himself; that in the sudden removal of camps, the transfer of large bodies of men, the performance of the labor, and otherwise in doing this work, he was compelled necessarily to incur great expense; and that such necessary and reasonable expense, added to the amount already advanced to appellees, exceeded what he would have paid them under the contract for grading the four sections, in the sum of $1,177.70. For this amount appellant, in his answer, demanded judgment by way of counter-claim. The contract was verbal, and appellees deny that they were bound thereby to complete each section before passing to the next, leaving no gaps unfinished.

The main question of fact presented to the jury related to the terms of the agreement in this respect. Under the evidence in the record it appears that the jury must have resolved this question of fact against appellant. If the record disclosed a substantial conflict of testimony upon this feature of the contract, we would not presume to interfere with the finding of the jury thereon, though they accepted the sworn declarations of one witness as against those of two. Appellant swore positively that under the agreement appellees were to finish the work on each section before they passed to another, and were to leave no gaps. His statements are corroborated by the testimony of Clark, and also, in our judgment, by that of Thompson himself; for Thompson says that he did not understand that appellees were permitted to work here and there, leaving gaps between. The rest of Thompson's testimony upon this subject in no way conflicts with appellant's view of the contract. The facts that no certain amount of work was contracted for, and that appellees were to begin and do what they could with their "outfit," are not inconsistent with the proposition that they were bound to complete each section before leaving it; neither is his denial that a certain conversation took place relative thereto a declaration that the contract did not contain this provision.

Here, then, was a question of fact constituting a material issue upon which there is no substantial conflict in the testimony, as to which, on the contrary, the testimony of both sides is in harmony. We think the jury must have misunderstood this evidence, or misapprehended its scope and effect. The record discloses nothing which can fairly be construed as a waiver on the part of appellant of a breach of the contract in this respect. Upon a retrial of the cause it may be made to appear that such a waiver took place; or, under amended pleadings, if amendment thereof be allowed, matters in avoidance may, perhaps, be presented.

But we are satisfied that for the erroneous finding of the jury this judgment should be reversed. It is unnecessary to consider the remaining assignments of error. The judgment will be reversed, and

the cause remanded for a new trial.

(3 N. M. [Gild.] 227)

SUPREME COURT OF NEW MEXICO.

BENT and others v. MAXWELL L. G. & Ry. Co. and others.

Filed May 3, 1884.

Where it appears from a bill in equity that another case is pending between a plaintiff and some of the defendants, but it is evident that all the parties necessary to secure the relief prayed for in the bill are not parties to the other action, a demurrer to the bill, for the reason that there is another action pending, will not be sustained.

The rule that a decree made and entered by consent cannot afterwards be impeached by the parties consenting thereto, is confined to cases where the parties, being sui generis, and with full knowledge of the force and effect of the proposed decree, have knowingly consented thereto.

A decree made by consent between competent parties is not binding when procured by fraud.

Where a bill is brought for the purpose of impeaching a decree formerly rendered in another cause by consent, upon the ground that the consent was obtained by fraud, imposition, and false representation, the parties being different from those in the first cause, it is not a bill of review, but an original bill.

Where a demurrer is made to a bill in equity which seeks to re-establish a decree which has been set aside and annulled, because it is not shown that that decree was proper, or founded in law or fact, it will not be sustained, because it will be. assumed that the decree was properly rendered by a court of competent jurisdiction; the fact whether it was well founded or not, not being before the court.

The recital in a bill that infants appear by their next friend is sufficient, without showing that an order of appointment was made. The presumption is that all necessary steps were taken before the bill was brought, and that the proceedings of a court of general jurisdiction were regular.

Where a bill in equity states that the consent to the entering of a decree in an action where infants were parties was never given, or, if it was given, it was given through fraud, imposition, and false representation practiced upon their guardian ad litem, who was an ignorant person, and ignorant of the rights of the infants, it shows sufficient facts to entitle the complainants to have the decree entered by consent set aside, and to have one that had been set aside reinstated.

Where the legal title to an estate is vested in infants, it is error for a court to make a decree authorizing any person to divest them of it, the authority not having been given the court by statute.

