recover damages for the injuries thus occasioned, averring among other things that the city had knowledge of the dangerous condition of the cap in question. To the complaint a demurrer was filed, alleging that it stated no cause of action. This demurrer the court overruled, and the present appeal was taken, under the legislative act of 1885, from the order thus entered upon the demurrer. In view of the legal question discussed in the opinion, it is unnecessary to give any further statement concerning the contents of the pleadings. James H. Brown, for appellant. Edgar Çaypless and H. E. Luthe, for appellee. This body alone has authority to levy taxes for these among other municipal purposes. It also, in its annual appropriation bill, determines and sets apart the proportion of the general fund to be used by the department having these matters in charge. In the fore contends, that the street commissioner is elected by the people, and apparently not subject to removal by the council. It is also true that he is charged with the care of streets, avenues, sidewalks, and the like; that he is to keep the same free from obstructions and defects, and to superintend the work of construction and repair. But the manner of his selection for office is not decisive of his status in connection with the municipal government; and the section upon which counsel relies simply designates his duties as a factor in the general adininistration of the city's affairs. The different provisions of the charter, relating to streets and sidewalks, should be construed in pari HELM, C. J., (after stating the facts as materia. Thus construing them, it is apabove.) The right of plaintiff below to dam- parent that the superior and exclusive conages for the injury suffered is not at present trol of all the streets and sidewalks is still denied by counsel for appellant. His con- lodged in the municipal government, to be tention is that the liability, if such there be, mainly exercised through its common counrests upon the street commissioner, and not cil. That body has the power "to open, alupon the city. In City of Denver v. Duns-ter, abolish, widen, extend, establish, grade, more, 7 Colo. 328, 3 Pac. Rep. 705, this pave, or otherwise improve and keep in recourt, per Chief Justice BECK, held "that pair streets, avenues, alleys, sidewalks, and when municipal corporations are invested the like." The expense of such repairs, imwith exclusive authority and control over provements, and changes is to be provided the streets and bridges within their corpo- for by the council in pursuance of statute. rate limits, with ample power of raising money for their construction, improvement, and repair, a duty arises to the public, from the nature of the powers granted, to keep the avenues of travel within such jurisdiction in a reasonably safe condition for the ordinary mode of use to which they are sub-going and in other respects the authority of jected, and a corresponding liability rests the municipal government, through the city upon the corporation to respond in damages council, is as complete and plenary as it was to those injured by a neglect to perform the when the opinion in City of Denver v. Dunsduty." And the city was required to respond more was announced. The street commisin damages, plaintiff having suffered injury sioner, though an elective officer, is simply a by reason of a defective bridge on one of the subordinate agent or official, charged with the public streets. In City of Denver v. Dean, specific duties mentioned. He has certain 10 Colo. 375, 16 Pac. Rep. 30, the doctrine limited powers in the employment of laborof City of Denver v. Dunsmore was expressly ers and teams; but he cannot levy taxes, reaffirmed and applied, though, as in the case raise revenue, or, except under direction of at bar, the injury resulted from a defective the council, by ordinance or otherwise, discap over a coal-hole in the sidewalk. We burse funds. If the council see fit to alter, there say: "It was the duty of the munici- repair, or close a street or sidewalk, he canpal authorities of Denver to exercise ordi- not prevent the change from taking place. nary care in keeping the sidewalks free from If that body requires the removal of certain defects and obstructions. ** * A fail-encroachments or obstructions therefrom, ure to perform this duty might lay the foun- he possesses no veto authority; and, should dation of municipal liability." It is now as- he decline to obey the commands of the counserted that by virtue of a legislative provis-cil in the premises, we discover nothing to ion adopted since the decision in City of Den- prevent the execution thereof through some ver v. Dunsmore the corporation is no longer other agency. He cannot even employ an liable for injuries like those here complained assistant without written authority from the of. We are told that under