and improvement of the premises of appel-, his right under the statute to a lien for the lant; that the services of respondent, as well services performed or the material furnished as the material furnished by him, were de- it will be unnecessary to determine in this voted to the accomplishment of the primary case. purpose. The services performed and the The statements of the respondent, Gaston, material furnished were performed and furn- testified to by the witness Louis Avansino, ished from time to time to suit the conven- Sr., upon which it is contended that the ience of the lessee of the building. Many of former waived his right of lien, are unthe changes and alterations made in the in- certain, even if viewed in the light most terior of the building by respondent and favorable to the contention of appellant. We many items of material furnished by him may with propriety observe in passing that, were not taken into consideration or con- as a general proposition of law, a release of templated at the original making of the a lien will not be inferred from doubtful excontract. This is not an unusual thing in pressions (Jones on Liens, vol. 2, p. 747); and, bringing about alterations and changes in as stated by many authorities, where the building interiors, where the building has in terms of the agreement are ambiguous or the past been used for some particular busi- uncertain on the question of release, the ness, and a new business about to be install- doubt should be resolved against the waiver. ed therein requires different arrangements, (Davis v. La Crosse Hospital Association, 121 many of which cannot be reasonably foreseen Wis. 579, 99 N. W. 351, 1 Ann. Cas. 950). Beat first. Treating the whole as a continuing tween the testimony of the respondent and contract, the filing of the lien notice within that of appellant here there is a sharp and the statutory time after the completion of distinct conflict. The trial court had opthe last services performed by respondent portunity to observe the conduct and demeanentitled the respondent to a lien for the or of the several witnesses upon the stand, whole, less the sum total of the amounts paid and, after so observing and listening to the thereon. Our conclusion reached as to the testimony given, found against the contensecond assignment of error discussed in tion of appellant here. In this instance, not appellant's brief would conclude the third as-only is there a substantial conflict in the signment of error also. [6] It is the contention of appellant that the respondent, by agreement with Louis Avansino, the owner of the premises, specifically waived his right of lien. In this respect the testimony of Louis Avansino, Sr., the owner of the building, is to the effect that about the 11th or 12th of November, and after leasing the premises, he saw some men working in the old dining room, of whom respondent was one, and that on going in there he told them, in effect, that he would not be responsible for any work done by them in the place. He further testified, in effect, that the respondent, Gaston, at that time said to him, in substance, that he had a contract; that he would get his money from Kane; that he would "make no trouble" for Avansino. The witness further stated, in substance, that Gaston at that time said to him that he would hold Kane responsible for the work and services performed. The testimony of the respondent, Gaston, in this respect is to the effect that on the occasion he stated to Avansino that, if Kane was given a chance, he would pay for the labor and material. The witness, however, denied that he at any time stated to Avansino, or to any other person, that he would release Avansino or the premises from responsibility. It is the contention of appellant that respondent by his acts and utterances made to and in the presence of Louis Avansino, the owner of the building, waived his right of lien as against the premises on which the labor was being performed and the material furnished. As to whether or not the respondent could by parol agreement waive testimony, but there is substantial evidence upon which the finding of the court in this respect may be supported, for which reason we will not disturb the same. Anderson v. Feutsch, 31 Nev. 501, 103 Pac. 1013, 105 Pac. 99. We deem it unnecessary, in view of our position here expressed, to touch upon other matters raised in appellant's brief. The judgment of the lower court and the order appealed from should be affirmed. It is so ordered. NORCROSS, C. J., and COLEMAN, J., concur. (No. 8452.) SLACK v. ANDERSON. (Supreme Court of Colorado. 1. VENDOR AND PURCHASER 44 EXISTENCE OF AGREEMENT EVIDENCE. chaser from the patentee held to support the Evidence in a suit to quiet title in a purfinding that there had been no purchase by plaintiff. [Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. §§ 69-76; Dec. Dig. 44.] 