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6104 and 6137, already quoted, which makes the other against, its discharge. Its first the garnishee, if delivery is not made, lia- impression was correct. The last judgment, ble to the plaintiff at least for the amount the one on review here, is therefore reversed of the thing in action which he refuses to and the cause is remanded, with instructions deliver, for which the garnishee, had not the to the county court (as plaintiff does not writ been served upon him, otherwise would claim more) to enter judgment against the be liable to the defendant; that is, would garnishee in favor of the plaintiff for $95, have been required upon demand of the de- and for costs both here and below. fendant to deliver to him the check in ques Reversed and remanded. tion. That there may be no misunderstanding, it is well again to state that this is not TELLER, C. J., and SHEAFOR, J., concur. a case like that of Citizens' Bank v. First National Bank, supra, where it was sought to make a garnishee liable for the amount

ANGLO-AMERICAN MILL CO. V. FIRST of a bank check in its possession before it

NAT. BANK OF GLENWOOD SPRINGS had been presented for payment. Here the

et al. (No. 10931.) garnishee's liability, in the first instance, was to deliver the check to the constable when (Supreme Court of Colorado. Oct. 6, 1924.) process of garnishment was served. Failing 1. Appeal and error 882(5)—Where counsel to do so, and without any legal excuse, it is

insisted that motion be treated as general clearly liable under our statute for the demurrer, complaint may not be made that amount of the check.

it was so treated. The following, among other, authorities

Where plaintiff's counsel insisted that mocited sustain our conclusion: Davis v. Mitch- tion to strike part of complaint be treated as ell, 34 Cal. 81; Donohoe v. Gamble, 38 Cal. general demurrer, complaint may not there340, 352, 99 Am. Dec. 399; Hoxie v. Bryant, after be made that it was so treated. 131 Cal. 85, 63 P. 153; Kratzenstein v. Leh- 2. Pleading om 17–Allegation of knowledge of man, 19 App. Div. 228, 46 N. Y. S. 71. In the

unrecorded lien should be made of plaintiff's last case the court, in speaking of promissory own knowledge, not on information and benotes, said:

lief. "While they are, in a technical sense, choses

Allegation of a defendant's knowledge of in action, yet practically the paper itself is an unrecorded lien should be made on plainproperty, is regarded as such, and is dealt tiff's own knowledge, and not on information with like other tangible personal property."

and belief.

3. Sales m459-Presumption that conditional In Storm v. Cotzhausen, 38 Wis. 139, the sale was intended is rebuttable by stipulacourt held that the term, "property, credits,

tion in notes given. and effects," includes commercial paper. The

Presumption from vendor's reservation of same was held in La Crosse National Bank title that sale was intended to be conditional v. Wilson, 74 Wis. 391, 43 N. W. 153. If is rebuttable by terms and stipulations of

notes given, that is true under the Wisconsin statute, much more is it true that commercial paper 4. Sales Om 459—Optional payment of price is or negotiable instruments are subject to gar

essential to conditional sales, nishment and attachment under statutes like

Optional payment of price is as essential ours, which expressly include them. as among to conditional sales as is the conditional passclasses of property which a garnishee must,

ing of title. on demand, surrender to an officer who serves 5. Chattel mortgages Cm6, 152, 194-Written upon him a garnishee summons. Nordyke reservation of secret lien on goods apparently v. Charlton, 108 Iowa, 414, 79 N. W. 136. In sold absolutely is "chattel mortgage," and the note to Fishburn v. Londershausen, an void as to third persons when unrecorded. Oregon case reported in 14 L. R. A. (N. S.) Where transaction between buyer and sell1234, a number of cases in point are collect

er is absolute sale, written reservation of seed. A case that goes much further than is which, when unrecorded, is void as to third

cret lien constitutes a "cbattel mortgage," necessary here, in holding commercial paper

persons. subject to garnishment, is Washington Brick,

[Ed. Note.-For other definitions, see Words etc., Co. v. Traders' National Bank, 46 Wash. and Phrases, First and Second Series, Chattel 23, 89 P. 157, 123 Am. St. Rep. 912. Even Mortgage.] in the absence of such decisions under somewhat similar statutes, we would unhesitat- 6. Chattel mortgages On99%Secret lien re.

served in unrecorded instruments ingly reach the conclusion that, under our

panying sale cannot be extended to secure attachment and garnishment statutes, bank

renewals of purchase-money notes. checks, which are a species of bills of ex.

