nent judges have bestowed much labor. In reality the action assumes the form of what under the ancient practice would be a suit on the covenant against incumbrances brought by a subsequent grantee who had sustained damage for the amount which he was compelled to pay to relieve the property of the incumbrance. All agree that the covenant against incumbrances is one in praesenti, and broken at the time of the execution of the deed, if then there be outstanding a valid lien which the grantee is compelled to discharge. The authorities are not absolutely uniform as to the measure of damages in a case of this description, nor entirely harmonious on the inquiry whether, if a more remote grantee be compelled to discharge the lien, he may not recover therefor, notwithstanding nominal damages may have been antecedently recovered by his or some prior grantor who is entitled to maintain the suit because the breach happened at the time he took title. It is needless to do more than intimate these rules. It was well settled, and probably remains so, that, when an estate is conveyed subject to incumbrance, what the grantee takes, which is ordinarily termed an "equity of redemption," is in reality and in legal substance an estate which draws to itself the right to enforce all covenants contained in the deed whereby it was transferred, or any other covenants contained in antecedent conveyances which run with the land, and to which, by virtue of the transfer, the grantee succeeds in right; and it has been held that this succession to the right to enforce the covenants which run with the land would go to a subsequent holder of a title, even though it might have come to him by operation of law, as in the case of sales under legal process properly running against the transferred equity. Rawle, Cov. (4th Ed.) pp. 262, 284, 290, 334, et seq.; White v. Whitney, 3 Metc. (Mass.) 81; Moore v. Merrill, 17 N. H. 75; Thayer v. Clemence, 22 Pick. 490; Richard v. Bent, 59 Ill. 38. But none of these principles seem to be applicable or determinative of the present controversy. What passed by the deeds from Parker to his subsequent grantees, which is recognized by all the authorities as an estate, but is for the purposes of this decision more aptly called an "equity of redemption," undoubtedly determined and ceased to have a legal or equitable existence upon the completion of the sale under the trust deed when the title was transferred to Mrs. Warren. The original fee was in Parker, and the subsequent estate which he granted was undoubtedly limited and controlled by the terms of the transfer to Brown, and liable to be defeated by the complete conveyance of the title which the trustee was authorized to make in case Parker or any subsequent

grantees should default in the performance of the conditions and limitations contained in that deed. It will be remembered that all the later deeds from Cathcart and Reser to Fisk were subject to that incumbrance, and to the limitations of the deed to Brown, and all that the parties can be said to have taken was an estate which would be defeasible upon the nonperformance of the conditions contained in the trust deed and the execution of its provisions by the trustee named in it. It therefore becomes plain that when the trustee exercised his functions, sold the property, and deeded it to Mrs. Warren, she took the original fee which was in her, relieved of any subsequently accruing burdens, and the equity of redemption which had passed to his grantees vested in her, not by the operation of those conveyances, but by the exercise of the trust powers contained in the original instrument of trust, and the whole estate became vested in her. This resulted in extinguishing the equity of redemption, and is undoubtedly the exact legal equivalent of the foreclosure of a mortgage, whereby the equities of subsequent grantees are foreclosed, and their rights thereby lost. It is doubtless true that this title became vested in Fisk, but because he became the subsequent owner of the property it did not revive in him the right to enforce conveyances which only ran with a title which was as to him entirely destroyed by the foreclosure of the trust deed from which his subsequent title springs. Under these circumstances, there is no privity between him as a grantee from Beecher and the prior grantors subsequent to Parker which entitles him to maintain his suit upon his covenant. The conditions and limitations contained in the trust deed are equally conclusive upon his rights. Parker was obligated by the terms of his grant to satisfy liens of this description, and he authorized the trustee, Brown, to apply the proceeds of the sale in liquidation of the claims. The interest in the title which Fisk acquired through the deeds from Brown to Mrs. Warren, and from her to Brummagen, and thence to him, was, so far as the record discloses, unprotected by any antecedent covenants which he had the right to enforce, and his only remedy, if any, would be to compel the proper application of the proceeds of the sale to the liquidation of whatever legitimate claims there might be on the fund, and to resort to Parker, if he had the legal right by the terms of the instrument, and compel him to perform his undertaking with respect to these taxes. Evidently, he is without right to maintain the action of covenant against these remote grantors to compel the liquidation of this lien. The judgment of the court below accords with the law as herein declared, and it will accordingly be affirmed.

