ment of liberal exemption laws, and as the courts, when those laws are passed, construe them liberally in favor of persons claiming rights thereunder, and in order to effectuate their beneficent design, that the defendant was residing with his family in Colorado, within the meaning and intent of the statute. It is true that the courts, in the construction of statutes, will endeavor to arrive at the true meaning of the legislature, even though the meaning so ascertained will depart from the literal sense of the words. It is also true that courts will endeavor to give to all the words found in a statute their proper and legitimate meaning, and will presume that the legislature meant something when it employed those words. The principal object of all exemption laws, it has been said, is for the benefit of the family, and, under our law, this benefit is to be enjoyed by the head of a family and for their use only while he resides with the same. As has been said, the evidence here shows that the defendant is the head of a family; that he came from the state of New York to Colorado to make this his permanent home, and to remove his family here as soon as he was able to accomplish it. When he left New York, his family went to the state of Pennsylvania. They have never been in the state of Colorado. Appellee contends that, inasmuch as the domicile of the husband is the domicile of the wife, therefore the residence of the husband must be the residence of the wife and family. This is not universally true as a matter of fact, neither do we think it follows as a matter of law. If this contention were correct as a legal proposition, the legislature evidently misinterpreted the then existing law. The legislature evidently construed the law to be that the head of a family might have a residence in one place, and his family a residence In another place, and that the head of a family might have his residence, and still not reside with his family; so it imposed as a condition to the right of exemption that the head of a family should enjoy it only while he is residing with the same. The converse of the proposition must necessarily be true, that, when he is not residing with his family, he cannot claim the right of exemption. If the residence of the head of a family fixes the residence of his family, and if the law establishes the residence of the family wherever the head is residing, then the head of the family resides with the same, even though the family be residing in one state, and the head in another state. If such be the law, then the use of the language, "and residing with the same," is entirely superfluous; but we cannot presume that the legislature used these words without intending to convey some meaning.

In Illinois, where the statute is like ours, In that it requires that a claimant must be the head of a family, and residing with the same, to entitle him to maintain his claim that such property is exempt from seizure,

it is held that the claimant must prove, not only that he is the head of a family, but that he resides with the same, showing that these words impose a condition other than that one must be the head of a family. MeMasters v. Alsop, 85 Ill. 157; Barnes v. Rogers, 23 Ill. 350. The claimant must reside with his family either in this state or in the state of Pennsylvania. He is here; his family is there. He does not claim his residence in Pennsylvania, but bases his claim to this exemption solely upon the fact that he is a resident of this state; hence he does not reside with his family in Pennsylvania. In no sense of the term can it be held that he is "residing” with his family in this state. He could not very well reside with them unless they reside with him, and they reside in Philadelphia. They never have been here, but during his entire residence in Denver they actually were in the state of Pennsylvania. Hence defendant does not reside in Colorado with his family, even if both defendant and his family intended that they should reside here. To produce such a result, the intention and act must unite. If plaintiff's family had once resided with him in Colorado, and had thereafter gone to Pennsylvania for a temporary residence, the case would be quite different, and the pertinency and force of appellee's argument would be recognized.

As the plaintiff does not come within the class of persons named in this statute as entitled to the benefit of exemption, strictly it may not be necessary to determine whether or not he properly made his selection of exempt property. But no selection was ever made by defendant. Property other than that claimed to be exempt was levied upon. The mere demand by defendant of his right to select was not equivalent to making the selection. It was not the duty of the constable to set apart the exempt property, unless the claimant pointed out such property, when the seizure embraced other property rightfully tak en, and the exempt property was not specifically exempt by the statute, but merely comprised a portion of stock in trade, even though it be less than $200 in value.

There is another reason why the judgment should be reversed. The constable, under the writ of attachment, seized not only this property which is claimed to be exempt, but also other property purchased by the defendant from the plaintiff, for the purchase price of which this action was brought. The nature of the claim sued upon does not expressly appear from the evidence, but the appellee in his brief virtually concedes that the action was for the purchase price of goods sold to him by the plaintiff, and in his affidavit claiming exemption he expressly excepts therefrom such goods as were purchased by him from the plaintiff. The evidence does not disclose specifically what goods are claimed as exempt, or what was confessedly subject to the attachment. The county court, however. ordered a release of all the property attached, both

that which was declared not subject to attachment and that conceded to be liable thereto, and ordered a return of all the property to the defendant. This was error. If the defendant was a person entitled to the exemption, and if there was evidence in the record to inform us what specific property was subject to attachment and what was not, we might modify the judgment of the court below, and order a redelivery to the plaintiff of that portion of the property so seized under the writ of attachment, which the plaintiff sold to the defendant, and affirm so much of the judgment as awarded a delivery to the defendant of the exempt property. There is no evidence, however, which would enable us so to do. For the reasons given in this opinion the judgment must be reversed, with instructions to the court below to proceed in accordance with the views herein expressed. Reversed.

1. A refusal to allow defendant to file an amended answer will not be disturbed where the defense proposed was known to defendant when he filed his original answer, and no valid excuse is given for not including it therein.

2. An insurance agent, who gave a bond conditioned to account for all premiums collected, cannot, in defense to an action on the bond, set up that he assigned his insurance business to several insurance companies, including plaintiff, to whom he was indebted, to sell to the best advantage, and apply the proceeds pro rata to the payment of his indebtedness to each, and that the business was worth enough to pay all such indebtedness, but that the companies sold it for less than the best price that could have been obtained therefor, there being no allegation as to what sum might have been realized.

Appeal from Pitkin county court.

Action by the Norwich Union Fire Insurance Society against John D. Bransford and others to recover moneys in the hands of defendant as agent of plaintiff, and which defendant converted to his own use. From a judgment for plaintiff, defendants appeal. Affirmed.

W. W. Cooley and H. W. Clark, for appellants. Edward C. Stinson, for appellee.

HAYT, C. J. The Norwich Union Fire Insurance Society, a corporation engaged in conducting a general fire insurance business within the state of Colorado and elsewhere, appointed one John D. Bransford as its agent at Aspen. Bransford was authorized to solicit and place insurance and receive premiums therefor. At the time he was appointed he executed a bond for the faithful discharge of his duties, which bond is as follows: "Know all men by these presents, that we, John D. Bransford, R. C. Wilson, and E. W.

Fleming, are held and firmly bound unto the Norwich Union Fire Insurance Society, of Norwich, England, its successors and assigns, in the sum of one thousand dollars, lawful money of the United States of America, to be paid to the said the Norwich Union Fire Insurance Society, for which payment, well and truly to be made, we bind ourselves, our heirs, executors, and administrators, firmly by these presents, sealed with our seals, dated at Aspen, Colo., the 20th day of January, one thousand eight hundred and eighty-seven. The condition of this obligation is such that if the above-bounden John D. Bransford shall faithfully perform his duties as agent of the said the Norwich Union Fire Insurance Society for Aspen, Colorado, and vicinity, and shall duly and punctually account for and pay over to the said the Norwich Union Fire Insurance Society, at its agency in the city of New York, the premiums and moneys collected by him for insurance of risks taken by the said the Norwich Union Fire Insurance Society, then the above obligation to be void; otherwise to remain in full force and virtue; it being understood, and this obligation is received by the said society upon the express condition, that any leniency shown by the society to said agent shall not relieve the sureties from their obligation, and that it is to be construed, as to the liabilities of the obligors thereunder, in the same manner, to all intents and purposes, as if it had been made in the state of New York. John D. Bransford. [Seal.] R. C. Wilson. [Seal.] E. W. Fleming. [Seal.]

It is alleged in the complaint, and shown by undisputed testimony at the trial, that the defendant Bransford, while such agent, collected for his principals the sum of $129.95 as premiums, which he failed to pay over, but wrongfully converted and appropriated to his own use. Plaintiff demands judgment for this amount against Bransford and his sureties upon the foregoing bond. On the 27th day of August, 1890, the defendants Wilson and Fleming appeared and filed a general denial. On the 12th day of November following Bransford appeared and answered. By this answer he admits the allegation of the complaint with reference to the amount involved in the action, the organization of the plaintiff company, and his employment as its agent. He further admits the making and delivery of the bond set out. All other allegations of the complaint are denied. Thereafter the defendant Bransford moved the court for permission to file what he terms a "supplemental answer," but which is, more properly speaking, an "amended answer," and in support of such motion he presented his affidavit. It appears from the record that this answer and affidavit were prepared on the 14th day of February, 1891, In does not definitely appear at what time application was made to the court for leave to file this pleading, but presumably at its next sitting, in the month of March, shortly

before the case was reached for trial. The court refused to allow the amended answer to be filed, and the case was tried to the court without the intervention of a jury, upon the original pleadings. This trial resulted in a judgment for plaintiff for the amount claimed.