2. JUDGMENT 344-MOTION TO SET ASIDEDISCRETION. In a suit to quiet title, the refusal of a motion to set aside a judginent for defendant, on the ground that the reason contained in the supporting affidavits was immaterial, and that the statute did not contemplate the granting of a new trial on such showing, was not an abuse of the trial court's discretion. [Ed. Note. For other cases, see Judgment, Cent. Dig. § 673; Dec. Dig. 344.] Error to District Court, Phillips County; H. P. Burke, Judge. Suit by J. L. Slack against Edward An-1 derson. Judgment for defendant, and plaintiff brings error. Affirmed. Allen & Webster, of Denver, for plaintiff in error. Munson & Munson, of Sterling, for defendant in error. TELLER, J. The plaintiff in error brought suit to quiet title to a quarter section of land. The defendant, by answer, claimed title from one Matthew Wasley, who was the patentee from the United States government, and who appeared, according to the records, still to be the owner. It appears from the abstract that the plaintiff, in the spring of 1912, wrote to Matthew Wasley, in Wisconsin, to the effect that a draft for $10 had been sent to the Hazel Green Bank to be delivered to him on the execution and delivery of a quitclaim deed for the land in question, which, the letter said, "you remember you used to own." Wasley testified that the cashier of the above-named bank asked him to sign the deed to fix up the title to the land which his son had sold, he having conveyed to the son in January, 1900; that nothing was said about buying the land; that he signed the deed to clear up the title; and that he received not to exceed $5 for it. Plaintiff admitted in his testimony that his letter to the bank requested that Wasley be seen and requested to execute a quitclaim deed, "as it was necessary to fix up the title." The court found that the land was of the value of $2,000; that there was no bargain and sale between plaintiff and Wasley; that there was no consideration for the deed; that Wasley, in executing the deed, supposed that he was correcting a defect in his former conveyance to his son; and that the plaintiff was not a purchaser of said land for value. On December 11, 1913, before the entry of judgment, plaintiff was given 15 days in which to move for a new trial. A motion for a new trial not having been filed, judgment for defendant was entered January 9, 1914. On May 12, 1914, plaintiff filed a motion to vacate the judgment and grant a new trial, supported by an affidavit to the effect that the books of the above-mentioned bank showed a payment to Wasley of $10, and that the plaintiff could not secure the said affidavit within the 15 days allowed for the motion for a new trial. [1] We are of the opinion that there was evidence to support the finding that there was no purchase by the plaintiff, and the finding, therefore, cannot be disturbed. [2] The setting aside of the judgment was a matter within the discretion of the court, and we cannot say that the court abused its discretion in the order which it made. The judgment is affirmed. Judgment affirmed. GABBERT, C. J., and HILL, J., concur ring. MULLEN et al. v. GRIFFIN. (No. 8449.) (Supreme Court of Colorado. Jan. 3, 1916.) 1. TRIAL 337 In a suit for malicious prosecution, where it appeared that defendant, in causing plaintiff' arrest, acted solely on a report that plaintiff had been seen carrying off two lamps and a sack of coal, and that, without inquiry of plaintiff, and in violation of law, he searched his house in the nighttime, defended in part on the full statement of all the facts bearing upon the ground that defendant had made to counsel a plaintiff's guilt or innocence, in which the court instructed that defendant must have made a full and candid statement of all the facts to constitute the defense, a verdict for plaintiff would not be set aside as in disregard of the instruction. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 790; Dec. Dig. 337.] 2. APPEAL AND ERROR 581-ASSIGNMENT OF ERRORS-NECESSITY OF OBJECTION. Where the abstract showed no objection made to the giving and refusing of instructions, alleged errors therein will not be considered. [Ed. Note.-For other cases, see Appeal and Dec. Dig. 581.] Error, Cent. Dig. §§ 2575-2581, 2599, 2601; Error to District Court, Teller County; J. W. Sheafor, Judge. Suit by D. K. Griffin against R. C. Mullen and the El Oro Mining & Milling Company. Judgment for plaintiff, and defendants bring error. Affirmed. Edward J. Boughton, of Denver, W. M. Alter, of Cripple Creek, and K. W. Farr, of Victor, for plaintiffs in error. E. G. Vanatta, of Cripple Creek, for defendant in error. TELLER, J. The defendant in error brought suit against the plaintiffs in error for malicious prosecution, and obtained judgment for damages in the sum of $1,000. [1] In the brief for plaintiffs in error counThe court denied the motion, and held that sel say that nine of their assigned errors are it was not material whether Wasley received summed up in one, which is that the court all of the $10, or only a part of it, that it erred in receiving and entering the verdict, was wholly inadequate as a consideration, because the jury failed and refused to be and that the statute did not contemplate the governed by instructions numbered 6 and 7. granting of a new trial upon such a showing In argument