Since, under Chattel Mortgage Act, propchange, are subject to garnishment.

er notation on record is necessary to extend The county court was in doubt as to the security of mortgage to rerewal notes, a chatliability of the garnishee, as evidenced by tel mortgage contained in unrecorded written successive judgments; one in favor of, and I contracts retaining a secret lien on property

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

accom.

(330 P.) sold absolutely cannot be extended to secure balance of the purchase price, $3,100 of renewal of purchase-money notes.

which were paid in money at the time of the 7. Chattel mortgages em 198–Failure of ven- / delivery of the machinery. The allegations

dor asserting lien to take possession after of the complaint allege an unconditional default of purchaser held to defeat priority. sale; the promissory notes for the balance

Failure of vendor of machinery claiming of the purchase price are negotiable instrusecret lien thereon to take or assert right to ments, and upon their face import an abpossession within reasonable time after default solute obligation to pay. The accompanying of purchaser, or until after execution sale of writings, particularly the license contract, such property by creditor of purchaser, held provided that, upon a failure of the maker to defeat whatever priority he had had.

to pay the notes, he was required to remove 8. Contracts Ow212(2)—Indebtedness, time of the machinery and return it to the seller,

payment of which is not fixed, is payable on or the seller itself might enter the mill and demand or within reasonable time.

remove the machinery. The contract also Indebtedness, time of payment of which is provided that the seller should have a lien not fixed, is payable on demand or within rea- upon the property as a security for the paysonable time.

ment of the promissory notes. Neither the 9. Chattel mortgages C274_Chattel mort. contract of sale nor the license contract

gage securing indebtedness which had no time was recorded. The notes were renewed from for payment fixed must be foreclosed within time to time; some by the original purchasreasonable time.

er maker, and others by his successor in Where written instruments reserving secret interest, the elevator company. While this part purchase-money lien on machinery sold machinery was in possession of the elevator fixed no time for payment, mortgage created thereby could only be foreclosed within rea

company, and none of the written instru. sonable time (fixed at 30 days by statute).

ments constituting the contract between the

parties being of record, the First National 10. Sales 459_Conditional features of sale, Bank of Glenwood Springs, a codefendant if any, held terminated on purchaser becom- here with the elevator company, made loans ing absolutely liable for price.

of money to the elevator company aggregatWhere sale of machinery allowed 30 days for inspection, and where purchaser then gave ing

about $22,000, which the company failed unconditional 'notes for balance of price, held, to pay, and suit upon its promissory notes any previous conditional feature of sale there evidencing the loans was begun by the bank, upon terminated, and title passed absolutely on

a receiver was appointed to take possession purchaser's liability to pay becoming absolute. of the mill property, and final judgment was

entered upon the notes, and, under execuDepartment 3.

tion, sale of the property was made, and the Error to District Court, Garfield County'; bank bid it in. John T. Shumate, Judge.

This action was brought by the AngloAction by the Anglo-American Mill Com- American Mill Company as plaintiff against pany against the First National Bank of the bank and the elevator company, its obGlenwood Springs and another. Judgment ject being to establish as against them the of dismissal, and plaintiff brings error. AL-priority of its secret lien upon this mill mafirmed.

chinery, and to foreclose the lien by sale of

the machinery, or otherwise, and to satisfy M. J. Mayes, J. W. Dollison, and C. W. the same by applying the proceeds to the Fulghum, all of Glenwood Springs, for plain- payment of the balance of the purchase tiff in error.

price. The elevator company, if served with C. W. Darrow, of Glenwood Springs, for process, did not appear or defend. The de defendants in error.

fendant bank filed a motion to strike certain

portions of the complaint, which the court CAMPBELL, J. The Anglo-American Mill treated as a general demurrer, and upon its Company, a Kentucky corporation, made a granting of the motion, so considered, discontract with a Mr. Cowden, to whose rights | missed the action upon the announcement and liabilities thereunder the Cowden Mill by the plaintiff that it declined to plead and Elevator Company, one of the defend- further, but would stand upon its complaint. ants, has succeeded, whereby the mill com (1) We have not the slightest doubt about pany agreed to, and did sell, and Cowden the correctness of the decision of the trial agreed to, and did buy of the mill company, court. The first point made by the plaincertain mill machinery, which he put into tiff in error, the seller of the machinery, is a mill erected on his premises at Silt, Colo. that it was error for the trial court to treat The transaction between the contracting the defendant mill company's motion as a parties was evidenced by several written general demurrer. A sufficient answer is that agreements, including a so-called license con- in the well-considered opinion which the tract or purchase agreement, and a number | plaintiff in error brought up in the record of promissory notes executed by Cowden is found a statement by the trial judge that and delivered to the mill company for the ) the plaintiff's counsel themselves insisted

