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issued and served, and the cause proceeded ( of division, at least 80 per cent. of its apregularly to a decree of foreclosure, which praised value. Other conditions were also was entered on February 5, 1898. On Feb- provided not necessary here to notice. ruary 24, 1898, some 19 days after the entry The present action was begun in July, of the decree, an execution and order of sale 1907, by the mortgage debtors to set aside was issued thereon, under which the sheriff the sale made by the sheriff. To a comof the county in which the land is situated plaint embodying the foregoing facts the sevsold the land to the mortgagee; he being eral defendants separately demurred, which the highest and best bidder therefor at the demurrer was on a hearing sustained by the foreclosure sale. In making the sale the trial court. This appeal is from a judgment sheriff followed the procedure mapped out of dismissal and for costs entered against by the statute relating to foreclosure sales the plaintiffs after they had elected to stand in existence at the time the mortgage was on their complaint and had refused to plead executed. That statute provided, in sub- further. stance, that a decree of foreclosure should [1] The question presented by the record, be enforced by execution directed to the namely, which of these statutes was the sheriff ; that the execution should contain a sheriff obligated to follow in conducting the description of the mortgaged property; and sale, was before this court as to some of its that the sheriff should indorse upon it the features in the case of Swinburne v. Mills, time when he receives it, and should there- 17 Wash. 611, 50 Pac. 489, 61 Am. St. Rep. upon forthwith proceed to sell the mortgag- 932. It was there held that the provisions ed premises, or so much thereof as might be of the later statute to the effect that the necessary to satisfy the decree, after giving sheriff must, after levying upon the land to notice of such sale by posting a written or be sold, delay the sale for one year, and printed notice of the time and place of sale, cause an appraisement of the land before particularly describing the property for such sale, were not applicable to a case, such four weeks successively, in three public as the one now at bar, where the mortgage places of the county where the property is was executed prior to the enactment of the to be sold, and by publishing a copy there- statute, for the reason that it impaired the of once a week for the same period, in a obligation of the mortgage contract. Connewspaper of the county, if there be one, or, cerning this question, the court said: “This if there be none, then in a newspaper pub- brings us then to the third proposition, viz.: lished nearest the place of sale. Due return is the act unconstitutional so far as its apof the sale was måde by the sheriff on plication to contracts made prior to the pasMarch 29, 1898, and the sale was confirmed sage of the act is concerned? It will thus on April 30, 1898. A sheriff's deed to the be seen that this case involves the principle purchaser followed in due order. In the of inviolability of contracts. This principle meantime, however-that is to say, between the courts have always protected, no matter the time of the execution of the mortgage from what quarter, or under what guise, it and the commencement of the foreclosure has been assailed, whether by a party to the proceedings—the Legislature made certain contract who has sought to vary its terms, radical changes in the law relative to sales or by legislative enactments in his interests. of property under decrees of foreclosure and It is a principle which is founded upon honexecutions on ordinary money judgments. esty and good faith, and finds its support It provided that on receiving the writ of ex- in ethics as well as law, and it was recogecution the sheriff should indorse thereon, nized and enforced before it became a conor attach thereto, a description of the prop- stitutional guaranty. It gives stability to erty to be sold; that he should file with the business transactions. In fact, it makes clerk of the court where the property is sit- them possible. It gives value to contracts, uated, and with the clerk of the court issu- and without the upholding of this principle ing the writ, a copy of the writ with such neither civilization nor governments could description attached to or indorsed thereon; exist. A contract is an agreement to do or that one year after the time of filing such not to do a particular thing. The obligation levy he should give notice that the property is the binding force of the contract. The levied upon would be sold at public auction in Constitution prohibits the passing of laws satisfaction of the judgment by posting notic-which impair the obligation of a contract. es of such sale in three public places in the The practical question then is: What is an county where the sale is to be made, one of impairment of a contract? Webster's defiwhich should be in a conspicuous place on nition of ‘impair' is: 'To make worse; to the property to be sold, four weeks prior to diminish in quantity, value, excellence or date of sale, and by publishing a copy there- strength; to deteriorate.' Then, if the value of once a week for the same period in the of a contract is deteriorated or lessened by official paper of the county, or, if there be the passage of an act, the obligation of the none, then in a newspaper published nearest contract is most certainly impaired. Then the place of sale. It was provided, more-the question arises: Was the contract of over, that no sale could be had at all until this mortgagee deteriorated or made less after the land had been appraised, and that valuable by the passage of this act? It is at the sale the land must bring, if capablel a principle of law so often enunciated and

