application that no injury has been done, the change may be made; otherwise, not. Due notice of the application was given, as required by the act, and of those affected by the proposed change some appeared, and filed their protest. Some of the protestants own lands irrigated from the same stream situate between the present and the proposed point of diversion, while appellant's lands are below the present headgate of the ditch through which petitioner's appropriation is enjoyed. At the hearing, and on evidence somewhat conflicting, the court found that nobody would be injuriously affected by the change, and, upon such finding, entered a decree permitting the same to be made. Of the parties supposed to be affected, all of whom are junior appropriators, only appellant has appealed. He insists that the great preponderance of the evidence shows that he will be injuriously affected if the decree stands. Of the protestants, those who own lands lying between the old and the new point of diversion claimed at the hearing that their land adjacent to the stream is subirrigated, as they express it, if the water of the stream is allowed to flow unobstructed, whereas if petitioner changes his point of diversion several miles up the stream, as he proposes, the quantity of water to which he is entitled, which theretofore was permitted to flow down through the protestants' lands to the headgate of petitioner's original ditch, would be withdrawn from the bed of the stream, and, to that extent, subirrigation would be interfered with.

The facts tended to show, and the court so found, that in order to get into plaintiff's original headgate, the 4 cubic feet of water to which the ditch is entitled, there is required a flow in the bed of the stream of about 14 cubic feet of water; that if the proposed change of point of diversion is made. only 4 feet of water would be turned into the ditch, and 11 feet would be permitted to flow down the stream to the benefit of the owners of lands between the two points of diversion, and that this flow, together with the seepage from plaintiff's lands irrigated by the ditch beginning at the point of the proposed change, would more than compensate the intervening owners for any loss they might suffer in the way of diminished subirrigation. The finding of the court would seem to be conclusive, and reference is made to it here, not because these intervening owners are complaining, but to bring out clearly the fact that the appellant cannot be heard to object, as he does in his brief, that owners of lands between the old and new point of diversion have been injuriously affected, for his lands are below the original intake. The court further found, and the evidence tended to sustain the finding, that appellant was not injuriously affected. In his protest the claim of injury is that, if the proposed change is made, in times of scarcity of water his lands would

be deprived of the seepage which theretofore they had enjoyed when petitioner withdrew from the stream the water to which he was entitled at his original headgate. Just what title appellant has to such seepage, or how, or to what extent, it would be diminished, if at all, by petitioner's withdrawal of the water at a point farther up the stream, is not made to appear. At least there was evidence before the court upon which its finding was made that in no respect would appellant's rights be infringed. Indeed, it would seem from the evidence, as brought up in the record, that the trial court was right in saying that the protestants were "fighting against their own interests to ask that petitioner be not allowed to make this change."

The judgment is affirmed.
Affirmed.

GABBERT, C. J., and STEELE, J., concur.

(38 Colo. 189)

HUSTON & BOYD v. PETERSON. (Supreme Court of Colorado. Dec. 3, 1906.) 1. SALES CONDITIONAL SALES - BONA FIDE BUYERS-ACQUISITION OF TITLE.

Cattle were sold on condition that title should not pass to the buyer until he paid an outstanding mortgage. The cattle were placed with a third person. Subsequently a portion of them was delivered to the buyer, who sold them at public sale. The seller was present at the sale, and acquiesced therein. Held, that the seller could not claim the cattle as against a bona fide buyer at the sale.

[Ed. Note. For cases in point, see Cent. Dig. vol. 43, Sales, §§ 692-696.] 2. SAME.

A buyer of cattle on condition that title should not pass until he paid an outstanding mortgage, executed a chattel mortgage thereon to a third person to secure a pre-existing debt. The cattle bought were placed in the possession of a third person, and thereafter the seller permitted the buyer to sell a part of the cattle without complying with the terms of the sale. Held, that the seller was not estopped from claiming that the buyer did not have title to the cattle described in the mortgage to the third person, who did not rely on the conduct of the seller as authorizing the giving of the mortgage or as a ratification of the mortgage.

