nounce any judgment which the county court | ing on the restraining order must call it to the might have entered. Estes v. D. & R. G. Ry. Co., 113 Pac. 1005.

CAMPBELL, C. J., and HILL, J., concur. 7. DIVORCE (§ 22*)-STATUTORY GROunds –

Under Code Civ. Proc. 1908, § 164, providing that in the event a temporary restraining order shall issue without notice, and it shall subsequently appear on any hearing of "said matter" that the emergency alleged therefor did not exist, the court may enter judgment accordingly, and shall also dismiss the complaint without respect to the merits thereof, a defendant who desires the dismissal of the action on a hearty; E. E. Armour, Judge.

Action by Leonard Sedgwick against Anna Clay B. Whitford and Henry E. May, for J. Sedgwick. There was a judgment for plaintiff in error. plaintiff, and defendant brings error. Affirmed.

GARRIGUES, J. (after stating the facts as above). The principal points involved are: First, the applicability of the injunc tion statute to divorce actions. Second, must the plaintiff in a divorce action be a citizen of the United States? Third, where there are three statutory grounds of divorce separately alleged as distinct causes of action. and the verdict is general, namely, that the defendant is guilty as charged in the com

plaint, if the evidence is insufficient to sup

admitting or rejecting evidence as to any one cause, or erroneously instructed the jury as to any one cause, or if there is reversible error as to any one cause, must the action be reversed as a whole?

Defendant in error, Leonard Sedgwick, April 12, 1905, filed complaint in the district court of Washington county for divorce, wherein he alleges they have been husband and wife since 1900, and residents and citizens of said county and state for more than a year prior to commencing said action. It contains three separate causes of action: First, adultery; second, habitual drunkenness for the space of one year; third, extreme and repeated acts of cruelty consist-port any one cause, or if the court erred in ing in the infliction of mental suffering. Her answer admits said residence and citizenship, but denies said adultery, drunkenness, and cruelty, and by cross-complaint she seeks a divorce, wherein she also alleges citizen1. Our injunction statute provides: "In ship and residence in said county and state, the event the temporary restraining order and charges him with adultery; also cru- shall issue without notice and it shall afterelty, consisting of bodily violence and mental wards appear to the court, upon any hearing suffering. Plaintiff, when he commenced or trial of said matter, that the emergency said action, obtained a temporary restraining alleged therefor did not exist, or, existing, order against her, based on section 164 of the was brought about by the act or omission Code of 1908, being section 148 of the Code as of or for the plaintiff, or by his knowledge, amended by S. L. of 1903 relative to injunc- the court shall find and enter judgment actions. April 20, 1905, was fixed as the day cordingly, and shall, also, dismiss the comfor hearing the application for a temporary plaint without respect to the merits thereof, injunction. As far as the record discloses, and shall, also, summarily enter judgment this application was never heard, no tempo- on said emergency bond for the defendant rary injunction was issued, and no further and against the plaintiff and his sureties notice seems to have been paid to it. The aforesaid, and issue execution therefor." It record does not disclose any hearing or ap- is claimed under this statute the trial court plication for a hearing upon said restraining erred in not dismissing the complaint. The order. claim is wrong for the simple reason counThe jury returned the following verdict: sel did not ask to have it dismissed. "We, the jury, * find the plaintiff counsel wanted the action dismissed upon a • not guilty as charged in the cross-hearing of "said matter," they should have complaint. We also further find the de- called it to the attention of the court and guilty as charged in the had it heard. "Said matter" does not refer to the principal suit, but to the issuing of the restraining order. This is not to be construed as implying that the Code provision on injunction is applicable to divorce actions. Whether the district court possesses inherent common-law power to issue restraining orders in proper cases in divorce actions without notice and without bond, we express no opinion.

fendant complaint."

Our divorce statute (Rev. St. 1908, § 2116) provides: "Sec. 5. No person shall be entitled to a divorce in this state unless such person shall have been a bona fide resident and citizen of this state for one year prior to the commencement of the action, which fact shall be proven by the evidence of at least one credible witness other than the plaintiff: Provided, that this section shall not affect applications for divorce upon the grounds of adultery or extreme cruelty, where the offense was committed within the state: Provided. further, that such suit shall only be brought in the county in which such plaintiff or defendant reside, or where such defendant last resided."

