West Mining Company. This question was. however, put at rest by the last opinion filed in the case. It is there said: "As a rule, a judgment of a court of general jurisdiction is not void unless it appears from the record itself that the court, in pronouncing it, acted without jurisdiction. A judgment rendered without bringing the defendants into court is not for this reason void, but voidable only, unless the failure to obtain jurisdiction over them appears from the record. That this distinction has been kept constantly in mind by this court is quite apparent from the qualification expressed in each instance in which the judgments are alluded to in the former opinions of this court as being 'absolute nullities,' under certain conditions. The proceedings being regular, upon the record, the judgments can only be avoided upon extra. neous evidence." Great West Min. Co. v. Woodmas of Alston Min. Co., 14 Colo. 90, 103, 104, 23 Pac. 908. And it was held that plaintiff had been guilty of such laches as precluded it from introducing such evidence. It is to be borne in mind that the record shows personal service in the one case, and appearance by attorney in the other; and, as the same evidence upon the question of the character of the judgments is now before us as in the former case, the conclusion in this case, as in that, must be that the judgments are not absolutely void. This result necessarily follows, irrespective of any question as to whether or not the former decision is res adjudicata in this case.

Has the present plaintiff the right to contest these judgments rendered against his grantor, the grantor itself having forfeited and lost the right by reason of its laches? In the Great West Case the plaintiff was shown to have had notice of the fraud complained of for a little more than two years before instituting suit, and it was held, for this reason, that the courts should refuse relief. The laches that will bar a recovery in a particular case depend, to a large extent, upon the character and nature of the circumstances surrounding the transaction. Where the subject-matter of the litigation is unpatented mining property, purely speculative in value, the necessity for prompt assertion of title has always been recognized by the English and American courts. See Great West Min. Co. v. Woodmas of Alston Min. Co., supra, and cases cited. In this case both the trustee and the bondholders, as it is claimed, were chargeable with laches, with full knowledge of all the facts, which should preclude a recovery. From the record it appears that one McBride commenced a suit as early as 1884 to subject the property to his claim. In that suit, Strickler, the trustee for the bondholders, was made a party, and, in his answer, admitted that McBride had a prior lien, and consented to a decree for complainant. McBride v. Gwynn, 33 Fed. 402. And this constitutes one of the sources of title under which defendants now hold.

Nothing more was attempted by the trustee until 1892, when he commenced a foreclosure suit upon his trust deed. In this suit he obtained a decree of foreclosure, but, as the deed gave him power to sell, the suit was unnecessary. During all these years the interest upon the bonds was in default, and, by the terms of the trust deed, the trustee was authorized to sell for any failure to pay the interest as it fell due, and yet for eight years he allowed the matter to rest. During this time the defendants defended many suits involving the title to the property, procured patents from the United States, and by an expenditure made by them and their grantors the mine was reclaimed from its worthless condition, and put upon a paying basis. At one time a block of these bonds of a par value of $10,000 was sold for about $3,000, and the money used to prosecute the suit instituted by the Great West Mining Company against the Woodmas of Alston Mining Company. The facts upon which plaintiff now relies to impeach the judgment and sales were well known to all parties as early as 1884, and in 1886 Whitaker brought suit on behalf of himself and other bondholders, setting up these facts, and made application for an injunction against the defendants, and for the appointment of a receiver. In these applications he was defeated, and thereupon abandoned the suit. In the same year a similar suit was brought by William Needham and other bondholders, in the circuit court of the United States in and for the district of Colorado, against the defendants. 47 Fed. 97. In this suit the issuance of bonds aggregating the sum of $50,000 was alleged to have been made by the Great West Mining Company on or about the 15th day of February, 1883; that the same were secured by trust deed upon the property in controversy; that said Needham and others were the owners and holders of said bonds. It was further alleged that the judgments rendered in favor of Gwynn and Moynahan, and the sales made thereunder, were fraudulent and void. The plaintiffs prayed that such judgments and sales be declared fraudulent and void, and for an accounting. Various proceedings were had in that suit, but the suit was finally dismissed some time in 1891. It is alleged, however, that the bondholders could not be guilty of laches until after the principal of the bonds fell due, and that laches cannot be imputed to them unless they failed to act within a reasonable time thereafter. We do not think this contention is well founded, when applied to the facts in this case. Defendants have a perfect record title to the property. No fraud is shown upon their part. The title dated back, and took priority to the issuance of the bonds in question. As we have seen, the property conveyed was unpatented mining property, purely speculative in value. The purchasers made the property valuable, as the result of their hazard and enterprise.

