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Suit by J. L. Slack against Edward An-1 [1] We are of the opinion that there was derson. Judgment for defendant, and plain- evidence to support the finding that there tiff brings error. Affirmed.

was no purchase by the plaintiff, and the Allen & Webster, of Denver, for plaintiff in

finding, therefore, cannot be disturbed. error. Munson & Munson, of Sterling, for de

[2] The setting aside of the judgment was

a matter within the discretion of the court, fendant in error.

and we cannot say that the court abused its

discretion in the order which it made. TELLER, J. The plaintiff in error brought

The judgment is affirmed. suit to quiet title to a quarter section of

Judgment affirmed. land. The defendant, by answer, claimed title from one Matthew Wasley, who was the

GABBERT, C. J., and HILL, J., concurpatentee from the United States government, and who appeared, according to the records, still to be the owner.

(60 Colo. 464) It appears from the abstract that the plain-! MULLEN et al. v. GRIFFIN. (No. 8449.) tiff, in the spring of 1912, wrote to Matthew (Supreme Court of Colorado. Jan. 3. 1916.) Wasley, in Wisconsin, to the effect that a

| 1. TRIAL 337 - VERDICT — DISREGARD OF draft for $10 had been sent to the Hazel

INSTRUCTIONS. Green Bank to be delivered to him on the In a suit for malicious prosecution, where execution and delivery of a quitclaim deed it appeared that defendant, in causing plaintiff's for the land in question, which, the letter

| arrest, acted solely on a report that plaintiff had

been seen carrying off two lamps and a sack said, "you remember you used to own." of coal, and that, without inquiry of plaintiff,

Wasley testified that the cashier of the and in violation of law, he searched his house above-named bank asked him to sign the

| in the nighttime, defended in part on the

ground that defendant had made to counsel a deed to fix up the title to the land which his

full statement of all the facts bearing upon the son had sold, he having conveyed to the son plaintiff's guilt or innocence, in which the court in January, 1900; that nothing was said

| instructed that defendant must have made a full

and candid statement of all the facts to conabout buying the land; that he signed the

stitute the defense, a verdict for plaintiff would deed to clear up the title; and that he re not be set aside as in disregard of the instrucceived not to exceed $5 for it. Plaintiff admitted in his testimony that his letter to [Ed. Note.–For other cases, see Trial, Cent. the bank requested that Wasley be seen and

Dig. § 790; Dec. Dig. On337.) requested to execute a quitclaim deed, "as it

2. APPEAL AND ERROR Om581-ASSIGNMENT

OF ERRORS-NECESSITY OF OBJECTION. was necessary to fix up the title."

Where the abstract showed no objection The court found that the land was of the made to the giving and refusing of instructions, value of $2,000; that there was no bargain alleged errors therein will not be considered. and sale between plaintiff and Wasley: that) (Ed. Note. -For other cases, see Appeal and

Error, Cent. Dig. $8 2575–2581, 2599, 2601; there was no consideration for the deed ;

Dec. Dig. Om581.] that Wasley, in executing the deed, supposed

Error to District Court, Teller County; that he was correcting a defect in his for

J. W. Sheafor, Judge. mer conveyance to his son; and that the plaintiff was not a purchaser of said land

Suit by D. K. Griffin against R. C. Mullen

and the El Oro Mining & Milling Company. for value. On December 11, 1913, before the entry of

e Judgment for plaintiff, and defendants bring judgment, plaintiff was given 15 days in

error. Affirmed. which to move for a new trial. A motion for Edward J. Boughton, of Denver, W. M. a new trial not having been filed, judgment Alter, of Cripple Creek, and K. W. Farr, of for defendant was entered January 9, 1914. Victor, for plaintiffs in error. E. G. Van.

On May 12, 1914, plaintiff filed a motion to atta, of Cripple Creek, for defendant in ervacate the judgment and grant a new trial, ror. supported by an affidavit to the effect that the books of the above-mentioned bank show TELLER, J. The defendant in error ed a payment to Wasley of $10, and that the brought suit against the plaintiffs in error plaintiff could not secure the said affidavit for malicious prosecution, and obtained judgwithin the 15 days allowed for the motion ment for damages in the sum of $1,000. for a new trial.