Defendant was an inmate of a house of prostitution in Cheyenne, where plaintiff frequently met and cohabited with her. In 1900 he established her in a room in Denver, where they lived together, and this is called a common-law marriage. They were never married, but each insists the marriage relation exists.

If

2. Where the complaint contains separate causes of action, each based on a different transaction, there should be a separate verdict for each. But where the complaint contains only one cause of action based on one transaction, although set out in different counts, the verdict may be general, and ordinarily will be good if the proof supports any count. This rule applies to both civil and criminal practice. It is contended, in a divorce action based on more than one statutory ground, where the verdict is general, the judgment will be set aside if there is reversible error in any one of the causes of action, because it is impossible to say upon which the verdict is based. We take

no issue with this contention. Counsel in, matter by whom introduced, supports the a divorce action upon a number of statutory verdict, the case will not be reversed because grounds, before the case goes to the jury, the defendant supplied a missing part of the should dismiss on all save such as they de- plaintiff's proof. sire a verdict. They are taking an unnecessary risk upon a general verdict, where dif- | ferent causes of action are submitted to the jury. Applying this doctrine to said second cause of action, drunkenness, it is contended there was no proof of plaintiff's residence in and citizenship of Colorado one year prior to the commencement of his action. The evidence shows he was born in England and there is no evidence of naturalization; therefore, it is argued, his citizenship being once established, the presumption is that it still continues. And it is said, not being a citizen of the United States, he could not be a citizen of Colorado, and hence could not have been a citizen for one year prior to the commencement of said action; therefore could not obtain a divorce upon the ground of drunkenness. So, the verdict being general, the whole action must be reversed. The evidence sufficiently shows his residence and habitation in Colorado many years prior to the commencement of the divorce action. This state had long been in good faith his genuine home and domicile; he had no other residence. He contracted said marriage relation in this state five years before bringing said action, and when he brought it he was living within and subject to the jurisdiction and laws of Colorado. This made him a citizen of the state within the broad meaning

of said divorce statute. The intent of the law is said to be its spirit. The intent of this statute was to prevent nonresidents of the state from establishing a temporary residence here for the purpose of obtaining a divorce. Where an alien makes the state his home in good faith, and has no residence anywhere else, its courts are open to him to obtain a divorce on proper grounds. Cairnes v. Cairnes, 29 Colo. 264, 68 Pac. 233, 93 Am. St. Rep. 55.

It is further contended that two witnesses did not swear to his residence. True no two witnesses, nor one for that matter, swore in answer to any direct question that he had resided for a year prior to the commencement of said action in Colorado. But it is the effect of what witnesses say that constitutes evidence, and the effect of the testimony is that plaintiff had lived in Colorado for many years prior to the commencement of said action. If it is true, as contended, that he failed to prove this by any other credible witness than himself, still the defendant when a witness supplied the proof by testifying to his residence. Surely counsel will not contend that his client was not a credible witness. No motion was made on this account to dismiss, as to this cause, at the conclusion of plaintiff's case. In any contested case, if the whole evidence, no

3. It is further contended that the evidence fails to show that she was an habitual drunkard for the space of one year prior to the commencement of the action. Upon this the evidence was conflicting, and the jury determined the conflict against defendant. 4. It is also assigned as error that extreme cruelty cannot be based on drunkenness. We agree that mere proof of drunkenness cannot establish cruelty. Habitual drunkenness is a separate statutory ground for divorce, and a charge of extreme cruelty cannot be grounded upon or established by drunkenness. Drunkenness to constitute a ground for divorce, under our statute (Rev. St. 1908, § 2112, par. 7) must be habitual and must have existed for a year prior to the commencement of the action. But, when one while drunk or drinking says or does things amounting to extreme cruelty, the fact that he was drinking would not defeat a divorce case based upon such extreme cruelty. If drinking or being drunk is interwoven with acts of cruelty, or even is the cause of them, it cannot be used to defeat a divorce action based on cruelty, because habitual drunkenness for the space of one year is a distinct ground di divorce. Our statute provides that drunkenness shall not excuse any crime or misdemeanor whatever, and neither do we think it excuses any acts of cruelty. Judgment affirmed.

