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application that no injury has been done, the be deprived of the seepage which thereto-
change may be made; otherwise, not. Due fore they had enjoyed when petitioner with-
notice of the application was given, as re- drew from the stream the water to which
quired by the act, and of those affected by he was entitled at his original headgate.
the proposed change some appeared, and filed Just what title appellant has to such seepage,
their protest. Some of the protestants own or how, or to what extent, it would be di-
lands irrigated from the same stream situate minished, if at all, by petitioner's withdrawal
between the present and the proposed point of the water at a point farther up the stream,
of diversion, while appellant's lands are be- is not made to appear. At least there was
low the present headgate of the ditch through evidence before the court upon which its
which petitioner's appropriation is enjoyed. finding was made that in no respect would
At the hearing, and on evidence somewhat appellant's rights be infringed. Indeed, it
conflicting, the court found that nobody would seem from the evidence, as brought
would be injuriously affected by the change, up in the record, that the trial court was
and, upon such finding, entered a decree per- right in saying that the protestants were
mitting the same to be made. Of the parties “fighting against their own interests to ask
supposed to be affected, all of whom are that petitioner be not allowed to make this
junior appropriators, only appellant has ap- change."
pealed. He insists that the great prepon- The judgment is affirmed.
derance of the evidence shows that he will Affirmed.
be injuriously affected if the decree stands.
Of the protestants, those who own lands ly- GABBERT, C. J., and STEELE, J., concur.
ing between the old and the new point of
diversion claimed at the hearing that their
land adjacent to the stream is subirrigated,

(38 Colo, 189) as they express it, if the water of the stream

HUSTON & BOYD V. PETERSON. is allowed to flow unobstructed, whereas if (Supreme Court of Colorado. Dec. 3, 1906.) petitioner changes his point of diversion sev- 1. SALES — CONDITIONAL SALES — BONA FIDE eral miles up the stream, as he proposes, the

BUYERS-ACQUISITION OF TITLE. quantity of water to which he is entitled,

Cattle were sold on condition that title

should not pass to the buyer until he paid an which theretofore was permitted to flow outstanding mortgage. The cattle were placed down through the protestants' lands to the with a third person. Subsequently a portion of headgate of petitioner's original ditch, would

them was delivered to the buyer, who sold

them at public sale. The seller was present at be withdrawn from the bed of the stream,

the sale, and acquiesced therein. Held, that the and, to that extent, subirrigation would be seller could not claim the cattle as against a interfered with.

bona fide buyer at the sale. The facts tended to show, and the court

[Ed. Note.-- For cases in point, see Cent. Dig. so found, that in order to get into plaintiff's

vol. 43, Sales, $$ 692-690.] original headgate, the 4 cubic feet of water

2. SAME.

A buyer of cattle on condition that title to which the ditch is entitled, there is re

should not pass until he paid an outstanding quired a flow in the bed of the stream of mortgage, executed a chattel mortgage thereon to about 14 cubic feet of water; that if the pro

a third person to secure a pre-existing debt. posed change of point of diversion is made,

The cattle bought were placed in the possession

of a third person, and thereafter the seller only 4 feet of water would be turned into

permitted the buyer to sell a part of the cattle the ditch, and 11 feet would be permitted without complying with the terms of the sale. to flow down the stream to the benefit of

Held, that the seller was not estopped from

claiming that the buyer did not have title to the owners of lands between the two points

the cattle described in the mortgage to the of diversion, and that this flow, together third person, who did not rely on the conduct with the seepage from plaintiff's lands ir- of the seller as authorizing the giving of the rigated by the ditch beginning at the point

mortgage or as a ratification of the mortgage. of the proposed change, would more than Error to Morgan County Court; Tyler D. compensate the intervening owners for any Heiskell, Judge. loss they might suffer in the way of dimin- Action by Huston & Boyd against Peter ished subirrigation. The finding of the court Peterson. There was a judgment for dewould seem to be conclusive, and reference fendant, and plaintiffs bring error. Affirmed. is made to it here, not because these inter

