PER CURIAM. As the law governing appeals to this court existed at the time of the rendition of the judgment, (June, 1890,) this court was without jurisdiction to entertain the appeal. The judgment did not amount to $100, exclusive of costs; nor did it relate to a franchise or freehold. Code, 388. By the act creating the court of appeals the jurisdiction of this court to review money judgments rendered by district courts has been still further restricted. Sess. Laws 1891, p. 118. Appeals are creatures of the statute. Neither joinder in error nor the consent of parties can confer jurisdiction upon this court by appeal. See Harvey v. Insurance Co., 18 Colo. 32 Pac. 935, and cases there cited; also, People v. Richmond, 16 Colo. 274, 26 Pac. 929. The appeal sought to be taken herein is dismissed, without prejudice.

MITCHELL v. McNEAL. (Court of Appeals of Colorado. Nov. 13, 1893.) LEASES-PROVISIONS-RIGHT TO REPAIR-SUBSEQUENT GRANTEE.

A provision in a lease giving the lessee the right to repair and deduct cost from the rent will bind a subsequent grantee, though the lease is by parol.

Appeal from Arapahoe county court.

Forcible entry and detainer proceedings by Walter C. Mitchell against Ellett McNeal. Judgment for defendant. Plaintiff appeals. Affirmed.

1 Section 1 of the act provides: "No writ of error from, or appeal to, the supreme court shall lie to review the final judgment of any inferior court, unless the judgment, or in replevin, the value found, exceeds $2,500, exclusive of costs. Provided, this limitation shall not apply where the matter in controversy relates to a franchise or freehold, nor where the construction of a provision of the constitution of the state or of the United States is necessary to the determination of a case. Provided further, that the forecoming limitation shall not apply to writs of error to the county courts."

William Young, for appellant. R. T. MeNeal, for appellee

BISSELL, P. J. This is probably the most extraordinary instance of the exercise that American birthright, the privilege of litigating with one's adversary, that the courts of Colorado have ever known. It involves six bits. It grows out of the follow ing facts. In 1891, J. S. Major was the owner of a house and lot on Lincoln avenue, in Denver. According to the judgment of the court below, he rented the premises to McNeal, the appellee, for a certain period at a fixed rental. As established by that finding, this leasing was until the 1st of June, 1892, at a monthly rental of $18. payable on or before the 5th of the month. coupled with the further agreement that the landlord should be responsible for neeessary repairs, which the tenant was allowed to make and deduct from the rent. The tenant went into possession under the agreement, and paid his rent promptly, cluding what was due in the early part of March. Later in the month the drain pipe seems to have needed repair, and the tenant had it fixed at a cost of 75 cents. When the rent became due in April, McNeal sent a check for $17.25 and the plumber's receipted bill for 75 cents to the appellant, Mitchel who had bought the property. There was some controversy as to any notice of the transfer, but this is unimportant, since the check and the bill were sent to the grantee, Mitchell. Mitchell declined to receive it, and sent the check and the bill back, with a demand for $18. There is some dispute as to another demand which he made for an additional dollar as a compensation for his trouble, but this does not bear upon the controversy. The tenant declined to pay the $18, whereupon Mitchell commenced proceedings in forcible entry and detainer to recover possession for the nonpayment of rent. The tenant defended, made tender in the justice's court of $17.25, and pleaded the performance of his agreement as to the balance. The justice rendered judgment against the tenant for $18, which he there upon paid into court, as he was required to do under the statute, since he took an ap peal from the judgment to the county court. The case went to the county court by this appeal, and during the time it was there the May rent became due, and it was paid into court under the statute. Under some arrangement between the parties, the court ordered that this rent be turned over to the landlord, and he received it; the case re maining for trial upon the issue as to the terms of the lease and the binding charact r of the contract made between the landlord and the tenant. The court tried the case, and as a matter of fact found that the agreement between Major and McNeal was as claimed by the tenant, and he had a right to make the repair, and deduct it from the