CAMPBELL, C. J., and MUSSER, J., con

cur.

(50 Colo. 37)

HALLETT et al. v. ALEXANDER. (Supreme Court of Colorado. March 6, 1911.) 1. COURTS (§ 213*)-SUPREME COURT-JURISDICTION-CASE "INVOLVING A FREEHOLD.

Where the only question involved in partition proceedings was whether defendant had a lien by reason of a mortgage or of having advanced money or paid taxes superior to plaintiff's interests, under a levy of execution on the property, as belonging to the judgment debtor, volved within Mills' Ann. Code, § 388, so as to an beir of the owner, a freehold was not ingive the Supreme Court jurisdiction of an appeal from a judgment for plaintiff.

[Ed. Note.-For other cases, see Courts, Cent. Dig. § 518; Dec. Dig. § 213.*

vol. 4, pp. 3765, 3766; vol. 8, p. 7693.]
For other definitions, see Words and Phrases,

2. APPEAL AND ERROR (§ 14*)-DISPOSITION
NONAPPEALABLE CASES CONSIDERATION
UPON WRIT OF ERROR.

In view of Mills' Ann. Code, § 388a, promisses an appeal for lack of jurisdiction, and viding that whenever the Supreme Court disit appears that it would have jurisdiction had the action come up on writ of error, it may order the clerk to enter it as pending on writ of error, and consider it as such, where appellee on an appeal of which the Supreme Court did not have jurisdiction entered her appearance

and filed briefs within the time a writ of error | 8. STATUTES (§ 220*)-CONSTRUCTION — STATmight have been sued out, and scire facias was UTES OF OTHER STATES. served, the cause will be entered as pending upon a writ of error.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 48-58; Dec. Dig. 14.*] 3. VENDOR AND PURCHASER (§ 237*)-BONA FIDE PURCHASERS CONSIDERATION - PREEXISTING DEBT.

One taking property voluntarily or by judicial procedure in payment of a pre-existing debt is a purchaser for a valuable consideration. [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 577-579; Dec. Dig. § 237.*]

4. EXECUTION (§ 272*)—Deed FROM DEBTORREGISTRATION.

Under Rev. St. 1908, § 694 (Mills' Ann. St. § 446), requiring deeds to be recorded, in order to be effective as to a subsequent bona fide purchaser by mortgage, judgment, or otherwise, not having notice thereof, an unrecorded deed is not effectual as against an execution creditor without notice.

[Ed. Note. For other cases, see Execution, Dec. Dig. § 272.*]

5. DESCENT AND DISTRIBUTION (§ 129*)-DEED FROM INTESTATE-REGISTRATION.

Under Rev. St. 1908, § 694 (Mills' Ann. St. § 446), requiring deeds to be recorded before they can be effectual as to subsequent bona fide purchasers, and incumbrancers by mortgage, judgment, or otherwise, not having notice thereof, an unrecorded deed binds the grantor's heir; the heir not being within the class excepted from the effect of an unrecorded deed.

[Ed. Note.-For other cases, see Descent and Distribution, Cent. Dig. § 471; Dec. Dig. § 129.*]

6. EVIDENCE (§ 65*)—PRESUMPTIONS-KNOWLEDGE OF LAW.

One is conclusively presumed to know the

law of descent.

[Ed. Note. For other cases, see Evidence, Cent. Dig. § 85; Dec. Dig. § 65.*]

7. VENDOR AND PURCHASER (§ 229*)-BONA FIDE PURCHASERS NOTICE UNRECORDED DEED PURCHASER FROM HEIR.

It is presumed that the Legislature in substantially adopting a statute from another state intended to adopt the construction given it by the courts of that state.

Cent. Dig. § 307; Dec. Dig. § 226.*]
[Ed. Note.-For other cases. see Statutes,

9. EXECUTORS AND ADMINISTRATORS (§ 263*)—
CLAIMS AGAINST ESTATE-PREFERENCES.

An unsecured claim against an estate has no preference over other unsecured claims. [Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 975-1001; Dec. Dig. § 263.*]

10. EXECUTION (§ 272*) — BONA FIDE PURCHASERS AT SALE.

One advancing money to pay taxes, etc., on land under a mortgage executed to him by a grantee in an unrecorded quitclaim deed, and who prevented a sale of the property of such owner by her administrator to pay debts, cannot claim that he is either legally or equitably entitled to a lien for his debt upon a part of the land as against a bona fide purchaser thereof without notice of the unrecorded deed who of the land as belonging to the heir. acquired his interest at a sale under execution'

[Ed. Note. For other cases, see Execution, Dec. Dig. § 272.*]

11. TAXATION (§ 709*)-TAX SALE - REDEMP

TION.

