that the city was the owner of the property | "That whenever any tract or tracts of land on the north. If the boundary line of the adjoining to any city of the first class, but city extends northward from the northeast corner of the Stanton and Cnilcott tract, then the tract is surrounded by the boundary lines of the city. If the boundary line extends southward from the northeast corner of the tract, then the tract is not surrounded by the boundary lines of the city. So much of section 4389a, 3 Mills' Ann. St. Rev. Supp., as is pertinent to the question, is as follows:

not embraced within the limits of any municipal corporation, shall have by its owners been laid out into lots, blocks, streets and alleys according to any recorded map or plat showing such lots, blocks, streets and alleys or whenever any tract or parcel of land is included or embraced within the corporate limits, but has not been made a part of such city, the council of such city may by ordinance de

clare such tract or tracts adjoining to such the land marked "Park Property" is not a city annexed thereto."

Counsel for appellant submits two questions for our determination: "(1) Did the complaint entitle the appellees to injunctive relief? (2) Is the tract covered by the ordinance included or embraced within the corporate limits of the city of Pueblo within the meaning of the statute above cited?"

part of the city, the boundary line, when it reaches the northeast corner of the Stanton and Chilcott tract, must be extended south. There is no authority to extend the line from the northeast corner of the tract in question to the railroad tracks. The boundary line must be an unbroken line, and should, at each and every point, separate property within from property without the city limits. The words "included" and "embraced" we regard as synonymous, as used in the statute, and, when property is by the boundary lines of a city excluded from the limits thereof, such property cannot be regarded as "included" or "embraced" therein. It follows from what we have said that, if the city desires to annex the property of the appellees, it must proceed under the statute providing for the annexation of property contiguous to cities and towns.

The judgment is affirmed.

CAMPBELL and WHITE, JJ., concur.

(46 Colo. 58)

STEVENSON v. BROTT.

Counsel do not urgently contend that, if the proposed ordinance is without authority of law, it is not within the power of a court of equity to enjoin its adoption. Where the proceedings of a municipal corporation in the annexation of adjacent territory to the municipality are in excess of the corporate powers and authority, they may be enjoined by property owners, both upon the ground of preventing illegal annexation and to prevent a change of the property of cities from the territorial limits of one municipality or political body to those of another. High on Injunctions (4th Ed.) § 1254. We find no authority in support of the proposition that the purchase by the city of contiguous property makes the property a part of the city or extends the boundary lines to include the property purchased. Authority is given for the purchase of property for park purposes with- (Supreme Court of Colorado. June 7, 1909.) out the city limits, and such property, when REPLEVIN (§ 103*) JUDGMENT RELIEF purchased, although the city has jurisdiction AWARDED TO DEFENDANT. over it for certain purposes, and to that ex- Where, in replevin, plaintiff claimed, untent it becomes a part of the city, is not in-der a chattel mortgage, the right to recover an cluded within the boundary lines of the city repairs done at the request of the mortgagor, automobile, and defendant claimed a lien for unless the proper procedure is taken for an- and made no claim of personal indebtedness on nexation. The manner of annexing contigu- the part of plaintiff, and the sole issue was the ous territory is provided for by the chapter the defendant's damages at a certain sum, a right to possession, though the verdict assessed on towns and cities, and the right of deter- judgment for defendant against plaintiff for mining whether such territory shall or shall such damages was invalid. not be annexed appears to rest with the qualified electors of the city, and not with the council or trustees; and, as towns and cities have only such power as is granted them by the Legislature, we must hold that the mere purchase of property for park purposes does not extend the boundaries of the city nor annex the property to the city. We must therefore hold that the boundary line of the city extended southward from the northeast corner of the Stanton and Chilcott tract, so as to exclude the tract from the city limits.

[Ed. Note. For other cases, see Replevin, Dec. Dig. § 103.*]

Appeal from County Court, City and County of Denver; Ben B. Lindsay, Judge.

Action by Frederick B. Stevenson against A. Brott. From a judgment in favor of defendant, plaintiff appeals. Reversed.

Richard McKnight, for appellant. R. D. Rees, for appellee.

BAILEY, J. This was a suit in replevin begun in a justice court by the appellant here, plaintiff below, against the appellee here, defendant below, to recover possession of an automobile. In the justice court the plaintiff had judgment for possession; appeal to the county court the result was reversed and the defendant recovered judgment there upon the verdict of a jury, which reads as follows:

But counsel say: "Admitting, for the sake of argument, that the property marked park property is not a part of the city, the tract covered by the ordinance is still 'included or embraced' within the city limits within the meaning of the statute, for the limits of the city would then run north at the railroad tracks, and at the north of Mineral Palace Park would turn east and run as far east as the eastern limits of the land covered by the ordinance before it again turns north. The land included in the ordinance would then have the city limits extended on all sides, north, south, east, and west." But, if and 40/100."

on

"We, the jury, find the issues herein joined for the defendant, A. Brott, and assess his damages at the sum of sixty-six dollars

Upon this verdict, a motion for a new trial having been meanwhile overruled, judgment was duly entered in this form:

"It is considered by the court that said defendant, A. Brott, have and recover of and from said plaintiff the sum of sixty-six and 40/100 ($66.40) dollars, together with his costs incurred herein, to be taxed, and that execution issue therefor."