and as soon as the value had been established their title was contested, to an extent that is seldom paralleled. For 10 years they have been called upon to defend their title against a multitude of claimants, attracted by the value given the property as the result of the enterprise and expenditure of defendants and their grantors, and eventually procured patents to the property from the United States. The litigation was notorious, and the facts now relied upon must have been within the knowledge of all the parties. Under these circumstances, it would be unjust and inequitable to allow the plaintiff to maintain this action. In the original suit brought by the Great West Mining Company, a period of delay of less than two years was held sufficient to bar a recovery. Under the most favorable view of the evidence, the plaintiff in this suit had been guilty of a de lay of six years, and, under a view which the evidence warrants, he has been guilty of delay for a much longer time. The Great West Case was cited with approval in the recent case of Johnston v. Mining Co., 148 U. S. 360, 13 Sup. Ct. 585; and in speaking of the necessity of diligence in actions of this character, involving the title to mines, where the property has been developed and its value established by the enterprise of others, the court says: "Under such circumstances, where property has been developed by the courage and energy and at the expense of the defendants, courts will look with disfavor upon the claims of those who have lain idle while awaiting the results of this development, and will require, not only clear proof of fraud, but prompt assertion of plaintiff's rights." The delay that barred a recovery in that case was trivial, compared with that in this case. In fact, a stronger case for the interposition of the doctrine of equitable laches can seldom be found. The judgment of the district court will be affirmed. Affirmed.

On Rehearing.

(May 20, 1895.)

PER CURIAM. Although the argument of senior counsel in this case in support of the petition for rehearing is not characterized by that courtesy which always should, and, to the credit of the bar of this state be it said has, with rare exceptions, characterized the conduct and arguments of members of this bar, the prayer of the petitioner was granted, in order that the court might review the record for the purpose of ascertaining if any injustice had been done plaintiff in error by the former opinion of this court. The controversy over this property has been waged for a period of more than 10 years, and has been reviewed by this court upon several occasions. To restate the facts would be a work of supererogation. Every fact bearing upon the rights of the parties appearing from the pleadings, or which the evidence tends to establish,

will be found stated in some one or more of the opinions or statements of fact preceding the various opinions which have been heretofore announced, and we shall not do more than refer to the cases, with the volumes and pages where the same may be found. Great West Min. Co. v. Woodmas of Alston Min. Co., 12 Colo. 46, 55, 20 Pac. 771; Id., 14 Colo. 90, 98, 23 Pac. 908.

It is claimed for the first time upon this rehearing that the Wilsons had implied notice at the time of their purchase of the true character of the service in the Purmort case, and appearance by an unauthorized attorney in the Moynahan case. The argument in this behalf is based upon notice to Bates from Gwynn, communicated, as it is said, to Bates, in his professional capacity, as attorney; it having been adjudicated in another action that the transaction between Bates and the Wilsons constituted them mining partners, with reference to this property. This claim cannot be sustained, as Bates was acting as attorney for Gwynn at the time he received notice of the character of the judgments and sales, and before he was engaged by the Wilsons. If it be conceded that Bates had information, as claimed, there is no evidence that he ever communicated such information to the Wilsons, and it would have been of doubtful professional propriety on his part to have done so. Under these circumstances, notice cannot be imputed to the Wilsons. Moreover, there is nothing before this court in this case to establish a partnership relation between Bates and the Wilsons. Wade, Notice, § 692; McCormick v. Wheeler, 36 Ill. 114.