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

that the motion should be treated as a de. That is quite pertinent to the facts here. murrer, and, acting upon their suggestion, Though the different writings entered into the court did so.

between the mill company and Cowden stip[2] The chief reliance of plaintiff in error ulated that title should not pass from the is that the transaction between it and the seller until full payment of the purchase purchaser of the machinery was, in legal price was made, the promissory notes given effect, a conditional, and not an absolute, as part of the purchase price were absolute, sale, and that since the complaint alleges unconditional promises to pay, No option that the defendant bank had knowledge of was given to the vendee as to whether or not the true nature of the transaction, and that he should pay, but he was absolutely bound the parties intended the sale to be a condi- to pay, and, if he did not, he was required tional one, and that plaintiff thereunder re- to return the machinery to the vendor, or tained title to the machinery and had a lien | the latter might itself enter the mill and rethereon until all the purchase price was paid, move it. This transaction between buyer and its rights, as a seller, are paramount to seller was an absolute sale with the reservathose acquired by the bank under the execu- tion of a secret lien thereon by the seller, tion sale.

which made the written contracts a chattel First we say that it is doubtful, if the al mortgage under the law of this state and legation of the complaint is sufficient as to the decisions of this court in the Andrews the alleged knowledge of the bank of the and other cases. Not being recorded, they existence of the unrecorded lien. We say were void as to third persons whose rights this because the allegation is on information attached while the property remained in the and belief that the bank had actual and con- possession of the mortgagor vendee. structive notice. What the constructive no [6] If it be a fact that the bank had knowltice was does not appear, and in such cir- edge of this unrecorded mortgage, on the cumstances, we think, that, in the absence of theory that there was an absolute sale with any explanation of plaintiff's alleged lack a mortgage back as security, the notes seof knowledge or information on the sub-cured thereby were not paid at maturity or ject, the allegation in its complaint as to at all, and renewal notes were made from actual knowledge of the defendants should time to time. There could be no proper exhave been upon plaintiff's own knowledge, tension of the mortgage to secure the renewal and not upon information and belief. notes, because there was no mortgage of rec

[3-5} But assuming that there is in the com- | ord, and the life of a chattel mortgage, plaint a sufficient allegation that defendant under our Chattel Mortgage Act (C. L. $S knew of the existence of an unrecorded lien 5083-5099), may not be prolonged by an exin plaintiff's favor at or before the time de tension, unless the proper notation thereof fendant's rights accrued, the judgment of is made in the records of the county rethe trial court must, nevertheless, be af- corder. Even if this chattel mortgage, befirmed. This contract in all essential par-cause the bank had knowledge of it when ticulars is similar to, indeed, in legal effect, its rights accrued, was a paramount lien is the same as, the contracts considered by when the bank lent its money to the elevator this court in Andrews v. Colo. S. Bank, 20 company, such lien might be divested for a Colo. 313, 36 P. 902, 46 Am. St. Rep. 291 ; failure of the lienor properly to preserve and Clark V. Bright, 30 Colo. 199, 69 P. 506;

enforce it. Church v Furniture Co., 15 Colo. App. 46,

[7] The original notes, which were secured 60 P. 948; and Turnbull y. Cole, 70 Colo.

by the mortgage, matured before the bank 364-369, 201 P. 887, 25 A. L. R. 1149. It

made its loan on which it later recovered was held in the Andrews Case, and its doc- judgment and made sale of the elevator proptrine was followed and approved in the oth

erty No attempt was made by the morters, that, though an agreement itself provides that title to property shall remain in gagee thereafter or theretofore to take pos

session. If the lien was extended to cora vendor until full payment shall be made, "thus evidencing an intent to make the sale respond with the renewal of the notes, which,

however, in this state was legally impossible, conditional so far as the transfer of the title the renewal notes themselves became due beis concerned, that such an intention is re-fore the bank's rights attached, and no posbutted by the terms and stipulations in the session, within a reasonable time thereafter, notes given in pursuance of the agreement."

