Suits by A. R. Regan, as administrator of but we think that the evidence is sufficient the estate of Mary J. Ramsdell, deceased, for that purpose. against Robert I. Turner and Julia M. Turn- The judgment should be reversed, with dier. To review judgments for defendants, rections to enter judgment in both cases for plaintiff brings error. Judgments reversed, plaintiff, setting aside the transfer to an exwith directions to enter judgments for plain- tent sufficient to satisfy the costs of administiff. tration and such claims as shall be allowed.

Elbert C. Smith, of Greeley, for plaintiff in error.

William R. Kelly, of Greeley, for defendants in error.

DENISON, J. Regan, administrator, brought two suits against Robert and Julia Turner, one to recover personal property alleged to belong to the intestate, and the other to set aside a deed of real estate from the intestate to the defendant. They were tried together, the trial was to the court, the judgment was for the defendants, and the plaintiff, Regan, brings error.

About January 12, 1918, Mary J. Ramsdell, then about 86 years of age, transferred all her property, $2,000 to $2,500 in value, to the defendant Julia Turner, her daughter. April 12, 1918, Mrs. Ramsdell died.

The plaintiff was appointed administrator. A claim against the estate in favor of Laura Forrest, wife of the intestate's grandson, having been allowed in the sum of $1,050, the administrator, after demand, brought the

said suits.

The evidence showed that Mrs. Ramsdell executed the deed and transferred the personal property in consideration of Mrs. Turner's oral agreement to care for her mother for the rest of her life and to pay a sister $50 and two other sisters $25 each. She cared for her mother until her death, and paid $45 on account of the $100 which was to be paid to the sisters.

Two main questions are argued in this court,

(1) Was the transfer to Mrs. Turner valid as against the creditors?

(2) Can the administrator maintain the actions?

[1] As to the first point, it is held in this state that the transfer of all of one's property to secure support for the remainder of the grantor's life is fraudulent as against his existing creditors. Fahey v. Fahey, 43 Colo. 354, 357, 96 Pac. 251, 18 L. R. A. (N. S.) 1147, 127 Am. St. Rep. 118. The promise to pay the grossly inadequate sum of $100 does not relieve the transaction of constructive fraud. Nugent v. Foley (Sup.) 137 N. Y. Supp. 705, 707. The transfers then were voidable by creditors.

TELLER, J. The parties to this litigation in May, 1917, entered into a contract in writing in order to settle a controversy concerning certain pasture lands; said parties being the lessees of adjoining lands, with no natural dividing line between them. This contract provided for the making of fences, on specified lines, so that, as the contract stated, each of the parties should be restored to the possession of the pasture held by him under lease. The fences were duly made, and about a year thereafter the plaintiff in error, having acquired possession of some adjoining lands, built some new fences, and removed a The point is made that it is not shown that part of the fence built under the said conthe debt existed at the time of the transfer, ❘ tract, all of which the defendant in error con

[2] The second question is settled in favor of plaintiff in error by Grover v. Clover, 169 Pac. 578.

(193 P.)

mitted to bail only with caution, and has burden of proof.

tends was in violation of the contract, and 2. Bail 42, 49-Convicted defendant adto his damage. He, therefore, brought suit to enjoin the plaintiff in error from further removing any of the contract fences, and from building any new fences which interfered with the respective possessions as recognized by the contract. The court found for the plaintiff in the suit, and an injunction issued, as prayed in the complaint.

[1] Plaintiff in error contends that the purpose of the contract was to restore each of the parties to the possession of the land leased by him, and that the fences as they stood before the changes made by plaintiff in error did not effectuate the purpose of the contract, inasmuch as it left some of each party's leased lands in the possession of the other. The trial court in its opinion pointed out that the controlling feature of the contract was the specific location of the fence lines to be constructed, and held that such provisions must prevail over any general purpose stated by the contract.

[2] We are of the opinion that the trial court was right in thus holding. He held, further, that it must be presumed that the parties, stipulating each to build a certain amount of fence, must have intended that such fences would stand during the term of their leases. That appears to be a reasonable conclusion; at least it must be presumed that the fences were to stand for a reasonable time, and we think the trial court was right in thus construing the contract. That being so, when the plaintiff in error attempted to change the fence lines as established by the contract, and as the fences were built, he violated the terms of his agreement with the defendant in error.