Since, under Mills' Ann. St. Rev. Supp. §§ 3872, 3926u, 3926v, 3926w, which, in effect, provide that one having or claiming an interest in an undivided estate, or in a tract assessed, or sold as an entirety for taxes, may pay the taxes thereon or redeem such undivided interest by paying into the treasury his proportionate part whole, one having an interest in land was not of the taxes due or sum required to redeem the bound to redeem the entire tract from sale for taxes in order to protect his own interest, an undivided half interest therein having then vested in another and a partition suit then being pending, and if, without the request of the owner of such half-interest, he redeemed the entire tract, he was not entitled to reimbursement from such other for the amount paid which was not necessary to protect his own interest; the payment being voluntary as to the excess.

[Ed. Note. For other cases, see Taxation, Dec. Dig. § 709.*]

senting in part.
Gabbert, J., dissenting; Campbell, C. J., dis-

Error to District Court, City and County of Denver; Carlton M. Bliss, Judge.

Action by Johanna Alexander against Moses Hallett and another. Judgment for plaintiff, and defendant named brings error. Arfirmed.

Charles W. Waterman and W. C. Kings-
William Young,

Rev. St. 1908, § 694 (Mills' Ann. St. § 446), requires deeds to be recorded before they can take effect as to subsequent bona fide purchasers and incumbrancers by mortgage, judgment, or otherwise, not having notice thereof. Rev. St. § 7040, provides that the title of realty belonging to an intestate vests immediately in the heir upon the ancestor's death, subject to be divested in certain cases for payment of intestate's debts. At the death of M. on January 17. 1905, leaving her husband and daughter as heirs to certain lots. the record title to which. was then in M., plaintiff was the judgment creditor of the husband, and on March 23, 1905, caused execution to issue and levy made on the husband's interests in the lots, and any such interest was sold to plaintiff on August 17th. On the same date a quitclaim deed, dated De-ley, for plaintiff in error. cember 16, 1904, from M. to her daughter, for defendant in error. conveying such lots, was filed for record. together with a mortgage dated March 16, 1905, from WHITE, J. September 4, 1906, Johanna Althe daughter to defendant, conveying the same lot to secure payment of the daughter's note. exander brought suit in the court below to Plaintiff did not have actual or constructive partition certain lots in the city of Denver, knowledge of the quitclaim deed or mortgage claiming that she was the owner in fee of until they were filed. Held. that plaintiff was a bona fide purchaser of the husband's interest an undivided one-half interest in the premin the lots levied upon, so that the unrecorded ises by virtue of a sheriff's deed made to and deed to the daughter was a nullity as to plain- held by her, purporting to convey the intertiff; plaintiff being a purchaser from the hus-est of John J. Reithman therein. To this acband, who, as heir, had the apparent title. [Ed. Note.-For other cases, see Vendor and tion Moses Hallett and Marie G. Wagner Purchaser, Dec. Dig. § 229.*] were made parties defendant; the allegation

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

sell the lots, specifically alleging that the lots were not the property of Magdalena Reithman at the time of her death, and were no part of her estate, but were the property of Marie G. Wagner, subject to the mortgage of Hallett, and thereupon secured the annulment of the order to show cause. The lots were vacant and unimproved, and not in the actual possession of any one. They were assessed as the property of Magdalena Reithman for taxation to, and including, the year 1905. Trial was had, and resulted in a judgment in favor of Mrs. Alexander. The premises, not being subject to partition without loss, were thereafter sold under the direction of the court, and the net proceeds ordered distributed, one half to Mrs. Alexander and the other half to Judge Hallett as the mortgagee of the interest of Mrs. Wagner. The sum decreed to Judge Hallett being insufficient to liquidate the indebtedness to him, he appealed to this court.

