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Morton E. Stevens, administrator de bonis non of the estate of Sam Doss, deceased, and involves solely the amount of compensation to be allowed on final report for the services of such administrator. The decedent died at his residence in Las Animas county, Colo., about June, 1892, leaving a personal estate consisting principally of cattle and a few horses running upon the open range in Colorado, New Mexico, Arizona, Oklahoma, and Texas, by far the larger portion-more than one-half-being upon the range in New Mexico. In addition to this property, there was a small amount of real estate, also located principally in New Mexico. The total value of the personal estate was about $90,000, and all of the estate was heavily incumbered by mort. gage and other evidence of indebtedness to the extent of more than one-half of its value. W. H. Bradley was appointed administrator by the county court of Las Animas county, and served as such until September, 1893, at which time he resigned, and Morton E. Stevens was thereupon, at the request of number of the creditors, appointed by the court administrator de bonis non. Mr. Stevens was at the time a practicing lawyer in the city of Trinidad. About February 3, 1894, at the request of a number of creditors of the estate, Stevens was appointed by the probate court of Guadaloupe county, N. M., as administrator of the assets of the estate being in that territory, which constituted, as we have said, more than one-half of the cattle, and a portion of the real estate. In pursuance of this appointment, Stevens proceeded to administer upon the estate, making reports from time to time to the probate court in New Mexico of all such of his acts as related to property in New Mexico, and to the court in Las Animas county of his proceedings in reference to all other property, and also as to the New Mexico property. The disposition of the property in New Mexico, however, was under and in accordance with the orders from the court in that territory. No claims against the estate were presented or allowed in the probate court of New Mexico, and the administrator, after accounting to such court for the proceeds of sales of property made in that territory, turned over the proceeds to himself 'as domiciliary administrator in Las Animas county, and accounted for them to the county court therein. About March 9, 1896, the assets of the estate in New Mexico seem to have been disposed of, and upon final report to the probate court in that territory he was discharged, the court having first allowed him for his services as administrator in said territory the sum of $2,316.87. Of this allowance the administrator paid to himself the sum of $1,050, out of funds then in his hands arising from the sale of assets in New Mexico, leaving a balance due him on such account of $1,266.87. In March, 1897, the administrator, under order of the county court in Colorado, made his final report, which is the report in question in this suit. In this he requested,

as allowances for his services, 6 per cent. on the amount realized from the estate; also the balance due to him on account of the allowance for his services by the New Mexico court; also a small amount for stationery, postage, and stenographic help; also the sum of $350 for fees of counsel other than himself employed in and about the hearings on his final report; and also the sum of $1,500 for professional services rendered by himself while administrator, in behalf of the estate. Two of the heirs at law of the estate appeared by counsel, and filed exceptions to the report, such exceptions going to each and every claim for allowance for services made by the administrator. Upon motion of the administrator, the venue was changed from the county to the district court, in which both parties appeared, and final hearing was had. Just before proceeding to trial it was conceded by the attorney for objectors that 6 per cent. upon the entire amount of assets realized by the administrator was a reasonable compensation for his services under the circumstances involved. The exception, therefore, to this allowance, is eliminated from the case, and need not be considered. The district court found that the value of the personal property which came into the hands of the administrator de bonis non as domiciliary administrator and within such domiciliary administration was $90,449.10; that a reasonable compensation for his services as such domiciliary administrator and for the administration of such property within the domiciliary jurisdiction was 6 per cent. upon said amount; and this sum was allowed him. The court further found that it was for the best interests of the estate that letters of administration were taken out in New Mexico; that, after such appointment, the administrator performed valuable services as ancillary administrator; and that a reasonable allowance for such services was the amount allowed by the New Mexico court, and the administrator was given judgment for the unpaid portion of that allowance. The court further found that during the course of the administration tne administrator had performed for the estate services purely legal, and in his capacity as a lawyer, and that such services were necessary to the estate, and of the reasonable value of $1,500, but refused to render judgment therefor, on the ground that, as a matter of law, it could not do so. These are substantially all the matters that are discussed in the briefs of counsel, and which need to be considered. The objectors appealed from the judgment, and the administrator has assigned cross error upon the refusal, of the court to allow him compensation for legal services rendered by him.

The first objection raised by the appellants is that the district court was without jurisdiction. This is based upon the provisions of section 508 of the General Statutes, and in support of this contention we are cited to a decision of this court. McKinnon v. Hall. 10 Colo. App. 291, 50 Pac. 1052. That case does

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not sustain the point attempted to be made. late, but was in accord with, the rule that all In that case the district court attempted to expenses of an ancillary administration shall assume original jurisdiction in the first in- be paid from the assets within the jurisdicstance. In this case the proceedings were tion which granted the ancillary letters. In properly had and commenced in the county this case the proceeds of the New Mexico ascourt, which, however, changed the venue to sets had been paid over to the administrator the district court. This the county court had de bonis non acting under the domiciliary letthe power to do for certain causes. Gen. St. $ ters, and accounted for by him to the Colora509. It does not appear from the record in do court; such payments baving been made this case for what cause the venue was chan- from time to time under the orders of the ged, but, a county court having such power New Mexico court, but upon the express conunder certain circumstances, it will be pre- dition that the moneys so paid should be resumed, in the absence of any showing to the ceived subject to the payment of the costs of contrary, that the power was rightfully ex- administration in New Mexico. The allowercised.

ance by such court to its administrator was a The main argument of the objectors is ad- part of these costs. dressed to that portion of the judgment of The appellants also raise some question as the court in favor of the administrator för to the finding of the court of the value of the the unpaid portion of the allowance to him personal property coming into the hands of by the New Mexico court. In this, we think, the administrator under the domiciliary adthere was no error. The rule laid down by ministration. This was a matter of fact, and Schouler, and wbich has received the approv. such finding, not being manifestly against the al of all of the authorities to which our at- weight of the evidence presented, will be tention bas been directed, is to the effect that binding upon this court. The objectors also It is the duty of a domiciliary executor or ad- except to the allowance of $350 for services ministrator, só far as may be consistent with of counsel in the proceedings pertaining to bis information and the exercise of a sound the final report, on the ground that they condiscretion, to see that ancillary letters of ad- ceded that 6 per cent, on the amount of the ministration are taken out at the situs of the personal estate might be allowed. property belonging to the estate, or any por- pears, however, that this concession was not tion of it, if it appear to be needful or pru- made until the parties were in court, and dent in order to collect and realize such assets. ready to proceed to trial, and, moreover, Schouler, Ex’rs, $ 175; In re Ortiz's Estate, there were other objections to the report 86 Cal. 306, 24 Pac. 1034. And it makes no which remained to be and were considered, difference whether these letters are taken and one of them, at least, that in reference out by the domiciliary administrator or by to the allowance by the New Mexico court,another. The ancillary administration, how- was overruled. The court held that these leever, is solely within the control of the court gal services were rendered, that they were which grants the letters, and all of the assets proper and necessary, and that tbeir reasonof the estate within its jurisdiction must be able value was $350; and we are not disposaccounted for to it. It is a separate and dis- ed to interfere with this finding, there being tinct administration, entirely independent of nothing to show a different state of facts, nor the domiciliary administration, except in so that there was an abuse of discretion by the far that, when it is finally ended, and the court. administrator discharged, he may be compel- With reference to the cross error assigned led to account for and turn over to the domi- by the administrator, we think that the disciliary administrator such amount as may re- trict court was clearly in the right. The statmain in his hands after the settlement of all ute which bears upon this question reads as claims against, and expenses growing out of, follows: "Executors and administrators shall the ancillary administration. Even this, pos- be allowed as a compensation for their sibly, should properly be done by an order of trouble a sum not exceeding six per cent. on the court having charge of the ancillary ad- the whole amount of personal estate, and not ministration. No question is raised as to the exceeding three per cent. on the money arislawfulness of the action of the New Mexico ing from the sale or letting of land; with court in allowing the administrator the com- such additional allowances for costs and charpensation which it did. The administrator ges in collecting and defending the claims of was entitled to pay himself the full amount the estate and disposing of the same as shall from the money in his hands arising from the be reasonable, to be allowed and paid as othsale of the assets in New Mexico. Instead of er expenses of administration." Gen. St. & this, he retained only a part of the sum, ac- 3630. This section was taken bodily from counting for all of the balance to the domi- the statutes of Illinois, and the highest courts ciliary administration. In reality, so much of that state have passed upon it and settled of the New Mexico allowance as he had fall- its meaning in several cases on all fours with ed to retain, and paid over to the domiciliary the one at bar. In Willard v. Bassett, 27 Ill. administration, was rightfully his money, and 38, the question was squarely whether an atwe see no reason why, this being the case, torney of the court, who was an administhe Colorado court could not properly have trator, was entitled to an allowance against allowed the claim. In effect, this did not vio the estate for professional services in cases which he prosecuted or defended as such ad- or, if there were, they did not have the reministrator. Judge Caton, speaking for the strictions imposed in ours. In the case cited court, said: "The authorities are uniform from Ohio (Piatt v. Longworth's Devisees, 27 that this should not be allowed, and every Ohio St. 159) it appears from the opinion of principle of sound policy forbids it.