L. C. Stephenson, for plaintiffs in error. vening owners are complaining, but to bring | M. M. House, for defendant in error. out clearly the fact that the appellant cannot be heard to object, as he does in his STEELE, J. Plaintiffs below and here) brief, that owners of lands between the old brought action in replevin against the de and new point of diversion have been in- fendant for the possession of certain cattle. juriously affected, for his lands are below The constable, on August 31, 1902, seized the original intake. The court further found, eight head of cattle branded "V-6," found and the evidence tended to sustain the find- in the possession of one Haas. Upon the ing, that appellant was not injuriously af- trial, the justice rendered judgment for the fected. In his protest the claim of injury | defendant. The plaintiffs appealed to the is that, if the proposed change is made, in county court. That court rendered judgtimes of scarcity of water his lands would ment against the plaintiffs. They took the


case by writ of error to the court of appeals. Bach in February. The sale of the steers to

The plaintiffs in error claim that the find- Hans Bach was a conditional one; the condiing and judgment are against the law and tion being that Hans Bach should have title against the weight of the evidence. On to them when the mortgage upon them should December 26, 1901, one Hans Bach gave to be released and returned to Peterson. "A Huston & Boyd a chattel mortgage upon sale and delivery of goods on condition that 20 steers, to secure a note for $350, due Au- the property is not to vest until the purchase gust 1, 1902. About the time of the execu- money is paid or secured does not pass the tion of the chattel mortgage, Hans Bach and title till performance of the condition, and, the defendant entered into an agreement if the condition is not fulfilled, the vendor whereby the defendant was to sell to Hans may repossess himself of the goods." PeaBach about 30 head of cattle bearing the V-6 body v. Maguire, 79 Me. 572, 12 Atl. 630. brand. A notary public prepared the con- In this case there was no delivery of the cattract between the parties. The contract was tle, unless the placing of the cattle with Haas lost before the time of the trial. The notary by Peterson and Ilans Bach may be regarded testified that the agreement included land as a delivery. The testimony discloses that and cattle. He said: "I understood it was it was agreed that Hans Bach was to pay that Hans Bach was trading his farm, where for keeping the cattle, but that he did not Peterson now lives, to Peterson, and Peterson do so, and that Peterson did pay for keeping was trading certain cattle on which there them. The agreement, in effect, called for was a mortgage, which was to be paid off cash upon the delivery of the cattle, and a by Bach. There was a place that Peterson portion of them was delivered when a check had on Beaver creek in the deal. After the for $241, the amount due upon the note seagreement was written up, Mr. Bach said to cured by the mortgage, was delivered. The Mr. Peterson: 'Now, Pete, you might still check was not paid. The conditions of the make me a bill of sale for those cattle.' Pe- sale not having been complied with, the title terson said: 'I can make no bill of sale un- to the cattle never passed. Having invested til the mortgage is paid off. Q. In that H. Bach with all the indicia of ownership agreement, were the cattle given to Bach? and having been present at the sale, Peterson A. No, sir; it was subject to the payment would not be permitted to claim that he ownof the mortgage. Q. The sale was made on ed the cattle sold to bona fide purchasers at the conditions that Bach would pay off this the sale, and, as far as any claim of Peterson mortgage? A. Yes, sir. Q. After that, was and H. Bach is concerned, such purchasers it the agreement that he should have perfect had a perfect title. title to the cattle? A. That was my under- Counsel claim that the action of Peterson standing. When Mr. Peterson got the papers in permitting the cattle to be sold estops him back he was to give a bill of sale.” In the from claiming that H. Bach did not have title agreement were included but 11 head of to the cattle mentioned in the mortgage of steers branded V-6. In January, 1902, Hans plaintiffs. There is no evidence that PeterBach held a public auction at his ranch and son consented to the sale of any of the cattle sold a number of cattle, some of them being | mentioned in the plaintiffs’ mortgage. The included in the agreement mentioned. The cattle sold at the public sale were not those defendant was present at this sale. He ex- described in plaintiffs' mortgage. The plainplained his presence at the sale and apparent tiffs' mortgage calls for certain steers brandacquiescence in the disposal of the cattle by ed V-6. Peterson sold to H. Bach 11 of such Hans Bach, by saying that on the night be- steers. Bach's mortgage to plaintiffs calls fore the sale Hans Bach gave him a check for 20 steers. Moreover, plaintiffs did not for the amount due upon the note secured rely upon the conduct of Peterson. The by mortgage and mentioned in the agreement, note was given for a pre-existing debt. Peand that he supposed that the check was terson's acts occurred long after they took good. The check was dishonored, and he was the mortgage. While

