that the city was the owner of the property | on the north. If the boundary line of the 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: "That whenever any tract or tracts of land adjoining to any city of the first class, but 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 102 P.-33 clare such tract or tracts adjoining to such | the land marked "Park Property" is not a Upon this verdict, a motion for a new trial | makes no personal claim of debt against the 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?" 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 without the city limits, and such property, when purchased, although the city has jurisdiction over it for certain purposes, and to that extent it becomes a part of the city, is not included within the boundary lines of the city unless the proper procedure is taken for annexation. The manner of annexing contiguous territory is provided for by the chapter on towns and cities, and the right of determining whether such territory shall or shall 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. 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 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. (Supreme Court of Colorado. June 7, 1909.) RELIEF REPLEVIN (§ 103*) JUDGMENT Where, in replevin, plaintiff claimed, under a chattel mortgage, the right to recover an automobile, and defendant claimed a lien for repairs done at the request of the mortgagor, and made no claim of personal indebtedness on the part of plaintiff, and the sole issue was the right to possession, though the verdict assessed the defendant's damages at a certain sum, a judgment for defendant against plaintiff for such damages was invalid. [Ed. Note. For other cases, see Replevin, Dec. Dig. § 103.*] 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. It is to be observed that this was a suit in 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. replevin to recover possession of an auto- (Supreme Court of Colorado. June 7, 1909.) mobile, the plaintiff basing his right thereto 1. PLEADING (§ 237*) - AMENDMENTS-ANSWER 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 what ever 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 claims, to the possession of the automobile. In no event could the defendant recover a direct personal judgment against the plaintiff; 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 ment which was rendered in this case in favor of the defendant and against the plaintiff is shown, and there is no conceivable theory upon which it may be rightfully approved. -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 SIDERATION-SUFFICIENCY. Where a conveyance from a mother to her daughter was supported by a present adequate consideration, that it was also made in consideration of the future support of the mother did not make it fraudulent as to the mother's creditors; 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-MOTHER 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. § 118.*] 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. 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 Affirmed. is some plausibility in the suggestion that William T. Rogers and W. J. Weeber, for 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 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 1 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 amend made with the intent and purpose of placing said property beyond the reach of execution and that the said Maud was a party to the transaction, with full notice of the intended fraud. All allegations of wrongdoing are denied by the defendants, and it is affirmatively pleaded by them that the conveyance was made in good faith and for full consideration. It is also set forth in the separate answer of each defendant that Maud Olmsted, the daughter, paid to the said Maggie $3,000.00 for said conveyance, and as a further and additional consideration that the said Maud agreed to support and care for her mother during the remainder of the life of the latter. Trial was had to the court with a general finding of the issues joined in favor of the defendants, and specially that neither of them had been guilty of any fraud in the matter of the conveyance complained of. A dismissal of the action followed. It is to review these findings and the judgment of dismissal that plaintiff brings the case here on appeal. 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. The proof further shows, without substantial dispute or conflict, that the fair and reasonable value of the property was no more than the amount so as aforesaid actually paid therefor by the daughter to the mother. As to this conclusion we are bound by the findings of the trial court, and they seem to be entirely warranted and supported by the testimony. But for the averment in the answers to the effect that the conveyance rested upon a further consideration of a promise by Maud to support and care for her mother during the remainder of the life of the latter, this case and this opinion would end right here. Counsel for appellant however contends that because of this averment in said answers, by which he claims the defendants are bound, the instrument is fraudulent in law and must therefore be set aside and cancelled at the instance of the plaintiff creditor. 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 ments. However, in our view of the case, upon the findings of the court as to the facts, whether such amendments were allowed or made is wholly immaterial. Since not only adequate, but full, independent consideration for the transfer was made by the daughter to the mother, the proposed additional and future consideration in the way of a promise of subsequent care and keep is a mere gratuity, and in no legal sense affects the validity of the deed of conveyance. Vial v. Mathewson, 34 Hun (N. Y.) 70; Hapgood v. Fisher, 34 Me. 407, 56 Am. Dec. 663; Bent v. Bent, 50 Hun, 602, 3 N. Y. Supp. 750; Albee v. Webster, 16 N. H. 362; Slater v. Dudley, 18 Pick. (Mass.) 373. Upon abundant testimony, of an apparently convincing character, the daughter seemed a bona fide creditor of the mother, to the extent of $2820.00, at least the trial judge so concluded, and he saw the witnesses face to face, heard them testify and observed their conduct and demeanor on the stand, and that at the time of 