Error to Morgan County Court; Tyler D. Heiskell, Judge.

Action by Huston & Boyd against Peter Peterson. There was a judgment for defendant, and plaintiffs bring error. Affirmed.

L. C. Stephenson, for plaintiffs in error. M. M. House, for defendant in error.

STEELE, J. Plaintiffs below (and here) brought action in replevin against the defendant for the possession of certain cattle. The constable, on August 31, 1902, seized eight head of cattle branded "V-6," found in the possession of one Haas. Upon the trial, the justice rendered judgment for the defendant. The plaintiffs appealed to the county court. That court rendered judgment against the plaintiffs. They took the

case by writ of error to the court of appeals.

The plaintiffs in error claim that the finding and judgment are against the law and against the weight of the evidence. On December 26, 1901, one Hans Bach gave to Huston & Boyd a chattel mortgage upon 20 steers. to secure a note for $350, due August 1, 1902. About the time of the execution of the chattel mortgage, Hans Bach and the defendant entered into an agreement whereby the defendant was to sell to Hans Bach about 30 head of cattle bearing the V-G brand. A notary public prepared the contract between the parties. The contract was lost before the time of the trial. The notary testified that the agreement included land and cattle. He said: "I understood it was that Hans Bach was trading his farm, where Peterson now lives, to Peterson, and Peterson was trading certain cattle on which there was a mortgage, which was to be paid off by Bach. There was a place that Peterson had on Beaver creek in the deal. After the agreement was written up, Mr. Bach said to Mr. Peterson: 'Now, Pete, you might still make me a bill of sale for those cattle.' Peterson said: 'I can make no bill of sale until the mortgage is paid off.' Q. In that agreement, were the cattle given to Bach? A. No, sir; it was subject to the payment of the mortgage. Q. The sale was made on the conditions that Bach would pay off this mortgage? A. Yes, sir. Q. After that, was it the agreement that he should have perfect title to the cattle? A. That was my understanding. When Mr. Peterson got the papers back he was to give a bill of sale." In the agreement were included but 11 head of steers branded V-6. In January, 1902, Hans Bach held a public auction at his ranch and sold a number of cattle, some of them being included in the agreement mentioned. The defendant was present at this sale. He explained his presence at the sale and apparent acquiescence in the disposal of the cattle by Hans Bach, by saying that on the night before the sale Hans Bach gave him a check for the amount due upon the note secured by mortgage and mentioned in the agreement, and that he supposed that the check was good. The check was dishonored, and he was compelled to pay the note secured by the mortgage. He further testified that he never delivered possession of the steers to Hans Bach; that the steers remained in the possession of the persons to whom he delivered them to be pastured until after the sale mentioned, when he and Hans Bach took them, with other cattle, to the place of Chris Bach, where they were when seized by the constable.

The court found that Hans Bach did not have possession of the steers on December 26th, the date of the mortgage to plaintiffs; that they remained in the possession of Peterson; and that they were delivered to Chris

Bach in February. The sale of the steers to Hans Bach was a conditional one; the condition being that Hans Bach should have title to them when the mortgage upon them should be released and returned to Peterson. "A sale and delivery of goods on condition that the property is not to vest until the purchase money is paid or secured does not pass the title till performance of the condition, and, if the condition is not fulfilled, the vendor may repossess himself of the goods." Peabody v. Maguire, 79 Me. 572, 12 Atl. 630. In this case there was no delivery of the cattle, unless the placing of the cattle with Haas by Peterson and IIans Bach may be regarded as a delivery. The testimony discloses that it was agreed that Hans Bach was to pay for keeping the cattle, but that he did not do so, and that Peterson did pay for keeping them. The agreement, in effect, called for cash upon the delivery of the cattle, and a portion of them was delivered when a check for $241, the amount due upon the note secured by the mortgage, was delivered. The check was not paid. The conditions of the sale not having been complied with, the title to the cattle never passed. Having invested H. Bach with all the indicia of ownership and having been present at the sale, Peterson would not be permitted to claim that he owned the cattle sold to bona fide purchasers at the sale, and, as far as any claim of Peterson and H. Bach is concerned, such purchasers had a perfect title.

