manifests, and, when such an attempt is made, it should be properly carried out. Plaintiff should not state his cause of action in terms so uncertain that defendant can only guess which of these three inferences it must select as the one upon which plaintiff relies. Especially is the defendant entitled to have this uncertainty removed when we consider the ground of the demurrer that there is a defect of parties defendant. As the complaint is now framed, it is impossible to say whether or not this objection is well taken. If plaintiff relies upon a superior right, which the law implies merely from his prior purchase of stock, then it may be possible that the plaintiff should make the other stockholders parties to the action, or that the court, of its own motion, would order them to be made defendants, as their rights might be directly affected. The allegations of negligence and unjust discrimination, and the allegations in relation to the inequitable conduct of the defendant in depriving the plaintiff of the water which he claims, as well as the allegations attempting to set up plaintiff's priority, are too indefinite to call for an answer. The facts which constitute the things which are essential to the existence of the rights claimed by plaintiff should be concisely set forth in the complaint. So far as there is an attempt to state them at all, these essential elements are alleged merely as conclusions of law. The opinions of the three justices in the case of Railroad Co. v. Southworth, 13 Colo, 111, 21 Pac. 1028, upon the questions of pleading determined therein, are authority for holding this complaint bad on demurrer. Brevity in pleadings is highly commendable, and will be encouraged in every legitimate way by this court; but brevity cannot be allowed at the sacrifice of a logical, complete statement of the ultimate facts, "in ordinary and concise language, without unnecessary repetition." When all these facts are properly pleaded, it will be time to call upon this court for a construction of the so-called prorating irrigating statutes, and for a ruling as to whether there is a defect of parties defendant. The demurrer to the amended complaint was properly sustained, and the judgment of the court below is affirmed. Affirmed.

2. Under Mills' Ann. St. § 4783, providing that a creditor of a decedent's estate whose claim is secured by a mortgage shall not be allowed to foreclose the mortgage within a year from decedent's death, unless by permission of the court, and "in no event" unless his claim has been allowed by the court, the allowance of the claim is a prerequisite to the mortgagee's right to foreclose at any time.

Appeal from district court, La Plata county.

Action by Dennis Sullivan against Elizabeth G. Reid and others to obtain an order of sale of real estate under the terms of a trust deed securing promissory notes. From a judgment for plaintiff, defendants appeal. Reversed.

John Reid in his lifetime executed certain promissory notes, securing the same by deeds of trust upon real estate. Afterwards Reid died, leaving such notes unpaid, and also unsecured debts aggregating a large amount. Letters of administration upon Reid's estate were duly issued, but the secured notes were not presented to the county court for allowance prior to the institution of the present action, or at all. An effort was, however, made to sell under the powers conferred by the deeds of trust, but the sales were enjoined by the county court at the suit of certain of the unsecured creditors. Upon final hearing, this injunction was made perpetual, and the case was thereupon taken by appeal to the court of appeals, where it was still pending and undetermined at the time of the trial of the present case in the district court. Sullivan, the holder of the secured notes, brought this action in the district court for the purpose of obtaining an order of sale subjecting the real estate covered by the deed of trust to the liens of the trust deeds. In the district court judgment was entered in his favor, and the administrators bring the case here upon appeal. The following statutes of this state are relied upon in argument:

"All demands against the estate of any testator or intestate shall be divided into classes in manner following, to wit: First. All funeral and other expenses attending the last sickness shall compose the first class. Second. All expenses of proving the will and taking out letters testamentary or of administration and settlement of the estate, and the physician's bill in the last illness of the deceased, shall compose the second class. Third. Where any executor, administrator or guardian has received money, as such, his executor or administrator shall pay out of his estate the amount thus received and not accounted for, which shall compose the third class. Fourth. All other debts and demands of whatsoever kind, without regard to quality or dignity, which shall be exhibited within one year from the granting of letters, as aforesaid, shall compose the fourth class; * * and all demands not exhibited within one year, as aforesaid, shall be forever barred, unless

such creditor shall find other estate of the deceased not inventoried or accounted for by the executor or administrator; in which case his claim shall be paid pro rata out of such subsequently discovered estate, saving, however, to femes covert, persons of unsound mind, or imprisoned, or beyond seas, the term of one year after their respective disabilities be removed, to exhibit their claim." Mills' Ann. St. § 4780.

"Creditors of any estate whose debts are secured by mortgage or deed of trust on real estate, shall not be allowed to foreclose such mortgage or deed of trust within one year from the death of the testator or intestate, unless by the permission of the county court having charge of the estate, and not until their debts or claims have been allowed by such court." Acts 1885, p. 395, § 8.