the statute re- mayor; and only upon like authority can he ferred to, as already suggested, actions of hire teams and laborers, when required in this nature lie only against the street com- the discharge of his official duties. The inmissioner. If counsel's position were the tention of the legislature to subject his servtrue one, it would have been a strange over-ices to the general supervising control of sight not to require of the street commis- the city council, or its proper committee, is sioner a bond or other security whereby too clear to admit of serious doubt. It will plaintiff, and others similarly situated, might be protected. This officer may be impecunious, and wholly unable to respond in damages. But we cannot consent to the correctness of counsel's view. It is true, as he therefore be seen that the case at bar does not come within the rule upon which counsel for appellant relies. This is not an instance "where the duties of an officer are prescribed by law, and are independent in their charac ter, and he is not subject to the direction and | Held, that an interlocutory judgment or order control of the corporation as to the time, overruling exceptions to and confirming the report that the conveyance was by way of mortgage, and place, or manner of their discharge;" under that there had been no dissolution and no settlewhich circumstances it is said that "he is a ment, was in effect a final adjudication and appublic officer, and in no sense a servant or pealable, though the trial court also held that ceragent of the corporation, and the corporation tain findings were not conclusive, but would be subject to review on final hearing. is not liable for the manner in which he discharges his duties." Wood, Mast. & Serv. (2d Ed.) § 458; 2 Dill. Mun. Corp. (3d Ed.) $974. 2. Though a deed may be proved by oral testimony to be in effect a mortgage, (Code Civil Proc. Colo. § 263,) yet the proof should be clear, certain, and unequivocal, and beyond a reasonable doubt. 3. Plaintiff borrowed money of defendant, and conveyed to him plaintiff's interest in the property of the partnership between them, in form absolutely, but intended as security. The borrowed money was intended to be and was used by plaintiff to pay creditors, and the conveyance appeared to have been made in good faith. Held, that defendant could not set up the subsequent conduct of plaintiff in respect to the conveyance, fraudulent as to creditors, as a bar to plaintiff's equity of redemption, or as a defense to a claim for an accounting of the affairs of the partnership, which defendant alleged was dissolved by the convey ance. Appeal from district court, Montrose county. With the doctrine thus stated, and the numerous authorities cited in support thereof, we do not quarrel. Not being applicable, we simply pass them by without discussion. If anything more than the foregoing were required to demonstrate the correctness of our position that it was not the legislative intent when it provided for a street commissioner and imposed certain duties upon him to relieve the city from liability for defects in the streets and sidewalks arising through negligence, it is found in another provision of the charter itself. Section 4, art. 13, thereof reads as follows: "Before the city of The appellee, as plaintiff below, comDenver shall be liable for damages to any menced this action against the appellant, as person injured upon any of the streets, ave- defendant, alleging in his complaint that the nues, alleys, or sidewalks of the city, the plaintiff and defendant had been, and still person so injured, or some one in his behalf, were, copartners in the mercantile business shall give the mayor or city council notice in in the town of Montrose, Colo., and praying writing of such injury, within thirty days that certain real estate of which defendant after the same has been received, stating in held the legal title might be declared to be such notice when, where, and how the in- partnership property, for a dissolution of the jury occurred, and the extent thereof." Here copartnership, for an accounting, and for is a clear and positive legislative recognition other relief. It appears that plaintiff had of the proposition that the city may be liable been the sole owner of said mercantile busifor injuries occasioned by defective streets ness, but that in January, 1883, he sold a and sidewalks. There will doubtless be in- half interest therein to defendant, and also stances where it will be necessary, as a con- conveyed to defendant a half interest in cerdition precedent to a recovery from the city, tain real estate in said town of Montrose; to bring sufficient knowledge of the imper- and thereupon the partnership was estabfect street or sidewalk home to the proper lished, as alleged in the complaint. In May, municipal authorities. City of Denver v. 1883, plaintiff, being financially embarrassed, Dean, supra. But with such considerations conveyed by deed his remaining half interest we are not concerned in the present case; in said real estate, and by bill of sale all his nor do we deem it necessary to marshal de-interest in said partnership business and cisions and further prolong this opinion in disposing of the specific question presented. The judgment of the court below is af firmed. (12 Colo. 491) TOWNSEND v. PETERSEN. (Supreme Court of Colorado. April 19, 1889.) APPEAL-FRAUDULENT CONVEYANCES- EVIDENCE. 