against and held liable. It is obvious that this objection, if well taken, is decisive against plaintiffs' right of action in the present suit; for if plaintiffs can neither look to the wards nor their estate for the compensation demanded, of course no lien can be decreed, and this equitable action must fail.

Counsel's proposition is based upon the rule that at common law the guardian can, in general, make no contract binding upon the person or estate of the ward: Simmons v. Almy, 100 Mass. 239; 1 Parsons on Contracts, 134-136; Schouler on Domestic Relations, 463; Stevenson v. Bruce, 10 Ind. 397; Tenney v. Evans, 14 N. H. 343. This rule seems to be sanctioned by a strong preponderance of authority, so far as common-law actions are concerned. In such actions, the guardian's contract and liability, except for necessaries under certain circumstances, are, in general, dealt with by the creditor as purely personal. But this is not an action at law, nor is it against the wards or their estate, generally. It is a suit in equity for the enforcement of a statutory lien upon a specific portion of the ward's property. The land and the rents recovered in the original Reithman suit belong to a trust estate; but, by virtue of the statute, they are nevertheless, it is claimed, encumbered with the attorney's lien.

We have already decided that, in general, the attorney's lien upon a judgment recovered by him, and belonging to his client, reaches the fruits of such judgment, though realty be the subject-matter in controversy. We have also held that this lien may be enforced, by a suit in equity, directly against the property burdened therewith. Are these conclusions regarding the force and effect of the statute erroneous, and is the statute itself inapplicable, where the fruits of the judgment recovered, whether consisting of money or land, become part of a trust estate?

The statutory guardian in Colorado is invested with the general charge and management of the ward's estate, real as well as personal. Such control is, of course, subject to the limitations, express and implied, contained in the statute. The guardian is also authorized to prosecute and defend all cases relating to the ward's estate. It is his duty to recover the ward's real property when wrongfully appropriated or withheld, and to demand, sue for, and receive all moneys belonging to the ward.

It might have been better had Mrs. Kershow first obtained from the probate court an express command or license to in

stitute and prosecute to judgment the original suit against Reithman; but she and the other guardians would have been derelict in the discharge of their official duty had they failed, either with or without such consent, to proceed as they did. Their power and authority in the premises, however, could not now be successfully questioned, nor is there any attempt to challenge them. That suit was instituted for the benefit of the wards. The relation of attorney and client may have existed between plaintiffs and the guardians, yet the suit was prosecuted in the name of the wards, and they were the real clients as well as the real parties in interest. The services of plaintiffs added greatly to the value of the wards' estate without in the least benefiting the guardians, who neither sought nor derived any personal advantage through the suit. In making and continuing the contract of employment with plaintiffs, the guardians acted solely in their official capacity. There appears to have been no intention, either on the part of plaintiffs to look to the guardians alone for compensation, or on the part of the guardians to incur individual liability in connection therewith. This compensation will ultimately become a charge upon the whole of the estate, should the right to treat it as a direct and superior charge upon a specific part of the estate be denied. Sustaining the lien avoids circuity of proceeding as well as increased expense and annoyance; therefore the true interest of the wards themselves, like that of all other persons concerned, will be best subserved by recognizing the application of the statute.

While the guardian who employs counsel in behalf of the estate is ordinarily regarded as the client, a court of equity, acting under the lien statute, should so far disregard this technical rule as to recognize the clientage of the real party in interest; and after careful deliberation, we have no hesitancy in declaring that such a court, governed by the considerations above mentioned, and others that might have been but are not stated, should enforce the lien in the present as in other cases. It is believed that this is a question of first impression in Colorado; and if the above conclusion can be said to conflict with the position sometimes taken in relation to the attorney's charging lien and trust funds, we feel at liberty to recognize the foregoing modification thereof, sanctioned, as we think, by reason as well as the statute.

4. If the views above stated be correct, it follows that the three guardians preceding Patterson are not necessary parties

defendant to the present proceeding. Their official character wholly terminated prior to the rendering of the decree in thefirst suit against Reithman; and if they were liable at all, their liability is ignored by plaintiff, so far as this proceeding. is concerned.

5. The objection of counsel for appellant to the testimony of plaintiffs themselves must be overruled. If the present suit can be regarded as in any sense within the purview of section 3641, General Statutes, relied on by appellants in support of this objection, the evidence mentioned was nevertheless admissible; for the facts to which plaintiffs testified "occurred " subsequent to the decease of the defendants Fillmore's ancestor; and hence this testimony is within the first exception. stated in the section named.

6. The assertion that there was a misjoinder of parties plaintiff will not be sustained. It has been said that "the court exercises a sound discretion, without adhering to any inflexible rule, in determining whether there has been a misjoinder of parties in equity": 1 Daniell's Chancery Practice, note 3, p. 303. The supposed misjoinder in this case is due to the admission of Macon into the firm of Wells and Smith after the employment began, thus in effect creating a new partnership. The object of both plaintiff firms was to secure a lien upon the same funds and the same premises for servicesrendered to the same parties in the same proceeding. Both firms, and the individuals composing them, were in exactly the same manner interested in the result of the suit and in the property sought to be subjected to the attorney's lien.. Under these circumstances, and in view of the equitable principle above stated, we would hesitate in holding that there was such a misjoinder of parties plaintiff as rendered the complaint, or the proceeding in equity, obnoxious to objection, by demurrer or otherwise.

But it is unnecessary to further discuss or to determine this question of pleading. The alleged misjoinder appears on the face of the complaint. When the demurrer was overruled, appellants filed their answer and went to trial. By so doing, they waived their right to be heard in this court upon the present objection: Bliss on Code Pleading, sec. 417; Tennant v. Pfister, 45 Cal. 270; Schoelkopf v. Leonard, 8 Col. 159; Webb v. Smith, 6 Id. 365; Green v. Taney, 7 Id. 278.

7. As to the alleged conflict between the testimony of Wells, on one side, and Patterson, Irwin, and Charles on the other, it AN. ST. REP., VOL. III.-87

is sufficient to say that, so far as there is any real and material inconsistency, the testimony of Wells is fortified by that of other witnesses, and also by circumstances in evidence. We would not feel justified in holding that the referee and the court erred in their finding as to the making and continuance of the original contract.

8. Finally, it is claimed that the compensation allowed in this case is excessive. The amount is large, but the services extended through a series of years, in different courts. Some of the questions litigated in the original suit seem to have been complicated and difficult. The result of the proceeding was a victory for the wards, and the fruits of the victory were upwards of twenty thousand dollars in value. Upon the question as to what would be a reasonable compensation for all the services rendered, ten disinterested witnesses were sworn as experts, all of whom rank among the leading members of the bar of the state. Eight of these experts estimated the value of such services at various sums, not less than six thousand dollars, nor more than eight thousand dollars; the two others estimated the same at from two thousand five hundred to three thousand dollars. It is evident that the referee and court found in accordance with the decided weight of expert testimony; and, under all the circumstances disclosed, we are not prepared to say that their finding and judgment are wrong.

We have not overlooked the fact that the attorney's lien statute, as adopted in 1861, readopted in 1868, and republished in 1876, contained the adverb or conjunction "when," instead of the relative pronoun "which" (found in the General Statutes), at the beginning of the last clause thereof. But this is a matter of no consequence, for with either of the words the legislative meaning is clearly the same. That body intended, in the part of the section referred to, to say that the lien conferred therein should be enforced by the proper civil action.

Perceiving no fatal error in the record before us, the decree of the district court will be affirmed.

ATTORNEY'S LIen, its Nature and Extent, and to what judgment it attaches: See Humphrey v. Browning, 95 Am. Dec. 446, and note 454; Forsythe v. Beveridge, 4 Am. Rep. 612.

OBJECTION OF MISJOINDER OR NON-JOINDER of parties cannot be raised on appeal: Beard v. Knox, 63 Am. Dec. 125, and note. If not taken by de

murrer or answer, it is deemed waived: Donnell v. Walsh, 88 Id. 361; Alvarez v. Brannan, 68 Id. 274, note 280.

FINDINGS OF COURT WILL NOT BE DISTURBED because of a conflict of evidence: Lick v. Wadden, 95 Am. Dec. 175; Wilcoxson v. Burton, 87 Id. 66, and note; Erwin v. Shaffer, 72 Id. 613; Gabbert v. Jeffersonville R. R. Co., 71 Id. 358.

MCPHEE v. O'ROURKE.

[10 COLORADO, 301.1

HOMESTEAD.-UNDER COLORADO STATUTE, the wife has the character of a head of a family, while occupying with her husband her property as a home, so as to enable her to designate and affect it with the character of a homestead, so as to exempt it from seizure and sale for the joint debt of herself and husband.

HOMESTEAD. UNDER COLORADO STATUTE, the wife while occupying with her husband her property as a home may designate and affect it with the character of a homestead, so as to exempt it from seizure and sale, even when such designation is made for the purpose of preventing the joint creditor of the husband and wife from collecting his debt due him for material used in improvements upon the property before it was so designated as a homestead.

HOMESTEAD.

WHEN CONVEYANCE TO WIFE is made by the husband for the purpose of placing the home beyond the reach of his creditors, the wife is not precluded from claiming the benefit of the homestead statute, even as against such creditors.

ACTION to set aside a sale, and to enjoin a sheriff from making a deed to certain premises claimed as a homestead by Bridget O'Rourke, defendant here, but plaintiff below, who alleged in her complaint the ownership and possession of a certain house and lot in the city of Denver; that she had been seised and in the possession thereof since the first day of February, 1883; that from that time until April 17, 1883, she had been, and still remained, a householder, the head of a family, and occupied the premises with her family as a homestead; that on February 5, 1883, she duly registered and designated such premises as a homestead upon the records of the county, at the same time that the deed conveying the property to her was recorded; that on February 17, 1883, McPhee and McGinnity recovered judgment against herself and husband, Dennis, jointly, upon which execution issued to the sheriff of the county, who sold the premises on March 12, 1883, to McPhee and McGinnity, and issued to them a certificate of sale. Mrs. O'Rourke had judgment in the court below. Other facts are stated in the opinion.