"Creditors of any estate whose debts or claims are secured by mortgage or deed of trust on real estate, or by chattel mortgage or other security, on personal property, shall not be allowed to foreclose such mortgage, deed of trust, chattel mortgage or other security, within one year from the death of the testator or intestate, unless by the permission of the county court having charge of the estate, and in no event until their debts or claims have been first proved and allowed by such court; provided, that the lien of any such creditor having security upon personal property, as aforesaid, shall not be impaired by such suspension of his remedy." Mills' Ann. St. § 4783.

Russell & Ritter, H. N. Hawkins, and Thomas M. Patterson, for appellants. Wells, Taylor & Taylor, for appellee. R. D. Thompson, amicus curiae.

HAYT, C. J. (after stating the facts). This record presents an important question, viz.: Under Colorado statutes may creditors, whose claims are secured by deeds of trust upon real estate of the debtor, foreclose, after the death of the debtor, before such claims are allowed against the estate in the course of administration? Following the order of argument pursued by counsel, we will first consider the general statute of nonclaims of this state. Mills' Ann. St. § 4780. Appellants contend that, under the fourth subdivision of the act, appellee's claim is absolutely barred. The language of the section is: "All other debts and demands of whatsoever kind without regard to quality or dignity, which shall be exhibited within one year from the granting of letters, as aforesaid, shall compose the fourth class;

and all demands not exhibited within one year, as aforesaid, shall be forever barred, unless such creditor shall find other estate of the deceased not inventoried," etc. This or similar statutes have been repeatedly before the courts of other states for construction. Able opinions in support of appellants' contention have been written by the courts of

last resort in the states of Texas, California, and Florida. See Graham v. Vining, 1 Tex. 639, 2 Tex. 433; Duty v. Graham, 12 Tex. 427; Ellissen v. Halleck, 6 Cal. 386; Ellis v. Polhemus, 27 Cal. 350; Sichel v. Carillo, 42 Cal. 493; Fitte v. Shipley, 46 Cal. 154; Harp v. Calahan, Id. 222; Verdier v. Roach (Cal.) 31 Pac. 554; Bush v. Adams, 22 Fla. 177. But outside of the states mentioned a contrary rule prevails. See Allen v. Moer, 16 Iowa, 307; Willard v. Van Leeuwen, 56 Mich. 15. 22 N. W. 185; Simms v. Richardson, 32 Ark. 297; Allen v. Smith, 29 Ark. 74; Smith v. Gillam, 80 Ala. 296: Scammon v. Ward, 1 Wash. St. 179, 23 Pac. 439; Reed v. Miller, 1 Wash. St. 426, 25 Pac. 334; Edgerton v. Schneider, 26 Wis. 385; Miller v. Helm, 2 Smedes & M. 687; Bank v. Doe, 19 Vt. 463; Dodge v. Mack, 22 III. 93. See, also, Judy v. Kelley, 11 Ill. 211; Mulvey v. Johnson, 90 Ill. 457; Woerner, Adm'n, p. 860, 861, § 409. The arguments controlling in those jurisdictions in which it has been held that claims secured by mortgage or deed of trust upon real estate are not within the general language of the statutes of nonclaims are that such claims cannot, in any just sense, be considered as claims against the estate, but that the right to subject specific property to the claim arises from the contract of the debtor, whereby he has during life set aside certain property for its payment, and that such property does not belong to the estate, and that the instrument, being of record, is notice to all the world of the contract. In the states of Texas, California, and Florida, where the exceptional doctrine prevails, and such secured claims are held to be within the general statutes of nonclaims, it has been thought that the language of the statutes, whether the word "claims," "debts," or "demands" is used, is sufficiently comprehensive to include every species of charge against the estate, whether recorded or unrecorded. In those states the question has usually arisen upon mortgages, and in a number of instances much weight has been given to the fact that in the particular jurisdiction a mortgage on real estate did not convey the legal title to the mortgagee. This reason does not exist in this state, where the security, as in this case, is by deed of trust, as such an instrument conveys the legal title to the trustee. Stephens v. Clay, 17 Colo. 489, 30 Pac. 43. Although in the state of California the statute of nonclaims has been held to embrace claims secured upon real estate, in the case of Whitmore v. Savings Union, 50 Cal. 145, the failure to present a claim secured by deed of trust within the time fixed by the statute was held not to extinguish the debt, and a majority of the court expressly refused to compel the creditor to deliver up his securities, Justices Crockett and McKinstry dissenting. Mr. Justice Crockett, in his dissenting opinion, claims that the conclusion reached by the majority is inconsistent with the previous decisions of