While this conduct might compelled to pay the note secured by the properly have been considered by the court mortgage. He further testified that he never in determining the facts and rendering judgdelivered possession of the steers to Hans ment, still, the plaintiffs cannot invoke the Bach; that the steers remained in the pos- doctrine of estoppel, because they did not session of the persons to whom he delivered rely upon the conduct of Peterson as authorthem to be pastured until after the sale men- | izing the giving of the mortgage, nor did they tioned, when he and Hans Bach took them, show that they relied upon his conduct as a with other cattle, to the place of Chris Bach, ratification. where they were when seized by the consta

The judgment of the court has sufficient ble.

support in the evidence to warrant us in upThe court found that Hans Bach did not holding it, and, no error in law having been have possession of the steers on December

shown, we affirm the judgment. 26th, the date of the mortgage to plaintiffs; that they remained in the possession of Peter- The CHIEF JUSTICE and CAMPBELL, son; and that they were delivered to Chris J., concur.

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(35 («:lo. 701

for $5,000, payable to Harris, and, to secure BLISS v. HARRIS.

the payment of the note, a mortgage upon (Supreme Court of Colorado. Dec. 3, 1906.) its land. The instrument was recorded in 1. CORPORATIONS-CONVEYANCES BY-REQUI

the recorder's office of Fremont county, and SITES-STATUTES.

at the trial a certified copy of the mortgage The statute authorizing a corporation to was admitted in evidence. The mortgage transfer its property through its president or

concludes and is signed in this manner: other head officer does not prohibit any other mode of transfer, and a corporation may trans- "Dated this seventh day of August, A. D. fer its property through such agency as it may designate.

1899. [Ed. Note. For cases in point, see Cent. Dig. “[Stamp, $2.00.] vol. 12, Corporations, $ 1774.]

"The Cripple Creek Beam Milling Company, 2. EVIDENCE PRESUMPTIONS CORPORATE “[Corporate Seal.] SEAL.

"Frank S. Weigley, [Seal.) A corporate seal attached to an instrument signed hy the secretary of a corporation must

"Secretary." be presumed to be the seal of the corporation, and it must be presumed that the secretary

The instrument was duly acknowledg. saled the instrument with the authority of ed by Weigley; the notary certifying that the corporation; the secretary being under the "Frank S. Weigley, personally known to me law the custodian of the seal.

to be the same person whose name is sub3. SAME. The presumption that the secretary of a

scribed to the foregoing instrument, and (:orporation sealed an instrument with the cor- known to me to be the secretary of the Cripporate seal pursuant to the authority of the ple Creek Beam Milling Company, appeared corporation is not overcome by the fact that

before me this day in person and acknowlno vote of the directors is shown. 4. CORPORATIONS–CONVEYANCES-VALIDITY.

edged that he signed, sealed, and delivered The secretary of a corporation executed the said instrument as his free and voluntary a note for money borrowed by the corporation, act, and as the free and voluntary act of and executed a real estate mortgage to secure

the said corporation, and for the uses and it. The mortgage bore the name of the corporation, its seal. and the name of its secretary.

