E. Luthe, for appellant. Teller & Dorsey, for appellee.

STEELE, J. It appears from the record that H. C. Woodworth and H. A. Woodworth on the 20th of November, 1894, held a judgment against Lewis C. Rockwell for the sum of $1,202, and that upon the 15th of November, 1894, they caused an execution to be issued, and directed the sheriff to levy upon the law library and bookcases of said Rockwell; that the sheriff refused to make the levy, and that the Woodworths gave a bond to the sheriff to indemnify him, and that subsequently the sheriff did levy upon the books and bookcases; that prior to this time Rockwell had executed a chattel mortgage upon the same property to secure a note given to Julia F. Gorsline, and that, after the property was levied upon by the sheriff, Julia F. Gorsline began her suit in replevin in the district court of Arapahoe county against the sheriff; that the sheriff executed the statutory bond for the retention of the property, with the Woodworths as sureties, and shortly afterwards sold the goods at execution sale, the purchasers being the Woodworths; that in the replevin suit judgment was rendered in favor of the plaintiff for the possession of the books and bookcases, and their value was found to be $1,776. From this judgment the sheriff appealed to the court of appeals, and in 1898 the judgment was affirmed. Immediately after the affirmance of the judgment, the sheriff made a

tender of the goods in question to the plaintiff, but she, through her attorney, refused to accept them. In the following September, suit was brought by Julia F. Gorsline against Henry C. Woodworth and Harry A. Woodworth, in trover, to recover the value of the goods, alleging that they had converted them to their own use. In the answer filed by the defendants, they alleged, among other things, that the goods in question had been bought at the execution sale by them for the express purpose of having it within their power to return the goods to the plaintiff in case judgment should be given in her favor, that since the sale they had kept them in the same condition, and that prior to the commencement of that suit they had made a tender thereof to the plaintiff, and that she had refused to accept the same. Demurrer was interposed to this answer, and the demurrer was sustained; the court stating, in answer to the application of counsel for defendants for his reasons for sustaining the demurrer to the answer and amendment thereto, that the answer and amended answer could not be sustained as a bar to the plaintiff's action, because the court could not hold that the plaintiff was, under the law, compelled to receive back property, goods, and chattels that had been the subject-matter of litigation in the replevin suit mentioned in the complaint, in said answer, and amendment thereto. It was also alleged in the answer that they (the said defendants) "conducted the defense of the said William K. Burchinell in the said replevin suit until the conclusion thereof in the district court, as well as in the court of appeals, and appeared in said cause for said Burchinell by their attorney, employed and paid by them, and that they conducted all the litigation and proceedings in said cause, appearing in person and by attorney therein, at every stage of the cause, with the consent and request of said Burchinell, and that said Burchinell was only a nominal party of record in said cause, and these defendants were the only real and interested parties in the defense of said cause." Before the trial, the death of the defendant Henry C. Woodworth being suggested, the cause as to said Henry C. Woodworth was dismissed at the costs of the plaintiff. Upon the trial the testimony of Lewis C. Rockwell and of John Q. Charles, given in the replevin suit, was read; it appearing that the said witnesses were deceased. The court gave the following instruction to the jury: "Your verdict should be for the plaintiff, in whatever sum you find the value of these goods and chattels to have been on the 2d day of December, 1894; and in estimating the damages plaintiff is entitled to recover, based upon that value so found by you, you may add thereto a sum equivalent to interest at eight per cent. per annum from the 2d day of December, 1894, as damages, and may make up your verdict

based upon the two items." The defendant appealed to this court.

The questions for us to determine are whether the rulings of the court upon the demurrers, on the admission of the testimony of Lewis C. Rockwell and J. Q. Charles, and in overruling the exception to the foregoing instruction were correct. It is contended by the appellant that the court erred in sustaining the demurrer to the answers, because the suit between Gorsline and the sheriff for the recovery of the personal property mentioned is a bar to any subsequent proceeding or subsequent suit for the value of the same goods. It is asserted by the appellee that the replevin suit is no bar to any subsequent suit against the defendant, because the defendant was not a party to the replevin suit, but merely a privy, and that the said defendant, being a co-trespasser with the sheriff, must respond in damages in any suit that the plaintiff might bring for the conversion of the property mentioned in the complaint. We are satisfied that the judgment in the replevin suit determines, as against all parties and privies, the right to the possession of the property, and that, as the defendant in this suit was a privy to the replevin suit, he is bound by it. The appellant insists that when the plaintiff brought her suit in replevin for the recovery of the goods, and procured a judgment for the possession of the goods, or for the value thereof in case a delivery could not be had, she elected to obtain a return of the goods, and when they were offered to her that she should have accepted them, and, having failed and refused to accept them, she should not be permitted to maintain her action; that the tender of the goods was, in effect, a satisfaction of the judgment.