Upon return of said verdict to the county court the plaintiff excepted and objected to its form and substance, as he also did in his motion for a new trial, and likewise to the judgment itself, from which this appeal is prosecuted.

makes no personal claim of debt against the plaintiff whatever. He urged no counterclaim and offered no syllable of proof to support one. The judgment is simply an impossibility under the issues tendered and testimony adduced. We are not disposed to discuss or pass upon other alleged errors, as the one considered is decisive of this appeal.

The judgment is reversed and the cause remanded.

STEELE, C. J., and WHITE, J., concur.

(46 Colo. 67)

BURNELL v. OLMSTED et al.

(Supreme Court of Colorado.

June 7, 1909.)

1. PLEADING (§ 237*)-AMENDMENTS-ANSWER -AMENDMENT TO CONFORM TO PROOF.

In an action by creditors to set aside a conveyance by defendant to her daughter, on the ground that the deed was executed without consideration, where the evidence showed that a fraudulent consideration, consisting of a promise of future support, was not made until after the conveyance was executed and recorded upon another sufficient consideration, the court could in its discretion, at the close of the testimony, allow an amendment to the answer to show that fact.

[Ed. Note. For other cases, see Pleading, Cent. Dig. § 607; Dec. Dig. § 237.*] 2. FRAUDULENT CONVEYANCES (§ 96*)-CON

It is to be observed that this was a suit in replevin to recover possession of an automobile, the plaintiff basing his right thereto upon the lien of a chattel mortgage, duly recorded, and in full force. The defendant predicates his right to a lien upon said car for repairs thereto, done at the behest of the mortgagor of the automobile, and for which he has right of action in debt against the latter. The defendant makes no claim whatever of any personal indebtedness to him by the plaintiff, Stevenson, or of any right to a money judgment against him. The issue in the trial court was as to which of the contending parties had the better and superior right, under their respective alleged lien Where a conveyance from a mother to her claims, to the possession of the automobile. daughter was supported by a present adequate In no event could the defendant recover a consideration, that it was also made in considdirect personal judgment against the plain-eration of the future support of the mother did tiff; such judgment is clearly without and beyond the issues of the case. The defendant had and has no claim of debt against Stevenson. The question between the parties was clearly one of right of possession; that was the only matter litigated, and the only thing upon which the court did instruct, or properly could have instructed, the jury. No ground in law or in fact whatsoever upon which to base the personal money judg

SIDERATION-SUFFICIENCY.

not make it fraudulent as to the mother's cred

itors; the additional consideration being a gratuity.

[Ed. Note.-For other cases, see Fraudulent Conveyances, Cent. Dig. § 295; Dec. Dig. § 96.*]

3. FRAUDULENT CONVEYANCES (§ 118*)—PREF

ERENCES TO CREDITORS-RELATIVES-MOTH-
ER AND DAUGHTER.

A mother may convey to her daughter in
preference to other creditors, if the conveyance
is not made with a fraudulent intent, and is
supported by an adequate consideration.
[Ed. Note.-For other cases, see Fraudulent
Conveyances, Cent. Dig. § 381; Dec. Dig. §

ment which was rendered in this case in fa-
vor of the defendant and against the plain-
tiff is shown, and there is no conceivable | 118.*]
theory upon which it may be rightfully ap-
proved.

The cases cited where similar verdicts have been sustained in like cases in favor of a plaintiff, have no application. Where a plaintiff recovers in this kind of action there is some plausibility in the suggestion that a money verdict may represent the damages sustained by him for the wrongful detention by the defendant of the property involved. Nothing of this sort can be properly urged in behalf of a defendant, who is the one having possession of the property in the first instance and from whom such possession is taken by the writ. It is only against the defendant, and not in his favor, that damages on the facts here shown and in a suit like this, may be assessed. He has and

Appeal from District Court, Arapahoe County; A. H. De France, Judge.

Action by Frank A. Burnell against Maggie Olmsted and another. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.

William T. Rogers and W. J. Weeber, for appellant. Jo. A. Fowler and Henry C. Allen, for appellees.