The injunction was therefore proper, and the judgment of the trial court is affirmed.

Accused persons, bailable before trial, having no absolute right to be bailed after conviction, should be admitted thereto with great caution, and only where the peculiar circumstances of the case render it proper; the burden to show such circumstances being on

accused.

En Banc.

Application for writ of habeas corpus by Tony C. V. Romeo, in behalf of Angelo F. Romeo, against Frank M. Downer, Manager of Safety and Excise and ex officio Sheriff of the City and County of Denver, and Frank J. Kratke, Warden of the Common Jail of said City and County. Writ denied.

B. F. Reed, Robert W. Steele, Jr., and Clarence M. Hawkins, all of Denver, for petitioner.

Victor E. Keyes, Atty. Gen., Charles Roach, Deputy Atty. Gen., B. M. McMullin, Asst. Atty. Gen., for respondents.

TELLER, J. The petitioner has applied to this court for an original writ of habeas corpus, alleging that one Angelo F. Romeo is in jail, and restrained of his liberty in violation of his right to bail, which is guaranteed by section 19 of the Bill of Rights. Said section is as follows:

cient sureties except for capital offenses, when "That all persons shall be bailable by suffithe proof is evident or the presumption great."

The said Angelo Romeo was convicted by a jury of the Second judicial district of voluntary manslaughter; and upon the return of the verdict, he was given in charge to the said defendant in error, who confined him in the county jail. Thereafter application was made to the district court to admit the accus

GARRIGUES, C. J., and DENISON, J., ed to bail pending the determination of a mo

concur.

tion for a new trial. The court denied the application upon the ground that it was a rule in the second district that, after verdict and pending a motion for a new trial, the defendant would not be admitted to bail.

[1, 2] The petitioner contends that under

(Supreme Court of Colorado. Nov. 8, 1920.) said section of the Bill of Rights, the petition

1. Bail 42 Habeas corpus 33 Convicted defendant has no absolute right to bail, and denial is not ground for habeas corpus.

Const. Bill of Rights, § 19, providing all persons shall be bailable except for capital offenses, does not give a defendant after conviction an absolute right to bail, but it is a matter of discretion with the trial court, so that habeas corpus will be denied on behalf of one convicted of voluntary manslaughter and denied bail and in custody of the sheriff of the county and warden of the common jail pending determination of his motion for new trial.

er is bailable as a matter of right until sen-
tenced. It does not appear that this question
has been determined by this court. There is
considerable conflict of authority upon the
question of bail after conviction and prior
to sentence. Several states have statutes on
the question. The weight of authority, how-
ever, supports the rule that constitutional
provisions, like that now in question, do not
give a defendant an absolute right to bail;
but that it is a matter of discretion with the
We are of the opinion that the
trial court.
cases thus holding have given a proper con-
struction to the language of the Constitution.

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

The petitioner therefore has no right to the therefrom, be and the same are hereby declared writ, and the petition will be denied. Accus- free from all taxation, whether for state, couned persons bailable before trial, having no ty or municipal purposes." absolute right to be admitted to bail after conviction, should be admitted to bail "with

great caution, and only where the extraordi-
nary or peculiar circumstances of the case
render it right and proper." 6 C. J. p. 966.
The burden of showing such circumstances
is, of course, on the accused.
Writ denied.

(69 Colo. 244)

No evidence was offered on the trial by plaintiff or defendants as to the levy of any taxes on the property in question. It is perfectly clear that, if no taxes were assessed, no payment was required. The question between the parties here is upon which rests the burden of proof on this subject. Plaintiff says on defendants, under the general rule as laid down in Evans v. Welch, 29 Colo. 355, 364, 68 Pac. 776, and the special application thereof apparently made in Laughlin v. Denver, 21 Colo. 255, 50 Pac. 917. Defendants concede the general rule, but contend that by virtue of said section 5546, R. S. 1908, irrigation ditches are an exception. In Laughlin v. Denver, supra, the court expressly found that there was no proof of color of title. Without color of title the payment of taxes was imIn action to quiet title to an irrigation ditch material. No other Colorado authority in and adjudicated water right, wherein defend-point is called to our attention. Plaintiff ants pleaded title and set up Rev. St. 1908, 8 cites three Illinois cases upon which much 4089, the seven-year statute of limitations, de-stress is laid because our statute came from fendants were not required, in the first in- that state. Wisner v. Chamberlin, 117 Ill. stance, despite section 5546, either to prove 568, 7 N. E. 68; Ill. Cen. R. Co. v. Cavins, 238 payment of taxes by them or nonassessment; the burden of proof on the subject of taxes being on plaintiff.