Counsel claim that the action of Peterson in permitting the cattle to be sold estops him from claiming that H. Bach did not have title to the cattle mentioned in the mortgage of plaintiffs. There is no evidence that Peterson consented to the sale of any of the cattle mentioned in the plaintiffs' mortgage. The cattle sold at the public sale were not those described in plaintiffs' mortgage. The plaintiffs' mortgage calls for certain steers branded V-6. Peterson sold to H. Bach 11 of such steers. Bach's mortgage to plaintiffs calls for 20 steers. Moreover, plaintiffs did not rely upon the conduct of the conduct of Peterson. The note was given for a pre-existing debt. Peterson's acts occurred long after they took the mortgage. While While this conduct might properly have been considered by the court in determining the facts and rendering judgment, still, the plaintiffs cannot invoke the doctrine of estoppel, because they did not rely upon the conduct of Peterson as authorizing the giving of the mortgage, nor did they show that they relied upon his conduct as a ratification.

The judgment of the court has sufficient support in the evidence to warrant us in upholding it, and, no error in law having been shown, we affirm the judgment.

The CHIEF JUSTICE and CAMPBELL, J., concur.

(38 Colo. 72)

BLISS v. HARRIS. (Supreme Court of Colorado. Dec. 3, 1906.) 1. CORPORATIONS-CONVEYANCES BY-REQUI

SITES-STATUTES.

The statute authorizing a corporation to transfer its property through its president or other head officer does not prohibit any other mode of transfer, and a corporation may transfer its property through such agency as it may designate.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 12, Corporations, § 1774.] 2. EVIDENCE - PRESUMPTIONS

SEAL.

-

CORPORATE

A corporate seal attached to an instrument signed by the secretary of a corporation must be presumed to be the seal of the corporation, and it must be presumed that the secretary sealed the instrument with the authority of the corporation; the secretary being under the law the custodian of the seal. 3. SAME.

The presumption that the secretary of a corporation sealed an instrument with the corporate seal pursuant to the authority of the Corporation is not overcome by the fact that no vote of the directors is shown.

4. CORPORATIONS-CONVEYANCES-VALIDITY.

The secretary of a corporation executed a note for money borrowed by the corporation, and executed a real estate mortgage to secure it. The mortgage bore the name of the corporation, its seal. and the name of its secretary. The acknowledgment recited that the secretary acknowledged that he signed, sealed, and delivered the mortgage as his voluntary act and as the voluntary act of the corporation. Held, that under Mills' Ann. St. § 443, providing that an instrument affecting title to real estate acknowledged before a proper officer shall be prima facie evidence of its execution, and under the law making the secretary of a corporation the custodian of its seal, the facts prima facie showed that the note and mortgage were executed and signed by the proper officer, and that the seal was the seal of the corporation, affixed by its authority.

Appeal from District Court, Fremont County; M. S. Bailey, Judge.

Action by Herbert Harris against S. E. Bliss and others. From a judgment for plaintiff, defendant S. E. Bliss appeals. Affirmed.

Maupin. McLain & Wilkes and John S. Stevens, for appellant. Chas. E. Gast, for appellee.

STEELE, J. To a suit brought for the purpose of foreclosing mortgage several persons other than the corporation alleged to have executed the mortgage were made parties defendant. One of the defendants, S. E. Bliss, who had purchased the property involved at execution sale, answered and contested the suit. From a judgment and decree ordering the sale of the property to satisfy the note secured by mortgage, the defendant Bliss has appealed.