(3 Colo. App. 381)

1. A laborer is not entitled to have a mechanic's lien declared and enforced against the property of his employer, where his petition therefor is, in substance, nothing more than a statement of a cause of action for money due for work done.

2. Under Gen. St. § 2140, which requires the party who claims a mechanic's lien to file his notice in the county where the property is situated, it is error to grant a decree declaring a mechanic's lien on a canal to be coextensive with the length of such canal, where it extends through three counties, and the notice of plaintiff's lien was filed only in the county in which the decree is rendered.

Error to district court, Bent county.

Action by Sydney Flinn against the Ar kansas River Land, Reservoir & Canal Com pany to enforce a mechanic's lien for labor performed in the construction of defendant's canal. There was a judgment and decree for plaintiff, and defendant brings error Reversed.

Sheridan & Short, for plaintiff in error A. M. Lambright, O. G. Hess, and B. L. Carr, for defendant in error.

BISSELL, P. J. This judgment was taken by default, and the record brought up by the writ contains none of the evidence where on the decree was entered. From the com plaint and the recitals of the decree, it would appear that, during the summer of 1890, Sydney Flinn did work and labor for the Arkansas Land & Canal Company on the canal property proper, and upon certain lands of which it is charged the corporation was the lessee and in possession. The value of the work was about $400. The suit was brought to recover this sum, and evidently to enforce what the plaintiff claimed was a lien against this property. After default a decree was entered which gave judgment to Flinn against the company for the sum claimed, and also declared and established his lien on the canal, and directed its sale. The case is brought up on error, and the judg. ment is assailed on many grounds, some of which are well taken. The opinion will not be prolonged to the extent which would be requisite to the setting out of the complaint or of the entire decree; enough only will be stated to show that the errors are well laid, and that the judgment cannot be peritted to stand. In reality the complain is, in substance, nothing more than a statement of a cause of action for money due for work done. In that particrlar, if the judgment had been simply against "he company for so much money, it would have been unassailable. Nothing is better settled in the law than that the lien statutes are in derogation of the common law,-creatures

assert rights under them. In order to entitle a plaintiff to maintain a suit in the nature of a bill in equity to foreclose his lien, he must, in his complaint, allege everything essential to the existence and establishment of his claim, and by allegations, both specific and general, bring himself literally within the terms of the statute. Davis v. Alvord, 94 U. S. 545; Pilz v. Killingworth, 20 Or. 432, 26 Pac. Rep. 305; Mining Co. v. Langford, 1 Colo. 62; Anderson v. Bingham, Teague & Co., 1 Colo. App. 222, 28 Pac. Rep. 145. Tested by these simple rules, the complaint did not state a cause of action for the foreclosure of a mechanic's lien. There was no allegation descriptive of the labor performed from which it could be ascertained whether the work was of the sort which would entitle the claimant to a lien, no averment that a notice of lien had been filed which in its particulars was in conformity with the statute, and, generally, there was an absence of all allegations from which even inferentially it could be determined that Flinn had ever acquired a right to a lien on the property. Wanting these essentials, the complaint evidently failed to state a cause of action as upon a mechanic's lien which the plaintiff was entitled to enforce. While these allegations were wanting, the plaintiff did aver, without stating its form, its substance, or its contents, that he had filed a lien in Bent county, whereby it becomes evident that in Prowers and Otero counties no notice had been put on record according to the statutory requirement. The complaint and the decree both show that the canal which, with all of its franchises, right of way, headgates, etc., was ordered to be sold, runs through all three of these counties; and the court, in its judgment, and evidently without proof of the filing of a notice in any other than Bent county, decreed the lien to be coextensive with the length of the canal, and to reach all the property of the defendant company wheresoever it might be situate, and on which the plaintiff claimed to have done work. Manifestly, this did not accord with the law; for, where the statute requires (Gen. St. § 2140) that the party who claims a lien shall file his notice in the county where the property is situate, the notice must be filed in every county wherein the land or property is located which the lien is claimed to cover. This has been adjudged in the case of a railroad company, where the contractor sought to foreclose a lien which was asserted to be coextensive with the line of the road, though filed in but one county through which it ran. Boston v. Railroad Co., 76 Va. 180. There can be no difference in principle between the enforcement of a lien against the line of a road and the foreclosure of a like claim against a canal which runs for many miles and through different counties. It is wholly unnecessary to deter

mine whether Flinn could enforce his claim against that part of the canal located in Bent county, because he was not entitled, by reason of the deficiencies in his complaint, to enforce a lien at all. If the case ever reaches the stage, by amendment or otherwise, whereby Flinn becomes entitled to assert his claim, if he has one, the court, in the light of the authorities herein cited, will be able to determine the extent to which he ought to go. Since the complaint did not state facts sufficient to constitute a cause of action for the foreclosure of a lien, and the decree adjudged him entitled to rights which he did not possess, it is apparent that this cause must be reversed and remanded.