Where land was originally in one county, but by a new division it became located in another county, a suit, of which an interest in the land is the subjectmatter, is properly brought in the county in which the land lies at the time the suit is brought, under chapter 2, Act 1576, § 1, (Prince's Laws, p. 130.)

Wells, Smith & Macon and Caldwell Yeaman, for plaintiffs in error.

T. B. Catron and Frank Springer, for defendants in error.

BELL, J. This suit was brought to impeach a decree of the court in a former suit, to which the complainants herein were parties, on the grounds of fraud, imposition, and error.

From the facts stated in the bill it appears that about the twelfth day of September, A. D. 1859, Alfred Bent, Estefana Hicklin, Alexander Hicklin, her husband, and Teresina Bent instituted in the dis

v.3, no.12-46

trict court for the county of Taos (in which county the whole of the lands in question were then situate) their certain bill in equity against Guadalupe Miranda, Charles Beaubien, Lucien B. Maxwell, and Joseph Pley, alleging that Charles Bent, father of the said Alfred, Estefana, and Teresina, was, in his life-time, by virtue of a certain parol agreement made between him, said Charles Bent, of the one part, and said Beaubien and Miranda, of the other part, entitled in equity to the equal undivided one-third part of a certain grant of land, in the said bill fully described and set forth; that said Charles Bent departed this life intestate, leaving the said Alfred, Estefana, and Teresina as his sole heirs at law, and in and by the said bill the said Alfred, Estefana, and Teresina prayed that they might be decreed entitled to said one-third part of the said lands, and that partition thereof might be made; that, pending said suit, said Charles Beaubien departed this life, and his necessary personal representatives were made parties thereto; that all said parties answered, denying the equities claimed in the said bill; that, pending said suit, said Teresina also intermarried with Aloys Scheurick, and the said Aloys was made party to the suit with the said Teresina; that said cause was continued, from time to time, until the May term, 1865, and that at said term, and on or about the third of June, 1865, a decree was made and entered in said cause, by which, among other things, it was ordered, adjudged, and decreed that the said Alfred, Estefana, and Teresin were, and were thereby declared to be, the heirs at law of the said Charles Bent, deceased, and as such heirs fully and absolutely entitled to and seized of the undivided one-fourth part of the said grant of lands, which said grant is now commonly known as the "Maxwell Grant," and which was then situated partly in the county. of Taos and partly within the limits of the then territory of Colorado, and is now situate within the limits of the county of Colfax, in this territory, and partly in the state of Colorado; that by the said decree the said undivided one-fourth part of the said grant of lands was declared established and confirmed to them, the said Alfred, Estefana, and Teresina, and to their heirs and assigns forever, with the full and perfect right, power, and authority to possess and enjoy the same; and it was decreed that a just and equitable partition of the said grant should be made between the said Alfred, Estefana, Teresina, and the other parties to said suit who were declared by the said decree entitled to the remainder of the said lands; and that commissioners therein appointed to make said partition should lay off onefourth of the said grant to the said Alfred, Estefana, and Teresina, and the remaining three-fourths to the said other parties entitled thereto; that by the said decree certain persons therein mentioned were appointed commissioners to make the said partition.

The bill further shows that, after the entry of the said decree of partition, and on or about the day of December, 1865, and before partition of the said premises had been affected in pursuance