(11 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

having acted in the prosecution on advice of 2. DEEDS C 32REQUISITES–PARTIES. counsel. It is urged that there was uncon-. A deed delivered in blank as to the grantradicted evidence to prove every fact de

tee conveyed no title, and a subsequent delivery

to another party without inserting the grantee's clared by the instruction to be necessary to name and deed by him to the plaintiff creates such defense. Hence, it is said, the verdict no title in the plaintiff, since no deed is valid should have been set aside. One of the ele

absent competent grantor and grantee. ments of the defense outlined by the instruc

(Ed. Note. For other cases, see Deeds, Cent.

Dig. 64; Dec. Dig. 32.) tion was that defendant had made "a full,

3. APPEAL AND ERROR 854–SCOPE OF REtrue and candid statement of all the facts

VIEW - REVERSAL - GROUNDS OF DECISION bearing on the guilt or innocence of the plain-| BELOW. tiff of which knowledge might have been ob

Although the decision of the court below tained by the exercise of reasonable dili

was based upon improper grounds, if it was

correct, it will be affirmed on appeal. gence."

[Ed. Note.-For other cases, see Appeal and The jurors may well have considered that Error, Cent. Dig. $8 3403, 3404, 3408–3424, defendant Mullen did not make proper effort|3427-3430; Dec. Dig. Om 854.] to ascertain the facts bearing on plaintiff's Error to District Court, Morgan County; guilt before he sought advice of counsel. | H. P. Burke. Judge. From defendant Mullen's own statement it Action by O. H. McGrew against Silas S. appears that, in causing plaintiff's arrest, he Lamb. Sheriff of Morgan County, and anothacted solely on a report made to him that er. From an order sustaining a motion for plaintiff had been seen carrying off two | nonsuit, plaintiff brings error. Affirmed. lamps and a sack of coal. He made no in

James E. Jewel, of Ft. Morgan, for plaintiff quiry of plaintiff as to the matter, and pro

in error. Johnson & Robison and Walter S. ceeded, in violation of law, to search the plaintiff's house in the nighttime. Had he

Coen, all of Ft. Morgan, for defendants in erasked the plaintiff about the property taken,

ror. and received an explanation, he would not

GABBERT, C. J. [1, 2] Plaintiff in error have made a fair and full statement to counsel unless he had included plaintiff's explana

commenced an action against defendants in

error for a mandatory injunction to compel tion. Upon this matter of: a full and fair

the defendant sheriff to issue him a certificate statement it cannot be said that a finding against defendants is without support in the

of redemption from sale of lots under a

special execution, and to cancel a quitclaim evidence. The jurors, who heard and saw the wit

deed purporting to convey the lots in question

to defendant Goodman. At the conclusion of nesses, might have found against the defend-. ant on this or one of the other matters which

the testimony on the part of plaintiff a mohe had to prove to make out that defense ;

tion by defendants for a nonsuit was sus

tained. and we cannot say that the trial court, with its full knowledge of the case presented,

The only question necessary to determine is

whether the testimony established that plainerred in regarding, as it must have done, the

tiff had any interest whatever in the lots ; jury as justified in its findings.

for, unless he had some interest, which under [2] Errors are assigned also on the rulings

the statute relating to redemptions from exeof the court in refusing and in giving in

cution sales would entitle him to redeem, the structions; but, as the abstract shows no

judgment should be affirmed. If he had any objections made in either case, the alleged

such interest, it is by virtue of a deed executerrors will not be considered.

ed by one Cook, in whom the title was vested, There being no error in the record a's pre

and delivered to a George T. Bennett with sented, the judgment is affirmed.

the name of the grantee blank. Bennett aftJudgment affirmed.

erwards delivered this deed to S. W. Beggs GABBERT, O. J., and HILL, J., concur.