BAILEY, J. This was an action by plaintiff below, Frank A. Burnell, appellant here, against the defendants below, Maggie Olmsted and Maud Olmsted, appellees here, to set aside and cancel a deed of conveyance of certain real property situate in the town of Littleton, Colo., from the said Maggie Olmsted to the said Maud, mother and daugh

For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

ter respectively, as being fraudulent and been duly executed, delivered and recorded, void as to said plaintiff, a judgment creditor and was not therefore a moving consideraof the said Maggie. It is charged, as grounds tion therefor. We are of opinion that the for the relief prayed, that the conveyance court, under these circumstances, might propwas voluntary and without consideration, erly, in its discretion, allow such amendmade with the intent and purpose of placing ments. However, in our view of the case, said property beyond the reach of execution upon the findings of the court as to the facts, and that the said Maud was a party to the whether such amendments were allowed or transaction, with full notice of the intended made is wholly immaterial. Since not only fraud. All allegations of wrongdoing are adequate, but full, independent consideration denied by the defendants, and it is affirma- for the transfer was made by the daughter tively pleaded by them that the conveyance to the mother, the proposed additional and was made in good faith and for full consid- future consideration in the way of a promise eration. It is also set forth in the separate of subsequent care and keep is a mere graanswer of each defendant that Maud Olm- tuity, and in no legal sense affects the vasted, the daughter, paid to the said Maggie lidity of the deed of conveyance. Vial v. $3,000.00 for said conveyance, and as a fur- Mathewson, 34 Hun (N. Y.) 70; Hapgood v. ther and additional consideration that the Fisher, 34 Me. 407, 56 Am. Dec. 663; Bent said Maud agreed to support and care for v. Bent, 50 Hun, 602, 3 N. Y. Supp. 750; Alher mother during the remainder of the life bee v. Webster, 16 N. H. 362; Slater v. Dudof the latter. Trial was had to the court ley, 18 Pick. (Mass.) 373. Upon abundant with a general finding of the issues joined in testimony, of an apparently convincing charfavor of the defendants, and specially that acter, the daughter seemed a bona fide credneither of them had been guilty of any fraud itor of the mother, to the extent of $2820.00, in the matter of the conveyance complained at least the trial judge so concluded, and he of. A dismissal of the action followed. It saw the witnesses face to face, heard them is to review these findings and the judgment testify and observed their conduct and deof dismissal that plaintiff brings the case meanor on the stand, and that at the time of here on appeal. the conveyance she had paid the latter the further sum of $180.00 in cash to complete the full $3,000.00 claimed money consideration.

The proof seems clear and satisfactory, and the court so found, that the daughter did in fact pay the mother $3,000.00 as a consideration for the conveyance in question. We know of no reason why a mother may The proof further shows, without substantial not lawfully prefer her daughter above othdispute or conflict, that the fair and reason- er creditors, if the transaction be in fact a able value of the property was no more than mere preference, free of wrongful purpose the amount so as aforesaid actually paid and intent and untainted by fraud or inditherefor by the daughter to the mother. As rection. Stramann v. Scheeren, 7 Colo. App. to this conclusion we are bound by the find- 1, 42 Pac. 191; Bank v. Kavanagh, 7 Colo. ings of the trial court, and they seem to be App. 160, 43 Pac. 217; Otis v. Rose, 9 Colo. entirely warranted and supported by the tes- App. 449, 48 Pac. 967. The court below timony. But for the averment in the an- found this transaction to be of such characswers to the effect that the conveyance rest- ter, and no good reason is perceived for dised upon a further consideration of a promise turbing that finding. On the contrary, it by Maud to support and care for her mother conforms with our judgment, from an exduring the remainder of the life of the lat- amination of the whole record, of what the ter, this case and this opinion would end facts proved in the case fairly establish. It right here. Counsel for appellant however follows then that the plaintiff has no possicontends that because of this averment in ble ground of complaint because of this consaid answers, by which he claims the defend- veyance, as the daughter, Maud Olmsted, is ants are bound, the instrument is fraudulent shown beyond all question to have paid a in law and must therefore be set aside and full money consideration for the property. cancelled at the instance of the plaintiff cred- Upon the facts surrounding this entire transitor. action, no creditor of Maggie Olmsted has any legal or moral ground of complaint because of the transfer in question. No one is wronged thereby or unlawfully injured. Had it been made to the plaintiff, under a similar state of facts, neither the daughter nor any other creditor of Maggie Olmsted could have successfully questioned it. If this be true, then on what theory can it justly be held that he has a grievance. The findings and judgment below are plainly right and should be upheld. The judgment must accordingly be affirmed and it is so ordered.

At the close of the testimony the court below, on motion of the defendants, allowed their respective answers to be amended to conform to the proof, so as to eliminate that clause from both of them which refers to the agreement for the future support of the mother as being part of the consideration for the conveyance. This action of the court in allowing such amendments is assigned for error. The testimony showed as a matter of fact, and the court below so found, hence the allowance of the said amendments, that such promise of support was not made by

[Ed. Note.-For other cases, see Bigamy, Cent. to ask him to state his opinion upon those facts Dig. 88 1-15; Dec. Dig. § 1.*]

For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes