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Suit by J. L. Slack against Edward Anderson. 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.

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1. TRIAL 337 VERDICT
INSTRUCTIONS.

· DISREGARD OF

In a suit for malicious prosecution, where it appeared that defendant, in causing plaintiff's been seen carrying off two lamps and a sack arrest, acted solely on a report that plaintiff had 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 stitute the defense, a verdict for plaintiff would and candid statement of all the facts to connot 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. Error, Cent. Dig. §§ 2575-2581, 2599, 2601; [Ed. Note.-For other cases, see Appeal and Dec. Dig. 581.]

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. On December 11, 1913, before the entry of Judgment for plaintiff, and defendants bring

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.

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

32-REQUISITES-PARTIES.

A deed delivered in blank as to the granto another party without inserting the grantee's tee conveyed no title, and a subsequent delivery name and deed by him to the plaintiff creates no title in the plaintiff, since no deed is valid absent competent grantor and grantee. Dig. 8 64; Dec. Dig. 32.] [Ed. Note.-For other cases, see Deeds, Cent.

having acted in the prosecution on advice of 2. DEEDS
counsel. It is urged that there was uncon-
tradicted evidence to prove every fact de-
clared by the instruction to be necessary to
such defense. Hence, it is said, the verdict
should have been set aside. One of the ele-
ments of the defense outlined by the instruc-
tion was that defendant had made "a full,
true and candid statement of all the facts
bearing on the guilt or innocence of the plain-
tiff of which knowledge might have been ob-
tained by the exercise of reasonable dili-
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.

3. APPEAL AND ERROR 854-SCOPE OF REVIEW REVERSAL-GROUNDS OF DECISION BELOW.

-

Although the decision of the court below was based upon improper grounds, if it was correct, it will be affirmed on appeal.

[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 nonsuit, plaintiff brings error. Affirmed.

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 of redemption from sale of lots under a the defendant sheriff to issue him a certificate special execution, and to cancel a quitclaim to defendant Goodman. At the conclusion of deed purporting to convey the lots in question the testimony on the part of plaintiff a motion by defendants for a nonsuit was sus

tained.

whether the testimony established that plainThe only question necessary to determine is tiff had any interest whatever in the lots; [2] Errors are assigned also on the rulings the statute relating to redemptions from exefor, unless he had some interest, which under of the court in refusing and in giving in-cution sales would entitle him to redeem, the 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.

(60 Colo. 462)

MCGREW v. LAMB, Sheriff, et al. (No. 8405.) (Supreme Court of Colorado. Jan. 3, 1915.)

1. APPEAL AND ERROR VIEW-NONSUIT-EFFECT.

866-SCOPE OF RE

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.]

judgment should be affirmed. If he had any such interest, it is by virtue of a deed executand delivered to a George T. Bennett with ed by one Cook, in whom the title was vested, 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 Goodman. It is axiomatic that to every deed 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. Allen v. Withrow, 110 U. S. 119, 3 Sup. Ct. 517, 28 L. Ed.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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.

90; Lund v. Thackery, 18 S. D. 113, 99 N. W. Jstantial defense interposed by defendant is 856; 13 Cyc. 540. See, also, Herr v. Denver that the insured in his medical examination M. & M. Co., 13 Colo. 406, 22 Pac. 770, 6 L. R. for membership in the order falsely stated A. 641, where the question is discussed to and represented that he had never had insome extent. flammatory rheumatism; that he had not recently had any severe illness; that he was last 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 allegations of new matter set up in the answer. At the conclusion of the testimony at the trial each side moved for a directed verdict, and it was stipulated between the parties that the jury should be excused, and that upon a determination 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

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.

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. INDEPENDENT ORDER OF of the insured, wherein he warranted his anPURITANS. (No. 8367.)

(60 Colo. 456)

swers to be true. September 17, 1910, he

(Supreme Court of Colorado. Jan. 3, 1916.) died, from what cause or disease the record is

INSURANCE 755-FRATERNAL INSURANCE-
ESTOPPEL.

silent.

To arrive at an intelligent understanding Where the secretary of the defendant in- of the questions involved and clearly present surance order knew of the falsity of state- the situation and circumstances surrounding ments 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. 88 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.

the transaction, we are of necessity forced to go somewhat into the evidence. One W. C. Danks was the chief witness for the defense as to the falsity of the statements in the application of the insured. According to his testimony, he was intimately acquainted with the deceased during, prior to, and after the time of his application for membership; was fully conversant with his physical condition; knew that he was suffering from rheumatism and kidney disease, and that he had come to Colorado for the benefit of his health. He

says:

"I first became acquainted with Mr. Johns about the latter part of the year 1907; met him in Denver. We formed a partnership to prac tice law, commencing the 1st day of March, 1908, and continuing until March, 1909."

Clark Varnum, of Chicago, Ill., H. F. Johns and William L. Varnum, both of Denver, and It will be observed that it was during this T. M. Morrow, of Scottsbluff, Neb., for plain- period the benefit certificate was applied for tiff in error. Edward J. Boughton, of Den- 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.

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

and said:

"I don't believe I was present when this I was application was signed by Mr. Johns. present when the application was forwarded to the home office. I was local secretary of the company at the time. He (Johns) stated to me ten minutes after he signed it that he had actually signed the application and hoped to be a member within a few days. At that time, I was the secretary, and all policies came to me, and I delivered them to the persons."