the court, requiring the presentation of all claims, and we think the decision in the Whitmore Case weakens the force of such previous opinions as precedents. Our statute is like the statute of the state of Illinois, and was evidently taken from that state, and with the statute we took the construction theretofore given it in that state, to the effect that it did not apply to secured claims. Dodge v. Mack, supra. While counsel are correct in the statement that in adopting the statute we adopted only the construction that had at the time given to it by the Illinois court, they are in error in assuming that the statute had not been construed previous to the, time at which it was transplanted to this jurisdiction. The decision in the DodgeMack Case, supra, was rendered in the year 1859. In that case it is expressly held that if an execution is delivered to the sheriff during the life of the execution debtor, and such debtor dies before a levy has been made, the officers may proceed to levy and sell,

notwithstanding the statute. After quoting the section under consideration, the court says: "Thus it will be seen that, whether a debt be due by judgment, bond, or simple contract, if resort is had to the mode prescribed by this statute for its payment no preference is given. Yet that there are cases where the debt may be collected without filing the claim, and sharing in the distribution of the assets, is undoubtedly true; as where the creditor holds a mortgage on property of deceased, or where property has been pledged to secure the payment of the debt, or where there has been a recovery and an execution issued and levied in the lifetime of the deceased, in each of these cases the property thus bound may be sold after the debtor's decease, in satisfaction of the debt.

In each of these cases the creditor has acquired a lien, and the specific property has been appropriated either by the debtor, or by the law, for its satisfaction, and the death of the debtor can in no wise affect the rights of the creditor."

Although the precise question has not heretofore been passed upon by this court, the statute under consideration was adopted early in the 60's, and the decisions of the Illinois court thereon have been accepted and acted upon without question for many years. Title to property worth many millions of dollars has been passed upon the supposition that the statute did not affect secured claims. We would not, therefore, be justified in setting aside, for any but the most cogent reasons, a construction that has so long been followed and so generally acquiesced in. Moreover, while there is some conflict in the cases, as we have shown, the decided weight of authority is in favor of the conclusion that the general statute does not apply to claims secured by mortgages or deeds of trust, where the creditor relies solely upon the property covered by his lien, and relinquishes all claim against

the general assets of his deceased debtor. For the reasons stated, we are of the opinion that section 4780 does not apply to claims secured by deed of trust upon real estate. This brings us to a consideration of the acts of 1885 and 1889. Section 8 of the former relates expressly to mortgages and deeds of trust on real estate. It provides that "creditors of any estate whose debts are secured by mortgage or deed of trust on real estate shall not be allowed to foreclose within one year, unless by the permission of the county court, and not until their debts or claims have been allowed by such court.” In the year 1889 this statute was amended and extended to claims secured by chattel mortgage, and the words "and not until" were changed so that the statute reads "in no event until," and a proviso was also added to the effect that the lien of such creditor upon personal property shall not be impaired by such suspension of the remedy. It is contended that the language, “and in no event until their debts or claims have been first proved and allowed by such court," is referable only to the preceding clause, which provides for the foreclosure within one year, by permission, etc. The intent, it is said, is to permit the foreclosure within the year, in the discretion of the court, provided the claim is first allowed, no allowance being necessary to foreclosure after the year. But this construction does violence to the language of the act, which reads that creditors shall not be allowed to foreclose within one year, etc., and (not) in no event until their debts or claims have been allowed. We know of no reason why presentation and allowance should be required, as a condition precedent to foreclosure within one year, that does not apply with greater force to foreclosures after that time. The statute would be unavailing as a protection to the estate, if foreclosures could be taken after one year without proving the claim, as with the lapse of time the opportunities for fraud would be increased, rather than diminished. It is the foreclosure, in the absence of proof and allowance of the claim, that is prohibited. The reason for this is obvious. Experience has shown that foreclosure proceedings are sometimes attempted when the claim had been fully or in part paid, and the courts in the states of Texas, California, and Florida have in vigorous language pointed out the necessity for protecting estates from summary proceedings by foreclosure, without requiring the claimant to first establish his claim to the satisfaction of the court charged with the administration of the estate, and without giving the representatives of the deceased an opportunity for a judicial investigation in advance. Two conditions are imposed by the act, viz.: (1) The time at which a foreclosure may be had is postponed for one year from the death of the testator or intestate,