was taken by the plaintiff mortgagee. InAnd what is particularly applicable here,

deed, possession was never taken by the the court further said:

mortgagee, nor was there any attempt by it “The optional payment of the purchase price to do so, nor was there any claim of such is as essential to constitute a transaction a right made until after the execution sale and conditional sale as the conditional passing of after the bank itself had taken possession of the title; and a transaction that in express the property, so that the rights and equities terms imposes an unconditional liability upon the vendee to pay the purchase price for the of the bank are superior to those of the plainproperty delivered, however characterized by tiff vendor, the parties, is essentially and in legal effect

[8, 9] There are other reasons for the af. an absolute, and not a conditional sale." firmance of this judgment. If it be true, as

(280 P.) the plaintiff contends, that the several writ. 2. Boundaries w3(8)—Stones marking corner ten instruments, aside from the notes, con held not controlling as against reference in stituted the real contract of the parties,

field notes to brook. these instruments furnish no information Quarter corner, marked by stone, not as to when the secured indebtedness became shown to have been in place, held not controldue, and no time was designated therein ling as against reference in field notes to cer.

tain brook. when the indebtedness was to be paid. The rule of law in such a case is that the in- 3. Boundaries Om37(3)-Court held not justidebtedness was payable on demand or within

fied in accepting surveyor's line from corner a reasonable time thereafter, and any mort

fixed by marked trees, in view of other avi.

dence as to location. gage, such as was created by these instruments, must be foreclosed within a reason

Court held not justified in accepting line able time thereafter, our statute making a marked trees, in view of other competent evi

run by surveyor from corner fixed by two reasonable time 30 days.

dence as to stone in place marked as corner [10] No attempt, as we have said, was and blazed trees on lines running therefrom made by the plaintiff to take possession. on courses given in field notes. Then, too, if there was any conditional fea

4. Boundaries 35(3) Testimony of one ture about this sale, it appears from all the

making single survey without license not inprovisions of the contract, taken together,

competent; to "practice a profession." it was only for a period of 30 days, which

That one making survey for his father, who period of time was given by the vendor to was owner of property, had no license under the vendee Cowden in which to test the C. L. § 4696, to practice surveying, did not machinery in operation to see if it was satis- render his testimony as to location of corner factory. This test was made, and Cowden incompetent; “to practice a profession” being was satisfied, and it was then that he de- to hold one's self out as following it, as calling

or one's usual business. livered the unconditional and absolute promissory notes for the balance of the purchase 5. Trespass Ow67–Submission of question of price. The condition, if it ever existed, exemplary damages for cutting timber held then ceased and title passed out of the

unauthorized · plaintiff and absolutely fixed liability upon

There being fair question as to location of Cowden for the payment of the balance due boundary line, and no evidence that parties Waiving, as we have, all formal defects sued for damages for cutting timber acted

willfully, wantonly, or recklessly, submission of irregularities, and fatal inconsistencies in question of exemplary damages to jury was not the complaint, which are quite apparent, we authorized. are thoroughly satisfied that its allegations, read with the several agreements which are

Department 3. made a part of the complaint by reference,

Error to District Court, Clear Creek Counshow an absolute, and not a conditional, ty; S. W. Johnson, Judge. sale; that, even if the defendant bank had

Action by Clara Stevens against the Beaactual knowledge of the existence of the ver Brook Resort Company and others. several contracts that made the transaction Judgment for plaintiff, and defendants bring a chattel mortgage, whatever rights or liens

error. Reversed. the plaintiff had thereunder were forfeited

Guy D. Duncan, of Denver, for plaintiffs and lost by reason of its failure to take pos

in error. session as the law required. The judgment of the district court is there- both of Denver, for defendant in error.

Charles R. Bosworth and S. S. Abbott, fore affirmed. Judgment affirmed.

TELLER, C. J. The parties to this litiga

tion were owners of adjoining tracts of timTELLER, C. J., and SHEAFOR, J., con- ber land in Clear Creek county. The de

fendant in error owned the north half of the northwest quarter of section 21, and the northeast quarter of the northeast quarter

of section 20, all in township 4 south, range BEAVER BROOK RESORT CO. et al. v.

72 west. STEVENS. (No. 10789.)

Plaintiff in error, the Beaver Brook Com

pany, owned lands immediately south of (Supreme Court of Colorado. July 7, 1924. this row of 40's. Defendant in error had Rehearing Denied Nov. 10, 1924.)

judgment in an action against the plaintiffs 1. Boundaries eww 54(2)—Method of establish- in error for damages alleged to have resulting lost corner stated.

ed from the cutting of timber on her propTo establish lost corner, surveyor should erty. The verdict was for $650, which inlocate, if possible, government corners in every cluded $150 exemplary damages. Judgment direction from it, and apportion distance be- was entered on the verdict. tween such points.