purposes therein set forth.” The plaintiff The acknowledgment recited that the secretary testified that he loaned the company $5,000; acknowledged that he signed, sealed, and de

that he was present at the office of the comlivered the mortgage as his voluntary act and as the voluntary act of the corporation. Il eld,

pany in Chicago; that there the secretary that under Mills' Ann. St. § 413, providing

handed him the note and mortgage, having that an instrument affecting title to real estate first submitted to him a resolution of the acknowledged before a proper officer shall be

board of directors authorizing the execution prima facie evidence of its execution, and under the law making the secretary of a corporation

of the mortgage. The secretary of the comthe custodian of its seal, the facts prima facie pany testified that he executed the mortshowed that the note and mortgage were exe

gage for and on behalf of the company, after (uted and signed by the proper officer, and that the seal was the seal of the corporation, affixed

consultation with the directors, and that the by its authority.

company received the money. He testified Appeal from District Court, Fremont Coun

that he thought there was no resolution of ty; M. S. Bailey, Judge.

the board of directors authorizing the mortAction by Herbert Harris against S. E.

gage. Bliss and others. From a judgment for

The objection made at the trial, and here. plaintiff, defendant S. E. Bliss appeals. Af

is that the note and mortgage are not signed firmed.

by the proper officers, and that there is no

proof that the secretary had authority to Maupin. McLain & Wilkes and John S.

execute the note and mortgage on behalf Stevens, for appellant. Chas. E. Gast, for

of the company. We are of opinion that the appellee.

acknowledgment by the secretary is prima

facie proof that the note and mortgage were STEELE, J. To a suit brought for the pur- signed by the proper officers, and that the pose of foreclosing а mortgage several

seal attached to the mortgage is the corpersons other than the corporation alleged porate seal of the company. The statute of to have executed the mortgage were made this state which authorizes a corporation parties defendant. One of the defendants,

to transfer property through its president, S. E. Bliss, who had purchased the prop- or other head officer, does not prohibit any erty involved at execution sale, answered and other mode of transfer, nor was it so in contested the suit. From a judgment and tended. It is entirely competent for a cordecree ordering the sale of the property poration to transfer its property through to satisfy the note secured by mortgage, the such agency as it may designate. The law defendant Bliss has appealed.

makes the secretary the custodian of the He assigns as a reason for reversing the company's seal, and when his name is signed judgment the action of the court in admitting to an instrument a corporate seal attached the note and mortgage in evidence over his must be presumed to be the company's seal, objection. The Cripple Creek Beam Milling and it must be presumed that the secretary Company, the owner of certain land in Fre- sealed the instrument with the authority mont county, executed, it is alleged, a note of the company. Union Gold Mining Co.

v. Bank, 2 Colo. 227. This presumption of March 31, 1890. Statement B includes items authority is not overcome by the mere fact covering a period from June 28, 1886, to Nothat no vote of the directors or other body vember 3, 1890. A statement of alleged exercising the corporate authority is shown. credits for merchandise and cash received, Id. The seal itself is prima facie evi- amounting to $54.50 between July 21 and dence that it was affixed by the lawful au- May 25, 1901, is attached. From a judgment thority of the corporation. Id.

of the county court disallowing the claim, In the case Owers v. Olathe Mining Co., an appeal was taken to the district court, 6 Colo. App. 1, 39 Pac. 980, the court quotes where upon a trial to the court the claim was with approval the following from the case disallowed upon two grounds: First, because of Lovett v. Steam Saw Mill Ass'n, ( Paige the character of the evidence offered was in(N. Y.) 60: "The seal of a corporation ay

sufficient to establish the claim; second, begregate affixed to the deed is of itself prima cause, if the claim ever existed, it was barred facie evidence that it was so. affixed by the by the statute of limitations. authority of the corporation, especially if it It appears from the testimony that the is proved to have been put to the deed by an ! deceased was engaged in business in this officer who was entrusted by the corporation state since 1896, and during the three years with the custody of such seal. * * * And prior to his death was carrying on a lucrative it lies with the party objecting to the due husiness in the city of Denver. The eviexecution of the deed to show that the cor- dence introduced to establish the existence of porate seal was afiixed to it surreptitiously

the indebtedness was indefinite as to the or improperly, and that all the preliminary amount, and in other respects unsatisfactory. steps to authorize the officer having the legal The evidence mainly relied on, both to estal)custody of the seal to aflix it to the deed

lish the existence of the indebtedness and to had not been complied with."

