is effected of land sold for taxes, the person recovering shall pay all taxes paid after the sale as a condition precedent to possession. A complaint alleged that, through error, moneys paid by plaintiff to a county treasurer to redeem lands from a tax sale were not credited to taxes levied against the lands, but that the lands were sold, and that by certain conveyances K. had acquired the rights of the purchaser, and that K. claimed an interest in the property adverse to plaintiff. The board of county commissioners and the treasurer of the county were made defendants, and the relief sought was the correction of errors in the treasurer's books and cancellation of the certificate of sale, or a refunding of the money paid on account of taxes, and that K. be required to plead his claim, and plaintiff's title be quieted. Subsequently, plaintiff dismissed as to all defendants except K., and filed an amended complaint alleging that defendant K. falsely claimed an interest in the property adverse to the title of plaintiff, and praying that he be required to set forth the nature of his claim, and adjudged to have no interest, and that plaintiff's title be quieted. Held that, even though the original Complaint was to remove a cloud caused by the tax deed, and the amended complaint was one to quiet title, there was no prejudicial error in permitting the amendment, as the burden was not shifted, but remained on the one attacking the tax deed, and as under either complaint defendant K. could have shown any title he possessed to defeat plaintiff's claim, and the holder of a void tax deed is entitled to reimbursement under section 3904, irrespective of the nature of the action.

4. QUIETING TITLE-COMPLAINT SUFFICIEN

CY.

A complaint alleged that plaintiff brought the action on behalf of himself and others, who were owners of certain lands, and that ever since a specified time plaintiff and his co-owners had been in possession of the land, "claiming title in fee simple," and it was prayed that plaintiff's title be quieted. Held, that the complaint was not objectionable on the ground that it did not state a cause of action, in that it failed to allege ownership of the property in plaintiffs.

Error to District Court, San Juan County; Jas. L. Russell, Judge.

Action by C. O. Boring against S. C. Knight. Judgment in favor of plaintiff, and defendant brings error. Affirmed.

Barnes & Barnes, for plaintiff in error. Story & Story, for defendant in error.

STEELE, J. The plaintiff (defendant in error here) alleges in his complaint that he brought suit for himself and 50 other persons, owners of the Columbus lode, survey No. 153, Eureka Mining District. He further alleges that through error certain moneys paid by him to the county treasurer to redeem said lode claim from tax sales were not credited to taxes levied against the said lode, but the said lode claim was sold by the treasurer, and a tax deed issued therefor to one Hollis; that Hollis thereafter quitclaimed to one Hanson whatever interest he had acquired in said property under said treasurer's deed; that said Hanson thereafter quitclaimed all his right, title, and interest in said property to the defendant S. C. Knight, who is now falsely and without right claiming an estate in said property adverse to the title of plaintiff and his co

owners. With the defendant Knight were joined as defendants the board of county commissioners, the treasurer of the county, and the persons to whom certificates of purchase had been issued. The relief sought was the correction of the errors in the treasurer's books, the cancellation of the certificate of sale, or, if the court refused that relief, the refunding of the money paid on account of taxes; also, that the defendant Knight be required to plead his claim, estate, or interest in said premises, that the same may be determined, and the title to the plaintiff and his co-owners to said property be quieted. A demurrer on the ground, among others, of a misjoinder of causes of action-"that there is joined in the complaint an action to set aside a tax deed and to quiet title and an action to recover money paid for taxes"-was interposed. It was ruled, and defendant answered. After portions of the replication were stricken on motion, the plaintiff dismissed as to all the defendants except Knight, and an amended complaint was proffered, in which the plaintiff stated, in substance, as follows: (1) That he brings the suit on behalf of himself and approximately 50 others, who are co-owners with him of the Columbus lode (describing it). (2) That ever since May, 1885, plaintiff and his co-owners have been and now are in possession of said mining claim, claiming title thereto in fee simple. (3) That defendant falsely and without right claims an interest in said property adverse to the title of plaintiff and his co-owners, and praying that Knight be required to set forth the nature of his claim; that the defendant be adjudged to have no interest in the premises; that the title of plaintiff and his co-owners be adjudged to be good and valid and quieted; and that the defendant be enjoined from asserting any claim to the premises. and for general relief. The court permitted it to be filed.

Mo

The defendant objected to and opposed the filing of the amended complaint upon the grounds, among others, that no showing had been made, and that the three paragraphs of the complaint are identical with certain paragraphs of the original complaint. The protest was overruled and plaintiff was allowed to file his amended complaint. tion to strike the complaint upon substantially the grounds set forth in the protest was overruled. A demurrer upon the grounds that the complaint does not state a cause of action, and that the cause of action set forth in the amended complaint is a departure from that of the original complaint, was overruled. The defendant elected to stand upon the de

Default was entered against him, and subsequently the plaintiff offered proof in support of his title. The court entered a decree and judgment as prayed for in the complaint. The case comes here by writ of

error.

It is first contended that the plaintiff was not granted permission to prosecute the suit for and in behalf of the alleged co-owners. No order of court was entered granting permission, and counsel claim that such an order is required, and that unless such an order is made the court has no jurisdiction to proceed. Section 12 of the Code of Civil Procedure provides that, when the parties are numerous, and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all, and the court may make an order that the action may be so prosecuted or defended. The plaintiff recited in his complaint that, by reason of the number and diverse residences of the plaintiffs, it was impracticable to bring them all before the court. The court granted leave to file the proffered amended complaint. A motion to strike it was denied, and a demurrer was overruled, and we must presume that the court ordered that the action might be prosecuted by the plaintiff for and in behalf of himself and his alleged co-owners.

page 1091, this court said: "It has been held to be a fair test in determining whether a new cause of action has been alleged by amendment to inquire if a recovery had upon the original complaint would be a bar to one under the amended pleading, or if the same evidence would support both, or if the same measure of damages is applicable." The allegations concerning Knight are that he received a quitclaim deed from one Hanson, by which Hanson conveyed all his right, title, and interest in the property to Knight, and that Knight "is now falsely and without right claiming an estate in said property adverse to the title of plaintiff and his co-owners." The complaint concludes: "That the defendant S. C. Knight be required to plead his claim, estate, or interest, if any he has, in said premises, that the same may be determined, and the title of plaintiff and his co-owners to said property quieted." The concluding paragraph is an invitation to the defendant to plead any title or claim he may have to the property in question; and, although the complaint, if it did not contain this concluding paragraph, might be regarded as one aimed at a particular instrument as affecting the plaintiff's title, still, under the complaint

ted to change his cause of action by amendment. It is said that the action in the original complaint is to remove a cloud from the plaintiff's title, and that the amended complaint is an action to quiet title. The distinction between these causes of action is well understood, and if the plaintiff has changed his cause of action from one to remove a specific cloud to one to quiet title, the defendant's contention must be sustained.

We are of opinion that the cause of action has not been changed. It is conceded that the It is conceded that the original complaint contained the necessary averments of an action to quiet title, but it is claimed that other averments restricted the action to a specific tax deed, and that the action was brought, not to quiet title, but to remove the cloud cast upon the plaintiff's title by a particular instrument. We must say that the complaint is not drawn artistically, regarded either as containing a cause of action for the removal of a cloud or as containing a cause of action to quiet title. It appears to join both causes of action, as well as one to recover a money judgment, and the demurrer to the original complaint should have been sustained, upon the ground that causes of action were improperly joined. But that defect was cured by the subsequent dismissal and the filing of a new complaint. The defendant appears to have regarded the action against him as one to quiet title, for his demurrer to the complaint was based upon the ground that the cause of action against him was to quiet title, and that such cause of action was improperly joined with one against the other defendants to recover money paid for taxes. In the case of Messenger v. Northcutt, 26 Colo., at page 529, 58 Pac., at

would have been permitted to offer evidence of any title in him to defeat the claim of the plaintiff. In his answer the defendant pleaded his title through tax deed, and in the replication the plaintiff pleaded facts tending to show that the title pleaded by the defendant was void. The defendant says the burden of proof is shifted in the amended complaint. We think not. The order of proof may be changed, but not the burden. The presumption of regularity which attaches to the acts of those officers whose duty it is to issue tax deeds places the burden upon the person attacking the tax deed, except upon grounds other than those mentioned in section 3902, Mills' Ann. St., to show its invalidity. We are of opinion that under either complaint the defendant Knight could

have shown any title he possessed, whether derived from the county treasurer or otherwise, to defeat the claim of plaintiff, and that the plaintiff was not required to set out his own title nor that of the defendant, but that he could allege ownership in himself, and require the defendant to show his title.

For another reason the defendant, we think, cannot complain. The answer of the defendant shows that he relied altogether upon his tax title. If the purpose of the original complaint was to remove the cloud caused by the tax deed, and the amended complaint was a complaint to quiet title, the defendant, as his only claim to title is through the tax deed, is not injured and cannot complain, even though, technically considered, a different cause of action is stated in the amended complaint. As an additional reason for his claim that a different cause of

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. *** (2) 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.

The CHIEF JUSTICE and CAMPBELL, J.,

concur.

:38 Colo. 171)

LAESCH v. MORTON. (Supreme Court of Colorado. Dec. 3, 1906.) 1. FRAUDS, STATUTE OF EASEMENTS-ORAL AGREEMENT-PROOF-SUFFICIENCY.

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,

definite, and conclusive proof essential to the validity thereof.