of the said decree, the said Alfred Bent departed this life, intestate, leaving as his sole heirs the complainants herein, Juliano Bent and Alberto Silas Bent, then and still infants of tender years, and the complainant Charles Bent, then also an infant, and who since, and on or about the twenty-sixth day of April, A. D. 1881, hath come of lawful age; that on or about the ninth day of April, 1866, at a term of the said district court for Taos county then sitting, the death of the said Alfred Bent was suggested of record, and the complainants herein, as his children and heirs at law, were made parties complainant in the cause in his stead; and that afterwards, at the same term of the court, an order was made in the cause, wherein, after reciting an agreement of the parties thereunto, Guadalupe Bent was appointed guardian ad litem and commissioner in chancery for the complainants herein, being the minor children of Alfred Bent, with full power to execute deeds, or carry into execution all sales or transfers made of their interests in and to the real estate therein described, to Lucien B. Maxwell, one of the defendants in that cause, and the said cause was then continued to the next term of the court; that afterwards, at the September term, 1866, of the said district court, begun and held on or about the tenth day of September, 1866, a certain other order or decree was made and entered of record in the same cause, wherein, after reciting the aforementioned decree appointing commissioners to divide and separate one-fourth of the said lands to the complainants in said cause, and that said decree had never been carried into effect, and that, since the rendition thereof, a mutual agreement had been made between the parties to that cause, settling and determining all equities in the same, it was ordered, adjudged, and decreed that the decree aforesaid, and all orders made under it by virtue of the same, should be set aside; and it was further ordered, adjudged, and decreed, by mutual consent and agreement of said parties, that the said Lucien B. Maxwell should pay to the complainant in that cause eighteen thousand (18,000) dollars, as follows, to-wit: To the said Teresina and Aloys, her husband, one-third part; and to the said Estefana and Alexander, her husband, one-third part; and to the complainants herein, the children and heirs of Alfred Bent, deceased, the remaining one-third part, to be equally divided among the said complainants, and to be paid into the hands of Guadalupe Bent, widow of the said Alfred Bent, and guardian ad litem of the complainants, for the purposes of the said division. And it was further ordered, adjudged, and decreed that the said Estefana, Alexander, Teresina, and Aloys, and the said Guadalupe Bent, guardian ad litem of the complainants, within 10 days thereafter, should make, execute, and deliver to the said Lucien B. Maxwell good and sufficient deeds of conveyance of all their right, title, interest, estate, claim, and demand of, in, and to the lands in controversy in that cause; the said Guadalupe Bent in the name of the complainants herein, and the others of the said complainants in that cause in their own names;

and that each of the said parties should pay the separate costs in this suit made by them:

The bill then charges that although the said decree purports to be made by consent of parties, nevertheless it does not appear by whom these complainants were represented in that behalf, or who assumed to consent to the said decree in behalf of these complainants.

The bill further charges that said decrees and orders, and each thereof, were duly enrolled in the said court.

The bill further shows that before the entry of the said last abovementioned decree, and about the month of May, 1866, the said Aloys Scheurick, and Teresina, his wife, and the said Alexander Hicklin, and Estefana, his wife, by their deeds, in due form of law, had conveyed to the said Lucien B. Maxwell all the interest of the said Estefana and Teresina, being the undivided two-twelfths interest in the said grant of lands, and that likewise before the entry of said lastmentioned decree, and about the third day of May, 1866, the said Guadalupe Bent had also executed her deed of conveyance, wherein, after reciting that she had been appointed guardian ad litem and commissioner in chancery for these complainants, the minor heirs of the said Alfred Bent, deceased, by order of the said district court, the said Guadalupe Bent, by virtue of the power and authority in her confided by the said decree, and in consideration of the sum of six thousand (6,000) dollars, in her conveyance recited to have been paid to her by the said Lucien B. Maxwell, assumed and pretended to grant, bargain, and sell unto the said Maxwell all the right, title, and interest of the complainants herein, in and to the lands and grant in question, to-wit, the undivided one-twelfth interest in the said lands and grant.

The bill further shows and charges that the said Guadalupe Bent is the mother of the complainants herein; that she is a Mexican woman, and at the time of her appointment as guardian ad litem to these complainants, and at the time of the execution of the said pretended conveyance, and at the time of the entry of the said last-recited decree, she was wholly ignorant of the English language, unable to read, write, or speak the same; unfamiliar with business or proceedings of courts of law; unacquainted with the rights of the complainants, or her duties in that behalf, or of the bounds or extent of the said lands and grant, or of the character or value thereof; and ignorant of the confirmation of said grant by act of congress; and ignorant of the decree of the said district court directing partition of the said grant, as hereinbefore set forth, or of what part or share in the said grant was claimed by the father of these complainants in his life-time.

The bill then charges, fully and in detail, the various alleged false representations made to the said Guadalupe Bent by the said Maxwell, and by the said Scheurick, by procurement of the said Maxwell, and that, among other things, it was represented to the said Guada