115 P.-33


so uniformly maintained that the law which warranted the court in refusing to confirm is in existence at the time a contract is the sale, we do not think they rendered the made becomes a part of the contract, that sale so far void as to be incurable by the 'it would be idle to cite authorities on that order of confirmation. proposition, or to further mention it. In [4] Moreover, this action was begun, as this case it is especially stipulated in the will be noticed from the dates given, more mortgage that the laws in force at the time than nine years after the sale took place, the contract was made should become a part and no reason is shown why it could not of the contract; but, in the absence of such have been prosecuted at any time during that stipulation, the effect would be exactly the period. On the ground of laches alone the same. Under the law in existence at the court would be justified in denying relief time the contract was made, the mortgagee on any ground other than the actual invahad a right to the sale of this land at once lidity of the sale. upon the issuance of his execution, subject The judgment is affirmed. only to the redemption provided for by law. This was a valuable right, and a right

DUNBAR, C. J., and PARKER, MOUNT, no doubt that was taken into consideration and GOSE, JJ., concur. by the judgment creditor, or, in this case, the mortgagee, when the contract was made.

(50 Colo. 464) The law now compels him to wait more than BOARD. OF COM'RS OF MONTEZUMA a year after judgment before he can have

COUNTY v. FREDERICK. the sale made. It seems to us to be beyond (Supreme Court of Colorado. May 1, 1911.) controversy that, as to antecedent contracts, 1. TRIAL (8 404*)—"GENERAL FINDING"—EFthis provision of the law is void.” Further on in the opinion the court cited and quoted issues in favor of the successful party.

A "general finding" is a finding on all the from a number of cases from the Supreme

[Ed. Note.-For other cases, see Trial, Cent. Court of the United States, showing that Dig. $$ 957–962; Dec. Dig. $ 404.* the question was one of federal cognizance, For other definitions, see Words and Phrases, and that the highest federal court had an- vol. 4, p. 3064.] nounced a similar rule. In the light of these 2. APPEAL AND ERROR ( 1011*)-FINDINGScases, therefore, there can be no question

CONCLUSIVENESS. that the sheriff was justified in selling the clusive on appeal.

A finding on conflicting evidence is conproperty under the execution without the

[Ed. Note.-For other cases, see Appeal and delay of a year and without having the land Error, Cent. Dig. $ 3983; Dec. Dig. $ 1011.*] appraised.

3. ELECTIONS (8 157*)-LIST OF NOMINATIONS [2] But, while the courts deny the power -PUBLICATION-STATUTES. of the Legislature to make such radical

Under 3 Mills' Ann. St. Rev. Supp. $$

1625k, 1625r, providing for the publication in changes in the remedy for enforcing a con- newspapers of a list of nominations for state tract as to impair its obligation, they are and county officers in the form in which such agreed that whatever belongs merely to the nominations shall appear on the official ballots, remedy, and does not affect the obligation dates and for the political designations, a news

and authorizing separate columns for the candiof the contract, can be changed at the pleas- paper publication of a list of nominations in ure of the Legislature. So in this instance two columns, the name of the office and the it was perfectly proper for the Legislature candidate being in one column, and the party to require on a foreclosure sale that one of er, and the publisher is entitled to compensation

designation being in the other column, is propthe notices thereof be posted in a public therefor. place on the land to be sold, and that copies [Ed. Note.-For_other cases, see Elections, of such notices be published in the county Cent. Dig. $ 130; Dec. Dig. $ 157.*] official paper if there be one, although the 4. NEWSPAPERS ($ 5*)—NOMINATION OF CANlaw in force at the time the contract was


Under 3 Mills' Ann. St. Rev. Supp. $ 1878, entered into allowed such notices to be post- declaring that publishers for the publication of ed in three public places in the county gen- a list of nominations for state and county oferally, regardless of the location of the land, ficers shall be paid at a specified rate for each and allowed copies thereof to be published and not" by rule, and necessary blank spaces

line, etc., the compensation must be by line, in any paper published in the county where must be paid for as if solid type. the land was situated, regardless of the [Ed. Note.-For other cases, see Newspapers, question whether such paper was the county Dec. Dig. & 5.*] official paper or not.