3. TENANCY IN COMMON-RIGHTS OF CO-TENANTS OPERATION OF MINE-USE OF TUNNELS.

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-CON

CLUSIVENESS.

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 and Error, §§ 3955-3969.]

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, and 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 a tunnel driven on the claim 324 feet called the "Elida Tunnel." Between August 27.

1900, 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.

The

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. 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 within the statute of frauds, and under the wellsettled rule, in order to take such agreement

out of the statute of frauds, it is incum bent upon him to support the same by clear, definite, and conclusive proof. Fetta v. Vandevier, 3 Colo. App. 419, 34 Pac. 168, affirmed in Vandevier v. Fetta, 20 Colo. 368, 38 Pac. 466; Whitsett v. Kershow, 4 Colo. 419.

The evidence on the part of the defendant does not, in our opinion, meet the requirements of this rule. It consists of a conversation testified to by the representative and agent of defendant. This conversation is, in itself, general and indefinite as to the terms of the agreement, and is positively denied by the plaintiff. Nor does it satisfactorily appear that the defendant acted upon the alleged agreement in running the tunnel, but rather upon his supposed right to use it to transport the output from the Joe Reynolds mine by virtue of his undivided interest therein. He was so advised by counsel, and, in answer to plaintiff's demand for compensation, defendant's attorneys did not claim the right to the use of the tunnel by virtue of any agreement, but gave as the reason why she was not entitled to compensation for such use "that the parties were tenants in common in the tunnel." That they were mistaken in assuming that defendant's relationship to the property gave him the right to use the common tunnel to convey ore from an outside claim is settled in People ex rel. v. District Court, 27 Colo. 465, 62 Pac. 206, yet defendant twice asserted such right, and did not claim the right to use the tunnel by virtue of an agreement with plaintiff until it appeared in his amended answer.

It must be assumed that the court below, by rendering judgment for defendant, found the issue as to the agreement in his favor, and while, under the doctrine frequently announced in this court, we are precluded from disturbing such finding unless clearly against the weight of the testimony, we feel compelled to reverse the judgment, not alone because of the conflict in the testimony, but because of the lack of the character and degree of proof required in such cases.

Judgment reversed, and cause remanded. Reversed.

GABBERT, C. J., and BAILEY, J., concur.

(38 Colo. 221)

MONCRIEFF v. HARE. (Supreme Court of Colorado. Dec. 3, 1906.) 1. MORTGAGES-NATURE AND FORM-STATUTES -POSSESSION-RIGHTS OF MORTGAGEE.

Code Civ. Proc. § 261, provides that a mortgage of real estate shall not be deemed a conveyance, whatever its terms, so as to enable the owner of the mortgage to recover possession of the property without foreclosure and sale. Held, that such section deprived a real estate mortgage of its common-law character, and the mortgagee of all possession or right of

possession, before or after condition broken, until after foreclosure and sale.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 35, Mortgages, § 470.]

2. SAME-RENTS AND PROFITS-RECEIVERS. Where a real estate mortgage pledged rents and profits as part of the security, which was inadequate, and the mortgagor was insolvent, a court of equity, on final decree foreclosing the mortgage, was entitled to appoint a receiver to collect the rents and profits accruing after the filing of the suit to foreclose, and have the same applied on the mortgage debt, notwithstanding Code Civ. Proc. § 261, providing that the owner of a mortgage shall not be entitled to the possession of the mortgaged property prior to foreclosure and sale.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 35, Mortgages, §§ 1374, 1375.]

Appeal from District Court, Arapahoe County; Booth M. Malone, Judge.

Suit by Charles Willing IIare against Zouave E. Moncrieff, as administrator of the estate of John Moncrieff, deceased. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Henry C. Charpiot and John A. Perry, for appellant. James H. Pershing, for appellee.

CAMPBELL, J. This special proceeding, in the nature of a suit for specific performance, was begun in the county court of Arapahoe county to compel an administrator of an estate, who had received his letters from that tribunal, to conform to the terms of a real estate mortgage given to secure the payment of estate indebtedness which he refused to observe, though at his request the court had specifically directed him to execute it. The county court granted the full relief asked by the appellee, and the administrator took the case by appeal to the district court, where the decree of the county court was affirmed, with modifications hereinafter adverted to. From the judgment of the district court, the administrator has brought the case here.

Upon this appeal there are no disputed questions of fact, and but a single legal question is involved. To show the equities, which are clearly with the mortgagee, who is appellee here, the facts are fully stated.