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. We know of no reason why a mother may not lawfully prefer her daughter above other creditors, if the transaction be in fact a mere preference, free of wrongful purpose and intent and untainted by fraud or indirection. Stramann v. Scheeren, 7 Colo. App. 1, 42 Pac. 191; Bank v. Kavanagh, 7 Colo. App. 160, 43 Pac. 217; Otis v. Rose, 9 Colo. App. 449, 48 Pac. 967. The court below found this transaction to be of such character, and no good reason is perceived for disturbing that finding. On the contrary, it conforms with our judgment, from an examination of the whole record, of what the facts proved in the case fairly establish. It follows then that the plaintiff has no possible ground of complaint because of this conveyance, as the daughter, Maud Olmsted, is shown beyond all question to have paid a full money consideration for the property. Upon the facts surrounding this entire transaction, 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 error. The testimony showed as a matter of judgment below are plainly right and should fact, and the court below so found, hence be upheld. The judgment must accordingly the allowance of the said amendments, that be affirmed and it is so ordered. such promise of support was not made by (155 Cal. 535) PEOPLE v. LE DOUX. (Cr. 1,403.) (Supreme Court of California. May 19, 1909. On Rehearing, June 24, 1909.) 1. JURY (§ 70*) -SUMMONING SPECIAL VENIREMAN-DISQUALIFICATION OF SHERIFF. An unqualified opinion as to defendant's guilt, founded on an investigation of facts, disqualifies a sheriff from summoning special veniremen, and is ground for a challenge to the panel, under Pen. Code. § 1064, on account of bias of the officer, though he testifies that he acted fairly and impartially. [Ed. Note. For other cases, see Jury, Cent. Dig. § 327; Dec, Dig. § 70.*] 2. SHERIFFS AND CONSTABLES (§ 85*)-PowERS-DISQUALIFICATION TO ACт. The disqualification of a deputy sheriff does not disqualify the principal, but the deputy cannot act where his principal is disqualified. [Ed. Note. For other cases, see Sheriffs and Constables, Dec. Dig. § 85.*] 3. JURY ($ 70*) -SPECIAL VENIRE-DISQUALIFICATION OF SHERIFF. A deputy cannot summon special venire men, when his principal is disqualified by reason of an opinion as to the guilt of the accused. [Ed. Note. For other cases, see Jury, Dec. Dig. § 70.*] 4. CRIMINAL LAW (§ 395*) - EVIDENCE - INCOMPETENCY - EVIDENCE WRONGFULLY OB A certified copy of an unacknowledged marriage certificate is not competent evidence of marriage in fact to prove a charge of bigamy unless accompanied by proof of the signature of the person making it, and of his authority to solemnize the marriage, although the certificate is recorded in the territory where the marriage ceremony was performed. [Ed. Note. For other cases, see Bigamy, Cent. Dig. §§ 34-53; Dec. Dig. § 9.*] 7. CRIMINAL LAW (§ 442*) - EVIDENCE-DOCUMENTARY EVIDENCE. Where the prosecution claimed that the accused poisoned her husband to escape the consequences of her bigamous relations with another, a marriage certificate, subscribed by the accused and the deceased, accompanied by proof of her signature, was admissible to prove motive, by showing her belief in the existence of a former legal marriage. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 1027; Dec. Dig. § 442.*] 8. HOMICIDE (§ 166*) - EVIDENCE - ADMISSIBILITY-MOTIVE. Where the prosecution claimed that deceased was defendant's husband, and that she poisoned him because of her love for another, she was entitled to show that deceased lived on her earnings as a prostitute. [Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 320-331; Dec. Dig. § 166.*] 9. CRIMINAL LAW (§ 778*)-TRIAL--INSTRUCTIONS-NECESSITY-PRESUMPTIONS OF INNO CENCE. Where much evidence had been introduced to show defendant's motive for poisoning her husband, she was entitled to have the jury instructed with particularity as to the application of the presumption of innocence when conflicting presumptions arise. [Ed. Note.-For other cases, see Criminal Law, Dec. Dig. § 778.*] 10. CRIMINAL LAW (§ 778*) -TRIAL-INSTRUOTIONS-NECESSITY PRESUMPTIONS OF INNO CENCE. An instruction that the presumption of innocence is the only presumption allowable in a criminal case, and that it is not overcome by any other presumption, but overcomes all other presumptions of whatsoever kind or nature, is erroneous. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1846-1857; Dec. Dig. 778.*] 11. HOMICIDE (§ 233*)-EVIDENCE-SUFFICIENCY-MOTIVE. Where the prosecution claimed that the accused poisoned her husband to escape the consequences of her bigamous relations with another, it was sufficient to prove that she believed that she had been legally married to the deceased, and that the marriage had not been annulled. [Ed. Note. For other cases, see Homicide, Dec. Dig. § 233.*] 12. CRIMINAL LAW (§ 484*) - OPINION EVIDENCE-EXAMINATION OF EXPERTS. The best method for obtaining the expert opinion of a witness is through the medium of a hypothetical question; but, where the facts are simple, salient, and few, and the witness has heard the testimony, it is not necessarily error to ask him to state his opinion upon those facts without restating them. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 1072; Dec. Dig. § 484.*] 13. CRIMINAL LAW (§ 484*) - EVIDENCE-EXAMINATION OF EXPERT. A physician, upon stating that he had heard the testimony of certain witnesses, was asked: "Assuming each and all of the facts and circumstances testified to as true, what in your opinion was the cause of the death of the deceased," the victim of the homicide. Held error, because it was impossible to determine upon what facts the witness based his opinion. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 1072; Dec. Dig. § 484.*] On Rehearing. 14. CRIMINAL LAW (§ 11661⁄2*) -APPEAL AND ERROR-REVIEW-HARMLESS ERROR-OVERRULING CHALLENGE TO PANEL. The rule that the Supreme Court will not review an alleged improper ruling on a challenge to an individual juror, when it appears that the jury was completed without the exhaustion by the accused of all peremptory challenges, is inapplicable to a challenge to the panel for bias of the summoning officer. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3115-3117; Dec. Dig. § 11662.*] •For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes |