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if such there are, which avoid and overcome the effect of the previously recorded deed. To hold otherwise would nullify the recording statute. To adjudge the unrecorded warranty deed paramount to the recorded quit-claim, where, as here, upon the question of the bona fides without notice of the purchaser under the latter deed, the record is silent, would be to say that the statute, which declares an unrecorded deed shall have no effect as to subsequent bona fide purchasers without notice, is a vain and empty thing, because an instrument which the statute renders of no effect would thus become a live and effective conveyance, against one conclusively presumed to be such a purchaser, in the absence of a contrary showing.

In addition to the authorities cited from this court to support the conclusion here reached, we also direct attention to the following from other states.-Rider v. Bush, 102 Ill. 338; Anthony v. Wheeler, 130 Ill. 128; Lowden v. Wilson, 233 Ill. 340, 346; Delano v. Bennett, 90 Ill. 533; Runyon v. Smith, 18 Fed. 579, 581; Strong v. Whybark, 204 Mo. 341; Babcock v. Wells, 25 R. I. 23; Wood v. Chapin, 13 N. Y. 509; Fallass v. Pierce, 30 Wis. 443; Mullins v. Butte Hdw. Co., 25 Mont. 525; Bannard v. Duncan, 79 Neb. 189; and Mowry v. Mowry, 103 Cal. 314.

The judgment is reversed and the cause remanded for further proceedings in conformity with the views herein expressed.

Judgment Reversed and cause Remanded.

Mr. JUSTICE MUSSER and Mr. JUSTICE WHITE Concur.

[No. 7215.]

HUMPHREY V. OGDEN.

1. GIFTS By Writing-Delivery Not Required-Gift by wife to husband. The administratrix of the wife sues to recover the goods. There being no claim that they are required to discharge the wife's

debts, and the gift being evidenced by a writing, executed and delivered by the donor, it was held valid without manual delivery.

2. -Goods Not in Esse-At the time of the gift, or afterwards acquired by the donor, do not pass even by writing describing certain goods, and transferring these and the donor's interest "in and to any other goods and chattels of whatever kind or nature."

Error to Larimer District Court.-Hon. HARRY P. GAMBLE, Judge.

Mr. FRED W. STow and Mr. HOMER S. STEPHENS, for plaintiff in error.

Mr. L. D. THOMASON, for defendant in error.

Mr. JUSTICE GABBERT delivered the opinion of the court: The subject matter of controversy is certain articles of personal property which plaintiff in error contends are the property of the estate of Mrs. Ogden, deceased, while defendant in error claims they belong to him. This issue of ownership was found in favor of the defendant and judgment entered accordingly. To review this judgment, the administratrix has brought the case here on error.

Defendant in error and Mrs. Ogden were husband and wife. About two months prior to her death, Mrs. Ogden gave her husband all her household goods. As evidencing this gift, she executed and delivered to him a bill of sale for all household goods belonging to her, and all her right, title and interest in and to any other goods and chattels of whatever kind and nature. Subsequent to the execution of the bill of sale, she purchased with her own money several articles of household furniture, and toilet and glassware, of the value of between sixty and seventy dollars. Plaintiff in error, as administratrix of the estate of Mrs. Ogden, brought suit against defendant to recover possession of the household furniture belonging to Mrs. Ogden when the bill of sale was executed and the personal property thereafter acquired by her above referred to. These articles constitute the subject of controversy between the partties.

On behalf of the administratrix it is contended, so far as necessary to consider, that she should have been awarded a verdict and judgment for the reasons (1) that the household furniture in existence when the bill of sale was executed was never delivered to the defendant; and (2) that the subsequently acquired articles of personal property did not pass by the bill of sale. There is no claim upon her part that the property in controversy is necessary to be disposed of for the purpose of paying debts against the estate. In such circumstances, we think the testimony is sufficient to support the verdict and judgment rendered, in so far as it covered the personal property in existence at the time the bill of sale was executed and delivered. As applied to the testimony and the facts, the rule is, that a gift of personal property evidenced by a written instrument executed and delivered by the donor is valid, without a manual delivery of the property. 20 Cyc. 1197.

The only evidence to support the claim of the defendant that the property purchased subsequent to the execution and delivery of the bill of sale was the subject of a gift, is that instrument. It did not purport to convey any property except what was in existence at the time it was executed. Property, in order to be the subject of a gift inter vivos must be in esse at the time the attempted gift is made. 20 Cyc. 1212.

The judgment of the district court is set aside, in so far as it awards the defendant the articles purchased by Mrs. Ogden after the execution of the bill of sale, and the cause remanded with directions to enter judgment in favor of the plaintiff for these articles.

Reversed in part and Remanded with Directions.

Mr. JUSTICE MUSSER and Mr. JUSTICE HILL Concur.

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rary injunction appears to have been improperly awarded, it is error to dismiss the bill on mere motion to dissolve, even though no cause of action is stated. The plaintiff is entitled to go to final hearing, and to amend his bill if so advised.

Error to Denver District Court.-Hon. GEORGE W. ALLEN, Judge.

Mr. N. Q. TANQUARY and Mr. CHARLES ROACH, for plaintiff in error.

Mr. CHASE WITHROW and Mr. WILLIAM E. WITHROW, for defendant in error.

Plaintiff in error brought suit against defendant in error the sole purpose of which was to enjoin the latter from selling, under an execution on a judgment obtained against her husband, real estate which she claims belonged to her. On filing the complaint a temporary injunction was issued. After the issues were made up, the defendants filed a motion to dissolve the temporary writ. The record recites, in substance, that the cause was heard upon motion to dissolve the temporary injunction granted, and the court having heard the evidence introduced by the respective parties, and now being sufficiently advised in the premises, orders that the temporary writ be dissolved and the bill dismissed.

Mr. JUSTICE GABBERT delivered the opinion of the court:

The hearing was solely upon a motion to dissolve the temporary injunction. For this reason, it was error to dismiss the bill, although the showing made justified the dissolution of the temporary writ, as plaintiff still had the right to a trial of the cause upon its merits, and to such relief as the case then made warranted.-Spar Con. M. Co. v. Casserleigh, 34 Colo. 454.

On behalf of defendants in error, it is asserted that the complaint does not state a cause of action. Conceding, but not deciding, that this is correct, the defect of the complaint in this respect may have justified the dissolution of the temporary writ, but plaintiff should have been afforded an opportunity to amend, if so advised. She was deprived of this by the judgment of dismissal.

The judgment of the district court, dismissing the action, is set aside, and the case remanded with directions to reinstate on the docket, and for such further proceedings as will be in harmony with this opinion.

Reversed in part and Remanded.

Mr. JUSTICE MUSSER and Mr. JUSTICE HILL concur.

[No. 7219.]

CLARKE V. ASHER.

JUDGMENT-Collateral Attack-Injunction to Stay ExecutionA bill to stay execution of a judgment at law is a collateral attack of the judgment. When the court in which the judgment was given had jurisdiction of the subject matter, and of the person of the defendant, such judgment, not having been reversed or annulled, is not open to collateral attack in any form of proceeding.

The rule is the same even though the complaint upon which the judgment was rendered, fails to state a cause of action.

Error to La Plata District Court.-Hon. CHARLES A. FIKE, Judge,

Messrs. RUSSELL & REESE, for plaintiff in error.

Mr. O. S. GALBREATH, for defendant in error.

Defendant in error commenced suit against the plaintiff in error in his official capacity, the sole purpose of which was to enjoin him from levying an execution on property of the

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