John Moncrieff, whose estate is now being administered by Zouave E. Moncrieff, in his lifetime borrowed $33,000, and gave his note therefor, which afterwards became the property of appellee, Hare. To secure its payment, John Moncrieff gave a mortgage upon a number of lots in the city of Denver. The note did not mature until after John's death, and while his estate was in process of administration, against which the debt was established as a claim of the fourth class. Default was made in payment. Hare foreclosed the mortgage or deed of trust in the district court, and at the foreclosure sale bid in the property for $20,000, and credited the same upon the note, leaving a balance due of over $15,000, for which a deficiency judgment was rendered. It seems

that the foreclosure and sale were brought about with an understanding between the mortgagee, Hare, the administrator, and the heirs of John Moncrieff for a readjustment of the indebtedness, upon the following plan: Hare agreed to, and did, extend the maturity of the entire indebtedness for three years, and, for a consideration of $20,000, reconveyed to the heirs the property purchased at the foreclosure sale. To secure the payment of the debt, a mortgage on the reconveyed property was given by the heirs, and Hare put into possession, with power to receive the rents and profits, out of which he was to pay taxes, insurance, repairs, and interest on the mortgage debt. As additional security, two other lots, being a part of the unincumbered estate of John Moncrieff, were covered by a second mortgage, in which the heirs and the administrator joined. As these lots belonged to the estate, application was made to the county court for leave to incumber it, and authority and direction were given to the administrator to mortgage both the property and its rents and profits. In pursuance thereof, the instrument contained the following clause, which gives rise to this controversy: "It is further covenanted and agreed that, after applying the rents and profits from the property aforesaid to the payment of the insurance premiums, taxes, assessments, necessary repairs, and necessary incidental expenses, that he will pay over the net balance of said rents to the said Charles Willing Hare, or to his duly authorized agent, to be applied upon the interest upon the notes secured by the mortgage ratably." The mortgagee was not placed in possession of this property, because the same was already in custodia legis, and the administrator, being the representative of the estate, was deemed a proper person to collect and apply the rents in accordance with the terms of the mortgage just quoted. Until about the time of the maturity of the debt, the administrator collected the rents and profits, and applied them as the mortgage prescribed, and as the county court, in authorizing its execution, directed. There after he refused to comply with these terms as to rents and profits, and, the indebtedness being due and unpaid, the mortgagee began foreclosure proceedings in the district court in the year 1901, and in a separate proceeding (which is the one now under consideration) applied to the county court for an order to compel the administrator to observe the covenants of the mortgage, and apply the rents and profits to the payment of the taxes and insurance then in arrears, and the balance, if any, in reducing the interest, and to continue so to do pending foreclosure proceedings, and until possession of the property was delivered to the purchaser at the foreclosure sale. As a part of the readjustment plan, Hare, particularly in view of the new pledge of rents and profits, released securities he held on other property of the

estate, relieved the Moncrieff heirs from personal liability upon the debt, and relinquished his claim against the estate. When this proceding was begun, it is conceded that the mortgaged premises were and are insufficient security for the payment of the debt, and that they constitute the only asset available to apply on the debt, as all the mortgagors are insolvent. The legal question, therefore, is whether, under the facts disclosed by this record, the rents and profits belong to the mortgagors until the period for redemption has expired, or whether they may be applied upon the interest on the mortgage debt. Counsel do not object to the form of the proceeding, apparently agreeing that if this is a case where a court of equity, in which foreclosure proceedings are pending, might appoint a receiver to sequester the rents and profits to be applied in accordance with the rights of the parties, to be ascertained upon final hearing, that the same relief may be granted herein if the equities are with the mortgagee. It is the contention of the administrator that, under section 261 c our Code of Civil Procedure, reading, "A mortgage of real property shall not be deemed a conveyance, whatever its terms, so as to enable the owner of the mortgage to recover possession of the real property without foreclosure and sale," the rents of mortgaged property cannot be applied to the reduction of the mortgage debt, in consequence of any agreement in the mortgage itself, until the mortgagee has obtained actual possession, or has acquired the right to possession under a foreclosure and sale after the period of redemption has expired. The mortgagee contends that, while this provision of the Code makes the mortgage merely a security for the debt, and the mortgagee acquires no legal title, nevertheless, where his mortgage security is inadequate, especially where there is a specific pledge of rents as part of the security. and the mortgagor is insolvent, a court of equity may, upon default and after foreclosure suit has been brought, appoint a receiver to collect the rents and profits, and have the sane applied upon the mortgage debt when final decree is made; in other words, the mortgagee says that this section was not intended to take away from courts of equity their power in such cases to apply rents and profits of the mortgaged estate towards the reduction of the mortgage debt.

It is familiar learning that at common law a mortgage vests the legal title in the mortgagee, and upon condition broken the mortgagee might re-enter or bring ejectment. Our statute, however, has taken from the instrument its common-law character, and deprived the mortgagee of all possession, or right of possession, either before or after condition broken; and before this right exists the mortgagee must foreclose his mort gage, and sell the mortgaged property. This court in P. & A. V. R. R. Co. v. Beshoar,