5. COUNTIES ($ 134*)—"COUNTY PRINTING." [3] In the case at bar it is alleged that ations for state and county officers as required

A newspaper publication of a list of nominno one of the notices of sale was posted on by statute is "county printing," for the work the land, nor was a copy thereof published must be paid by the county. in the county official paper, and the ques

[Ed. Note.-For other cases, see Counties, tion is presented whether these omissions Cent. Dig. $ 202; Dec. Dig. S 134.*] avoid the sale. It is our opinion that they 6. NEWSPAPERS ($ 5*)-LIST OF NOMINATIONS

--PUBLICATION-COMPENSATION. do not. While the omissions may have ren

The printing authorized by 3 Mills' Ann. dered the sale so far irregular as to havel St. Rev. Supp. $ 1625k, requiring the county

clerk to provide for the publication of lists of|tified in finding that no instructions other nominations, for public office in not less than than the appearance of the clerk's copy ittwo, nor more than four, newspapers published within his county, one 'of which publications self were given to the plaintiff until after must be made in a neitspaper advocating the the form had been set up and published in principles of the political party at the last pre- one issue. The copy which was first fur.ceding election which cast the largest number nished was concededly incomplete, as full of votes, etc., is not necessarily within the scope of a contract for the county printing, since the information with regard to the list had not selection of the newspapers rests with the coun- been received by the clerk from the Secrety clerk, who must be guided by the statutory tary of State at the time the first copy was directions, and a newspaper chosen may not include the one holding the contract for county prepared. Later a second and complete copy printing, though a contract for county printing was furnished by the clerk and published may be made so as to apply to such a publi- in another issue of plaintiff's Journal; the cation on the county clerk selecting the news form being the same as in the first issue. paper whose publisher holds such contract.

(Ed. Note. For other cases, see Newspapers, after the first publication, it may be that Dec. Dig. $ 5.*]

explicit direction was given by the clerk to Error to District Court, Montezuma Coun- ter. The court, however, in the circumstanc

the plaintiff to publish the list as solid matty; Charles A. Pike, Judge. Proceedings by C. A. Frederick to estab- es, was justified in finding that, in legal ef

fect, such verbal instructions were not sealish a claim against the County of Monte sonably given so as to make them material zuma. From a judgment of the District to the present controversy. The list as Court allowing plaintiff's claim in full, ren; printed the second time was in two columns, dered on appeal from a decision of the Board the name of the office and the candidate with of County Commissioners disallowing the his residence and place of business being in claim in part, the Board brings error. Ro the first column, and opposite the name of versed and remanded.

each candidate and in a separate column S. W. Carpenter, for plaintiff in error. was the appropriate party designation. We W. F. Mowry, for defendant in error. must not be understood as holding that a

publisher of a list of nominations which is CAMPBELL, C. J. The plaintiff, Freder- required by our statute may determine for ick, who is the publisher of the Montezuma himself the form in which it shall appear Journal, presented to the board of county in his newspaper. Indeed, we think, if that commissioners of Montezuma county his power is vested in any ministerial officer, claim of $110.88 for publishing in his news-the clerk should prescribe the form, and, it paper a list of nominations for state and any mistake is made therein, the publisher county officers which the county clerk had will be protected in following the instruccertified to him for such purpose. The board tions of the clerk, and the latter, if any. allowed the amount of $66.36 thereon and body, will be held responsible if any misdisallowed the remainder. From its deter- take is made in the form. In this case, mination the plaintiff appealed to the dis- however, it is appropriate to say that sectrict court of Montezuma county, where a tion 1625k, 3 Mills' Ann. St. Rev. Supp., trial was had resulting in a judgment for which constitutes the authority to the clerk plaintiff in the full amount of his claim. for requiring such lists to be published, diThe board sued out this writ of error to re- rects that the publication “shall be, as far view it.

as possible, in the form in which such nom[1] The finding of the district court was inations shall appear upon the official balgeneral, which means that all the issues lots." Section 1625r of the same volume, were found for the plaintiff.

which pertains to the form of the printed [2] In so far as, if at all, there is a con- official ballot, while it does not in specific flict in the evidence, the finding of the dis- terms provide for a separate column for potrict court is conclusive upon us.

litical designations, yet we think that a fair [3] It appears that a copy of the list interpretation or construction thereof so rewhich was furnished to the plaintiff by the quires, since opposite the name of each cancounty clerk indicated only one column of didate must be added the party name, and solid matter. That is, that there were not this, in some cases at least, might not be blank spaces or separate or double columns; done without double columns. Such being while the form, as it appeared in the news- true, and under the facts, we cannot say paper, was two separate columns, the sec- that plaintiff may not recover against the ond one showing considerable blank space. county because of an alleged disregard of Our reading of the record discloses that the statute, or for a supposed nonobservthere is some dispute as to whether the coun-ance of the directions of the clerk. As matty clerk at the proper time gave any verbal ter of fact, the list was published in the instructions to the publisher as to the form. form contemplated, or at least permitted, by The evidence is not very definite upon this the statute, and, if the law is not what it point; there being an apparent conflict. Cer-should be, the General Assembly is the aptain it is, however, that the court was jus-propriate body to change it. *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