rent. Finding these facts, he rendered a judgment against the appellant, Mitchell, for the 75 cents and the costs. To reverse this judgment the case is brought into this court. We confess that, even if it were a matter of doubt, we should be inclined to resolve the questions involved in favor of the appellee, that litigation of this description might be discouraged. Of course, if the law was with the appellant, we would be compelled to protect his rights, however much we might condemn the practice of litigating such insignificant controversies, and however much we might be inclined to rely on the maxim "de minimis non curat lex." We do not discover that there is any legal principle which compels us to reverse this judgment. We shall accept the findings of the court as conclusive upon the questions of fact, and therefore we shall decide the case upon the hypothesis that by the terms of the contract with Major the tenant had a right to make this repair, and charge it against the rent. A covenant to repair runs with the land. Tied. Real Prop. § 190. The subsequent grantee takes the property charged with the burden of any agreement whereby property otherwise real becomes by the terms of the convention personal in its character. Madigan v. McCarthy, 108 Mass. 376; Gibbs v. Estey, 15 Gray, 587. If by the terms of the agreement between the lessor and the lessee the lessee should erect a structure on the property which by their contract was to remain a chattel with the right of removal, it would hardly be seriously argued that the grantor could escape the force of the agreement, or the grantee become the owner of that which was the property of the tenant because of a subsequent transfer. From this illustration, it is evident that the same rule must prevail concerning the other terms of the tenancy, if it be a valid and a binding letting. It is scarcely worth while to extend this opinion either by a citation of authorities sustaining its conclusion or by an expression of the reasons on which it is based. It is enough to say that where the lease between the parties is one which may be made by parol, and be binding under the statute, it is as obligatory on a subsequent grantee though it was expressed in writing, and the parties bound by covenants which would be conceded to run with the land, because contained in some proper and sufficient instrument. We discover no reason which constrains us to reverse the case, and the judg ment is accordingly affirmed, with costs.

as

HEISLER v. LYON. (Court of Appeals of Colorado. Nov. 13, 1893.) PROMISSORY NOTES-INDORSEMENT-MATURITY.

A note signed by three as makers was secured by a trust deed by only two of them, conditioned that on default in the interest the

whole principal should at once mature, notwithstanding anything in the notes. The payee be ing also beneficiary of the deed, indorsed over the note and assigned the deed. Default in interest was made, and the deed foreclosed before the maturity expressed in the note. Held that, since the third maker was no party to the deed, and so not yet in default on the note, the indorser's estate could not be sued on the note for the deficiency.

Appeal from district court, Larimer county. Action by Sanford G. Lyon against John P. Heisler, administrator of the estate of W. H. Avery, deceased, on a promissory note. Judgment for plaintiff. Defendant appeals. Reversed.

The other facts fully appear in the following statement by BISSELL, P. J.:

This action was brought by Lyon against Heisler, the appellant, as administrator of the estate of W. H. Avery. The plaintiff declared on the following promissory note: "First National Bank, Fort Collins, Colo. $1,SOO. Fort Collins, Colo., Jan. 15th, 1890. Five years after date I promise to pay to the order of William H. Avery eighteen hundred ($1,800) dollars, at the First National Bank of Fort Collins, Colo., with interest at no per cent. per annum from date until due. Unpaid principal and defaulting interest to bear interest at eighteen per cent. per annum from maturity until paid; fees for collection included with principal. Value received.

[Signed] Frank D. French. Mary C. French. O. C. French." To this note interest coupons were attached, each for $63, due every six months, and otherwise of the same tenor and amount as the principal note. In order to establish the maturity of the paper, the plaintiff set up that on the date of the execution of the note Frank D. and Mary C French executed and delivered to F. C Avery, as trustee, for the use of the payee. W. H. Avery, a trust deed upon certain prop erty described. There was also set out one of the conditions of the trust deed, which was substantially that in case of default ir payment of the principal and interest, or any part of it, the whole of the principal sum secured by the trust deed should or might become at once due, anything in the notes to the contrary notwithstanding. The trust deed likewise authorized the sale of the premises covered by the deed for the pay. ment of the principal obligation. The plaintiff, Lyon, alleged that before the maturity of the paper, the payee, Avery, for a valuable consideration, indorsed the note and interest coupons to him, and likewise assigned the deed of trust. He then averred a default of the payment of the interest, and the foreclosure of the deed of trust under the power of sale which it contained, and a partial satisfaction of the debt. This suit was then brought to recover the unpaid balance, said to be $1,692.50. The plaintiff alleged the insolvency of the makers of the note, and, as stated, brought the suit against the indorser alone. The judgment was for the plaintiff, and the administrator appeals.

John P. Heisler, for appellant. E. A. Ballard, for appellee.