1. Act Colo. April 23, 1885, § 1, provides that the supreme court has appellate jurisdiction over all judgments and decisions of all other courts of record. By section 2 an appeal may also be taken from an order affecting a substantial right, when such order in effect determines the action, and prevents a judgment from which an appeal might be taken. In an action to have certain land declared partnership property, and for dissolution of the partnership, it appeared that the parties had been partners, and the land had been partnership property, and plaintiff had conveyed his interest in the land and other property to defendant. Plaintiff alleged that the conveyance was for security only, and defendant alleged that it was absolute, and that the partnership was dissolved. It was referred to ascertain whether there had been a dissolution and settlement and whether the con veyance was absolute or by way of mortgage. property, to defendant, and received therefor the sum of $975. Plaintiff contends that said sum was a loan; and that said deed and bill of sale were, and were intended to be, mortgages, as security for said loan; and that defendant executed an obligation in writing, agreeing to reconvey said property to plaintiff upon payment of said loan and interest. Defendant's amended answer contains several matters of defense, which, so far as they are essential to an understanding of the opinion, are to the following effect: (1) That the deed and bill of sale of May, 1883, were not intended as mortgages, but as absolute conveyances of both the real and the personal property; and that there was then and there a dissolution of the copartnership. (2) That the deed and bill of sale of May, 1883, were absolute conveyances, in form and in fact; but that there was an agreement whereby plaintiff was entitled to repurchase at any time on or before six months, but not afterwards, and that by the terms of said agreement time was, and was intended to be, of the essence of the contract, and that plaintiff failed to re- | to the effect that certain findings of the refpurchase within the specified time. (3) That eree were "not conclusive," but would be said deed and bill of sale were executed with "subject to review and revision upon the final intent on the part of plaintiff to cheat, hin- hearing of the case." The trial court also der, delay, and defraud his creditors; and held that the defense of the statute of frauds therefore plaintiff is estopped and precluded was not of itself available in behalf of the from asserting any claim to said property, or defendant in a case of this kind. The assignany part thereof. Plaintiff took issue upon ments of error relate principally to the suffithe new matters alleged in the answer, and ciency of the evidence to support the findthe cause was referred, "to ascertain whether ings of the referee, and to the ruling of the there had been any dissolution of partner- court as to the sufficiency of the defense of ship, any settlement of their affairs, and the statute of frauds. A deed of conveyance, whether the conveyance in question was to absolute in form, may be proved to be a be construed as a mortgage, or as an abso- mortgage in effect by oral testimony; but the lute conveyance of the property." The find- proof should be clear, certain, and unequivoings by the referee were favorable to plain- cal,--sufficient to establish the fact beyond tiff. There was no finding upon the defense reasonable doubt. Code Civil Proc. § 263; setting up the statute of frauds, though evi- Whitsett v. Kershow, 4 Colo. 419. From an dence was taken thereon and reported by the examination of the testimony, we are satisreferee. On exceptions to the report, the fied that the deed and bill of sale executed by court held that the defendant could not take plaintiff to defendant in May, 1883, were subadvantage of the statute of frauds as a de- ject to another writing executed by defendant fense to plaintiff's action, overruled the ex- contemporaneously therewith, whereby deceptions, and confirmed the report, subject fendant bound himself to reconvey to plainto certain modifications on final hearing. The tiff upon certain conditions; so plaintiff's defendant appeals. deed and bill of sale cannot be said to have Act Colo. April 23, 1885, § 1, provides that "the supreme court has appellate jurisdiction