1. Though a judgment mistakenly entered against one, only, of defendant partners, is amended, pending appeal therefrom, so as to include both partners, the appellate court can consider only the original judgment from which the appeal was taken, without reference to the amendment.

2. In an action against a firm on a partnership debt, judgment cannot be rendered against one partner alone. Craig v. Smith, 15 Pac. Rep. 337, 10 Colo. 220, and Dessauer v. Koppin, (Colo. App.) 32 Pac. Rep. 182, followed.

Appeal from district court, Lake county. Action by W. T. Booth against George W. Purviance and Peter W. Breene, copartners under the firm name of George W. Purviance & Co. From a judgment against said Breene, he appeals. Reversed.

John A. Ewing and G. Q. Richmond, for appellant. A. W. Stone and A. T. Gunnell, for appellee.

THOMSON, J. The complaint in this case alleges that the defendants, George W. Purviance and Peter W. Breene, were copartners under the firm name of George W. Purviance & Co., and that the plaintiff, W. T. Booth, was the assignee and owner of sundry claims against the firm, aggregating $1,712.51. Summons was served upon both defendants. Purviance made default, but Breene answered, denying the copartnership, and denying any and all liability against him on account of the claims, or any of them. The cause was tried by the court, and judgment entered against Breene alone for the full amount claimed. The judgment was rendered on the 17th day of December, 1891. Breene prayed an appeal to this court, which was allowed; his appeal bond to be filed in 30 days, and his bill of exceptions in 60 days. The appeal was duly perfected in accordance with the order, and a transcript of the record filed here on the 11th day of April, 1892.

'Rehearing denied September 11, 1893.

On the 12th day of May, 1892, the printed abstract of the record was filed, and on the 11th day of July, 1892, the appellant filed his printed brief. On the 22d day of July, 1892, the plaintiff and appellee filed in the court below his motion as follows: "In the district court of the county of Lake, state of Colorado. W. T. Booth, plaintiff, vs. George W. Purviance and Peter W. Breene, as copartners, using the copartnership name of George W. Purviance and Co., defendants. Motion. Now comes the plaintiff, by his attorneys, A. W. Stone and A. T. Gunnell, and shows to the court that on the 17th day of December, 1891, judgment was entered in said court against the defendants above named for the sum of $1,820.55, which appears from the entry in the docket of said court; that, by a clerical error made by the clerk of said court in recording the judgment so made by said court in the journal kept by said court, the judgment was recorded therein as against Peter W. Breene, from which judgment he alone appealed to the court of appeals of said state. Whereupon, the plaintiff moves the court that judgment now be entered in the journal of said court to correspond with the judgment rendered by the court in said case against George W. Purviance, nunc pro tunc. A. W. Stone, A. T. Gunnell, Plaintiff's Attorneys." This motion was sustained, and the following order and judgment entered: "March term, A. D. 1892. Monday, July 25th, A. D. 1892. W. T. Booth vs. George W. Purviance & Peter W. Breene, as partners using the name of Geo. W. Purviance & Co. Motion to enter judgment in the journal of said court nunc pro tune. This motion now coming on to be heard, A. W. Stone, Esq., appearing for the plaintiff, and John A. Ewing, Esq., for defendant Breene, and the said motion being argued by the respective counsel, and it appearing to the court that on the 3d day of August, 1891, default was regularly entered by the court against Geo. W. Purviance for having failed to plead to said action, and that afterwards, on the 17th day of December, 1891, a judgment was by the court rendered against both of the defendants in said action for the sum of $1,820.55 and costs, and it further appearing to the court that, by an error of the clerk of said court in entering said judgment in the journal of said court, it was only entered as against one of the defendants, Peter W. Breene, when it should have been recorded against both the defendants, Peter W. Breene and Geo. W. Purviance, and the court, now being fully advised in the premises, doth grant said motion, and the defendant Purviance being still in default, it is therefore now considered, ordered, and adjudged by the court that the plaintiff do have and recover of the defendants, Geo. W. Purviance and Peter W. Breene, the sum of $1,820.55 and costs of suit, and that the same be entered and recorded in the journal of said court as of the 17th day of