On cross-examination the witness gave the following testimony:

It is conceded that the statements made by Johns in his application were false; but plaintiff seeks to avoid the defense interposed on this account upon the ground that the company, through its authorized officers and agents, was fully cognizant of Johns' physical condition at the time, and knew that his statements were false, notwithstanding which it issued to him its certificate and continued

"Q. You had seen some application in Dr. East's office? A. Yes, sir. Q. Then when he said, 'I signed an application,' you assumed merely that the one you saw in Dr. East's office is the one that he referred to, did you? A. He accompanied me there the next morning, and we saw that the letter was sent out immediately. Q. But he did not call your attention to any 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.'

99

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 not an insurable risk.

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 association and to pay assessments, which it received, up to the time of his death. Under these circumstances we conclude the company is

estopped from setting up the defense inter-lators, and defendants brought error, while posed. The following authorities tend to in the latter judgment went for relators, and support this conclusion: Supreme Lodge v. defendants brought error. Actions between Davis, 26 Colo. 252, 58 Pac. 595; Supreme Henry J. Arnold, as Mayor, etc., and FredTent v. Volkert, 25 Ind. App. 627-643, 57 N. rick J. Chamberlin, and also Daniel B. E. 203; Coverdale v. Royal Arcanum, 193 Carey. There being judgments for the latILL 91, 61 N. E. 915; Order of Foresters v. ter, the former bring error. In actions beSchweitzer, 171 Ill. 325, 49 N. E. 506; Kidder tween Frank P. Read and others and Ellis v. Supreme Assembly, 154 Ill. App. 489-491; Meredith and others, the former bring error, Trotter v. Grand Lodge, 132 Iowa, 513, 109 | judgment going against the latter. Cases disN. W. 1099, 7 L. R. A. (N. S.) 569, 11 Ann. missed. Cas. 533; Alexander v. Grand Lodge, 119 Iowa, 519-522, 93 N. W. 508; Whigham v. Independent Foresters, 44 Or. 543-553, 75 Pac. 1067; Pringle v. Modern Woodmen, 76 Neb. 384, 107 N. W. 756, 113 N. W. 231; Morrison v. Wisconsin Odd Fellows, 59 Wis. 162, 18 N. W. 13; Wiberg v. Minnesota Ass'n, 73 Minn. 297-304, 76 N. W. 37; Ball v. Aid Association, 64 N. H. 291-293, 9 Atl. 103.

The judgment is reversed, and the cause remanded, with directions to the lower court to enter judgment for the plaintiff.

Reversed and remanded, with directions.
GABBERT, C. J., and SCOTT, J., concur.

(60 Colo. 498, 499)

STATE ex rel. STATE BOARD OF AGRI-
CULTURE v. LEDDY, State Auditor, et al.
(and six other cases). (Nos. 7886, 7917, 7918,
7780, 7781, 8058, and 7885.)

(Supreme Court of Colorado. Jan. 3, 1916.)
APPEAL AND ERROR
MOOT CASE.

In No. 7886:

Thos. R. Hoffmire, of Pueblo, for plaintiff in error.

In Nos. 7917 and 7918:

W. H. Bryant, J. A. Marsh, and W. R. Kennedy, all of Denver, for plaintiff in error. Henry A. Lindsley and Walter E. Schwed, both of Denver, for defendant in error. In Nos. 7780 and 7781:

I. B. Melville, of Denver, and C. C. Goodale and Alfred Todd, both of Lamar, for plaintiffs in error. Granby Hillyer, of Lamar, for defendants in error.

In No. 8058:

McKnight & Henry, Carlisle A. Ferguson, and M. H. Farrington, all of Denver, for plaintiffs in error. W. H. Bryant, J. A. Marsh, and W. H. Malone, all of Denver, for defendants in error.

In No. 7885:

Thos. R. Hoffmire, of Pueblo, for plaintiff 19-DETERMINATION-in error. Benjamin Griffith, Atty. Gen., and Philip Mothersill, Asst. Atty. Gen., for defendants in error.

Where the subject-matter of the controversy has long since ceased to exist, the case is moot and the appellate court will not entertain writs of error.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 63-80; Dec. Dig.

In Nos. 7780 and 7781:

19.]

En Banc. Error to District Court, ers County; Henry Hunter, Judge. In Nos. 7885, 7886, 7917, and 7918: Error to District Court, City and County of Denver; Greeley W. Whitford, Judge. In No. 8058:

PER CURIAM. The judgment of this court determining the respective questions presented in each of the above causes could not affect the rights of either of the parties Prow-thereto at this time, for the reason that the subject-matter of controversy in each has long since ceased to exist. An actual controversy is an essential requisite to appellate jurisdiction. It is not within the province of an appellate court to decide abstract or hypothetical questions, disconnected from the granting of actual relief, or from the determination of which no practical result can follow. Proceedings by the People of the State of City and County of Denver v. Brown, 47 Colorado on the relation of Charles Maxwell Colo. 513. 108 Pac. 971; Agricultural Ditch and others against A. E. Downer, Clerk and Co. v. Rollins, 42 Colo. 267, 93 Pac. 1125; Recorder of the town of Lamar, also against Northern Colorado Co. v. Pouppirt, 47 Colo. C. M. Lee, as Mayor, and others, together 490, 108 Pac. 23; People v. Hall, 45 Colo. with proceedings by the State, on the rela-303, 100 Pac. 1129. Each of the cases fall tion of the State Board of Horticulture, and within this rule, and they are therefore disby the State, on the relation of the State missed.

Error to District Court, City and County of Denver; John H. Denison, Judge.

Board of Agriculture, against Michael A.

In causes Nos. 7780 and 7781, the costs in Leddy, State Auditor, and others. In the this court and the district court are taxed first two cases there were judgments for re- to defendants in error.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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