FREY v. PAUL et al. (No. 9699.) (Supreme Court of Colorado. Nov. 8, 1920.) Waters and water courses 152(6)-In action to quiet title to ditch, defendants pleading limitations not required to prove payment of taxes or nonassessment.

Ill. 380, 87 N. E. 371; Donahue v. Ill. Cen. R. Co., 165 Ill. 640, 46 N. E. 714. But the act was adopted here in 1874, prior to the Illinois decisions; hence they stand upon the same footing as authority as do those of other jurisdictions. In the last of these cases the

phrase, "taxes legally assessed," is considered and the payment of an illegal assessment held insufficient. In the other two no weight seems to be given the phrase; the holding in both being that nonassessable property is not

G. K. Hartenstein, of Buena Vista, for within the statute. plaintiff in error.

Gilbert A. Walker, of Tampa, and Alvis L. Jeffrey and Edwin H. Stinemeyer, both of Canon City, for defendants in error.

BURKE, J. Plaintiff in error brought this action against defendants in error to quiet title to a certain irrigation ditch and adjudicated water right. Defendants pleaded title in themselves, and also set up the seven-year statute of limitations, section 4089, R. S. 1908. From a judgment for defendants, plaintiff brings the cause here for review. Other matters were included in the action, and other questions decided, none of which require our consideration.

Section 4089, R. S. 1908, requires only of claimant thereunder that he "pay all taxes legally assessed" during the running thereof. Section 5546, R. S. 1908, provides:

"That all ditches used for the purpose of irrigation, and that only where the water is not sold for the purpose of deriving a revenue

Reason would seem to require that, in dealing with property generally nonassessable, the burden of proof should be assumed by one whose rights depend for their maintenance upon an exception. Such has been the holding in California with the exception of Reynolds v. Willard, 80 Cal. 605, 22 Pac. 262; Oneto v. Restano, 78 Cal. 374, 379, 20 Pac. 743, 746; Monroe v. Pleasants (App.) 182 Pac. 330. This construction is also supported by the following: Weil, Water Rights (2d Ed.) § 251, p. 381; 2 Kinney on Irrigation (2d Ed.) § 1054, p. 1893.

We are therefore of the opinion that, in actions to quiet title to irrigation ditches, one who pleads the seven-year statute of limitations is not required in the first instance either to prove payment of taxes or nonassessment.

The judgment is accordingly affirmed.

GARRIGUES, C. J., and TELLER, J.,

concur.

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

(8 Mont. 329)

(193 P.)

SELL v. SELL. (No. 4519.) (Supreme Court of Montana. Oct. 4, 1920. On Motion for Rehearing, Nov. 29, 1920.) 1. Judgment 140-Motion to set aside order for entry of plaintiff's default not constituting a judgment properly denied.

8. New trial 153
where affidavits not filed in time.

Under Rev. Codes, § 6797, the court, on motion for new trial of party who has designated affidavits as moving papers but who has failed to file the affidavits within the required time, should disregard the evidence.

9. Appeal and error 832(1)—Inadvertence of appellate court in original opinion held not to require rehearing.

Inadvertence of Supreme Court in stating original opinion that trial court did not err

Where court on retrial of case ordered plaintiff's default entered on her failure to personally appear, but proceeded to hear defendant's testimony in examination of which plain- in tiff's attorney participated, and rendered judg-in refusing motion for new trial because bill ment for defendant, refusal to set aside default was not error; there being no judgment by default and no purpose to be served by the granting of the motion to set default aside, the order being in effect merely a declaration that the plaintiff had failed to be personally present. 2. Judgment 107-No default against party with pleading on file.

of exceptions was not prepared within the required time, whereas it was the affidavits in support of motion that had not been filed within the required time and not bill of exceptions, did not require a rehearing, where trial court's denial of the motion for a new trial was, in any event, proper.