Counsel contend that there is an irreconcilable conflict between the following statements, the first appearing in the opinion of Mr. Justice Gerry, at page 49 of 12 Colo., and page 771 of 20 Pac., and the other in the opinion recently filed by this court, to wit: "The mining property described in the complaint, and the subject-matter of this suit, has been worked by the appellees, and a large amount of ore extracted therefrom; and they have derived, in profits, an amount largely in excess of the amount of the judg ments in question." "The purchasers made the property valuable, as the result of their hazard and enterprise, and, as soon as the value had been established their title was contested, to an extent that is seldom paralleled." The two statements are entirely consistent, and both are supported by the record. It is undisputed, and indisputable, by the record, that the mines were being worked at a loss at the time of the attachment levies. It is equally certain that afterwards they were made valuable. If this change was not brought about by the expenditure and hazard of plaintiffs and their grantors, who did put the properties upon a paying basis?

It is said that the suit instituted by the

men employed at the mine was a friendly suit, set on foot at the instance of the company; that this suit was afterwards turned into a hostile suit; and that the court has never alluded to this fact. In this statement, counsel is in error as to the court. See page 93 of the opinion in 14 Colo., and page 908, 23 Pac. In addition to what is there said as to the effect of that judgment, the suit never was other than a hostile suit, the suggestion made by Kellogg being for the purpose of giving the men an opportunity to place a first lien upon the property before Moynahan could institute suit. The men did commence suit, and caused an attachment to be levied upon the property, prior to the lien of the trust deed, and the title secured under the attachment sales antedates that obtained by the proceedings and sales under the trust deed. The suit was instituted as a hostile suit against the company, and was maintained and prosecuted to final judgment as such.

It is claimed that under the decision in Raynolds v. Ray, 12 Colo. 108, 20 Pac. 4, no attachment lien was ever perfected, for the reason that no service was had upon the defendant company in either the Perkins or Moynahan suits. The record shows personal service in one case, and appearance in the other; and it has been decided, as the result of protracted litigation, that the Great West Mining Company, by its negligence and laches, lost its right to impeach the validity of the judgments by extraneous evidence. Plaintiff in error claims under the Great West title, and is estopped by that judgment. Bigelow, Estop. 587; Wood v. Seely, 32 N. Y. 105; Parker v. Crittenden, 37 Conn. 148; Bank v. Bowen, 80 Ill. 541. The Perkins and Moynahan suits were instituted nearly a month before the Strickler trust deed was executed. Strickler knew at the time he accepted the trust deed that there were prior liens, by attachment, upon this property; and, if he had information that the service was incomplete in one or both of the cases, he knew that under the law the service might be perfected, or an appearance entered by the defendants, and that the same could be followed by a valid judgment, which would relate back to the levy of attachment, and convert the same into a valid lien. Raynolds v. Ray, supra. Aside from this, it is shown that the present suit is being prosecuted in the interest of Whitaker, Washburn, Griffith, Pomeroy, and others, who were active in the prosecution of the suits instituted for the same purpose by the Great West Mining Company. It is further shown that the bonds secured by the trust deed to Strickler were sold, in part, at least, .for the purpose of procuring money for the purpose of prosecuting that suit. This is shown by the evidence of the witness Whitaker, who, upon being interrogated as to the reason why $10,000 of these bonds were sold for the sum of $3,