counsel contend that the verdict as the one there made. Counsel urge that is in conflict with instruction 6, but say noththe court erred in finding for the defendant, ing more of instruction 7. Instruction 6 inand in refusing to vacate the judgment and forms the jury what facts are necessary to grant a new trial. be established to constitute the defense of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes having acted in the prosecution on advice of counsel. It is urged that there was uncontradicted evidence to prove every fact declared by the instruction to be necessary to such defense. Hence, it is said, the verdict should have been set aside. One of the elements of the defense outlined by the instruction was that defendant had made "a full, 2. DEEDS 32-REQUISITES-PARTIES. VIEW - REVERSAL GROUNDS OF DECISION true and candid statement of all the facts bearing on the guilt or innocence of the plainAlthough the decision of the court below tiff of which knowledge might have been obtained by the exercise of reasonable dili-was based upon improper grounds, if it was correct, it will be affirmed on appeal. gence." The jurors may well have considered that defendant Mullen did not make proper effort to ascertain the facts bearing on plaintiff's guilt before he sought advice of counsel. From defendant Mullen's own statement it appears that, in causing plaintiff's arrest, he acted solely on a report made to him that plaintiff had been seen carrying off two lamps and a sack of coal. He made no inquiry of plaintiff as to the matter, and proceeded, in violation of law, to search the plaintiff's house in the nighttime. Had he asked the plaintiff about the property taken, and received an explanation, he would not have made a fair and full statement to counsel unless he had included plaintiff's explanation. Upon this matter of a full and fair statement it cannot be said that a finding against defendants is without support in the evidence. The jurors, who heard and saw the witnesses, might have found against the defendant on this or one of the other matters which he had to prove to make out that defense; and we cannot say that the trial court, with its full knowledge of the case presented, erred in regarding, as it must have done, the jury as justified in its findings. [2] Errors are assigned also on the rulings of the court in refusing and in giving structions: but, as the abstract shows no objections made in either case, the alleged errors will not be considered. There being no error in the record as presented, the judgment is affirmed. Judgment affirmed. GABBERT, C. J., and HILL, J., concur. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3403, 3404, 3408-3424, 3427-3430; Dec. Dig. 854.] Error to District Court, Morgan County; H. P. Burke, Judge. Action by O. H. McGrew against Silas S. Lamb, Sheriff of Morgan County, and another. From an order sustaining a motion for Affirmed. nonsuit, plaintiff brings error. James E. Jewel, of Ft. Morgan, for plaintiff in error. Johnson & Robison and Walter S. Coen, all of Ft. Morgan, for defendants in er ror. GABBERT, C. J. [1, 2] Plaintiff in error commenced an action against defendants in error for a mandatory injunction to compel the defendant sheriff to issue him a certificate of redemption from sale of lots under a special execution, and to cancel a quitclaim deed purporting to convey the lots in question to defendant Goodman. At the conclusion of the testimony on the part of plaintiff a motion by defendants for a nonsuit was sus tained. The only question necessary to determine is whether the testimony established that plaintiff had any interest whatever in the lots; for, unless he had some interest, which under the statute relating to redemptions from exein-cution sales would entitle him to redeem, the judgment should be affirmed. If he had any such interest, it is by virtue of a deed executed by one Cook, in whom the title was vested, and delivered to a George T. Bennett with the name of the grantee blank. Bennett afterwards delivered this deed to S. W. Beggs in the same condition, and in which the name of the grantee never was inserted. Beggs was the grantor of plaintiff, and, unless the above facts vested title in him, the title, according to the record, is in defendant GoodIt is axiomatic that to every deed man. there must be at least two parties, one capable of conveying, and the other of receiving, and that a deed without a grantee is practically no deed at all. Warvelle on Vendors, § 481. Whether a deed which does not contain the name of a grantee is void as held in some jurisdictions need not be determined, for clearly it is invalid for any purpose, and does not pass any interest until the name of the grantee is inserted therein. MCGREW v. LAMB, Sheriff, et al. (No. 8405.) (Supreme Court of Colorado. Jan. 3, 1915.) 1. APPEAL AND Error 866-SCOPE OF RE VIEW-NONSUIT-EFFECT. On appeal from an order sustaining motion for nonsuit in an action for mandatory injunction to compel defendant sheriff to issue a certificate of redemption from the sale of lots under special execution, unless plaintiff had an interest in the lots which would entitle him to redeem, the order must be affirmed and no other questions need be considered. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3467-3475; Dec. Dig. 866.] Allen v. With row, 110 U. S. 119, 3 Sup. Ct. 517, 28 L. Ed. 154 PACIFIC REPORTER (Colo. 90: Lund v. Thackery, 18 S. D. 113, 99 N. W. [stantial defense interposed by defendant is The deed from Cook delivered to Bennett did not name a grantee. In this condition Bennett delivered it to Beggs, and the name of a grantee never was inserted, so that in the circumstances of this case Beggs never acquired any title, and his deed to plaintiff conveyed nothing. Other questions are argued by plaintiff in error which, in our opinion, are without merit and need not be considered. [3] The learned trial judge appears to have decided the cause upon a question other than the one we have based our conclusion upon. Whether his theory was right or wrong is immaterial when his conclusion was unquestionably correct. that the insured in his medical examination for membership in the order falsely stated and represented that he had never had incently had any severe illness; that he was flammatory rheumatism; that he had not relast attended by a physician ten years prior to making the application for insurance, and that he was not subject to kidney disease; that by reason of such false statements, the policy is void. The reply denied the allegathe conclusion of the testimony at the trial tions of new matter set up in the answer. At each side moved for a directed verdict, and it jury should be excused, and that upon a dewas stipulated between the parties that the termination by the court of the motions a verdict should be directed accordingly. The jury was excused, and thereafter the court sustained the motion of defendant and entered judgment of dismissal, to review which The judgment of the district court is af- action the case is brought here on error. firmed. Judgment affirmed. WHITE and BAILEY, JJ., concur. Defendant is a fraternal organization operating under the lodge system. July 1, 1908, a benefit certificate was issued to Anderson B. Johns in which John Paul Johns, his son, was eventually named as the beneficiary. The certificate was issued upon the usual written application and medical examination MCRORY v. INDEPENDENT ORDER OF of the insured, wherein he warranted his an swers to be true. September 17, 1910, he Jan. 3, 1916.) died, from what cause or disease the record is PURITANS. (No. 8367.) Where the secretary of the defendant insurance order knew of the falsity of statements as to physical health contained in a member's application, and the medical examiner must have discovered their falsity, yet the insurer, for over two years having continued the membership and accepted the premiums, is estopped in an action on the certificate to set up the falsity of the statements in the application. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1907-1916; Dec. Dig. 755.] Error to District Court, City and County of Denver; John H. Denison, Judge. Action by W. W. McRory, guardian of John Paul Johns, a minor, against the Independent Order of Puritans. There was a judgment for defendant, and plaintiff brings error. Reversed and remanded with directions. silent. of the questions involved and clearly present about the latter part of the year 1907; met him Clark Varnum, of Chicago, Ill., H. F. Johns and William L. Varnum, both of Denver, and T. M. Morrow, of Scottsbluff, Neb., for plain-period the benefit certificate was applied for It will be observed that it was during this tiff in error. Edward J. Boughton, of Deir- and issued. The witness was first called to ver, and Karl W. Farr, of Victor, for defend-identify the application made by the insured, ant in error. and said: GARRIGUES, J. This action was brought by the guardian of John Paul Johns, a minor, against the Independent Order of Puritans, a fraternal association organized and existing under the laws of Pennsylvania, to recover judgment on a limited annuity certificate issued to Anderson B. Johns. The sub application was signed by Mr. Johns. I was For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes On cross-examination the witness gave the following testimony: It is conceded that the statements made by Johns in his application were false; but "Q. You had seen some application in Dr. plaintiff seeks to avoid the defense interposed East's office? A. Yes, sir. Q. Then when he on this account upon the ground that the said, 'I signed an application,' you assumed merely that the one you saw in Dr. East's office company, through its authorized officers and is the one that he referred to, did you? A. He agents, was fully cognizant of Johns' physical accompanied me there the next morning, and we condition at the time, and knew that his saw that the letter was sent out immediately. statements were false, notwithstanding which Q. But he did not call your attention to any it issued to him its certificate and continued particular application there? A. I looked it over before it was sent. Q. In Dr. East's office? to collect