unless permission to foreclose at an earlier date be obtained from the county court. (2) As a condition precedent to foreclosure, the debt or claim secured must be first proved and allowed by such court. Whatever doubt might otherwise exist with reference to the law upon the question is set at rest by the plain language of the acts. The statute is decisive of this appeal, as it is admitted by the pleadings that the notes which form the basis of the suit were never allowed or presented to the county court. It is not necessary in this case to determine the time within which such claims must be presented. It has been argued that the presentation provided for must be made within a year after the death of the testator or intestate, and also that it may be made at any time before the estate has been finally administered; but, as the claims relied upon in this case have never at any time been presented to the county court for allowance, it is unnecessary to determine this question in this case, and we think it would be improper to do so, particularly as other cases are pending in which the question of time of presentation is necessary to a decision. If we at this time should go beyond the case presented by the record, our conclusion upon other matters ought not to control in a subsequent case, and we do not feel at liberty to undertake the decision of a question of such vast importance, affecting, as it does, large property rights and many claimants, until a case is reached directly involving the precise point. In this case the decree of the district court is erroneous, for the reason that the claim had not been allowed by the county court. The judgment will accordingly be reversed, and the cause remanded. Reversed.

(20 Colo. 489)

PEOPLE v. RAIMS. (Supreme Court of Colorado. Jan. 21, 1895.) SALE OF LIQUOR-REGULATION BY TOWN-EXCLUSION OF COUNTY JURISDICTION-EVIDENCE -PROCEEDINGS OF TOWN BOARD.

1. Mills' Ann. St. § 4403, subd. 18, gives to an incorporated town the exclusive right to license or prohibit the sale of liquor within one mile beyond its boundaries. Mills' Ann. St. c. 76, gives a general authority to the boards of county commissioners to grant licenses for the sale of liquor. Held, that the fact that a county license was issued to one selling liquor within a mile of an incorporated town did not exempt him from the operation of an ordinance of the town thereafter passed, requiring a license to be paid by those selling liquor within that distance of the town.

2. One who acquired no rights between the time of the making up of the original record of proceedings of the town board and the making up of a supplemental record is not injured by the introduction of the latter in evidence.

Error to county court, Arapahoe county. Dominic Raims, convicted in a police court of violation of a city ordinance, appealed to the county court, and from a judgment therein, discharging defendant, the state brings error. Reversed.

Charles W. Everett, for the State.

CAMPBELL, J. This is an action against the defendant, Dominic Raims, charging him with the violation of an ordinance of the town of Elyria regulating the sale of liquor. In the police magistrate's court, where this action was originally brought, a fine was assessed against the defendant. From that judgment the defendant appealed to the county court, where a trial was had by the court without a jury, and the defendant was discharged. The plaintiff brings the case

here upon writ of error. There being no appearance for the defendant in error, we must look to the record, and to the argument of plaintiff in error, to ascertain the grounds upon which the court based its judgment of dismissal. There are no disputed questions of fact. The evidence is in the form of an agreed statement of facts, the ordinance book and the record book of the town, the supplemental record of the board of trustees as to certain corrections and amendments of the record of the proceedings of the board when the ordinance was passed, setting forth what took place at that time, and oral testimony by the mayor and clerk of the town as to the manner of the passage of the ordinance. From this evidence it appears that the place of business of the defendant is within the limits of Arapahoe county, and not within any incorporated city or town. It is within one mile of the outer boundaries of the town of Elyria, and, as to location, sustains the same relation to the town of Argo. Both of these towns are inccrporated under the general incorporation laws of the state,-Elyria, on the 1st day of August, 1890; Argo, at an earlier date. The boundaries of these towns are not contiguous, though evidently it was contended in the court below that, inasmuch as defendant's place of business was within one mile of the limits of each town, the boundaries of the two towns "adjoined," in the sense of the word as employed in the statute. Prior to the incorporation of the town of Elyria, the defendant was engaged in selling liquor at his place of business in quantities less than one quart; and on the 4th day of August, 1890, he applied to the board of commissioners of Arapahoe county for a liquor license, paid the fee exacted, and thereafter received such license from the county, granting him permission to sell for a period of one year. On the 17th day of February,

1891, the board of trustees of the town of Elyria passed an ordinance, section 2 of which prohibited the sale of liquor within the limits of the town, and within one mile beyond the outer boundaries thereof, unless the dealer secured from the town a license therefor. Other sections of this ordinance provide a penalty for the violation of section 2, and there are other sections for carrying into effect the provisions of the ordinance. The defendant never had a license from

either Elyria or Argo to sell liquor at his place of business, and he admits that he was selling liquor thereat on the 7th day of May, 1891, as charged in the complaint filed in the office of the police magistrate. The regularity of the proceedings before the police magistrate's court is conceded, but the validity of the ordinance is attacked on the ground that the yeas and nays were not called when the ordinance was on its passage, and that the vote thereon was not recorded as our statute requires. The oral testimony and the supplemental record of July 18, 1891, if they are to be considered at all, show conclusively that strict compliance was had with the statute. The questions involved here are: First. Has the town of Elyria | authority, under the statute enumerating the powers of municipal corporations, to enact an ordinance regulating the sale of liquor be yond the outer boundaries of the town, and within one mile of its limits? Second. Was the county license issued to the defendant a protection to him against the proceedings instituted against him by the town authorities of Elyria? Third. Is the record of the proceedings of the board of trustees of the town of Elyria at the date of the passage of such ordinance sufficient to establish its validity? If not, is oral evidence permissible to show compliance on the part of the board of trustees with section 4445, Mills' Ann. St. (Gen. St. § 3324), which requires that the yeas and nays shall be called and recorded on the passage or adoption of every ordinance?

The first two questions may be considered together. The statutes under which this ordinance was passed, in so far as the same are pertinent here, are as follows: "The board of trustees of every incorporated town shall have exclusive authority to license saloons, groceries, and all places wherein spirituous, vinous, malt or other intoxicating liquors are sold." Section 2833 Mills' Ann. St. (Gen. St. § 2106). Section 4403, subd. 18, Mills' Ann. St. (Gen. St. § 3312), among other things, gives to an incorporated town "the exclusive right to license, regulate or prohibit the selling or giving away of any intoxicating, malt, vinous, mixed or fermented liquor within the limits of the town, or within one mile beyond the outer boundaries thereof, except where the boundaries of two towns adjoin." No authorny need be cited to the effect that the regulation of the liquor traffic is purely a legislative power, and that it is also clearly within the power of the legislature to delegate to the municipal authorities the power to regulate, license, or prohibit the sale of liquors within their own limits. We are aware of no rule that requires the legislature, in its grant to towns of the authority to regulate this traffic, to confine the exercise of such power to the limits of the towns themselves. On the contrary, it is within the power of the legislature, in delegation of such authority, to pro

vide that not only the territory included within the limits of the towns, but also territory within certain designated distances beyond the outer boundaries thereof, shall come under the operation of such granted power. Chicago Packing, etc., Co. v. City of Chicago, 88 IL 221.

In chapter 76, Mills' Ann. St., is found the general authority of the board of county commissioners to grant licenses for the sale of liquor. The defendant admits that he was selling liquor at his place of business in May, 1891, but says that his license from the county of Arapahoe, granted in the month of August, 1890, to sell for one year thereafter, is a good defense to this action of the town of Elyria. The argument is that the county of Arapahoe is given the authority by the statute to regulate the sale of liquor within the county. After Elyria was incorporated as a town, and before it exercised its power to pass an ordinance assuming to regulate the sale of liquor within the disputed territory, the defendant obtained a license from Arapahoe county to sell for the period of one year. During such period this license was all the authority that defendant required for conducting his business, because the statutes of the state having given Arapahoe county control over the liquor traffic within its territory, and like authority to the town of Elyria, the county having first exercised such control, and granted to defendant the right to sell, the authority of the town was suspended during the life of the license. The reply to this argument is that the very words of the statute give to the town exclusive authority to license all places wherein liquors are sold within this disputed territory. This court has repeatedly held, in effect, that the statute means what it says, and that the jurisdiction of the town is exclusive of that assumed by the county. Huffsmith v. People, 8 Colo. 175, 6 Pac. 157; Rogers v. People, 9 Colo. 450, 12 Pac. 843. But, if this conclusion were wrong, another and satisfactory reply is that, even though the authority of the town is not exclusive, still, as defendant's counsel would concede, the legislature has given both to the county and to the town authority to regulate such traffic at the place in controversy. The license is not a contract. As this court and other courts have often held, "A license confers the right to do that which, without the license, would be unlawful." The legislature, having the right absolutely to prohibit such sales as defendant was making, has also the right to confer, and did confer, upon the county and upon the town, the same power of prohibition. When, however, it provided for a license of this class of traffic, it had the power to require that defendant should procure such license both from the county and from the town. So, whether we hold that the authority of Elyria is exclusive of Arapahoe county, or that they had concurrent jurisdiction, the same conclusion will be reached. If the jurisdiction of the town is exclusive, the defendant's li