000, said: "Q. Par? A. Oh, no; they got bonds 51 to 90, inclusive, for three thousand dollars. As this money was to go into the litigation, of course, we could not sell them at par." The evidence leaves no doubt that Whitaker, Purmort, Washburn, and Griffith caused the Great West suit to be instituted, and that the bondholders who purchased after that time purchased at a heavy discount, for the purpose of providing funds for carrying on that litigation, and are, for this reason, bound by that judgment. Hurd V. McClellan, 1 Colo. App. 327, 29 Pac. 181, affirmed in 21 Colo. —, 40 Pac. 445; 1 Herm. Estop. and Res Judicata, §§ 156, 186. As we have said, the title of defendants in error relates back, and takes effect from the time of the levy of the writs of attachment. It antedates the trust deed; hence the decisions that have been cited to show that the record of the trust deed is notice to subsequent purchasers and incumbrancers are not applicable. And cases in reference to forged instruments, like Meley v. Collins, 41 Cal. 663, are not in point, for the manifest reason that the title set up by the Great West Company to the properties has been conclusively adjudged against that company, in favor of the Wilsons and the Woodmnas of Alston Mining Company. For these reasons, in addition to those given upon the former opinion, the judgment of affirmance must be adhered to. Judgment affirmed.

(21 Colo. 272)

CRAWFORD, to Use of TAYLOR, v.
BROWN.

(Supreme Court of Colorado. June 3, 1895.) APPELLATE JURISDICTION OF SUPREME COURT PAROL INSTRUCTIONS-COMMISSIONS FOR

SALE OF LAND.

1. Under Const. art. 6, § 23. providing that writs of error shall lie from the supreme court to every final judgment of the county court; and Laws 1891, p. 121, § 15, providing that writs of error from the supreme court shall lie to review every final judgment of the court of appeals in cases which, under this act, might have been taken to the supreme court in the first instance, the supreme court does not lose jurisIdiction to review a final judgment of a county court because of a review had in the court of appeals.

2. Code. § 187. subd. 6, providing that instructions shall be given in writing before argument, does not allow the giving of parol instructions, though the same be taken by a stenographer, and afterwards transcribed, and given to the jury on retiring. 29 Pac. 1137, affirmed. 3. Where a third person, after agreeing to improve and sell defendant's lots and with the proceeds pay for the lots, agreed to pay plaintiff a commission for making the sale, defendant is not liable for such commission.

Error to court of appeals.

Action by R. J. Crawford, for the use of D. G. Taylor, against Charles E. Brown. From a judgment of the court of appeals (29 Pac. 1137) reversing a judgment in favor of plaintiff, the latter brings error. Affirmed.

G. F. Dunklee and O. E. Jackson, for plaintiff in error. D. G. Taylor, pro se. C. E. & F. Herrington, for defendant in error..

HAYT, C. J. This action was commenced in a justice's court by Crawford, the plaintiff in error, as plaintiff. The trial to the justice resulted in a nonsuit. From this an appeal

was taken to the county court. In the county court a jury trial was had, which resulted in a verdict and judgment in favor of the plaintiff, Crawford, and the defendant, Brown, sued out a writ of error from the court of appeals. As the result of a review in that court, the judgment of the county court was reversed. See Brown v. Crawford, 2 Colo. App. 235, 29 Pac. 1137. The case comes here by writ of error to the judgment of the court of appeals.

In this court a question has been mooted in reference to the jurisdiction of the court. This must be settled in favor of our jurisdiction. When the court of appeals was created the legislature was prevented from passing an entirely harmonious act, so far as jurisdiction is concerned, by reason of the following provision of the constitution: "Writs of error shall lie from the supreme court to every final judgment of the county court." Const. art. 6, § 23. Under this constitutional provision the legislature perhaps had the power to provide that, in cases taken from the county court to the court of appeals, and determined by the latter court, writs of error and appeals to the supreme court should only lie as in other cases; but we are not called upon to, and we do not, pass upon this question. It is sufficient for the purposes of this case to say that the legislature did not thus limit the jurisdiction of this court. In the first section of the act creating the court of appeals, after fixing a limit upon the jurisdiction of the supreme court, it is provided, inter alia, that the foregoing limitation should not apply to writs of error to county courts. Sess. Laws 1891, p. 118. Again, in paragraph 3 of section 4, the same caution is manifested. It provides that the court of appeals shall have jurisdiction, not final, where a franchise or freehold is involved, or where the construction of a provision of the constitution of the state or of the United States is necessary to the decision of the case; also in criminal cases, or upon writs of error to the judgments of county courts. To put the jurisdiction of this court beyond all question, it is further provided in section 15 of that act, as follows: "Writs of error from, or appeals to, the supreme court, shall lie to review every final judgment of the court of appeals in cases which, under this act, might have been taken for review to the supreme court in the first instance." By the express terms of the constitution, a review might have been had in this court of the judgment of the county court in the first instance, and it necessarily follows from the provision just quoted that such review has not been lost in