in the same condition, and in which the name of the grantee never was inserted. Beggs

was the grantor of plaintiff, and, unless the (60 Colo. 462)

above facts vested title in him, the title, acMcGREW v. LAMB, Sheriff, et al. (No. 8405.) cording to the record, is in defendant Good(Supreme Court of Colorado. Jan. 3, 1915.) man. It is axiomatic that to every deed 1. APPEAL AND ERROR Omn 866-SCOPE OF RE

there must be at least two parties, one rapaVIEW-NONSUIT-EFFECT.

ble of conveying, and the other of receiving, On appeal from an order sustaining motion and that a deed without a grantee is practifor nonsuit in an action for mandatory injunc-cally no deed at all. Warvelle on Vendors, $ tion to compel defendant sheriff to issue a certificate of redemption from the sale of lots un

481. Whether a deed which does not contain der special execution, unless plaintiff had an the name of a grantee is void as held in some interest in the lots which would entitle him to jurisdictions need not be determined, for redeem, the order must be affirmed and no other clearly it is invalid for any purpose, and does questions need be considered. [Ed. Note. For other cases, see Appeal and

not pass any interest until the name of the Error, Cent. Dig. 88 3467-3475; Dec. Dig. Om

grantee is inserted therein. Allen v. With866.]

row, 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

90; Lund v. Thackery, 18 S. D. 113, 99 N. W., stantial 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 reThe deed from Cook delivered to Bennettcently had any severe illness; that he was did not name a grantee. In this condition last attended by a physician ten years prior Bennett delivered it to Beggs, and the name to making the application for insurance, and of a grantee never was inserted, so that in that he was not subject to kidney disease; the circumstances of this case Beggs never that by reason of such false statements, the acquired any title, and his deed to plaintiff policy is void. The reply denied the allegaconveyed nothing.

tions of new matter set up in the answer. At Other questions are argued by plaintiff in the conclusion of the testimony at the trial error which, in our opinion, are without merit each side moved for a directed verdict, and it and need not be considered.

was stipulated between the parties that the [3] The learned trial judge appears to jury should be excused, and that upon a dehave decided the cause upon a question oth-termination by the court of the motions a er than the one we have based our conclu-verdict should be directed accordingly. The sion upon. Whether his theory was right or jury was excused, and thereafter the court wrong is immaterial when his conclusion was sustained the motion of defendant and enunquestionably correct.

tered judgment of dismissal, to review which The judgment of the district court is af- action the case is brought here on error. firmed.

Defendant is a fraternal organization operJudgment affirmed.

ating under the lodge system. July 1, 1908,

a benefit certificate was issued to Anderson WHITE and BAILEY, JJ., concur.

B. Johns in which John Paul Johns, his son, was eventually named as the beneficiary.

The certificate was issued upon the usual (60 Colo. 456)

written application and medical examination McRORY V. INDEPENDENT ORDER OF of the insured, wherein he warranted his anPURITANS. (No. 8367.)

swers to be true. September 17, 1910, he (Supreme Court of Colorado. Jan. 3, 1916.)

died, from what cause or disease the record is

" silent. INSURANCE C 755_FRATERNAL INSURANCE- To arrive at an intelligent understanding ESTOPPEL.

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 mem- the transaction, we are of necessity forced to ber's application, and the medical examiner must have discovered their falsity, yet the in-|

go somewhat into the evidence. One W. C. surer, for over two years having continued Danks was the chief witness for the defense the membership and accepted the premiums, is as to the falsity of the statements in the apestopped in an action on the certificate to set | plication of the insured. According to his up the falsity of the statements in the application.

testimony, he was intimately acquainted with [Ed. Note.-For other cases, see Insurance,

the deceased during, prior to, and after the Cent. Dig. 88 1907-1916; Dec. Dig. Om755.)

time of his application for membership; was

fully conversant with his physical condition; Error to District Court, City and County

knew that he was suffering from rheumatism of Denver; John H. Denison, Judge.

and kidney disease, and that he had come to Action by W. W. McRory, guardian of John

Colorado for the benefit of his health. He Paul Johns, a minor, against the Independ

says: ent Order of Puritans. There was a judg.