December, 1891, the date of said judgment." By leave of this court, a supplemental transcript, containing the foregoing motion and Judgment, was filed here on the 26th day of September, 1892. It is contended that the last order reaches back to the date of the original judgment; that its effect is the same as if judgment had in the first instance been given against the copartnership; and that, in passing upon the case, we must confine our consideration to the joint judgment, which, as is claimed, is now the only judgment of the court below. There is no doubt of the power of a court, nunc pro tunc, to amend its record so as to make it express what was done at the time. This power is inherent in courts, is not dependent upon statute for its existence, but has always been asserted. But the authority to reform judgments, while it unquestionably exists, must be exercised within limits, and subject to conditions. Whether the proper limits and conditions were observed in this instance; whether the judgment, as corrected, is valid, and can be enforced by process issuing out of the court which rendered it; and, generally, what its force and effect there may be,-it is not important at present to determine. No appeal from such judgment has been prosecuted to this court. The judgment from which the appeal was taken was an individual judgment against Breene, and not against the firm. The prayer for appeal, the allowance of the appeal, the assignment of errors, and the joinder in error, all have reference solely to that judgment. It was the only one from which the appeal could be taken. The other had no existence. It is true that, after a cause has been appealed, clerical errors in the record may be corrected by the trial court, the corrections brought into the appellate court by supplemental transcript, and there considered as if they were part of the original record. This has been allowed where, through inadvertence, some evidence was omitted from the transcript, or some untrue statement inserted, or the judgment entry contained misrecitals, the identity of the record meanwhile remaining unimpaired. Wolfley v. Mining Co., 3 Colo. 296; Knox v. McFarran, 4 Colo. 348; Pleyte v. Pleyte, 15 Colo. 44, 24 Pac. Rep. 579. But we have found no case in which this was permitted where the character of the judgment was essentially changed, and, in effect, a new and different judgment substituted. The rights of a judgment creditor under a judg ment against a copartnership and under a judgment against an individual member are not the same. In the former case he must exhaust the partnership property before having recourse to the individual, while in the latter it is the property of the individual, only, that is bound. In this instance, not only has the effect of the judgment itself been changed, but the new judgment and the old are against different parties. We do not wish to be understood as questioning the effi

cacy of the reformed judgment in the court below. We merely say that it is not in this court in any manner provided by law, and that the only appeal taken is from the judg ment originally entered. The change having been made while the appeal was pending, and being so radical in its character, it does not come within any rule which would warrant us in considering it as a part of the record in this court.

The only question left for determination is whether it was proper to render judgment | against Breene alone for the amount of the indebtedness, and that question has been settled in this state by our supreme court, and also by this court. Bissel v. Cushman, 5 Colo. 76; Craig v. Smith, 10 Colo. 220, 15 Pac. Rep. 337; Dessauer v. Koppin, (Colo. App.) 32 Pac. Rep. 182. The judgment against Breene is therefore erroneous, and must be reversed.

1. In an action for goods sold and delivered, defendant cannot set up a counterclaim for damages arising from an excessive levy under a writ of attachment issued therein.

2. In an action for an indebtedness, where the facts constituting the cause of action are set forth in the complaint, proof of payment is inadmissible, unless such defense is specially pleaded.

Appeal from district court, Arapahoe county.

Action by W. A. Hover & Co. against H. T. Esbensen. From a judgment for plaintiffs, defendant appeals. Affirmed.

John C. Fitnam, for appellant. R. D. Thompson, for appellees.

THOMSON, J. This is an action for goods sold and delivered. The complaint alleges the sale and delivery, and the value and price of the goods, and avers that no part of such price has been paid. The answer admits the sale, delivery, and price, but denies each and every other allegation of the complaint. The answer also contains a counterclaim for damages for an excessive levy under a writ of attachment which, it alleges, was issued in the action. A demurrer to the counterclaim was sustained, and judgment on the pleadings given for the plaintiffs, from which the defendant appeals.

There is nothing in the record to show that any affidavit for attachment was ever made, or writ issued, in the case. The only information we have on that subject is derived from the counterclaim. But, assuming that such writ was issued, levy made.