this case by reason of the review had in the court of appeals.

The

The judgment of the county court was reversed by the court of appeals for the reason that the jury were instructed orally. Counsel for plaintiff in error does not question the correctness of the law as laid down in the opinion of the court of appeals, but does claim that the record does not sufficiently show that the charge was not written. record in this case shows affirmatively that, before the instructions were given, counsel for defendant objected to oral instructions; also that, after the instructions were given, the defendant especially excepted, "because the same were given orally." The facts, as they are to be gathered from this record, are that the instructions were given orally by the judge, and taken down at the time by the stenographer. The charge was short, and the stenographer extended the same immediately, and, as so extended, they were handed to the jury upon their retirement. was not a compliance with the statute. See Sess. Laws 1887, p. 156; Brown v. Crawford, supra.

This

Aside from this, the judgment of the county court is not supported by the evidence. There is no privity of contract shown between the defendant, Brown, and the plaintiff. The evidence shows that Brown was the owner of two vacant lots, and that he made an arrangement with Coe Bros., whereby they were to build two houses on these lots, and then sell the property, and from the amount received pay Brown a certain price for his lots. After this arrangement was made, and the houses built, the evidence tends to show that Coe Bros. agreed to pay Crawford a commission if he would find a purchaser for the lots so improved, or either of them; but Brown was not a party to this contract, and is in no way bound by this agreement of Coe Bros. The judgment of the county court should have been for the defendant, and the judgment of the court of appeals will be affirmed. Affirmed.

(6 Colo. App. 181)

CITIZENS' COAL & COKE CO. v. STAN

LEY.1

(Court of Appeals of Colorado. April 8, 1895.) CHATTEL MORTGAGE-DESCRIPTION OF PROPERTY -UNRECORDED MORTGAGE-NOTICE-CONVERSION OF MORTGAGED PROPERTY-MEASURE OF DAMAGES.

1. A chattel mortgage, payable one day after date, after enumerating, as covered thereby, a horse and wagon, scales and stove, and fork and shovel, used by the mortgagor in his coal business, stated on separate lines two items, "stock on hand at time of expiration," and "insurance on stock, etc., as per policy." Held, that the stock mortgaged was that on hand at the time of the expiration of the mortgage, and not that on hand at the time of the expiration of the insurance policy.

3. Where one takes a chattel mortgage ex

1 Rehearing denied June 10, 1895.

pressly subject to a prior unrecorded one, he is charged with notice of the contents of the prior one, and of the rights of the mortgagee therein.

3. In an action by a mortgagee for the conversion of the mortgaged property, plaintiff's damages are limited to the amount due on his mortgage.

Appeal from Arapahoe county court.

Action by E. M. Stanley against the Citlzens' Coal & Coke Company for conversion. Judgment was rendered for plaintiff, and defendant appeals. Reversed.

