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is effected of land sold for taxes, the person owners. With the defendant Knight were recovering shall pay all taxes paid after the joined as defendants the board of county sale as a condition precedent to possession. A

commissioners, the treasurer of the county, complaint alleged that, through error, moneys paid by plaintiff to a county treasurer to re- and the persons to whom certificates of purdeem lands from a tax sale were not credited chase had been issued. The relief sought to taxes levied against the lands, but that the lands were sold, and that by certain convey

was the correction of the errors in the treasances K. had acquired the rights of the pur

urer's books, the cancellation of the certifichaser, and that K. claimed an interest in the cate of sale, or, if the court refused that property adverse to plaintiff. The board of

relief, the refunding of the money paid on county commissioners and the treasurer of the county were made defendants, and the relief

account of taxes; also, that the defendant sought was the correction of errors in the treas- Knight be required to plead his claim, esurer's books and cancellation of the certifi- tate, or interest in said premises, that the cate of sale, or a refunding of the money paid

same may be determined, and the title to on account of taxes, and that K. be required to plead his claim, and plaintiff's title be quieted.

the plaintiff and his co-owners to said propSubsequently, plaintiff dismissed as to all de- erty be quieted. A demurrer on the ground, fendants except K., and filed an amended com

among others, of a misjoinder of causes of acplaint alleging that defendant K, falsely claimed an interest in the property adverse to the title

tion—"that there is joined in the complaint of plaintiff, and praying that he be required to an action to set aside a tax deed and to quiet set forth the nature of his claim, and adjudged title and an action to recover money paid to have no interest, and that plaintiff's title be quieted. Held that, even though the original

for taxes"--was interposed. It was overromplaint was to remove a cloud caused by the ruled, and defendant answered. After por

. tax deed, and the amended complaint was one tions of the replication were stricken on moto quiet title, there was no prejudicial error

tion, the plaintiff dismissed as to all the dein permitting the amendment, as the burden was not shifted, but remained on the one at

fendants except Knight, and an amended tacking the tax deed, and as under either com- complaint was proffered, in which the plainplaint defendant K. could have shown any title tiff stated, in substance, as follows: (1) That he possessed to defeat plaintiff's claim, and

he brings the suit on behalf of himself and the holder of a void tax deed is entitled to reimbursement under section 3901, irrespective approximately 50 others, who are co-owners of the nature of the action.

with him of the Columbus lode (describing 4. QUIETING TITLE-COMPLAINT-SUFFICIEN- it). (2) That ever since May, 1885, plaintiff CY.

and his co-owners have been and now are in A complaint alleged that plaintiff brought the action on behalf of himself and others, who

possession of said mining claim, claiming were owners of certain lands, and that ever title thereto in fee simple. (3) That defendsince a specified time plaintiff and his co-owners had been in possession of the land, "claiming title

ant falsely and without right claims an inin fee simple,” and it was prayed that plain

terest in said property adverse to the title tiff's title be quieted. Held, that the complaint of plaintiff and his co-owners, and praying, was not objectionable on the ground that it did that Knight be required to set forth the nanot state a cause of action, in that it failed to allege ownership of the property in plaintiffs.

ture of his claim; that the defendant be ad

judged to have no interest in the premises; Error to District Court, San Juan County ;

that the title of plaintiff and his co-owners Jas. L. Russell, Judge.

be adjudged to be good and valid and quietAction by C. 0. Boring against S. C.

ed; and that the defendant be enjoined Knight. Judgment in favor of plaintiff, and

from asserting any claim to the premises, defendant brings error. Affirmed.

and for general relief. The court permitted Barnes & Barnes, for plaintiff in error. it to be filed. Story & Story, for defendant in error.