assessments from him thereon for A. Yes, sir. Q. And he showed it to you-Dr. East? A. Well, I don't remember; it was lying on his table, he might have; Mr. Johns and I examined it. Q. You were district officer of the association? A. I was." Thereafter the witness was recalled for the purpose of establishing the falsity of the statements made in the application and testified regarding the physical condition of the applicant. On cross-examination he said: more than two years after it had this knowledge and up to the time of his death; that by so doing it waived the false representations, and is now estopped from avoiding liability on the policy. Defendant, while recognizing this general rule, contends that it had no knowledge of the facts; that, while its local representative Danks was personally fully acquainted with the entire situation, "The examination of the application was just still his relations with the company were not a casual looking it over before it was put in of such a character that his knowledge could the envelope. I didn't read it. I rather think I was local secretary at the time; was recogniz- be legally presumed to be the knowledge of ed as secretary at the home office, and per- the company; that whatever information he formed the duties of secretary with the knowl- received was in a personal capacity only, and edge and consent of the head officers; carried not as an official of the company; that he on the correspondence, if there was any. I don't remember anything only in remitting money. I remitted money as secretary, collected by me as secretary. Q. From July, 1908, to some time in 1909 you collected assessments on this certificate, did you, or received them? A. Yes, sir. Q. And you remitted them to the home office? A. I certainly did. Q. The secretary is one of the officials of the local lodge, is he not? A. I presume he would be. We had no local lodge; I was just secretary. Q. Is the medical examiner known as one of the officers of the order? A. The by-laws say what the officers of the local council shall be, and they include the secretary and medical examiner." Mr. Danks also testified that he was an attorney at law and represented the defendant locally in legal matters in which it was interested, and that he was also a member of the organization. The medical examiner of the company certified that he had made a careful examination of the applicant; that he had examined and tested his urine; that, in his judgment, the applicant had fully and truthfully answered each question; that the risk was first-class; and that he recommended the applicant for membership. It seems to us that the following deductions are warranted by the evidence: First, that Danks was the local secretary and agent of the organization; second, that he was fully conversant with the physical condition of Johns immediately before, at the time, and after he applied for membership in the defendant company, and when he collected and remitted the assessments on the policy; third, that he was sufficiently familiar with the application and with its contents to swear that it was the identical one upon which the membership certificate had been issued, and that he examined it before it was sent to the home office; fourth, that the medical examiner must have discovered and known that Johns was suffering from kidney disease and was had no knowledge of the contents of the application, and did not know that the statements therein made were not in conformity with the true physical condition of the applicant, and therefore it is not bound by his personal knowledge or precluded from asserting the defense now presented. The question is not without difficulty. A great many authorities are cited by defendant's counsel in support of its contention, and there seems to be little controversy over the principles of law involved; but counsel are far apart on the proposition of whether the principles are applicable to the situation here presented. This is one of those peculiar cases in which the law is well settled, the evidence practically without conflict, and yet a correct solution with absolute certainty of being right is difficult. We have reached the conclusion that the examining physician and Danks were both agents of the organization, and that their knowledge was the knowledge of the company. It is to be presumed that the medical examiner was competent, possessed the proper qualifications, and made a thorough examination of the insured, which, if properly conducted, would necessarily have brought to his attention the physical ailments of the applicant. Danks knew his physical condition, and was one of the principal witnesses who furnished the evidence for the company to establish the falsity of the statements in the application, which he says he examined before it was sent to the home office. The company must be presumed to have known the facts with which their agents were acquainted when it accepted the risk. For over two years it permitted the insured to remain a member of the associa tion and to pay assessments, which it receiv ed, up to the time of his death. Under these |