Early in December, 1892, the appellee, Stanley, bought into a business which was then being carried on in the city of Denver by W. F. Mitchell. It was a coal and feed business. What of stock was possessed by the firm at the time of its organization is not disclosed. As copartners, Stanley and Mitchell carried on business until the latter part of January, 1893, when, becoming mutually dissatisfied with the situation, they dissolved. Mitchell bought Stanley out for the agreed price of $215.35. The odd money was paid in cash. The remainder was not then liquidated. It is to be fairly gathered from the record that the property subsequently mortgaged to Stanley was part of the firm assets. Under the terms of the dissolution, Mitchell was to pay Stanley as soon as he could collect the outstanding bills. In this he was unsuccessful. The cause is not evident. Shortly after Stanley sold out, he went down to the office of the Citizens' Coal & Coke Company, the appellant, and stated the dissolution. It would seem that quite a bill was owing to that company, and when they learned of the dissolution they immediately called on Mitchell to settle. He was unable to do so, and they insisted on a mortgage as security. The outcome of the negotiations was the execution and acknowledgment on the 3d of February of a note for $200, due one day after date, and a mortgage on certain personal property, due at the same time, and containing the usual conditions with regard to possession by the mortgagor and power of disposition.

On this fact much of the appellee's contention hinges. The form of the mortgage is somewhat peculiar. It proceeds with eight items, each separately stated in lines by themselves, and covering, speaking generally, the horse and wagon and harness, scales and stove, and fork and shovel, which constitute the subject-matter of this litigation. After these six items, the mortgage contains apparently the following two items, separately stated, and on different lines: (1) "Stock on hand at time of expiration." (2) "Insurance on stock, etc., as per policy 373,117, Union Insurance Company." The only occasion to state the form of the mortgage with reference to these last two items is to enable us to make plain in the opinion the form which the argument takes. After this note and mortgage had been made, and given to the company, Stanley insisted on being protected in his sale to Mitchell. Thereupon Mitchell made a mortgage to Stanley on the

first six items named in the coal company's mortgage, and delivered it to Stanley. It was executed and recorded on the 6th, and contained a specific reference to the coal company's mortgage in this form: "That the same are free from all incumbrances except mortgage to the Citizens' Coal & Coke Company." The coal company's mortgage was not recorded until the 7th of February, a day after the record of the Stanley instrument. There was considerable controversy at the trial respecting the proper construction of the coal company's instrument, the dispute being over the clause, "stock on hand at the time of expiration." The company attempted to prove, by way of aiding the interpretation of the instrument, what occurred at the time the paper was signed and acknowledged before the notary. This evidence was excluded. Both parties seem to have taken alarm about the same time respecting the debt, and Stanley went up, as he states, to obtain possession. He did something in that direction, but it will not be necessary to state the facts about it, for the case will turn on another proposition. While he was there, the company's representatives came up, and seized all the stuff, and, against Stanley's protest, loaded it into wagons, and carried it off. Thereupon Stanley brought this suit against them to recover the value of the property. The note which he produced was for $200, and amounted, with its interest, at the time of the trial, to a few cents less than $208. He made proof of the value of the articles taken which were covered by his security, and in accordance with that proof the court rendered a judgment against the company for $275 and costs. Therefrom the company appealed.

H. D. Ingersoll and Ralph E. Stevens, for appellant. Thomas B. Stuart and Charles A. Murray, for appellee.

BISSELL, J. (after stating the facts). We regard the judgment as fundamentally erroneous. The difficulty experienced in the interpretation of the mortgage given to the company is very plain. If the instrument be so construed as to operate as a mortgage on the stock then owned and held by Mitchell, it would necessarily be invalid under our statute respecting chattel mortgages By a long series of decisions in both the appellate courts, such instruments, if they purport to cover stocks of goods of any description, and likewise reserve to the mortgagor the power of sale, are fraudulent and void as against creditors or bona fide purchasers for value. This law is too well settled to require discussion. Two or three very ingenious arguments are advanced by the respective par ties to support their different theories concerning the proper interpretation of the instrument. None of them seem to us to be necessarily correct, nor to accord with the probable purpose of the parties as it is evi denced by their agreement. As we view it,