The defendant objected to and opposed

the filing of the amended complaint upon STEELE, J. The plaintiff (defendant in

the grounds, among others, that no showing error here) alleges in his complaint that he

had been made, and that the three parabrought suit for himself and 50 other per

graphs of the complaint are identical with sons, owners of the Columbus lode, survey

certain paragraphs of the original complaint. No. 153, Eureka Mining District. He fur- The protest was overruled and plaintiff was ther alleges that through error certain mon- allowed to file his amended complaint. Moeys paid by him to the county treasurer to tion to strike the complaint upon substantialredeem said lode claim from tax sales were ly the grounds set forth in the protest was not credited to taxes levied against the said overruled. A demurrer upon the grounds lode, but the said lode claim was sold by that the complaint does not state a cause of the treasurer, and a tax deed issued therefor action, and that the cause of action set forth to one Hollis; that Hollis thereafter quit. in the amended complaint is a departure from claimed to one Hanson whatever interest that of the original complaint, was overruled. he had acquired in said property under said The defendant elected to stand upon the de#reasurer's deed; that said Hanson there- murrer. Default was entered against him, after quitclaimed all his right, title, and in- and subsequently the plaintiff offered proof terest in said property to the defendant s. in support of his title. The court entered C. Knight, who is now falsely and without a decree and judgment as prayed for in the right claiming an estate in said property complaint. The case comes here by writ of adverse to the title of plaintiff and his co- error.

It is first contended that the plaintiff was | page 1091, this court said: "It has been hela not granted permission to prosecute the suit to be a fair test in determining whether a for and in behalf of the alleged co-owners. new cause of action has been alleged by No order of court was entered granting per- amendment to inquire if a recovery had upon mission, and counsel claim that such an or- the original complaint would be a bar to one der is required, and that unless such an or- under the amended pleading, or if the same der is made the court has no jurisdiction to evidence would support both, or if the same proceed. Section 12 of the Code of Civil Pro- measure of damages is applicablo." The alcedure provides that, when the parties are legations concerning Knight are that he renumerous, and it is impracticable to bringceived a quitclaim deed from one Hanson, by them all before the court, one or more may which Hanson conveyed all his right, title, sue or defend for the benefit of all, and the and interest in the property to Knight, and court may make an order that the action may that Knight "is now falsely and without right be so prosecuted or defended. The plaintiff claiming an estate in said property adverse to recited in his complaint that, by reason of the title of plaintiff and his co-owners." The the number and diverse residences of the complaint concludes: "That the defendant plaintiffs, it was impracticable to bring them S. C. Knight be required to plead his claim, all before the court. The court granted leave estate, or interest, if any he has, in said premto file the proffered amended complaint. A ises, that the same may be determined, and motion to strike it was denied, and a de- the title of plaintiff and his co-owners to said murrer was overruled, and we must presume property quieted.” The concluding parathat the court ordered that the action might graph is an invitation to the defendant to be prosecuted by the plaintiff for and in plead any title or claim he may have to the behalf of himself and his alleged co-owners. property in question; and, although the com

The defendant insists that there is a de- plaint, if it did not contain this concluding parture in the pleadings, that the cause of paragraph, might be regarded as one aimed action stated in the amended complaint is at a particular instrument as affecting the not the same as that stated in the original plaintiff's title, still, under the complaint complaint, and that a plaintiff is not permit containing both paragraphs, the defendant ted to change his cause of action by amend- would have been permitted to offer evidence ment. It is said that the action in the origi- of any title in him to defeat the claim of nal complaint is to remove a cloud from the the plaintiff. In his answer the defendant plaintiff's title, and that the amended com- pleaded his title through tax deed, and in plaint is an action to quiet title. The dis- the replication the plaintiff pleaded facts tinction between these causes of action is tending to show that the title pleaded by well understood, and if the plaintiff has chan- the defendant was void. The defendant says ged his cause of action from one to remove a the burden of proof is shifted in the amended specific cloud to one to quiet title, the de- complaint. We think not. The order of fendant's contention must be sustained.