'Rehearing denied September 11, 1893.

and damages sustained, as claimed, and by reason of which defendant has a cause of action against the plaintiffs, still, such cause of action cannot be made a counterclaim in this suit. Section 57 of the Code defines a "counterclaim" as a cause of action arising out of the transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action, or a cause of action upon contract, and existing at the commencement of the suit. This counterclaim did not arise out of the transaction set forth in the complaint, and was not connected with the subject of the action. The transaction was the sale and delivery of the goods, and the price of the goods was the subject of the action. With such sale and delivery, or with such price, the counterclaim has nothing to do. It arises out of an alleged tort committed in the course of the prosecution by the plaintiffs of their remedy for the enforcement of the claim. It had no existence when the alleged writ was issued, and, if no writ had been issued in the case, it never would have had an existence. It was a wrong done to the defendant, not necessary to the enforce ment of plaintiffs' remedy, and is on the same footing with any other wrong which the plaintiff's might have committed upon the defendant. The court very properly sustained the demurrer.

The question of the effect of a general denial upon the allegation of failure to pay for the goods is one of somewhat more difficulty, arising out of an apparent want of harmony among the authorities. In California it is held that a general denial puts in issue an allegation of nonpayment in the complaint. But in that state the averment of nonpayment seems to be essential, and without it there is no cause of action stated, so that a denial of that is a denial of a material allegation. Frisch v. Caler, 21 Cal. 71; Fairchild v. Amsbaugh, 22 Cal. 572; Pom. Rem. § 700. In Quin v. Lloyd, 41 N. Y. 349, the plaintiff sued for a balance due, and the court held that the denial involved an issue upon all the facts stated and denied, and admitted proof of the different payments made, so as to determine what in fact was the balance of the debt. The plaintiff having admitted payments, the denial of the balance due authorized an inquiry as to the amounts paid. In Marley v. Smith, 4 Kan. 183, the plaintiff alleged that the defendant was indebted to him in the sum of $75 on an account, a copy of which was annexed to the complaint; and, under a general denial, the court held that proof of payment might be introduced, because the petition did not state the facts constituting the defendant's liability, but merely the indebtedness, saying that, if petitioner chose to rely on such a statement of v.33P.no.19-64

his case, he must be prepared to receive proof of facts showing that such indebtedness did not exist. But in Stevens V. Thompson, 5 Kan. 305, where the action was for goods sold and delivered, the court held that the denial put nothing in issue but the sale, delivery, and value of the goods, and distinguished the case of Marley v. Smith, supra, because in it the petition only stated the indebtedness generally, without setting forth the grounds of the indebtedness, whereas, in Stevens v. Thompson, the facts constituting the plaintiff's claim were fully stated, and the court, therefore, held that only those facts were denied by the answer. An examination of all the cases outside of California, that have come under our notice, in which proof of payment was permitted under a general denial, discloses that there was some peculiarity in the statement of the cause of action, either in the manner of such statement, or in the admission of payments, in which the court found a warrant for its ruling; but the great weight of authority in Code states is that in a case like the present, where the facts constituting the cause of action are stated, in order that proof of payment may be admitted, it must be specially pleaded. A denial will not suffice. The plaintiff is not called upon to prove nonpayment in the first instance. When he has established the facts alleged in his complaint the burden is upon the defendant to show that the indebtedness has been discharged. Whether nonpayment is averred by the plaintiff or not is immaterial. Payment is a defense, and, like all other matters of confession and avoidance, it must be affirmatively, and not negatively or inferentially, set up. Hubler v. Pullen, 9 Ind. 273; McKyring v. Bull, 16 N. Y. 297; Martin v. Pugh, 23 Wis. 184; Bassett v. Lederer, 1 Hun, 274; Bliss, Code Pl. § 357. While the question has not been directly passed upon by our own supreme court, the following in Perot v. Cooper, 17 Colo. 80, 28 Pac. Rep. 391, would seem to indicate its opinion: "The general rule is that a plea of payment, being an affirmative defense, must be supported by a preponderance of the evidence, in order to be effective in favor of the party pleading it." From our examination of the reasons given in the cases which seem to hold a contrary doctrine, it is our opinion that the variance is more apparent than real, and that where the facts are stated, as they are here, there is no substantial conflict. There being no plea of payment in this case, and a cause of action being specially admitted by the answer, the judgment was properly rendered in favor of the plaintiffs and against the defendant on the pleadings, and nothing remains for us except to affirm the judgment. Affirmed.