It is undoubtedly the rule that one may not maintain successive inconsistent actions, and many authorities are cited by the ap pellant showing what actions are held to be inconsistent. In Terry v. Munger (N. Y.) 24 N. E. 272, S L. R. A. 216, 18 Am. St. Rep. 803, it is held that one cannot, after bringing suit upon an implied contract for the sale of goods, maintain another action against other wrongdoers for conversion. In Marston v. Humphrey, 24 Me. 513, it is held that one cannot, after prosecuting a claim for damages for breach of contract to judgment, maintain an action for the specific performance of the same contract. In Daniels v. Smith, 15 Ill. App. 339, it is held that, after one has treated a transaction as a valid sale of goods, he cannot afterwards maintain trover for the conversion. In Parker v. Bank, 11 Tex. Civ. App. 702, 34 S. W. 196, it is held that a mortgagee, having intervened and procured a judgment for the proceeds of a sale of goods upon which he held a mortgage, waived the right to sue for a conversion. In Karr v. Barstow, 24 Ill. 580, it is held that: "If the plaintiff selected the form of action in which he was not entitled

to recover vindictive damages, he must be content with the remedy which that form of action has afforded. The pleas aver that he recovered all the goods taken." Substantially the same ruling was made in Savage v. French, 13 Ill. App. 17; Hite v. Long, 18 Am. Dec. 719; Parker v. Hall, 55 Me. 362. In Baumann v. Jefferson (Com. Pl.) 23 N. Y. Supp. 685, it is held that one may not sue successively in conversion and replevin; but in the case of Russell v. McCall, 141 N. Y. 437, 36 N. E. 498, 38 Am. St. Rep. 807, Justice Peckham, in a review of the authorities which hold that inconsistent actions cannot be maintained, says: "In all the cases cited there is an element of inconsistency involved, in which the plaintiff seeks to occupy with reference to the same transaction and upon the same facts a position which is antagonistic to the one already taken by him. He took no position, proved no fact, asked for no relief, in the first case which is in any way inconsistent with the position he now assumes, unless it can be said that the recovery of the personal judgment has effected this great change." The case of Manker v. Sine, 47 Neb. 736, 66 N. W. 840, is relied upon by the appellant to support his contention that a tender of the goods is the equivalent of the satisfaction of the judgment. An alternative judgment having been rendered in a replevin suit against the plaintiff for the return of the property or its value, the plaintiff tendered the goods and the amount of damages and costs, and, upon the tender being refused, filed his motion in the district court, by which he sought to have the alternative judgment satisfied. The court, upon the hearing of the motion, found "that the plaintiff, after the judgment was rendered upon the mandate from the supreme court in the cause, tendered to defendant the property replevied in this cause, and made a tender at the place where said property was taken from the defendant under the writ of replevin, and that plaintiff offered to return said property to defendant, and that plaintiff has made a sufficient tender, but the court, being of the opinion that there is no authority in this proceeding to cancel the alternative judgment, refused to cancel the alternative judgment." The supreme court said: "The finding being in favor of the plaintiff as to the alleged tender of the property, our investigation

is confined to a single question of practice, viz., whether the judgment defendant may in such case proceed in a summary manner by motion for the satisfaction of a judg ment against him, or whether his remedy is by bill in equity or other appropriate action. The plaintiff in the case at bar has, according to the finding of the district court, satisfied the judgment by a return of the property replevied. True, it may be inferred from the record that the defendant, for reasons not disclosed, refused to receive the property when returned in obedience to the

upon the facts of the case before us, the return of the property operated to discharge the alternative judgment." It seems that upon the trial of this case judgment was rendered in favor of the defendant for the value of the goods taken under the writ, and upon appeal by the plaintiff the supreme court reversed the judgment because it was not in the alternative, and directed an alternative judgment to be rendered. Upon the rendition of the judgment, plaintiff made a sufficient tender of the property. In the case we have before us, the defendant retained the property until after the determination of the case in the court of appeals,nearly four years; and, moreover, the suit is not against the defendant in the replevin suit, but against another person,-a joint trespasser. In an exhaustive opinion by Justice Miller, reported in 3 Wall. 1, 18 L. Ed. 129, the United States supreme court held (1) that the defendant, by giving a bond of indemnity to the sheriff, thereby became liable as joint trespasser with him under the attachment; (2) that nothing short of satisfaction, or its equivalent, can make a good plea of former judgment in trespass, offered as a bar in an action against another joint trespasser, who was not a party to the first judgment; (3) that the judgment against the sheriff as a trespasser is conclusive against those who furnished the bond indemnifying the sheriff in attachment proceedings. Lovejoy v. Murray, 3 Wall. 1, 18 L. Ed. 129. In the case cited, Lovejoy & Co. executed a bond indemnifying the sheriff, who then proceeded to sell the attached property. Murray then sued the sheriff. The suit against the sheriff was defended by counsel paid by Lovejoy & Co. Murray recovered judgment against the sheriff for about $6,000. There was paid thereon the sum of about $800. Suit was then brought by Murray against Lovejoy & Co., and the plaintiffs recovered judgment for the amount recovered against the sheriff, less the amount paid. Many authorities are reviewed by Justice Miller, and the law as announced by him is undoubtedly the prevailing rule in America. Applying it to the case at bar, the decision is authority for holding, as we do, (1) that the Woodworths, by giving a bond of indemnity to the sheriff, became liable with him, as joint trespassers, for the wrongful seizure of the goods of Julia F. Gorsline; (2) that the mere judgment against the sheriff is not a bar to the action against the Woodworths; (3) that the judgment against the sheriff is conclusive against the Woodworths.

But the appellant, admitting, as he does,