Appeal from District Court, Fergus County; Jack Briscoe, Judge.

Under Rev. Codes, § 6719, a judgment by default cannot be entered against a party who has an appropriate pleading on file in the case. 3. Divorce160 Judgment for defendant declaring nonexistence of marriage held un-default and denying plaintiff's motion for new warranted by pleadings.

Allegation of the parties' marriage being traversed by general denial, an allegation in answer that they were not married was not, in view of Rev. Codes, §§ 8028, 3634, new matter which in case of plaintiff's default would support affirmative judgment for defendant declaring nonexistence of marriage, and in such case judgment only of dismissal or nonsuit, under section 6714, was permissible.

4. Divorce-Power to decree statutory. The power to decree a divorce is purely statutory.

On Motion for Rehearing.

5. Appeal and error 933(4)-Denial of new trial in general terms sustained if possible on any legitimate grounds.

Order denying motion for new trial general in terms must be sustained if it can be sustained on any legitimate ground.

6. New trial 124(1)-Movant may present causes by affidavit, bill of exceptions, and on minutes of court in same motion.

Action by Hattie Sell against Herman Sell. From orders refusing to set aside plaintiff's

trial, and from judgment rendered for defendant, plaintiffs appeals. Orders refusing to set aside default and denying new trial affirmed and cause remanded, with directions to set aside the judgment and enter one of dismissal or nonsuit in lieu thereof.

A. H. McConnell and C. E. Pew, both of Helena, for appellant.

Belden & De Kalb, of Lewiston, for respondent.

HOLLOWAY, J. This action for divorce was instituted by Hattie Sell in January, 1913. Issues were joined and the cause was tried during the same year, resulting in a decree in favor of the plaintiff; but thereafter, by stipulation of the parties, the decree was set aside and a new trial granted. On November 14, 1918, the cause was set for trial for November 29, at 10 o'clock a. m.; but, when that hour arrived, the plaintiff was not personally present in court, and a continuance was granted until 2 o'clock p. m., at which time, the plaintiff having failed to appear personally, the court ordered her default entered, heard the testimony offered by the defendant, and thereafter rendered judgment to the effect that plaintiff and defendant had not at any time "sustained the relation one to the other of husband and wife." Plaintiff has appealed from an order refusing to set 7. New trial 133-Motion not heard on min-aside the default, from an order denying her utes on failure to file affidavits in time.

Under Rev. Codes, § 6795, a party moving for a new trial may, in the same motion, present some of the causes specified by section 6794 by affidavit, others by bill of exceptions, and others upon the minutes of the court; but, irrespective of the mode selected, the moving party must pursue the statute in all substan tial particulars.

a new trial, and from the judgment.

In view of Rev. Codes, § 6797, party mov[1, 2] (1) Whatever may be said of the proing for new trial who has designated the minutes of the court and affidavits as the moving priety of the court's order entered on November 29, 1918, it did not affect adversely any papers, and who has secured an extension of time for the preparation of the affidavits, can- substantial right of the plaintiff. Her attornot abandon affidavits by failing to file them ney was present and participated in the within the extended time, and insist that motion trial by examining the defendant's witnesses, should be heard on the minutes of the court. and otherwise. In legal effect, the order

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
193 P.-36

amounted to nothing more than a declaration [answer can be proved under a denial of the that the plaintiff had failed to be personally allegations of the complaint, they do not conpresent at the time of trial, and in that sense the term "default" is not infrequently used. Leahy v. Wayne Circuit Judge, 144 Mich. 304, 107 N. W. 1060, 115 Am. St. Rep. 443. It is elementary that a judgment by default cannot be entered against a party so long as he has an appropriate pleading on file in the case (section 6719, Rev. Codes), and the judgment rendered in this cause does not purport to be, and is not in fact, a judgment by default. It was unnecessary for plaintiff to move to have the default set aside. No useful purpose would have been served if the motion had been granted, and its denial does not constitute error.