[4] A second question is as to the amounts the county, even if the plaintiff assumed its of the recovery. In measuring the space oc- obligations, because it was not such a publicupied by the printed list in the newspaper, cation as, under the contract, plaintiff could the plaintiff, in his estimate, observed what demand for, or such a contract as the board is known in the printing trade as the "rule” would be compelled to insert in, his paper. instead of "line" measurement. Section The selection of the newspapers rested with 1878, 3 Mills' Rev. Supp., declares that pub- the county clerk, who must be guided by the lishers of newspapers for the publication of directions which the statute itself prescribes, such advertising matter as this shall be and, if followed, the newspaper chosen might paid at a certain rate for each line of non- not include the one that held the contract for pareil. It also provides that all "rule work county printing, and, in any event, such puband necessary blank space shall be paid for lication would be in at least one newspaper as if solid type.” The section, however, per- that was not under contract. If the printmits the county by contract to stipulate for ing of this list was not within the contract, a less price. Whether this printing was the price therefor must be at the legal rate done under contract, which is the subject of fixed by section 1878. Of course a contract our third and later inquiry, or was made at for "county legal printing" might be made the legal rate independent of contract, is im- so as to apply to such publications as this, material so far as the method of measure if the county clerk selected therefor the ment is concerned. It must in any case be newspaper whose publisher held such conby "line” and not by "rule.” Whatever nec- tract. But plaintiff testified in effect-and essary blank space there is, however, must he must have been believed by the trial be paid for as if solid type. It seems that court—that in his purchase of the newspaper the court adopted the rule measurement ob- he did not intend to assume, and did not asserved by the plaintiff, and, in this, error sume, the obligations, if any, of his vendor to was committed.

publish these lists at the contract rate. A third question is as to whether the The record does not contain sufficient data printing was done under contract. The upon which a proper judgment may be encounty board had made a contract with a tered by us. The judgment must be reversformer publisher and owner of this news ed for a new trial by the district court. The paper at a rate lower than the statutory computation of the amount to which plainrate, and it is claimed by the county that tiff is entitled must be based upon the list when plaintiff bought from such owner he as printed in the form in which it appeared assumed and agreed to carry out the obli- in his newspaper, to be estimated by the line. gations of his vendor's contract with the instead of by the rule, measurement, with county.

just allowance for necessary blank space to [5] The plaintiff claims, first, that this is be reckoned as solid type, and at the legal not county printing; but with this we can- rate prescribed by section 1878, unless, at not agree. It is work for which the coun- the second trial, further evidence establishty must pay and is clearly county printing ; es that plaintiff assumed a contract that rebut such conclusion is not determinative of quired him to do such work at the contract, the point here involved.

and lower, price. [6] Plaintiff further says that the contract,

The judgment is reversed, and the cause if he assumed its obligations at all, did not remanded for a new trial in accordance with include, or apply to, these lists, and that he the views expressed in this opinion. Each did not assume the contract of his vendor, party to pay his, or its, own costs of the apif any, that applied to such publications. peal. In section 1625k, already mentioned, is found Reversed and remanded. the authority of the county clerk for publishing lists of nominations. He must have

WHITE and BAILEY, JJ., concur. the publication made in not less than two nor more than four newspapers published within his county, and one of such publica

(50 Colo. 248) tions must be made in a newspaper which

STEWART et ux. V. AUSTIN. advocates the principles of the political party (Supreme Court of Colorado. Dec. 6, 1909. at the last preceding state election which

On Rehearing, May 1, 1911.) cast the largest number of votes, and anoth- WATERS AND WATER COURSES ($ 247*)—IRRIer such publication shall be made in a news GATION DITCH-USER-EXTENT OF RIGHT. paper which advocates the principles of the ties in an irrigation ditch, evidence held to re

In a suit to determine the rights of the parpolitical party which at such election cast the quire a finding that complainant was only ennext largest number of votes. While the print- titled to two-fifths of the water flowing in the ing of such lists is "county legal printing" yet ditch, while defendants were entitled to the rewe do not think the evidence shows, at least bound to contribute, to keep the ditch in re

maining three-fifths, and that the parties were the trial court did not find, that this printing pair, in the same proportion. necessarily comes within the scope of the [Ed. Note.-For other cases, see Waters and contract which plaintiff's vendor had with / Water Courses, Dec. Dig. $ 247.*]