remove the bar of the statute, was of admisMoreover, section 443, Mills' Ann. St.,

sions alleged to have been made by the provides that "any deed or instrument re- deceased to third parties. Such evidence has lating to or affecting the title to real prop

frequently been characterized by courts as erty, acknowledged * * * before a prop- “weak and unsatisfactory," and in some er officer, shall be prima facie evidence of

cases it is held that such admissions are inthe proper execution thereof."

sufficient proof to establish a claim against The defendant offered no proof; and, as

an estate. Wilder v. Franklin's Ex'r, 10 La. the court did not err in receiving the note

Ann. 279; Bringier v. Gordon, Adm'r, 14 and mortgage in evidence, the judgment

Lir. Ann. 272; Bodenheimer v. Ex'rs of should be, and it is, affirmed.

Bodenheimer, 35 La. Ann. 1003: Portis v.
Hill, 14 Tex. 09, 05 Am. Dec. 99. As was

said in Bodenheimer v. Bodenheimer, supra: The CHIEF JUSTICE and CAMPBELL, J., concur.

“Extrajudicial admissions of a dead man are the weakest of all evidence. They cannot be

contradicted. * * * In most instances (38 Colo. 316)

such testimony is scarcely worthy of conCLARKE v. ROBERTS' ESTATE. sideration.” In view of the fact that no ef

fort was made to enforce the claim during (Supreme Court of Colorado. Dec. 3, 1906.)

the lifetime of Roberts, when it appears he EVIDENCE-ADMISSIONS--EFFECT.

was able, and might have been compelled, to A claim against a decedent's estate and the removal of the bar of limitations may not pay the same, the evidence to support it be proved by admissions of decedent to third against his estate should be clear and conpersons, indefinite as to amount; no effort hav

vincing, not only as to the existence and ing been made in his life to collect it, though

amount of the claim, but also as to those he was in business and able to pay. [Ed. Note.For cases in point, see Cent. Dig.

matters relied on to remove the bar of the vol. 20. Evidence, § 1031.)

statute. Appeal from District Court, Arapahoe

We think the trial court correctly found

that the evidence was insufficient to meet County; John I. Mullins, Judge.

these requirements in both particulars. Action by A. K. Clarke against the estate of David Roberts, deceased. Judgment for

The judgment is therefore affirmed.

Affirmed. defendant. Plaintiff appeals. Affirmed.

Kennith M. Laurie and Whitford, Whitlord GABBERT, C. J., and BAILEY, J., concur. & May, for appellant. J. E. Robinson, for appellee.

(38 Colo. 124) GODDARD, J. On September 18, 1901, the

FLORENCE OIL & REFINING CO. v. OIL appellant filed in the county court for allow

WELL SUPPLY CO. ance against the estate of David Roberts, (Supreme Court of Colorado. Dec. 3, 1906.) deceased, a claim consisting of various items 1. COURTS-COUNTY COURTS-APPEAL-PLEADcontained in two accounts marked, respec


MAKE. tively, “A” and “B.” Statement A includes

A motion to strike a pleading made after items covering a period from January 31 to the cause had been appealed from the .county

court to the district court, and on the day set for trial in the district court, may be denied because not made in apt time. 2. APPEAL-DISCRETION OF LOWER COURT


Unless it is apparent that a party has been prejudiced by the action of the court in allowing the adverse party to amend his pleading, the ruling will not be disturbed on appeal. [Ed. Note.

For cases in point, see Cent. Dig. vol. 3, Appeal and Error, $$ 3812, 3825.] 3. SAME--CONTINUANCE.

Where the court did not abuse its discretion in allowing an amendment to a pleading, and refused a continuance on the ground of the absence of a witness as authorized by Mills' Ann. Code, $ 177, on the adverse party admitting that the witness would testify a verred by the party applying for the continuance, the rulings were not ground for a reversal.

