Wife as Creditor-Delivery-Acceptance.

We are unable to find any tangible evidence that before she received them from her husband, she had any knowledge of their existence.

There is one circumstance connected with the transaction, which ought to be noticed. At the trial of this cause, the plaintiff was in possession of a note for $20,866.32, dated December 24, 1895, made by her husband, and payable to her. When she received it, there is nothing in the record to indicate. It was supposed to represent the difference between the amount due on the note of 1890, and the aggregate consideration named in the deeds. If, on that day, there had been a settlement between the parties, and, together, they had agreed upon the sum at which the real estate should be taken by the plaintiff, and ascertained the balance due after deducting that sum from the total indebtedness, and the plaintiff had thereupon executed his note to her for that balance, her assent to the conveyance would be beyond cavil, even although the instruments were prepared elsewhere and afterwards, and she had no personal cognizance of their execution. But there was no such settlement, and there was no settlement at all. It is evident that Mr. Knox transacted this business as he transacted his other business, without consulting the plaintiff; that the fixing of the value of the real estate, the ascertainment of the balance due, and the making of the note and deeds, were all his own doings, outside of the presence or knowledge of his wife; and it is entirely consistent with the evidence that she knew nothing of the note before she received the deeds.

But, waiving all else, a reversal is asked on the ground that, as the defendant, in his answer, alleged affirmatively that the conveyances were made with the intent to defraud creditors, the grantor, John W. Knox, was a necessary party to the suit; that the question of his fraud could not be litigated without his presence in the case; and that the failure of the defendant to bring him in, is fatal to the judgment. The point is made now for the first time, but it will be considered.

If the judgment was unwarranted except upon proof that the conveyances were fraudulent, Mr. Knox was an indispensable party, and because he was not brought into the case, we should be compelled to order a reversal. Allen v. Tritch, 5 Colo. 222.

But the allegation of fraud was not sustained by the proof.

Knox v. Clark.

By reason of the want of evidence in its support, it became immaterial; and, from that allegation, no harm resulted to Mr. Knox or the plaintiff by reason of the failure to make the former a party.

The answer denied the ownership which the plaintiff averred, and, for the purpose of investigating the character of her alleged title, Mr. Knox was not a necessary party. We have seen that, as against the defendant, she did not own the property at the time of the attachment, and that whatever title she did finally acquire, was subject to the lien of the attachment. Without title in her at the time the writ was levied, she could not maintain her suit; and because of the want of such title, no other judgment than the one rendered, would have been proper.

It is true that the court found that the transfers were fraudulent; but the finding was not warranted by the facts, and is not entitled to consideration. The judgment rests upon the plaintiff's want of title, and upon nothing else; and as that is enough to sustain it, it will be affirmed. Affirmed.

CONVEYANCES BETWEEN HUSBAND AND WIFE.-Fraudulent conveyance of mine option, Loveland v. Kearney, 1 Colo. Dec. 364, note 371-2. Debtor's right to prefer creditors includes right as between husband and wife, 1d. Fraudulent trust deed from husband to wife, Kelly v. Atkins, 1 Colo. Dec. 29, note 32. Voluntary transfer to wife, Fox v. Lipe, 1 Colo. Dec. 50. Fraudulent conveyance to new wife void as against judgment for alimony to former wife, Leupert v. Shields, 1 Colo. Dec. 179, note 181 2.

RECOVERING TAXES PAYMENT.

Board of Co. Com'rs of El Paso Co. v. Colorado Springs Co.

Court of Appeals, Rehearing denied, Oct. 8, 1900, No. 1814.

1 TAXES PAYABLE IN CASH-CHECKS NOT PAYMENT.-Taxes can be paid only in money. The receipt of a check for them and the treasurers marking them as paid on the books and the delivery of a receipt therefor, is not payment, nor conclusive against the county in a controversy between the tax payer and the county authorities. The same rule applies to all official transactions.

Recovering Taxes-Payment.

2 PAYING SHERIFF LEVYING EXECUTION BY DRAFT OR CHECK.-A note, draft or check received by a sheriff upon execution is not payme nt anddoes not extinguish the lien of a levy. These public obligations are not satisfied except by cash.

3 PAYMENT, WHAT IS ESTOPPEL.-The giving of a check or draft is not payment between private parties, in the absence of equitable considerations creating an estoppel.

4 COUNTY NOT CONCLUDED BY TREATING CHECKS AS PAYMENT.-Where it appears that taxes have not been paid in fact, the fact that a check of another party, who was under contract obligation with the owner of realty, to pay the taxes was received by the treasurer and entered as cash upon the books, and so treated by the county commissioners, does not entitle the owner who subsequently pays such taxes, to recover the money so paid by him.

5 PAYMENT ALONE WILL DISCHARGE TAX LIEN-ESTOPPEL.--Taxes are an absolute lien upon realty which can be discharged only by payment. As between private parties equitable considerations might estop an individual from denying payment by check, note or draft when the other party had in consequence altered his condition on the faith of it, but such principal does not extend to the payment of taxes.

6 TAX SALE WHEN TAXES PAID-PRESUMPTION-ENTRIES IN TREASURER'S BOOKS. -The owner of land may prevent a sale for taxes or may recover his property when sold, on proof that the taxes were paid before the sale; but no conclusive presumption of payment arises from entries upon the treasurer's books.

7 CHECKS OR DRAFTS IN PAYING TAXES TREASURER-RECEIPT COLLECTION-ESTOPPEL.-A county treasurer has no authority to receive checks or drafts, and after their receipt and the marking of the taxes as paid, the officer may still proceed to collect the same. The treasurer bears no such relation of

agency as to estop his county.

8 NO RECOVERY BACK OF TAXES BECAUSE LESS PAID THAN DUE.--That a taxpayer is permitted to pay a less sum than the total of principal plus penalties and interest, is not a matter of which he can complain, nor does it entitle him to recover the sum which he pays.

9. VOLUNTARY PAYMENTS NOT RECOVERABLE.—-Where the payment of taxes is voluntary, the party paying them cannot sue for their recovery.

10 ADVERTISEMENT FOR TAX SALE-EFFECT ON VOLUNTARY PAYMENT.— The fact that property has been advertised for sale in payment of taxes, is not a legal compulsion which prevents a payment of the taxes, as to the prior pay. ment of which the owner is in doubt, from being voluntary.

STATUTES: 2 Mills Ann. St. § 3854, 3 Id. § 3854.

Error to the District Court of El Paso County.

Action by land owner to recover back money paid for taxes. Brought by the Colorado Springs Company against the Board of County Commissioners of El Paso county. Judgment for plaintiff. Reversed.

John M. Johnson for plaintiff in error; John W. Sleeper for defendant in error.

Board of Co. Com'rs of El Paso Co. v. Colorado Springs Co.

BISSELL, P. J. delivered the opinion of the court.

The facts will be stated according to the concessions in the proceedings and pleadings, and as they may well be assumed to be established by the practically uncontradicted testimony on certain propositions.

In 1891 The Colorado Springs Company was the owner of certain real property in El Paso county, which was subject to taxation and on which they were bound, so far as this record shows to pay the taxes. At all events as between themselves and the county authorities they were bound to pay them. There may haye been some agreement between them and third parties, whereby others were bound to pay the assessments, but no agreement is es.. tablished which shows any transfer of the fee which would release the company from this obligation. McGovney and possibly oth.. ers jointly with him, had some arrangement with the Company for the purchase or transfer of the land, and the option may have and probably did include a duty to pay the taxes. Whatever may be the fact respecting this matter, it is unimportant because there is nothing to show a transfer of the fee or a release of the company from its duty. When the taxes became due in 1892, McGovney who held this contract or option undertook to pay them. What he did is very clearly shown. On the 12th of July, 1892, he went to the treasurer's office, gave a check for a sum sufficient to pay the levy on some particular part of the company's property and possibly included therein, though it is unnecessary to determine this matter of fact, the amount due from him on other property either belonging to himself or others. The treasurer took the check and marked the taxes on the books as paid, and possibly, thongh this does not clearly appear and is quite in doubt on the record, issued a tax receipt. The check was entered on the cash book and carried and counted as a cash item from that time forward until the events which we shall state. The amount of the original check was reduced from time to time by the payment of small sums or by crediting on it the amount which was coming to McGovney by reason of the redemption of lands from sale and otherwise. Whenever these reductions or payments were credited he gave a new check for the sum unpaid. The checks were always carried on the books as cash items, and were probably allowed by the commissioners on their semi-annual examination. What ob

Recovering Taxes-Payment.

ligation the treasurer thereby assumed in favor of the county, or what rights the county may have acquired against him or his bondsmen, is wholly unimportant and cuts no figure in the determination of the county's rights in the enforcement of the obligations of the owner of the fee. We therefore neither consider nor decide it, and simply make this suggestion to disclose the reason why we pay no further attention to it.

The personnel of the treasurer's office changed several times and finally in 1896 the then treasurer, in November, advertised a portion of the property for sale on the 10th of December of that year. The company noticed the advertisement, and its representative went to the treasurer's office and produced its check for the amount which was claimed to be due, amounting to some $866.00 and took up the check which had been given by McGovney and which still remained in the possession of the then treasurer. At this time the representative stated that he probably knew more about that check than the treasurer did, and wanted to pay the taxes. He asked for a receipt. It was given and stated that the treasurer who was then Mr. Steinmetz, had received the money and credited it to the East End Addition's taxes. Shortly afterwards this representative came in and wanted a regular tax receipt which was thereupon made. The check was cashed and the funds went into the county treasury. Subsequently the company filed a petition with the Board of County Commissioners and requested a reimbursement, stating that the taxes had been paid before the last check was given and that the company therefore had a claim against the county for the amount of funds received thereon. The county refused to pay and from this decision an appeal was taken to the district court where the company had judgment and the county prosecutes the appeal.

The whole contention rests on the theory that the acceptance of the McGovney check by the treasurer in 1892, and the marking of the taxes as paid on the books was payment, the company thereby relieved, and its subsequent liquidation of the claim was without consideration and void and they had a right to recover the amount paid. There are many reasons why we cannot concede the proposition. It is well settled by all the authorities that there is only one way by which taxes can be paid and that is with money. Such is the provision of the statute (2 Mills Ann. St. § 3854, 3 Id.