BISSELL, P. J., (after stating the facts.) There was no right of action against the indorser of this commercial paper at the time the suit was brought, for his liability was to be measured solely by the note to which his name was affixed. The original promise was to pay the sum named five years from the date of the instrument, with the agreed interest specified in the coupons attached. When the payee, for a consideration, indorsed the paper to the holder, he simply undertook, according to the well-settled principles of the law merchant, that the makers should discharge their promise according to its terms. Unless varied by some collateral agreement, to which the makers were a party, and which became by necessary intendment and construction a part of the promise sued on, so that it would bind the indorser, the right of action must of necessity be measured by the terms of the promise. The appellee contends, and the court below found, that the trust deed which was executed concurrently with the note contained a clause which was to be taken as incorporated into and a part of the promise, and that thereby the holder of the note had a right to declare the whole sum due, and bring his action, without waiting for the maturity of the promise. It must be conceded that some basis for the contention is found in the case of Noell v. Gaines, 68 Mo. 649, where that court held, in a somewhat similar case, that the trust deed and the note were to be construed together on the basis of concurrently executed agreements, and that a cause of action against the makers might be held to exist, contrary to the exact terms of the promise contained in the note. The court was not unanimous in the declaration of the principle, and the main opinion seems to concede that the application of it might be varied by knowledge or the want of information on the part of the holder that the deed of security contained this provision. There are well-considered cases, even in that state, as we think, as well as others, which do not accept this as the law, and which decide that a stipulation concerning the maturity of the paper which is contained alone in the trust deed must be taken as determinative only of the rights of the parties with reference to the enforcement of that security. McClelland v. Bishop, 42 Ohio St. 113; Mallory v. Railroad Co., 35 N. Y. Super. Ct. 175; Morgan v. Martien, 32 Mo. 438; Mason v. Barnard, 36 Mo. 384. We are not compelled to declare which is the better principle as between these conflicting authorities, although we confess that we are unable to see on what basis the liability of the indorser of a promissory note can be enlarged by the terms of a contract to which he was not a party. The facts disclosed by this record remove any possibility to apply the doctrine stated in the Noell Case.

cur.

The note in suit was made by three parties. The trust deed was executed by only twe of them. O. C. French did not sign the se curity, and hence was not bound by the clause in that instrument, by virtue of which the holder was given the right to declare the maturity of the entire promise in case of a failure to pay any of the interest coupons attached to it. We are not considering the right of the holder with reference to the enforcement of the coupon notes attached, since it might possibly be true that those would stand as independent promises, with a right of action accruing as the default might oc The only matter we decide is that, since O. C. French, who was one of the makers, did not sign the contemporaneous agree ment, it may not be incorporated into his promise by construction or intendment, so as to bind him, and compel him to pay before the time agreed on. Manifestly, if this be true, no liability would arise against the indorser which would be enforceable as against him until after a default by the maker of the note, for whose promise he had become a guarantor by his indorsement. Since the note had not matured as against either the maker or the indorser at the time suit was brought, a judgment could not be recovered against them for the principal sum. It is quite possible that some of the coupon notes were due at the time the suit was instituted, and that the plaintiff, under his complaint, would have a right to recover on what had matured and remained unpaid. We cannot settle this question on the present appeal, and the case is therefore reversed, and remanded for further proceedings not inconsistent with this judgment.

MAGNA CHARTA SILVER MINING & TUNNEL CO. v. TAPSCOTT. (Court of Appeals of Colorado. Nov. 13, 1893) APPEAL-REVIEW-QUESTION OF FACT-PLEADING AND PROOF-ADMISSIONS.

1. The overruling of a motion to amend the record as to what was admitted in court will not be disturbed, there being involved only a question of fact, as to what was admitted.

2. A complaint alleged an indebtedness for work, and that it was evidenced by duebills executed to plaintiff by plaintiff, as superintend ent of defendant. The answer denied the allegations of the complaint, and averred the conversion by plaintiff of certain moneys of defendant. Held, that it was error to render judg ment for plaintiff, without proof, on an admission of the due and authorized execution of the duebills, coupled with a statement that the defense was that plaintiff, while acting as superintendent, appropriated moneys of defendant in excess of said claims; the action being founded on an indebtedness, of which the duebills were not evidence, and there being no implied admission of the indebtedness from the state ment as to the nature of the defense.

Appeal from district court, Gunnison county.

Actions by Henry C. Tapscott against the Magna Charta Silver Mining & Tunnel Com

pany. From judgments for plaintiff, defendant appeals. Reversed.

Gullett & Brown and Helm & Goudy, for appellant. Dexter T. Sapp, for appellee.

THOMSON, J. The Magna Charta Silver Mining & Tunnel Company appeals to this court from two judgments rendered against it, and in favor of Henry C. Tapscott. After the transcripts had been filed in this court in pursuance of written stipulations between the respective counsel, it was ordered that the two causes be consolldated, and heard as one case. The cases are between the same parties: except as to the amounts involved, the pleadings are the same, and raise precisely the same questions; they seem to have been tried together below, and at the trial the same proceedings were had in both cases; so that the conclusions which we may reach in one, will be decisive also of the other. In the case which we have selected for consideration, the complaint of the plaintiff, Tapscott, alleges an indebtedness to him from the defendant of $1,775.70 for work and labor performed for it by the plaintiff, for team work done by plaintiff's teams, and for money laid out and expended for it by him at its request, and that the indebtedness was evidenced by certain written instruments executed and delivered by defendant to plaintiff. These alleged instruments are set out in full in the complaint. The first is as follows: "$399.24. Tomichi, Colorado, November 12, 1891. Due H. C. Tapscott the sum of $515.81 for work and labor for the Magna Charta S. M. & Tunnel Co. in the month of August. Overdraft, as per book, $116.57; balance due, $399.24. H. C. Tapscott, Supt." The others are in the same form, bear the same date, and are executed in the same manner. The answer of the defendant denies the allegations of the complaint, except that it is a corporation, and, by way of cross complaint, avers the taking and conversion by plaintiff of about $4,000 of defendant's money, and demands an accounting and judgment. The answer was not verified in the form prescribed by the Code. Plaintiff answered the cross complaint, nenying its allegations. The following are the proceedings had at the trial, as recited in the record: "Counsel for defendant then admitted the due execution of the instruments set out in the complaint, and that H. C. Tapscott, who executed the same as superintendent of defendant company, had, at the time he executed the same, full power and authority from the defendant company to execute and deliver the same, and that their defense is that plaintiff, while acting as superintendent, had received and appropriated to his own use moneys of the defendant, in excess of said claims, to the amount of four thousand dollars. It was also admitted that the amended answer and

cross complaint was not verified. After due deliberation the court ruled that the plaintiff's case was made out, under the pleadings and admissions, and that the burden of disproving the same was upon the defendant, and ordered that the defendant now proceed with the testimony, whereupon defendant's attorneys then refused to proceed with their side of the case, and stated that they would not introduce any evidence, and rested." The court rendered judgment for the plaintiff for the amount of his demand and interest. Some three or four weeks after the rendition of this judgment, the defendant moved the court to amend the record so as to exclude the statement that the defendant admitted Tapscott's authority to execute the instruments, and other alleged similar admissions. The motion was supported by affidavits, and resisted by counter afidavits. The affidavits in support of the motion denied the admissions as contained in the record, and averred that what was said by counsel was that "he did not think there would be any serious question raised as to the general authority of plaintiff to issue time checks for defendant, when we get into the trial of the case." The counter affidavits affirm the correctness of the record. The court denied the motion, and the ruling is assigned for error. We cannot say that the court erred in denying the motion. What was or what was not admitted was purely a question of fact. Whatever was said was said in the presence of the court. Upon an examination of the affidavits, reinforced by its own recollection, the court overruled the motion, and we cannot interfere with its ruling. We are therefore bound to assume that the admissions made were as the record states them.

The principal other assignment is that the court erred in rendering judgment against defendant without any proof, and this demands a somewhat more extended consideration. If the effect of the language of defendant's counsel, as it appears in the record, is to admit the indebtedness of defendant to plaintiff, as such indebtedness is stated in the complaint, then the judgment is correct. To determine whether this is so or not requires an examination and construction of the language of the admissions, in which we will be aided by reference to the pleadings in the case. The instruments set out in the complaint are, in themselves, no evidence of any indebtedness. They were executed by the plaintiff to himself. They were signed by him as superintendent, and payable to him as defendant's employe. They did not in any manner bind his company, or dispense with proof of the facts out of which the alleged indebtedness arose. The law does not permit a party to manufacture evidence for himself in that way. The complaint states the particulars of an indebtedness independently of the written instruments, and is therefore good. It is upon

the indebtedness so stated that the suit is brought, and no judgment could be rendered for that, without proof. The allegation of the execution and delivery of the instruments, and the copies set forth, are mere surplusage, and would have been stricken out upon motion. Considering the character of the instruments, and their want of availability at the trial for any purpose, a verification of the answer was unnecessary. The denials went to the allegations of indebtedness. The only issue made by the denials was the fact and the extent of the indebtedness, and the proof necessary to entitle plaintiff to judgment must go to the establishment of the claims for which the instru ments are alleged to have been given, without reference to the instruments themselves. The admission at the trial that the instru ments were executed by the plaintiff, and that he had authority from the defendant tc execute them, would dispense with proof, if such proof would be competent, of such execution and such authority; but it would not change their character, or make other or different instruments of them, or give them an effect which they did not have before. Such proof or such admission would not establish the indebtedness, and, if the admission went no further, it would not be sufficient to justify the court in rendering judgment as it did. The statement in the admissions that the defense was that plaintiff, while acting as superintendent, had received and appropriated to his own use moneys of defendant largely in excess of his claims, is more troublesome. It might seem, at first view, to imply an admission of the indebtedness, inasmuch as it might justify an inference that the excess in its favor, over the entire amount claimed, was all that it demanded; or, in other words, that its defense was confined to its cross complaint. But we think a closer inspection and analysis of the language will lead to a different conclusion. There is no direct admission that the defendant owed the claims, or owed the amount for which suit was brought, or that the plaintiff or his teams had performed the work and labor, or that he had expended the money for defendant, which he alleged, and the allegation of which constituted his claims, nor do we think such admission is necessarily implied. The plaintiff asserted a claim or claims against the defendant, which might be valid and just, or otherwise; and the use by counsel of the word "claims" in the connection in which it was used, and the statement that the defense was an appropriation by plaintiff of defendant's money in excess of these claims, would seem to be nothing more than a recognition of the fact that the claims were asserted, and would not imply an admission of their validity or justice. They were mentioned in connection with defendant's demand, which, it was stated, largely exceeded them in amount. We think the true

construction of the language employed by counsel would be that the defense was that defendant's claim against plaintiff was lar ger in amount than his claims against it, and that notwithstanding he might be able to substantiate his claims, in whole or in part, defendant would still be entitled to judg ment for an excess. It follows from this that, before any judgment could be rendered in plaintiff's favor, he must have estab lished his demand by evidence; and, this not having been done, the judgment in each case was erroneous, and must be reversed.

1. The presentation of a formal motion for a new trial in writing, and the withdrawal thereof, and substitution of another, does not constitute a withdrawal of the notice of inten tion to move for new trial, nor an abandonment of the proceeding.

2. A record on appeal showed that defendant's motion for new trial was "by consent submitted to the court without argument," and that defendant said that the "court might pass upon said motion then and there, without taking time to consider the same, and that, so far as defendant was concerned, the motion might then and there be overruled." Held to show only that de fendant consented to a formal ruling on his motion to enable him to appeal for a review of the questions involved.

Appeal from district court, Silver Bow county; William O. Speer, Judge.

Action by Peter Wastl against the Montana Union Railway Company. There was judgment for plaintiff, and defendant moved for a new trial. From an order denying the motion, defendant appeals, and plaintiff moves to dismiss the appeal. Denied.

J. S. Shropshire, for appellant. George Haldorn, for respondent.

HARWOOD, J. Respondent, by motion, urges the dismissal of this appeal on alleged grounds as follows: (1) Because appellant. by leave of court, withdrew his motion for a new trial, and thereafter filed another mo tion in its stead, "long after the time for filing notice of intention to move for a new trial had expired, as appears from the transcript on appeal." (2) Because "appellant consented that the court might pass on the motion for a new trial without taking time to consider the same, and that, so far as ap pellant was concerned, the motion might be then and there overruled by the court.” It appears that the trial of this action re sulted in judgment for plaintiff, and there upon defendant, within the time provided by law, served upon respondent its notice of intention to move for a new trial upon certain grounds set forth, and thereafter, within the time required, prepared, served, and obtained the settlement of its statement on