proof may be changed, but not the burden. We are of opinion that the cause of action The presumption of regularity which attaches has not been changed. It is conceded that the to the acts of those officers whose duty it is original complaint contained the necessary to issue tax deeds places the burden upon averments of an action to quiet title, but it is the person attacking the tax deed, except claimed that other averments restricted the upon grounds other than those mentioned in action to a specific tax deed, and that the ac- section 3902, Mills' Ann. St., to show its intion was brought, not to quiet title, but to validity. We are of opinion that under either remove the cloud cast upon the plaintiff's complaint the defendant Knight could title by a particular instrument. We must have shown any title he possessed, whether say that the complaint is not drawn artistical- derived from the county treasurer or otherly, regarded either as containing a cause of wise, to defeat the claim of plaintiff, and action for the removal of a cloud or as con- that the plaintiff was not required to set taining a cause of action to quiet title. It out his own title nor that of the defendant, appears to join both causes of action, as well but that he could allege ownership in himas one to recover a money judgment, and the self, and require the defendant to show his demurrer to the original complaint should title. have been sustained, upon the ground that For another reason the defendant, we causes of action were improperly joined. But think, cannot complain.

think, cannot complain. The answer of the that defect was cured by the subsequent dis- defendant shows that he relied altogether missal and the filing of a new complaint. upon his tax title. If the purpose of the The defendant appears to have regarded the original complaint was to remove the cloud action against him as one to quiet title, for caused by the tax deed, and the amended comhis demurrer to the complaint was based upon plaint was a complaint to quiet title, the dethe ground that the cause of action against fendant, as his only claim to title is through him was to quiet title, and that such cause the tax deed, is not injured and cannot comof action was improperly joined with one plain, even though, technically considered, a against the other defendants to recover money different cause of action is stated in the paid for taxes. In the case of Messenger v. amended complaint. As an additional reaNorthcutt, 26 Colo., at page 529, 58 Pac., at son for his claim that a different cause of

definite, and conclusive proof essential to the validity thereof. 3. TENANCY IN COMMON-RIGHITS OF CO-TEN


An owner of an undivided interest in a mining claim has no right to use a tunnel driven on the claim to convey ore from an outside claim. 4. APPEAL-FINDINGS OF TRIAL COURT/CONCLUSIVENESS.

The Supreme Court is precluded from disturbing the findings of the trial court unless they are clearly against the weight of the testimony.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal und Error, $$ 39.57–3969.]

action is stated in the amended complaint, counsel say that, had the tax deed been declared void, the defendant Knight would have been entitled to reimbursement under section 3904. Mills' Ann. St. The holder of a void tax deed, if he is entitled to be reimbursed under the section of the statute referred to, is entitled to reimbursement whether the action brought against him is styled one to remove a cloud or one to quiet title; otherwise, the statute would be a dead letter, and would afford no protection to purchasers at tax sales, and the very purpose of the law be defeated.

Finally, it is contended that the amended complaint does not state a cause of action, in that it fails to allege ownership of the property in the plaintiff, but alleges that plaintiff "claims" a fee-simple title. The allegations of the complaint bearing upon this branch of the case are: "Plaintiff states: (1) That he brings this suit on behalf of himself and approximately fifty other persons who are co-owners with him of the Columbus lode mining claim. *

* That ever since the month of May, 1885, plaintiff and his co-owners have been and now are in possession of said mining claim, claiming title thereto in fee simple." The first allegation is, we think, a sufficient assertion of title. The second does not, we think, limit the first, but is merely an allegation as to the character of plaintiff's possession.

We cannot recommend these allegations as a form to be used in such cases, but we cannot reverse the case upon this technicality without denying justice. For the reasons given, the judgment is affirmed.


Appeal from District Court, Clear Creek County; A. II. De France, Judge.

Action by Margaret Laesch against Jay Morton. From a judgment of dismissal, plaintiff appeals. Reversed and remanded.