over all, and decisions of all, other courts of record, as well as in case of civil actions as in proceedings of a special or independent character. * * *"" Section 2 declares that "an appeal may also be taken to the supreme court from the following orders: * * (1) An order made affecting a substantial right, in an action where such order in effect determines the action and prevents a judgment from which an appeal might be taken. *" By Code Civil Proc. Colo. § 263, "a mortgage shall not be deemed a conveyance, whatever its terms, so as to enable the owner of the mortgage to recover possession of the real property without foreclosure and sale, and the fact of a deed being a mortgage in effect may be proved by oral testimony. * * *" T. J. Black, S. H. Baker, and Brown & Putnam, for appellant. N. G. Clark, for appellee. been absolute conveyances at the time of their execution. Both parties agree in their testimony thus far. The writing executed by defendant having been lost, secondary evidence of its contents was admitted by the referee. This evidence was conflicting; but, considering all the circumstances of the case, we cannot say that the referee, who heard the living witnesses, was not justifiable in his findings of fact; and, the trial court having confirmed such findings, we do not feel warranted in disturbing them. Hickox v Lowe, 10 Cal. 197. The remaining question to be considered relates to the sufliciency of the third defense, and the evidence relating thereto; for, while the trial court held the third defense insufficient as a matter of law, this ruling was not made until after the evidence was taken and reported thereon, so that we may fully consider the same. That there was a valuable consideration for the deed and bill of sale executed by plaintiff to defendant, there can be no doubt; and that said instruments were ELLIOTT, J., (after stating the facts.) intended as mortgages, we have held, was This is an appeal from an interlocutory judg- properly determined by the referee and the ment or order overruling the exceptions to trial court. The plaintiff borrowed from dethe report of the referee, and confirming such fendant the sum of $975, and used the same, report as to certain matters. The order of together with other moneys, to pay one of confirmation was in effect a final adjudica- his most pressing creditors. He conveyed tion as to all those matters at issue wherein property to defendant by said deed and bill of the findings of the referee were sustained by sale of the value of $2,500 or $3,000, as sethe court, to-wit: That the quitclaim deed curity for such loan. He remained thereand bill of sale of May, 1883, by plaintiff to after, for a year or more, assisting defenddefendant were given as mortgages to secure ant,-keeping the books and attending to a debt of $975, with interest at 15 per cent. other business of said mercantile house,per annum; that there had been no dissolu- and drawing funds out of the business from tion of copartnership between plaintiff and time to time, as a partner, with the knowldefendant, and no settlement or accounting edge and approval of defendant. The eviconcerning the partnership property. Under dence, however, tends to show that to the the act of April 23, 1885, this was undoubt- public he did not appear as a partner after edly an appealable order, notwithstanding the execution of the deed and bill of sale; but the interlocutory decision of the trial court, that he represented said conveyances as ab the difficult task of proving that Pollard held the same in trust for Lathrop at the time of the latter's decease." Considering the pleadings and the evidence in the most favorable light in which they can be viewed in behalf of the defendant, we are of the opinion that they are not sufficient, under the circumstances of this case, to bar plaintiff's right of recovery. We express no opinion whether the third defense would or would not have been sufficient in law if the same had been challenged by demurrer before the evidence was taken, or supported by evidence of a different character. Harvey v. Varney, 98 Mass. 118; Dyer v. Homer, 22 Pick. 253; Thompson v. Moore, 36 Me. 47; Sherk v Endress. 3 Watts & S. 255; Hall v. Linn, 8 Colo. 264, 5 Pac. Rep. 641 The judgment of the district court is affirmed. (41 Kan. 469) PACKARD v. HERINGTON et al. (Supreme Court of Kansas. Feb. 9, 1889.) RIGHTS OF SURETY. solute, and used them, temporarily at least, to hinder and delay his creditors, representing to them that he had no longer any interest in the business. Plaintiff not having repaid the $975 and interest, the question now presented by this record is, can defendant inake use of the fraudulent conduct of plaintiff in respect to said deed and bill of sale subsequent to their execution as a bar to his equity of redemption in respect to said property, or as a defense to his claim for an accounting upon equitable terms concerning the partnership affairs? Unquestionably, conveyances "made with the intent to hinder, delay, or defraud creditors," are void, "as against the persons so hindered, delayed, or defrauded," (Gen. St. § 1526,) and will be so declared when the injured person, or his representative, attacks such conveyances. 