The question on which the right to damFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

cir.

ages turned was as to the south line of plain-, properly marked, was not in place and so tiff's property, which was, of course, the located as to make it controlling as against north line of defendants' property. One of the reference to the brook. the errors assigned is the giving of instruc In Morse v. Breen, 66 Colo. 398, 182 P. 887, tion No. 2, by which the jury was informed we said: that the line between the lands of the plain “Stones are liable to removal, and hence tiff and defendants, as established by the they are not as good evidence of the lines run survey of one Barbour, is the true boundary as are physical objects used as monuments, or line of the lands, and it was to be so con- | located on plats, such as streams, etc., which sidered.

are permanent in their location." It does not appear from the record that Barbour seems to have been satisfied with any undisputed monuments of the original finding what he called the two bearing trees government survey were found.

It is con as fixing the location of the northwest corceded that the northwest corner of section 21 ner of 21. was a point material to be established, from [3] Moreover, the court was not justified which the south line of plaintiff's property in accepting the Barbour line, in view of the could be located. Barbour, who made the fact that there was other competent evi. survey adopted by the court, testified that dence, which the jury might well have conat the point which he established, and which sidered, showing that the northwest corner the court accepted as that corner, he found of 21 was a considerable distance to the no monument; but two trees, one standing west, and to the north, of the place where and one down, one marked "16" and the Barbour placed it. The testimony is that at other “17,” were accepted by him as witness that point there was a stone in place bear. trees. He testified further that he found on ing the markings to show that it was the the ground, something less than a mile east northwest corner of 21. The testimony as to of this corner, a stone which he took to in- this location of the corner was supported by dicate the northeast corner of the section. testimony that there were blazed trees on He further testified that he found the west lines running from it on the courses given quarter corner of 21, the southeast corner, in the field notes. and the east quarter corner. None of these [4] The court withdrew from the jury the stones taken by Barbour as monuments ap- testimony of one Furlong, who testified to a pears by his testimony to have been in place. survey by him which carried the north line He testified that he did not go west of the of 21 north, and the west line west, of where point selected as the northwest corner of 21, Barbour placed them. He found the corner or north of it, nor did he go south of it be- above mentioned. The court held that inasyond the quarter corner.

much as Furlong was not a licensed surveyor [1] The method of restoring lost corners is he could not testify. The statute, which indicated in Westcott v. Craig, 60 Colo. 42, doubtless the court had in mind, is 4696 O. 151 P. 934. The rule is one of apportion- L. 1921, which makes it unlawful for any ment; under it, 'to establish a lost corner, personthe surveyor should locate, if possible, gov- to practice or offer to practice engineering or ernment corners east of it, west of it, north land surveying in this state, unless such person of it, and south of it, and then by apportion has been duly licensed under the provisions of

this act." ing the distance as found to be between these points, the true corner will be established. That statute has no application to this

[2] We regard the evidence of Barbour as wholly insufficient to justify the court in The testimony of Furlong was that he had holding that the south line of the plaintiff's engaged in land surveying in Minnesota, that property as located by him was correct, even he, at the time of this survey, was a clerk if there were no evidence to the contrary, in the post office, and that he made the sur The line as located by Barbour and accepted vey for his father, who was one of the own. by the court was admittedly several hundreders of the property. Such a survey is not feet farther to the south than it would be practicing surveying. To practice a profesunder the field notes which were in evidence. sion is to hold one's self out as following The notes give Beaver Brook's location, with that profession as a calling, as one's usual reference to the southwest corner of the sec- business. People v. Blue Mountain Joe, 129 tion, at the point where it crosses the west | Ill. 370, 21 N. E. 923; Jackson v. Hough, 38 line, and if that point be as stated in the W. Va. 236, 18 S. E. 575. In the latter case notes, the south line of plaintiff's property it is held that one who acts as a broker in has been carried by Barbour much too far to the selling of a single piece of property, not the south. Barbour testified that he did not being engaged regularly in the business, does regard physical features mentioned in the not require a broker's license. The court exnotes as material, where government cor- cluded the plat made by Furlong because he ners contradicted the notes. In this he was was not a licensed surveyor. probably correct, but as applied to this case [5] There are other instructions of the he is wrong. The west quarter corner, while court to which objection is made which we

case.

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