The appellant, plaintiff below, is, anil was at the times hereinafter mentioned, an owner of an undivided one-half interest in the Elida lode mining claim. In the month of August, 1900, the appellee, defendant below, acquired the other one-half interest. At the time of his purchase there was al tunnel driven on the claim 324 feet called the “Elida Tunnel." Between August 27.

and February, 1903, the defendant continued this tunnel through the Elida claim and to another property owned by him, known as the “Joe Reynolds Mine." The appellee was, at the time this action was commenced, and had been since the tunnel reached the Joe Reynolds property, continuously working that property and conveying its output through the Elida tunnel. This action was brought to obtain an accounting, and compensation for the use of the tunnel, and for an injunction against its further use for the Joe Reynolds, or other mines, in which appellant has no interest. The defendant, in his amended answer, bases his right to use the tunnel upon an oral agreement with the plaintiff. The defendant denies that she ever made such an agreement, and pleads the statute of frauds. From a judgment dismissing the action, plaintiff brings the case here for review.


Morrison & De Soto and Arthur R. Morrison, for appellant. A. D. Bullis, for appellee.

:38 Colo. 171)


An oral agreement for a perpetual right of way over the premises of another is within the statute of frauds, and to take it out of the statute it must be supported by clear, definite, and conclusive proof.

[Ed. Note. For cases in point, see Cent. Dig. vol. 23, Frauds, Statute of, $$ 94, 95.] 2. SAME.

Plaintiff owned an undivided half interest in a mining claim. Defendant acquired the other half interest, and continued a tunnel driven on the claim through the claim to a mine owned by him, and thereafter worked his mine and conveyed the output through the tunnel. Defendant first claimed a right to use the tunnel in view of his undivided ownership of the mining claim, but subsequently based his right on an oral agreement with plaintiff. The proof of the agreement consisted of a conversation testified to by defendant's agent which was indefinite as to the terms of the agreement, and was positively denied by plaintiff. Held insufficient to establish the agreement by clear,

GODDARD, J. (after stating the facts). The law applicable to this case is well settled, and the only question for our consideration is whether the evidence of the defendant, when given its full weight and purport. is sufficient to sustain the judgment. The perpetual right of way which the defendant claims he acquired from plaintiff constitutes an easement or interest in land. The oral agreement upon which he relies is withiin the statute of frauds, and under the wellsettled rule, in order to take such agreement

out of the statute of rauds, it is incum possession, before or after condition broken, bent upon him to support the same by

until after foreclosure and sale. clear, definite, and conclusive proof. Fetta

[Ed. Note.-For cases in point, see Cent. Dig.

vol. 35, Mortgages, $ 470.] v. Vandevier, 3 Colo. App. 419, 34 Pac. 168,

2. Same-RENTS AND PROFITS-RECEIVERS. affirmed in Vandevier v. Fetta, 20 Colo. 368,

Where a real estate mortgage pledged rents 38 Pac. 466; Whitsett v. Kershow, 4 Colo. and profits as part of the security, which was 419.

inadequate, and the mortgagor was insolvent, The evidence on the part of the defendant

a court of equity, on final decree foreclosing

the mortgage, was entitled to appoint a receiver does not, in our opinion, meet the require

to collect the rents and profits accruing after ments of this rule. It consists of a conversa- the filing of the suit to foreclose, and have the tion testified to by the representative and

same applied on the mortgage debt, notwithagent of defendant. This conversation is,

standing Code Civ. Proc. § 261, providing that

the owner of a mortgage shall not be entitled in itself, general and indefinite as to the to the possession of the mortgaged property terms of the agreement, and is positively de- prior to foreclosure and sale. nied by the plaintiff. Nor does it satisfac

[Ed. Note.-For cases in point, see Cent. Dig.