He assigns as a reason for reversing the judgment the action of the court in admitting the note and mortgage in evidence over his objection. The Cripple Creek Beam Milling Company, the owner of certain land in Fremont county, executed, it is alleged, a note

for $5,000, payable to Harris, and, to secure the payment of the note, a mortgage upon its land. The instrument was recorded in the recorder's office of Fremont county, and at the trial a certified copy of the mortgage was admitted in evidence. The mortgage concludes and is signed in this manner: "Dated this seventh day of August, A. D. 1899.

"[Stamp, $2.00.]

"The Cripple Creek Beam Milling Company, "[Corporate Seal.]

"Frank S. Weigley, [Seal.] "Secretary."

The instrument was duly was duly acknowledged by Weigley; the notary certifying that "Frank S. Weigley, personally known to me to be the same person whose name is subscribed to the foregoing instrument, and known to me to be the secretary of the Cripple Creek Beam Milling Company, appeared before me this day in person and acknowledged that he signed, sealed, and delivered the said instrument as his free and voluntary act, and as the free and voluntary act of the said corporation, and for the uses and purposes therein set forth." The plaintiff testified that he loaned the company $5,000; that he was present at the office of the company in Chicago; that there the secretary handed him the note and mortgage, having first submitted to him a resolution of the board of directors authorizing the execution of the mortgage. The secretary of the company testified that he executed the mortgage for and on behalf of the company, after consultation with the directors, and that the company received the money. He testified that he thought there was no resolution of the board of directors authorizing the mortgage.

The objection made at the trial, and here. is that the note and mortgage are not signed by the proper officers, and that there is no proof that the secretary had authority to execute the note and mortgage on behalf of the company. We are of opinion that the acknowledgment by the secretary is prima facie proof that the note and mortgage were signed by the proper officers, and that the seal attached to the mortgage is the corporate seal of the company. The statute of this state which authorizes a corporation to transfer property through its president, or other head officer, does not prohibit any other mode of transfer, nor was it so in tended. It is entirely competent for a corporation to transfer its property through such agency as it may designate. The law makes the secretary the custodian of the company's seal, and when his name is signed to an instrument a corporate seal attached must be presumed to be the company's seal, and it must be presumed that the secretary sealed the instrument with the authority of the company. Union Gold Mining Co.

Colo.)

v. Bank, 2 Colo. 227. This presumption of authority is not overcome by the mere fact that no vote of the directors or other body exercising the corporate authority is shown. Id. The seal itself is prima facie eviis prima facie evidence that it was affixed by the lawful authority of the corporation. Id.

In the case Owers v. Olathe Mining Co., 6 Colo. App. 1, 39 Pac. 980, the court quotes with approval the following from the case of Lovett v. Steam Saw Mill Ass'n, 6 Paige (N. Y.) 60: "The seal of a corporation aggregate affixed to the deed is of itself prima facie evidence that it was so affixed by the authority of the corporation, especially if it is proved to have been put to the deed by an officer who was entrusted by the corporation with the custody of such seal. * And it lies with the party objecting to the due execution of the deed to show that the corporate seal was affixed to it surreptitiously or improperly, and that all the preliminary steps to authorize the officer having the legal custody of the seal to aflix it to the deed had not been complied with."

Moreover, section 443, Mills' Ann. St., provides that "any deed or instrument relating to or affecting the title to real property, acknowledged * * * before a proper officer, shall be prima facie evidence of the proper execution thereof."

The defendant offered no proof; and, as the court did not err in receiving the note and mortgage in evidence, the judgment should be, and it is, affirmed.

The CHIEF JUSTICE and CAMPBELL, J., concur.

(38 Colo. 316)

CLARKE v. ROBERTS' ESTATE. (Supreme Court of Colorado. Dec. 3, 1906.) EVIDENCE-ADMISSIONS--EFFECT.