Appeal from District Court, Fremont County; M. S. Bailey, Judge.

Action by the Oil Well Supply Company against the Florence Oil & Refining Company. From a judgment for plaintiff, defendant appeals. Affirmed.

James T. Locke, for appellant. Lee Champion, for appellee.

and unless it is apparent that a party has been prejudiced by the action of the court, the ruling will not be disturbed. But counsel say: "The allowance of the amendment was done in the exercise of its discretion, and to allow the amendment and then thereafter immediately force appellant to trial without its witness was such an abuse of its discretion as we think ought to occasion the court to reverse the case and send it back for a new trial.” The fact that both motions were denied is not ground for reversal. If the court had abused his discretion in allowing the amendment, or had failed to follow the provisions of the Code in refusing a continuance, there would be ground for a reversal of the cause, but, as the court has not abused its discretionary powers, and has applied the provisions of the Code which require that a trial shall not be postponed upon the ground of the absence of material evidence when the adverse party admits that such evidence would be given (section 177, Mills' Ann. Code), we must affirm the judgment.


STEELE, J. From a judgment of the county court of Fremont county rendered November 11, 1901, defendant (appellant here) appealed to the district court. The cause was set for trial, the parties consenting thereto, for May 2, 1902. On this day the defendant moved the court to strike the reply of the plaintiff to defendant's cross-complaint upon the ground that the reply was sham. The court granted the motion, but granted leave to the plaintiff to reply instanter, which it did. Thereupon the defendant moved for a continuance because of the absence of a witness. The affidavit accompanying the motion contains the necessary averments required by the practice. The plaintiff admitted that the witness, if present, would testify as stated in the affidavit. Thereupon the court denied the motion for continuance. The trial resulted in a verdict and judgment for the plaintiff, from which judgment the defendant appealed to the court of appeals. The only questions presented in the brief are those relating to the alleged error of the court in denying the motion to strike the replication and for judgment, and refusing to grant a continuance. It is contemplated by the Code that motions of this character should be made in apt time, and, as the defendant made no motion to strike until after the case had been taken to the district court, and not in that court untii the day of trial, the court might well have denied the motion upon the ground that it was not made in apt time. The replication was objectionable, however, and in striking it the court correctly ruled, and he did not abuse his discretion in permitting the plaintiff to amend. It has been held that courts are allowed great latitude in such matters,

(38 Colo. 153) KNIGHT v. BORING. (Supreme Court of Colorado. Dec. 3, 1906.) 1. APPEAL – REVIEW - PRESUMPTIONS - PARTIES.

Code Civ. Proc. $ 12, provides that when the parties are numerous, and it is impracticable to bring them all before the court, one may sue for the benefit of all, and the court may make an order that the action may be so prosecuted. A complaint in an action by a single plaintiff recited that, by reason of the number and diverse residences of plaintiffs, it was impracticable to bring them all before the court. Leave was subsequently granted to file an amended complaint, and a demurrer was overruled. Held presumable on appeal that the court ordered that the action might be prosecuted by the single plaintiff. 2. ACTION-JOINDER OF CAUSES.

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 the taxes levied against the lands : that the lands were sold, and by certain conveyances one of defendants acquired the rights of the purchaser, and that such defendant claimed an estate adverse to plaintiff's title. The board of county commissioners and the treasurer of the county were joined as defendants, and the relief sought was the correction of errors in the treasurer's books and cancellation of the certificate of sale, or the refunding of the money paid on account of the taxes, and that the defendant claiming an estate be required to plead his claim or interest, and plaintiff's title be quieted. Held, that a demurrer on the ground that causes of action were improperly united was good, as the complaint appeared to contain à cause of action for the removal of a cloud and a cause of action to quiet title, as well as one to recover a money judgment. 3. PLEADING-COMPLAINT-AMENDMENT.

Mills' Ann. St. § 3902, provides that a tax deed shall be prima facie evidence that the taxes were not paid at any time before the sale. Section 3904 provides that, when a recovery

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