"I first became acquainted with Mr. Johng ment for defendant, and plaintiff brings er- | about the latter part of the year 1907; met him ror. Reversed and remanded with directions. | in Denver. We formed a partnership to prac

tice law, commencing the 1st day of March, Clark Varnum, of Chicago, I11., H. F. Johns | 1908, and continuing until March, 1909.” 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.

and said:

“I don't believe I was present when this GARRIGUES, J. This action was brought application was signed by Mr. Johns. I was by the guardian of John Paul Johns, a minor,

| present when the application was forwarded to

the home office. I was local secretary of the against the Independent Order of Puritans, company at the time. He (Johns) stated to me a fraternal association organized and exist ten minutes after he signed it that he had acing under the laws of Pennsylvania, to re

tually signed the application and hoped to be a

member within a few days. At that time, I cover judgment on a limited annuity certifi

was the secretary, and all policies came to me, cate issued to Anderson B. Johns. The sub and I delivered them to the persons.”

On cross-examination the witness gave the It is conceded that the statements made following testimony:

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 Dri Dast'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 particular application there? A. I looked it it issued to him its certificate and continued 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. more than two years after it had this knowlEast? 'A. Well, I don't remember; it was ly

edge and up to the time of his death; that ing on his table, he might have; Mr. Johns and I examined it. Q. You were district officer of by so doing it waived the false representathe association ? A. I was.”

tions, and is now estopped from avoiding liaThereafter the witness was recalled for the bility on the policy. Defendant, while recogpurpose of establishing the falsity of the nizing this general rule, contends that it had statements made in the application and testi- no knowledge of the facts; that, while its fied regarding the physical condition of the local representative Danks was personally applicant. On cross-examination he said: 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- e legumy 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

e not as an official of the company; that he on the correspondence, if there was any. I don't remember anything only in remitting mon- had no knowledge of the contents of the apey. I remitted money as secretary, collected by plication, and did not know that the stateme as secretary. Q. From July, 1908, to some ments therein made were not in conformity time in 1909 you collected assessments on this certificate, did you, or received them? A. Yes,

with the true physical condition of the apsir. Q. And you remitted them to the home of- plicant, and therefore it is not bound by his fice? A. I certainly did. Q. The secretary is personal knowledge or precluded from assertone of the officials of the local lodge, is he not?

(ing the defense now presented. A. I presume he would be. We had no local lodge; I was just secretary. Q. Is the medical The question is not without difficulty. A examiner known as one of the officers of the great many authorities are cited by defendorder? A. The by-laws say what the officers

ant's counsel in support of its contention, and of the local council shall be, and they include the secretary and medical examiner."

there seems to be little controversy over the Mr. Danks also testified that he was an

principles of law involved; but counsel are attorney at law and represented the defend

far apart on the proposition of whether the ant locally in legal matters in which it was

principles are applicable to the situation here interested, and that he was also a member

presented. This is one of those peculiar casof the organization.

es in which the law is well settled, the eviThe medical examiner of the company cer

dence practically without conflict, and yet a tified that he had made a careful examination

correct solution with absolute certainty of of the applicant; that he had examined and

being right is difficult. We have reached the tested his urine; that, in his judgment, the

oment the conclusion that the examining physician and applicant had fully and truthfully answered

Danks were both agents of the organization, each question; that the risk was first-class ;

and that their knowledge was the knowledge and that he recommended the applicant for of the company. It is to be presumed that membership.