being that Mrs. Wagner owned in fee an un- an order to sell the lots in question to pay divided one-half interest, subject to a mort- the debts of the deceased; that some time gage held by Hallett. The pleadings present, subsequent to August 21, 1905, plaintiff in erand the proof shows, that one Magdalena | ror appeared, in the administration proceedReithman died intestate January 17, 1905, ings, and filed an answer to the petition to leaving as her sole heirs at law her husband, John J. Reithman, and certain children, one of whom was her daughter, Marie G. Wagner; that some time prior thereto Mrs. Reithman had become the owner of the lots in question, and at the time of her death the recorded title thereto was in her; that at the time her husband, John J. Reithman, was a judgment debtor of Johanna Alexander to the amount of over $26,000. March 23, 1905, Mrs. Alexander caused an execution to be issued upon the judgment and a levy thereunder made upon John J. Reithman's interest in and to the lots in question. April 17, 1905, Reithman's interest, if any, in the property, was sold under the execution to Mrs. Alexander, and thereafter in due time she reIceived a sheriff's deed therefor, which was duly recorded. August 17, 1905, a quitclaim deed, bearing date December 16, 1904, from Magdalena Reithman to Marie G. Wagner, in consideration of $1, purporting to convey the property in question, was filed for record, together with a mortgage deed bearing date March 16, 1905, from Marie G. Wagner to Moses Hallett, conveying the same property to secure the payment to Hallett of Mrs. Wagner's note in the sum of $3,422. At the time of the levy of the execution and the sale thereunder, Mrs. Alexander had no notice or knowledge of the deed to Mrs. Wagner or the mortgage to Judge Hallett, nor did she acquire such knowledge, either actual or constructive, until the filing of the last-named instruments. On and prior to December 6, 1904, Mrs. Reithman was indebted to Judge Hallett upon three promissory notes for money loaned in the aggregate sum of $1,900, and, being in poor health, conveyed the lots to Mrs. Wagner "for the purpose of having her secure the said indebtedness" by a mortgage upon the lots to Judge Hallett. March 6, 1905, Mrs. Wagner received from Judge Hallett $1,100 for the purpose of paying the general taxes on said lots for the year 1903, and redeeming the premises from certain tax sales and assessments for public improvements, and thereupon executed and 2. One contention of plaintiff in error is delivered to Judge Hallett her promissory that Mrs. Alexander acquired no interest in note for the sum of $3,422, being the amount the premises superior to the lien created by of such advancements and the indebtedness the Hallett mortgage, because Magdalena of Mrs. Reithman. At the same time, to se- Reithman had previously conveyed all her cure the payment thereof, she executed and title in the lots to Marie G. Wagner, and no delivered the mortgage deed hereinbefore interest therein descended to John J. Reithmentioned. In November, 1906, Judge Hal-man, notwithstanding such deed to Wagner lett redeemed the property from a sale for the taxes of 1901, and paid the taxes thereon for 1905, the two sums aggregating about $264. The evidence further shows that administration was had upon the estate of Magdalena Reithman; that June 19, 1905, the ad

1. Mrs. Alexander has interposed a motion to dismiss the appeal because the judgment rendered was not of that class from which an appeal will lle. The motion must be sustained. No money judgment was rendered, nor does the judgment relate to a franchise or freehold. Section 388, Mills' Ann. Code. Whether Judge Hallett has a lien by virtue of his mortgage or the moneys advanced or paid for taxes superior to the interest in the premises claimed by Mrs. Alexander are the sole questions for determination, and in no sense involve a franchise or freehold. Murto v. King, 28 Colo. 357, 359, 64 Pac. 184; Scheeren v. Stramann, 24 Colo. 111, 48 Pac. 966; Cravens v. Lee, 24 Colo. 225, 49 Pac. 424. This court, therefore, has no jurisdiction to entertain the appeal; but, as Mrs. Alexander has entered her appearance and filed briefs herein within the time a writ of error might have been sued out, and scire facias served, the cause will be entered as pending upon error by virtue of section 388a, Mills' Ann. Code, and we will proceed to determine the controversy.

and mortgage to Hallett were not recorded until long after the death of Mrs. Reithman, and subsequent to the levy of the execution and sale thereunder upon which the sheriff's deed was based. By virtue of section 694, Rev. St. 1908 (section 446, Mills' Ann. St.),