2 Chit. Cont. 1037, Wyatt v. Freeman, 4 Colo. 14. In this case, however, between the parties themselves, the conveyances appear to have been entered into in good faith, and for a valuable consideration. The defendant loaned his money at a large rate of interest, 1. Where a note is made to a bank by W., and and took good security therefor. In execut- signed by H. as surety, but before signing such ing the mortgage securities in the form of note H. makes inquiries of the bank as to the financial standing of W., and is informed by an absolute conveyances, the parties were ac- officer thereof that the bank holds bank-stock becomplishing a lawful purpose, in a manner longing to W. in such bank, and that the bank will not altogether uncommon and not necessari- retain the same as security for such note, and that ly fraudulent. Bump, Fraud. Conv 40. It in no event will H. be liable for more than the difference between the value of the bank-stock and does not appear that at the time of executing the amount of the note and interest, and under the deed and bill of sale plaintiff expressed this agreement H. indorses the note, held that, as or entertained any intent to defraud his cred-between H. and the bank, H. is only liable for the difference between the value of the bank-stock and itors.. His manifest purpose,-and his only the amount of such note and interest. purpose, so far as we can discover, at that time, was to raise money to pay one of his creditors; and it appears that he actually so applied the proceeds of the loan. Undoubt-claims such bank-stock as security for the amount edly, his creditors could have subjected his equity in the real and personal estate thus conveyed to the payment of their demands, by resort to proper proceedings; but, if defendant acted in good faith in the transaction, certainly plaintiff's creditors would not be permitted to impair defendant's security as mortgagee. Phelps v. Curts, 80 Ill. 109. Un-trict court, Dickinson county; M. B. NICHder the circumstances of this case, there would certainly be no justice or equity in allowing defendant to say to plaintiff: "Though you made these conveyances in good faith, for my benefit as mortgagee as well as for your own as mortgagor, and without any intent at the time to hinder, delay, or defraud your creditors, nevertheless, as you have since used them as a shield against your creditors, I will complete the swindle by denying you the right of redemption and the benefit of an accounting." In Lathrop v. Pollard, 6 Colo. 432, where a defendant sought to avail himself of a defense somewhat similar to this against the widow of the grantor, Mr. Justice HELM, speaking for this court, used the following language: "If she succeeded in her action, the rights of the creditors would not be interfered with in the least; on the contrary, it would be much easier for them to subject the property to the payment of their debts, for she would have relieved them from 2. Where such note is transferred by the bank after maturity to P., and W.'s bank-stock held by P. by W., with the consent of the bank, and P. the bank as security therefor is also transferred to of indebtedness due from W. to him, held, in an action by P. against H. on such note, that H. is entitled to have credit for the full value of the bankstock, and is only liable for the difference between the value of such stock and the amount of the note and interest. (Syllabus by Clogston, C.) Commissioners' decision. Error from dis OLSON, Judge. This was an action brought by Packard against Herington and Williams to recover on a promissory note executed by Williams and Herington to the Bank of Enterprise. The record shows substantially the following facts: Packard, Herington, and Williams were all stockholders in the Bank of Enterprise. Williams was indebted to the bank $1,500, and held stock in the bank to the amount of $1,200. The stock was worth its face value. The bank required of Williams some additional security to the stock, and he executed to the bank a second mortgage on certain cattle and hogs, and procured Herington to sign a note with him to the bank for the sum of $1,500, the amount of his indebtedness. Before signing the note, Herington made inquiries of the bank as to the condition of Williams financially, and was informed that the bank held $1,200 of Williams' stock, and this second chattel mortgage on live-stock, and that in no event would the stock. Plaintiff, however, insists that if Herington be liable for more than the differ- the transfer of the note