the medical examiner was competent, posIt seems to us that the following deduc sessed the proper qualifications, and made a tions are warranted by the evidence: First, thorough examination of the insured, which, that Danks was the local secretary and agent if properly conducted, would necessarily have of the organization; second, that he was fully brought to his attention the physical ailments conversant with the physical condition of of the applicant. Danks knew his physical Johns immediately before, at the time, and condition, and was one of the principal witafter he applied for membership in the de- nesses who furnished the evidence for the fendant company, and when he collected and company to establish the falsity of the stateremitted the assessments on the policy; third, ments in the application, which he says he that he was sufficiently familiar with the ap- examined before it was sent to the home ofplication and with its contents to swear that fice. The company must be presumed to it was the identical one upon which the mem- have known the facts with which their bership certificate had been issued, and that agents were acquainted when it accepted the he examined it before it was sent to the home risk. For over two years it permitted the office; fourth, that the medical examiner insured to remain a member of the associamust have discovered and known that Johns tion and to pay assessments, which it receiv. was suffering from kidney disease and was ed, up to the time of his death. Under these not an insurable risk.

circumstances we conclude the company is

der V.

un 1460,

LO In No. 1886:

estopped from setting up the defense inter- slators, 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. In

Thos. R. Hoffmire, of Pueblo, for plaintiff dependent Foresters, 44 Or. 543-553, 75 Pac. lin

·lin error. 1067; Pringle v. Modern Woodmen, 76 Neb. 384. 107 N. W. 756. 113 N. W. 231: Morrison In Nos. 7917 and 7918: y. Wisconsin Odd Fellows. 59 Wis. 162. 18 | W. H. Bryant, J. A. Marsh, and W. R. KenN. W. 13; Wiberg v. Minnesota Ass'n. 73 nedy, all of Denver, for plaintiff in error. Minn. 297–304. 76 N. W. 37: Ball v. Aid As-Henry A. Lindsley and Walter E. Schwed, sociation, 64 N. H. 291-293, 9 Atl. 103.

1 both of Denver, for defendant in error. The judgment is reversed, and the cause In Nos. 7780 and 7781: remanded, with directions to the lower court I. B. Melville, of Denver, and C. C. Goodale to enter judgment for the plaintiff.

and Alfred Todd, both of Lamar, for plainReversed and remanded, with directions. tiffs in error. Granby Hillyer, of Lamar, for

defendants in error. GABBERT, C. J., and SCOTT, J., concur.

In No. 8058:

McKnight & Henry, Carlisle A. Ferguson, (60 Colo. 498, 499)

and M. H. Farrington, all of Denver, for STATE ex rel. STATE BOARD OF AGRI- plaintiffs in error. W. H) Bryant, J. A, Marsh,

CULTURE v. LEDDY, State Auditor, et al. and W. H. Malone, all of Denver, for defend(and six other cases). (Nos. 7886, 7917, 7918, i ants in error. 7780, 7781, 8058, and 7885.)

In No. 7885 : (Supreme Court of Colorado. Jan. 3, 1916.)

Thos. R. Hoffmire, of Pueblo, for plaintiff APPEAL AND ERROR O19-DETERMINATION-lin error. Benjamin Griffith, Atty. Gen., and Moot CASE.

Where the subject-matter of the controver-lap Mothersill, ASSt. Atty. Gen., 101 sy has long since ceased to exist, the case is fendants in error. moot and the appellate court will not entertain writs of error.

PER CURIAM. The judgment of this [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. 88 63-80; Dec. Dig. Om19.)

court determining the respective questions

presented in each of the above causes could In Nos. 7780 and 7781 :

| not affect the rights of either of the parties En Banc. Error to District Court, Prow- thereto at this time, for the redson that the ers County; Henry Hunter, Judge.

subject-matter of controversy in each has long In Nos. 7885, 7886, 7917, and 7918:

since ceased to exist. An actual controversy Error to District Court, City and County

is an essential requisite to appellate jurisdicof Denver; Greeley W. Whitford, Judge.

tion. It is not within the province of an ap

pellate court to decide abstract or hypothetiIn No. 8058:

cal questions, disconnected from the grantError to District Court, City and County

ing of actual relief, or from the determinaof Denver; John H, Denison, Judge.

tion 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. 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 samo topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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