The errors assigned may properly be considered upon the ruling of the court denying permission to file the amended answer tendered. It is apparent from the record that the facts alleged in this pleading were as well known to the plaintiff and its attorney at the time of filing the original answer, on the 12th day of November, 1890, as they were at the time at which the amended answer was prepared and tendered. No valid excuse being given for not presenting this defense at the time of filing the original answer, the court might properly, in its discretion, have refused permission to file the same for this reason. But, aside from this, the answer tendered constituted no defense to the claim of plaintiff. By this answer it appears that the defendant Bransford was the agent at Aspen of a large number of insurance companies, and it is alleged that, after his failure to pay over the premiums due to the plaintiff and other companies, he give a bill of sale of his insurance agency at Aspen, conveying and assigning to them all of his insurance business, the consideration recited in this bill of sale being that the purchasers should take charge of the agency, and sell the same to the best advantage of all parties, the proceeds to be applied to the payment of the indebtedness of the defendant Bransford to the companies, pro rata. The defendant further alleges that the value of the insurance business so turned over under the bill of sale was greater than all his indebtedness then owing to the companies represented in the agreement, the same being of the value of $6,000. The answer also contains an agreement of some 24 insurance companies among themselves. Neither of the appellants was a party to this latter agreement. The defendant further alleges that, after the transfer of his business to the companies as aforesaid, they sold the same for the sum of $2,503.17. It is not claimed that this money was not applied in strict accordance with the terms of the contract between the defendant and the companies, as evidenced by the bill of sale, but it is alleged that the companies did not sell the business for the best price that could be obtained therefor. This answer is defective in the following, among other particulars: It does not seek to make all the parties to the bill of sale parties to this action; it does not allege what sum might have been realized from the sale of the business, the allegation in this behalf being that the sum obtained, viz. $2,503.17, was not the best price that could be obtained therefor. This is not inconsistent with the idea that the difference between the price realized and the price that Icould be obtained was merely nominal, and not worthy of consideration. Moreover, it is

It

apparent from the nature of the business, and from the terms of the agreement, that the insurance companies were not bound to sell the agency for the highest price that could be realized for the same, without reference to the character of the purchaser. was to be sold to the best advantage of all concerned, and in the selection of a purchaser the companies had a right to take into consideration the character of such purchaser, and whether or not he was qualified, by experience, ability, and fidelity, to properly represent the companies in the important business of taking risks for and on their behalf in the town of Aspen aforesaid. For these reasons the application to file the pleading denominated a "supplemental answer" was properly refused. There being no dispute as to the amount, the judgment will be affirmed. Affirmed.

(21 Colo. 9)

FISCHER et al. v. HANNA. (Supreme Court of Colorado. Feb. 18, 1895.) WHO MAY APPEAL-PERSONS NOT PARTIES-FORECLOSURE SUIT--DECREE AS TO INTERVENER'S CLAIM APPEAL TO SUPREME COURT.

1. Under Code 1887, § 388, authorizing appeals to the supreme court, provided "the party" praying the appeal give bond, only a party to the record in the trial court can appeal.

2. In a foreclosure suit a defendant cannot appeal to the supreme court from a decree overruling a demurrer by him to a petition of intervention by another lien claimant, and also decreeing intervener's claim prior to his.

Appeal from district court, Arapahoe county.

Action by the Colorado Savings Bank against William Lockhart Smith, Ferdinand C. Fischer, and others. John B. Hanna intervened. There was a judgment declaring the lien of the intervener superior to that of other parties to the action. The Chicago Lumber Company bought up the claims of the plaintiff and defendant Fischer, and from an order denying its application to be substituted as plaintiff in lieu of the Colorado Savings Bank the Chicago Lumber Company appeals, and from an order denying his application to set aside the hearing and to be further heard upon the questions involved in the action, defendant Fischer appeals. Appeals dismissed.

An action was instituted in the district court of Arapahoe county by the Colorado Savings Bank against William Lockhart Smith, Ferdinand C. Fischer, and others, to foreclose a deed of trust upon lots 17, 18, 19, and 20 in block 231 in Denver, Arapahoe county, Colo., together with the leasehold interest in said property, and fixtures and furniture in the theater building situate thereon. Ferdinand C. Fischer was the trus tee in a certain other deed of trust subject to that of plaintiff. In this action E. R. Cooper was appointed receiver, who, by consent of the parties, sold the property, and realized therefrom about $36,000. During

the pendency of the action the Chicago Lumber Company purchased the claim of plaintiff and the claims represented by Fischer, and by consent of the receiver the funds in his hands were turned over to this company upon its executing a bond to pay and satisfy certain contested claims in case they should be adjudged to be due, and save the receiver harmless from all costs, damages, etc. Among the claims so provided for was that of John B. Hanna, who had by petition intervened in the action. To this petition the plaintiff and Fischer filed separate demurrers, which were overruled, and afterwards, upon the trial of the petition in intervention, the court found, inter alia, that the defendant Fischer and the other defendants had no interest in the suit, and no right to contest the intervener's petition, and "ordered, adjudged, and decreed that the said John B. Hanna do have and recover of and from the said William Lockhart Smith the sum of $5,713 66, and that the right of the said John B. Hanna to a lien upon the building and leasehold interest described in his petition is declared and established in the amount aforesaid; that out of the fund arising from the sale of the building aforesaid the intervener is entitled to satisfaction of the foregoing judgment; and the receiver is hereby ordered to pay forthwith to the said John B. Hanna the sum of $5,713.66; * * and it

is now adjudged that, inasmuch as the intervener commenced work long prior to the date of all other claims heretofore reduced to a decree herein, the judgment of the intervener herein is adjudged prior to all claims heretofore adjudicated herein, and is entitled to satisfaction out of the $30,000 fund before any other claimant thereto;

· that the intervener recover his costs," etc. The Chicago Lumber Company made application to be substituted as plaintiff in lieu of the Colorado Savings Bank, which application was denied. Fischer made application to set aside the hearing, and for further right to be heard upon the questions involved in the action, which application was also denied; whereupon the Chicago Lumber Company and Ferdinand C. Fischer brought the case to this court upon appeal.

Benedict & Phelps and Horace Phelps, for appellants. Clay B. Whitford, H. A. Lindsley, and C. M. Bice, for appellee.

GODDARD, J. (after stating the facts). The right of appellants to maintain this appeal is attacked upon several grounds. First, because the Chicago Lumber Company was not a party to the record in the court below, and because the judgment appealed from is a personal judgment against William Lockhart Smith, and not against the appellants, or either of them. We think that upcn both grounds the objection is well taken. It is well settled that to enable one to prose

cute an appeal or writ of error he must be a party to the record in the trial court. Ex parte Cutting, 94 U. S. 14; Ex parte Cockcroft, 104 U. S. 578; Guion v. Insurance Co., 109 U. S. 173, 3 Sup. Ct. 108; Reid v. Quigley, 16 Ohio, 445; Bayard v. Lombard, 9 How. 530; Payne v. Niles, 20 How. 219; People v. Lynch, 54 N. Y. 681; Davis Co. v. Horn, 4 G. Greene, 94; Fleming v. Mershon, 36 Iowa, 413; Pow. App. Proc. p. 374. In the cases cited by counsel for appellants announcing a different rule the courts had under consideration statutes that expressly gave to "any party aggrieved by the judgment" the right to appeal. Our statute contains no such provision, but enacts as follows: "Appeals to the supreme court from the district courts shall be allowed

in all cases where the judgment or decree appealed from be final, and shall amount exclusive of costs, to the sum of one hundred dollars. [Since establishing the court of appeals the amount must exceed the sum of $2,500.] * * Provided, the party praying for such appeal shall by himself, or agent. or attorney, give bond," etc. Code 1887, > 388. In the case of Reid v. Quigley, supra the court, construing a like statute, uses the following language: "This is the only law which gives an appeal in any case, and this only enables the party to appeal from a judg ment of an inferior court to the supreme court. This authority is given to the party to the judgment, and to no one else. Third persons are not authorized to act by the law. nor would good policy allow them to inter fere and remove causes by appeal. It is manifest that such a practice could not be tolerated, as it would produce many evils. and be subversive of private rights." Whatever may be the right of the Chicago Lum ber Company to have this judgment re viewed in the name of the Colorado Sav ings Bank, its assignor, in the court of ap peals, it clearly has no right, of its own motion, to make itself a party to the proceeding and prosecute an appeal in its own name. But it is insisted by counsel for appellants that the foregoing objections do not apply to Ferdinand C. Fischer, since he was a party to the record as defendant. If it may be held that Fischer still has an appealable interest in the judgment complained of, notwithstanding the claims represented by him, as trustee, have been assigned to the Chicago Lumber Company, and it, the beneficiary of such trust, has received the proceeds realized from a sale of the trust prop-. erty, still the decree against him is not of the character requisite to sustain an appeal to this court. It appears from the record that he and the Colorado Savings Bank demurred to intervener's petition, which de murrers were overruled, and they appear to have elected to stand by their demurrers, since they filed no further pleading in the case. The right to review the judgment of the court below overruling those demurrers

is clearly not in this court, and the decree in itself is not, in fact or form, a decree against him for a money judgment, but is to the effect that he had no interest to contest intervener's claim, and that the lien represented by him was subsequent and subordinate to that of intervener. This in no sense constitutes a decree that he may appeal to this court, whatever may be his right to obtain a review of the same in the court of appeals. That the judgment appealed from must be against the party appealing is settled by former decisions of this court. Hall v. Mining Co., 6 Colo. 81; Todd v. De La Mott, 9 Colo. 222, 11 Pac. 90. The parties, therefore, to this record, entitled to an appeal to this court, are William Lockhart Smith, against whom a personal judgment for a sufficient amount to give this court jurisdiction was rendered, and perhaps the receiver, since the decree compels him to pay the judgment out of funds in his hands. Hinckley v. Railroad Co., 94 U. S. 467. Counsel for appellants recognized that a money judgment against the party appealing was essential, since, by the recitals in the condition of the appeal bond it is made to appear, contrary to the decree, that the intervener obtained judgment against the appellants for the sum of $5,713.66, and in terms obligates them and their sureties to pay such judg ment in case of affirmance. That this statutory condition cannot be enforced against them is clear, since it "can only apply where the party against whom the judgment is rendered is the appellant." Hall v. Mining Co., supra. It is unnecessary to notice the further grounds presented, as the motion to dismiss the appeal must be sustained for the foregoing reasons. Appeal dismissed.

(21 Colo. 54)

VAUGHN v. COMET CONSOL. MIN. CO. et al.1

(Supreme Court of Colorado.

ESTOPPEL

Dec. 5, 1894.)

ACQUIESCENCE-JUDGMENT-MERGER.

1. A creditor of a mining company, who makes no objection to a transfer of its property to another company, and knowingly permits the transferee to work the property, and incur debts, for the satisfaction of which the property is subsequently sold, is estopped to deny the validity of the original transfer or of the title acquired at the sale.

2. Where the owner in fee purchases a judgment against the property, the assignment clearly showing an intent to keep the judgment lien alive, no merger results.

Appeal from district court, Arapahoe county.

Action by Samúel V. Vaughn against the Comet Consolidated Mining Company and others. From a judgment dismissing the action, plaintiff appeals. Affirmed.

This is a suit in equity by Samuel V. Vaughn against the defendants in error to set aside certain conveyances alleged to be fraud

1 Rehearing denied March 5, 1895.

ulent. The suit was originally brought on the 21st day of June, 188€, against the Comet Consolidated Mining Company, the Upper Platte Mining & Smelting Company, Henry C. Frost, J. Granville Sharp, Hugh Butler, and Edwin Pike, sheriff of Park county, Colo.; and on the 17th day of January, 1890, plaintiff filed an amended and supplemental complaint, making the other defendants in error parties. The facts upon which the right to this relief is predicated are substantially as follows: The Upper Platte Mining & Smelting Company was in 1882 the owner of certain mining claims, a tramway, and certain mill sites and other property. On December

23, 1882, the company became indebted to appellant, James C. Hale, H. C. Frost, and Richard Le Bert in the sum of $14,000, and, as evidence of such indebtedness, executed to these parties its promissory notes for the proportion of such indebtedness due each of them respectively, to appellant, two notes for $1,250 each, due in 9 and 15 months, and one for $1,000, due in 12 months after date; and like notes to James C. Hale, who afterwards assigned the same to appellant. On June 8, 18-1, the company executed a power of attorney to Hugh Butler and J. Granville Sharp, conferring upon them the full management of its property, and empowering them to sell, lease, or otherwise dispose of the same, and to execute and deliver deeds, receive and receipt for purchase money, etc On March 22, 1883, the company, by Butler & Sharp, attorneys in fact, conveyed all its property to the Comet Consolidated Mining Company for and in consideration of its entire capital stock, consisting of 90,000 shares, of the par value of $10 each. The Comet Consolidated Mining Company was incorporated by James F. Matthews, C. L. Webb, and Henry C. Frost, for the purpose of taking title to the property of the Upper Platte Mining & Smelting Company, and to provide, by the sale of a portion of its stock, for the payment of the indebtedness of that company, and placed in escrow 36,000 shares for that purpose. At the time of the transfer of title to the Comet Consolidated Mining Company, Matthews, Webb, and Dillingham entered into an agreement to purchase this stock, and thereby furnish means for the working of the property and the payment of these debts. They paid the sum of $1,500 to Butler & Sharp, but failed to carry out their agreement any further; whereupon the Comet Consolidated Mining Company continued to work upon the property during the years 1883 and 1884, and incurred an indebtedness thereby which they had no funds to pay. This indebtedness consisted of $1,000 borrowed by the company from Hudson, and $6,687.77 for labor, materials, etc. For the latter amount the company gave its note to Frost. The appellant and Hale, who were then residing in Missouri, received notice of this transfer to the Comet Consolidated Mining Company by letter from Sharp, dated