by the bank to him ence between the value of the bank-stock with the stock transferred all the obligations ($1,200) and the amount of the note and in- of the bank as well, and rendered him liable terest, and with this understanding and to account for the stock to Herington, he agreement with the bank Herington signed was not obliged, under this arrangement, to the note. The note was not paid at maturi- take the stock, and give credit on the note ty. Afterwards Williams borrowed $1,100 for its face value or actual value. In other of Packard, the plaintiff. Williams desired words, that Herington must pay the note, the cashier of the bank to hand him his stock and then demand the stock, and then, if not that was deposited with the bank. The stock delivered, in an action between them deterwas given to him by the cashier, and by Will- mine who had the right to the stock, and, if iams handed to Packard without indorsement, Herington was entitled to it, he could reand by Packard handed to the cashier. cover it, or its value if converted. In this No indorsement was made on the books, and we do not agree with the plaintiff. When he there was no understanding with the bank held the security, admitting its value, and that there was any transfer of the stock. claimed to hold it as a pledge or security for Afterwards, the $1,100 note not being paid, his claim against Williams, and adversely to Packard and Williams made application to the interest of Herington,-holding it in a the bank to have the stock formally trans- different capacity than that in which the ferred on the books of the bank from Will- bank held it, we think he cannot be permit iams to Packard. This the cashier refused ted to deny the conversion of the stock, and to do, stating to Packard that the bank held compel Herington to an action to recover its the stock to secure Herington and the bank possession. In all cases of this kind one acon the $1,500 note, and that the bank would tion ought to determine the entire contronot transfer it until that note was paid. versy between the parties, and, as plaintiff Packard then proposed to pay the $1,500 has elected to claim the stock adversely to note, and have the stock transferred to him, the defendant, we think, where there is no which was accepted by the bank, and the controversy about its value, he is properly $1,500 paid. The cashier, instead of mark-charged with its value, and the defendant is ing the note "Paid," indorsed it, "Pay to Packard without recourse." This transaction took place long after the note was due, and at the time of the transfer the cashier informed Packard of the condition and arrangements between the bank and Herington, and told Packard that he must accept the note under such conditions, and take his chances. Packard brought this action, claiming the full amount of the note and interest, and Herington set up the transactions herein stated. Judgment was rendered for the plaintiff for the difference between the value of the stock, $1,200, and the note and interest, and plaintiff complains of this judg-votes cast at such election, to issue bonds to secure ment. entitled to a credit, at least for that amount. It is therefore recommended that the judgment of the court below be affirmed. PER CURIAM. It is so ordered; all the justices concurring. (41 Kan. 550) SMALLEY v. YATES, Mayor, et al. (Supreme Court of Kansas. May 10, 1889.) MUNICIPAL CORPORATIONS-BONDS. the erection and operation of water-works under Original proceeding in mandamus. CLOGSTON, C., (after stating the facts as above.) When Packard received this note from the bank he was in no better condition, in any event, than the bank would have been had it retained the note; and if the bank had retained the note, and had pledged or transferred Williams' stock in the bank, then the HORTON, C. J. This case was pending at bank would have been accountable to Her-the January term for 1887, upon a motion to ington for the value of the stock, which was quash the alternative writ, and an opinion confessed to be $1,200. Now, Williams' was filed. 36 Kan. 519, 13 Pac. Rep. 845. transfer to Packard, by the consent of the It is now to be disposed of upon its merits. bank, was not to secure the $1,500 note, but The city of Hiawatha is a city of the second for the purpose of securing the $1,100 claim. class, and on the 29th day of November, Packard was then holding this stock adverse 1886, the mayor and the city council passed to the interests of Herington. This amounted an ordinance calling a special election for to a conversion of the stock, as far as Her-December 28, 1886, to submit to the electors ington was concerned; and Packard, stand- of the city the question of issuing $50,000 ing in the same relation to Herington that of city bonds for the purpose of raising the bank had, must account for the value of money to construct water-works. The bonds |