vol. 35, Mortgages, $S 1374, 1375.] torily appear that the defendant acted upon the alleged agreement in running the tunnel, Appeal from District Court, Arapahoe but rather upon his supposed right to use it County; Booth M. Malone, Judge. to transport the output from the Joe Rey- Suit by Charles Willing Ilare against nolds mine by virtue of his undivided inter- Zouave E. Moncrieff, as administrator of the est therein. He was so advised by counsel,

estate of John Moncrieff, deceased. From a and, in answer to plaintiff's demand for com- judgment in favor of plaintiff, defendant pensation, defendant's attorneys did not

not appealş. Affirmed. claim the right to the use of the tunnel by

Henry C. Charpiot and John A. Perry, for virtue of any agreement, but gave as the rea- appellant. James H. Pershing, for appellee. son why she was not entitled to compensation for such use "that the parties were tenants

CAMPBELL, J. This special proceeding, in common in the tunnel.” That they were

in the nature of a suit for specific performmistaken in assuming that defendant's re

ance, was begun in the county court of lationship to the property gave him the

Arapahoe county to compel an administraright to use the common tunnel to convey

tor of an estate, who had received his letters ore from an outside claim is settled in

from that tribunal, to conform to the terms People ex rel. V. District Court, 27 Colo.

of a real estate mortgage given to secure the 465, 62 Pac. 206, yet defendant twice as

payment of estate indebtedness which he reserted such right, and did not claim the

fused to observe, though at his request the right to use the tunnel by virtue of an agree

court had specifically directed him to execute ment with plaintiff until it appeared in his it. The county court granted the full reamended answer.

lief asked by the appellee, and the adminisIt must be assumed that the court below,

trator took the case by appeal to the district by rendering judgment for defendant, found

court, where the decree of the county court the issue as to the agreement in his favor,

was affirmed, with modifications hereinafter and while, under the doctrine frequently all

adverted to. From the judgment of the disnounced in this court, we are precluded from

trict court, the administrator has brought the disturbing such finding unless clearly against

case here. the weight of the testimony, we feel com- Upon this appeal there are no disputed pelled to reverse the judgment, not alone questions of fact, and but a single legal quesbecause of the conflict in the testimony, but tion is involved. To show the equities, which because of the lack of the character and de

are clearly with the mortgagee, who is apgree of proof required in such cases.

pellee here, the facts are fully stated. Judgment reversed, and cause remanded.

John Moncrieff, whose estate is now beReversed.

ing administered by Zouave E. Moncrieff, in

his lifetime borrowed $33,000, and gave his GABBERT, C. J., and BAILEY, J., concur.

note therefor, which afterwards became the property of appellee, Hare. To secure its payment, John Moncrieff gave a mortgage up

on a number of lots in the city of Denver. (38 Colo. 221) MONCRIEFF V. HARE.

The note did not mature until after John's

death, and while his estate was in process (Supreme Court of Colorado. Dec. 3, 1906.)


of administration, against which the debt was 1. MORTGAGES-NATURE AND FORM-STATUTES established as a claim of the fourth class. -POSSESSION-RIGHTS OF MORTGAGEE. Code Civ. Proc. $ 201, provides that a

Default was made in payment. Hare foremortgage of real estate shall not be deemed a

closed the mortgage or deed of trust in the conveyance, whatever its terms, so as to enable

district court, and at the foreclosure sale the owner of the mortgage to recover posses- bid in the property for $20,000, and credsion of the property without foreclosure and

ited the same upon the note, leaving a balsale. Held, that such section deprived a real estate mortgage of its common-law character,