A claim against a decedent's estate and the removal of the bar of limitations may not be proved by admissions of decedent to third persons, indefinite as to amount; no effort having been made in his life to collect it, though he was in business and able to pay.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 20. Evidence, § 1031.]

Appeal from District Court, Arapahoe County; John I. Mullins, Judge.

Action by A. K. Clarke against the estate of David Roberts, deceased. Judgment for defendant. Plaintiff appeals. Affirmed.

Kennith M. Laurie and Whitford, Whitford & May, for appellant. J. E. Robinson, for appellee.

GODDARD, J. On September 18, 1901, the appellant filed in the county court for allowance against the estate of David Roberts, deceased, a claim consisting of various items contained in two accounts marked, respectively, "A" and "B." Statement A includes items covering a period from January 31 to

1077

March 31, 1890. Statement B includes items covering a period from June 28, 1886, to November 3, 1890. A statement of alleged credits for merchandise and cash received, amounting to $54.50 between July 21 and May 25, 1901, is attached. From a judgment of the county court disallowing the claim, an appeal was taken to the district court, where upon a trial to the court the claim was disallowed upon two grounds: First, because the character of the evidence offered was insufficient to establish the claim; second, because, if the claim ever existed, it was barred by the statute of limitations.

It appears from the testimony that the deceased was engaged in business in this state since 1896, and during the three years prior to his death was carrying on a lucrative business in the city of Denver. The evidence introduced to establish the existence of the indebtedness was indefinite as to the amount, and in other respects unsatisfactory. The evidence mainly relied on, both to establish the existence of the indebtedness and to remove the bar of the statute, was of admissions alleged to have been made by the deceased to third parties. Such evidence has frequently been characterized by courts as "weak and unsatisfactory," and in some cases it is held that such admissions are insufficient proof to establish a claim against an estate. Wilder v. Franklin's Ex'r, 10 La. Ann. 279; Bringier v. Gordon, Adm'r, 14 La. Ann. 272: Bodenheimer v. Ex'rs of Bodenheimer, 35 La. Ann. 1005: Portis v. Hill, 14 Tex. 69, 65 Am. Dec. 99. As was said in Bodenheimer v. Bodenheimer, supra: "Extrajudicial admissions of a dead man are the weakest of all evidence. They cannot be contradicted. *** In most most instances such testimony is scarcely worthy of consideration." In view of the fact that no effort was made to enforce the claim during the lifetime of Roberts, when it appears he was able, and might have been compelled, to pay the same, the evidence to support it against his estate should be clear and convincing, not only as to the existence and amount of the claim, but also as to those matters relied on to remove the bar of the statute.

We think the trial court correctly found that the evidence was insufficient to meet these requirements in both particulars.

The judgment is therefore affirmed.
Affirmed.

GABBERT, C. J., and BAILEY, J., concur.

(38 Colo. 124) FLORENCE OIL & REFINING CO. v. OIL WELL SUPPLY CO.

(Supreme Court of Colorado. Dec. 3, 1906.) 1. COURTS-COUNTY COURTS-APPEAL-PLEADING-MOTION TO STRIKE PLEADING-TIME TO MAKE.

A motion to strike a pleading made after the cause had been appealed from the county

court to the district court, and on the day set for trial in the district court, may be denied because not made in apt time.

2. APPEAL-DISCRETION OF LOWER COURTALLOWANCE OF AMENDMENT TO PLEADINGREVIEW.

Unless it is apparent that a party has been prejudiced by the action of the court in allowing the adverse party to amend his pleading, the ruling will not be disturbed on appeal. [Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3812, 3825.] 3. SAME-CONTINUANCE.

Where the court did not abuse its discretion in allowing an amendment to a pleading, and refused a continuance on the ground of the absence of a witness as authorized by Mills' Ann. Code, § 177, on the adverse party admitting that the witness would testify as averred by the party applying for the continuance, the rulings were not ground for a reversal.

Appeal from District Court, Fremont County: M. S. Bailey, Judge.

Action by the Oil Well Supply Company against the Florence Oil & Refining Company. From a judgment for plaintiff, defendant appeals. Affirmed.

James T. Locke, for appellant. Lee Champion, for appellee.

STEELE, J. From a judgment of the county court of Fremont county rendered November 11, 1901, defendant (appellant here) appealed to the district court. The cause was set for trial, the parties consenting thereto, for May 2, 1902. On this day the defendant moved the court to strike the reply of the plaintiff to defendant's cross-complaint upon the ground that the reply was sham. The court granted the motion, but granted leave to the plaintiff to reply instanter, which it did. Thereupon the defendant moved for a continuance because of the absence of a witness. The affidavit accompanying the motion contains the necessary averments required by the practice. The plaintiff admitted that the witness, if present, would testify as stated in the affidavit. Thereupon the court denied the motion for continuance. The trial resulted in a verdict and judgment for the plaintiff, from which judgment the defendant appealed to the court of appeals. The only questions presented in the brief are those relating to the alleged error of the court in denying the motion to strike the replication and for judgment, and refusing to grant a continuance. It is contemplated by the Code that motions of this character should be made in apt time, and, as the defendant made no motion to strike until after the case had been taken to the district court, and not in that court unti the day of trial, the court might well have denied the motion upon the ground that it was not made in apt time. The replication was objectionable, however, and in striking it the court correctly ruled, and he did not abuse his discretion in permitting the plaintiff to amend. It has been held that courts are allowed great latitude in such matters,

and unless it is apparent that a party has been prejudiced by the action of the court, the ruling will not be disturbed. But counsel say: "The allowance of the amendment was done in the exercise of its discretion, and to allow the amendment and then thereafter immediately force appellant to trial without its witness was such an abuse of its discretion as we think ought to occasion the court to reverse the case and send it back for a new trial." The fact that both motions were denied is not ground for reversal. If the court had abused his discretion in allowing the amendment, or had failed to follow the provisions of the Code in refusing a continuance, there would be ground for a reversal of the cause, but, as the court has not abused its discretionary powers, and has applied the provisions of the Code which require that a trial shall not be postponed upon the ground of the absence of material evidence when the adverse party admits that such evidence would be given (section 177, Mills' Ann. Code), we must affirm the judgment.

Code Civ. Proc. § 12, provides that when the parties are numerous, and it is impracticable to bring them all before the court, one may sue for the benefit of all, and the court may make an order that the action may be so prosecuted. A complaint in an action by a single plaintiff recited that, by reason of the number and diverse residences of plaintiffs, it was impracticable to bring them all before the court. Leave was subsequently granted to file an amended complaint, and a demurrer was overruled. Held presumable on appeal that the court ordered that the action might be prosecuted by the single plaintiff.

2. ACTION-JOINDER OF CAUSES.

A complaint alleged that, through error, moneys paid by plaintiff to a county treasurer to redeem lands from a tax sale were not credited to the taxes levied against the lands: that the lands were sold, and by certain conveyances one of defendants acquired the rights of the purchaser, and that such defendant claimed an estate adverse to plaintiff's title. The board of county commissioners and the treasurer of the county were joined as defendants, and the relief sought was the correction of errors in the treasurer's books and cancellation of the certificate of sale, or the refunding of the money paid on account of the taxes, and that the defendant claiming an estate be required to plead his claim or interest, and plaintiff's title be quieted. Held, that a demurrer on the ground that causes of action were improperly united was good, as the complaint appeared to contain a cause of action for the removal of a cloud and a cause of action to quiet title, as well as one to recover a money judgment. 3. PLEADING-COMPLAINT AMENDMENT.

Mills' Ann. St. § 3902, provides that a tax deed shall be prima facie evidence that the taxes were not paid at any time before the sale. Section 3904 provides that, when a recovery