Appeal from District Court, Conejos Coun- | the Garcias claimed 155 inches. The claims ty; Jesse G. Northcutt, Judge.

of Stewart and the Garcias were all adSuit by Robert A. Austin against William judicated in one priority, as above stated. • Stewart and wife to quiet title to right to In the statements and testimony in the aduse of an irrigation ditch. From a judg. judication, the rights of the Garcias are spoment awarding complainant the use of half ken of as appropriations made by them and of the ditch, subject to the obligation of con- purchases from Stewart. The impression tributing one-half of the labor and keeping left on the mind by the testimony is that the ditch in repair, defendants appeal. Re- the right of the Garcias to water was by versed and remanded.

their appropriation of it, and the right to

use the ditch, whatever it was, was what Geo. T. Sumner, for appellants. Hayt, was purchased from Stewart. The Garcias Dawson & Wright, for appellee.

claimed appropriations through the ditch in

1882, and the court fixed the date of the On Rehearing.

whole appropriation back to 1876, when the MUSSER, J. The appellants, at the time original appropriation was made by Stewof the adjudication proceedings hereinafter art. This, of course, now fixes forever the mentioned, were the owners of three quar- priority of the whole appropriation as made ter sections of land in Conejos county. For by Stewart and the Garcias, notwithstandthe purpose of irrigating this land, they ing the appropriation of the Garcias may took water from the Conejos river, through have in fact been made in 1882. The two a ditch constructed by them and called quarter sections of the Garcias and their “The William Stewart & Company Irrigating rights to water and to the use of the ditch, Ditch." The construction of the ditch was whatever they may be, came down through fully completed several years prior to 1882. successive conveyances to the appellee, Aus About the year 1882, two brothers, J. R. Gar- tin. The Garcias and their several succes cia and A. P. Garcia, came to Mr. Stewart sors continued to use water through the ditch, and told him that they would take up land helping in its care and repair, increasing under the ditch, if he would let them use the number of acres irrigated, until the land water through it to irrigate the lands, which irrigated by them, through the ditch, amountthey were to take up. Mr. Stewart, desired to 400 acres or over, at the time of the ing to have some one settle on the land near commencement of this action. The Stewarts him, told them he would permit them to use also continued to use water through the the ditch, if they would help keep it up each ditch, increasing the number of acres irriyear, and this they agreed to do. The Gar- gated from 320 acres in 1883, until the land cias each took up a quarter section of land irrigated by them, through the ditch, amountand used this ditch to convey water to it ed to 600 acres or more, at the time of the for about four years, although they never commencement of this action, The exact irrigated to exceed about 20 to 30 acres rights of the respective parties in the waeach.

ter and the ditch, and the amount of work In October, 1883, a decree was entered in to be done by each upon the ditch, never the district court of Conejos county, adjudi- seemed to have been defined with certainty. cating the priorities of water rights in that One of the intermediate owners of the water district, and the priority of water Garcia interest testified that it was his unrights through this ditch was settled as No. derstanding that the Garcias each owned a 43, and the amount fixed as so much water one-third interest in the water right, but as would flow in a ditch six feet wide and this testimony was only the opinion of the one foot deep on a grade of four feet to the witness, based upon the fact that three mile. The decree is silent as to the number (Stewart and the Garcias) were interested. of acres that this ditch was intended to There was also testimony to the effect that irrigate. In the adjudication proceeding, some of the time the appellee and his imStewart and the two Garcias filed statements mediate grantor used apparently from oneof their respective claims to water rights half to two-thirds of the water flowing in the through this ditch, and these statements and ditch; but this was not done under claim of some of the testimony before the referee that amount as against Stewart, or adverse were introduced, without objection, as tes- to him. It apparently was done when there timony in this case. From these statements was plenty of water in the ditch, and all and testimony in the adjudication proceed received as much as they wanted, without ing, it appears that Stewart claimed a wa- particular reference to the exact interest of ter right through his ditch, for the purpose either, except that there was some testimoof irrigating his land, which consisted of ny on behalf of Austin that, in 1901 and three quarter sections, all susceptible of ir- 1902, he generally took two-thirds of the warigation, and each of the Garcias claimed a ter, because he thought he was entitled to right through the same ditch to irrigate his it. On the other hand, there was testimony, land, one quarter section, all susceptible of on behalf of the Stewarts, that they conirrigation. In the several statements the trolled the division of the water, and when capacity of the ditch was given as 864 inch- it was low the Stewarts took it all, if they es. Stewart claimed 400 inches and each of I needed it, and deprived the others of it, and

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