ance due of over $15,000, for which a deand the mortgagee of all possession or right of ficiency judgment was rendered. It seems that the foreclosure and sale were brought , estate, relieved the Moncrieff heirs from perabout with an understanding between the sonal liability upon the debt, and relinquished mortgagee, Hare, the administrator, and the his claim against the estate. When this proheirs of John Moncrieff for a readjustment ceding was begun, it is conceded that the of the indebtedness, upon the following plan: mortgaged premises were and are insuffiHare agreed to, and did, extend the maturity cient security for the payment of the debt, of the entire indebtedness for three years, and that they constitute the only asset and, for a consideration of $20,000, recon- available to apply on the debt, as all the veyed to the heirs the property purchased at mortgagors are insolvent. The legal questhe foreclosure sale. To secure the payment tion, therefore, is whether, under the facts of the debt, a mortgage on the reconveyed disclosed by this record, the rents and property was given by the heirs, and Hare profits belong to the mortgagors until the put into possession, with power to receive period for redemption has expired, or wheththe rents and profits, out of which he was er they may be applied upon the interest on to pay taxes, insurance, repairs, and interest the mortgage debt. Counsel do not object on the mortgage debt. As additional securi- to the form of the proceeding, apparently ty, two other lots, being a part of the un- agreeing that if this is a case where a incumbered estate of John Moncrieff, were court of equity, in which foreclosure procovered by a second mortgage, in which the ceedings are pending, might appoint a reheirs and the administrator joined. As these ceiver to sequester the rents and profits to lots belonged to the estate, application was be applied in accordance with the rights of made to the county court for leave to in- the partiesto be ascertained upon final cumber it, and authority and direction were hearing, that the same relief may be granted given to the administrator to mortgage both herein if the equities are with the mortgagee. the property and its rents and profits. In It is the contention of the administrator pursuance thereof, the instrument contained that, under section 261 cour Code of Civil the following clause, which gives rise to this Procedure, reading, “A mortgage of real controversy: "It is further covenanted and property shall not be deemed a conveyance, il greed that, after applying the rents and whatever its terms, so as to enable the own- , profits from the property aforesaid to the er of the mortgage to recover possession of payment of the insurance premiums, taxes, the real property without foreclosure and assessments, necessary repairs, and neces- sale," the rents of mortgaged property cansary incidental expenses, that he will pay not be applied to the reduction of the mortOver the net balance of said rents to the gage debt, in consequence of any agreement said Charles Willing Hare, or to his duly in the mortgage itself, until the mortgagee :uthorized agent, to be applied upon the in- has obtained actual possession, or has acterest upon the notes secured by the mort- quired the right to possession under a foregage ratably.” The mortgagee was not closure and sale after the period of redempplaced in possession of this property, because tion has expired. The mortgagee contends the same was already in custodia legis, and that, while this provision of the Code makes the administrator, being the representative the mortgage merely a security for the debt, of the estate, was deemed a proper person and the mortgagee acquires no legal title, to collect and apply the rents in accordance nevertheless, where his mortgage security is with the terms of the mortgage just quoted. inadequate, especially where there is a speCntil about the time of the maturity of the cific pledge of rents as part of the security, debt, the administrator collected the rents and the mortgagor is insolvent, a court of and profits, and applied them as the mort- equity may, upon default and after foreclogage prescribed, and as the county court, sure suit has been brought, appoint a receiver in authorizing its execution, directed. There. to collect the rents and profits, and have the after he refused to comply with these terms same applied upon the mortgage debt when as to rents and profits, and, the indebtedness final decree is made; in other words, the being due and unpaid, the mortgagee began mortgagee says that this section was not foreclosure proceedings in the district court intended to take away from courts of equity in the year 1901, and in a separate proceed- their power in such cases to apply rents and ing (which is the one now under considera- | profits of the mortgaged estate towards the tion) applied to the county court for an order reduction of the mortgage debt. to compel the administrator to observe the It is familiar learning that at common law covenants of the mortgage, and apply the a mortgage vests the legal title in the mortrents and profits to the payment of the taxes gagee, and upon condition broken the mortand insurance then in arrears, and the bal- gagee might re-enter or bring ejectment. ance, if any, in reducing the interest, and Our statute, however, has taken from the to continue so to do pending foreclosure instrument its common-law character, and proceedings, and until possession of the deprived the mortgagee of all possession, or property was delivered to the purchaser at right of possession, either before or after the foreclosure sale. As a part of the read- condition broken; and before this right exjustment plan, Hare, particularly in view of ists the mortgagee must foreclose his mort. the new pledge of rents and profits, released gage, and sell the mortgaged property. This securities he held on other property of the court in P. & A. V. R. R. Co. v. Beshoar,

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