the court itself that it was based upon a If he chooses to exercise his professional skill statute which expressly permitted the court as a lawyer in the defense of the estate, that to allow to an administrator not only a cermust be considered a gratuity. To allow him tain per cent. for commissions, but such other to become his own client, and charge for sum as the court might deem reasonable professional services for his own case, al- for extra trouble. It is hardly necessary to though in a representative or trust capacity, say that no such provisions can, by any possiwould be holding out inducements for pro- bility, be read into our statute. In the case fessional men to seek such representative at bar it appears from the record before us places to increase their professional business, that the administrator de bonis non, Mr. Stewhich would lead to most pernicious results. vens, discharged his duties in a highly creditThis is forbidden by every sound principle of able manner, and that by his efficient services professional morality, as well as by the policy the estate was saved from insolvency, and of the law." Th is no reference in this was more than enabled to pay its debts. The case made to the statute, but in the next case legal services which he rendered, and for to which we are cited the statute is comment- which he asked compensation, were undoubted upon. Hough v. Harvey, 71 111. 72. In edly of material benefit to the estate, and that it was held that the words "costs and the compensation asked for such services charges" in the statute were intended to cov- was, as found by the court, unquestionably er only such actual expenses--“money out of reasonable; but we are constrained to hold, pocket," as the court terms it-incurred by as did the trial court, however valuable the the administrator in the business of the es- services may have been, and however meritate, and not to permit of any charges for torious the claim may be, that its allowance extra services, or any services beyond the lim- is forbidden by express provision of statute. it fixed by the statute. In the next case it For the reasons given, the judgment will be was squarely decided that there was no war- affirmed. Affirmed. rant of law for allowing to administrators, as compensation for their services, a sum ex

(13 Colo. App. 489) ceeding 6 per centum on the amount of the

COPELAND v. COLORADO STATE BANK personal estate. Askew v. Hudgens, 99 Ill.

OF DURANGO. 468. These decisions seem to be within the rule laid down and observed by the authori

(Court of Appeals of Colorado. Nov. 13, 1899.) ties generally. In Woerner on the American

EXECUTION-VOID LEVY-CAVEAT EMPTOR

SETTING ASIDE SATISFACTION. Law of Administration (section 529) it is

The maxim caveat emptor does not apply said: “The statutes of a number of states to a purchase by an execution creditor at the allow extra compensation to executors and execution sale, where the levy was void, and in administrators for the rendition of services

such case the entry of satisfaction of the judg.

ment may be set aside. to the estate outside of the scope of their ordinary duties. Unless such extra compensa

Error to district court, Laplata county. tion is within the language or spirit of the

Action by the Colorado State Bank of Dustatute, it cannot be allowed, because at com

rango, Colo., against M. H. Copeland. The mon law their personal services are wholly judgment was for plaintiff, and from an order gratuitous.” A large number of authorities allowing plaintiff's motion to expunge that from a great number of states are cited in

portion of the sheriff's return showing that support of this position. Mr. Schouler lays plaintiff's judgment had been satisfied, defenddown substantially the same rule. Schouler,

ant brings error. Affirmed. Ex'rs, $ 545. Under the positive and plain F. C. Perkins, for plaintiff in error. 0. S. restrictions of our statute we cannot see how Galbreath, for defendant in error. it is possible to hold otherwise. It would seem to be true in this state, as expressed by THOMSON, J. On the 26th day of April, some of the courts in other states, that, when 1897, the Colorado State Bank of Durango a lawyer becomes a voluntary administrator, obtained a judgment for $162.10 against M. he takes his office cum onere, and, although | H. Copeland, before a justice of the peace of he exercise professional skill in conducting Laplata county. On the 28th day of the same the estate, he does not thereby entitle himself month a transcript of the judgment was filed to additional compensation. In re Young's in the district court of the same county. On Estate, 4 Wash. 534, 30 Pac. 6-13. We see the 4th day of the following August, execunothing in any of the authorities to which tion issued upon the judgment, which upon counsel for the administrator have cited us the 6th day of November, 1897, was returned to shake us in such a conclusion. None of into the district court, indorsed as follows: them seem at all applicable. Save in one, “I, the undersigned, sheriff of said county, do there is no reference to any statute controll- certify that I did duly levy the within execuing the matter; and hence we conclude that tion on lots five (5) and six (6) in block eightyin those states there were no such statutes, four (81) in the city of Durango, and that thereafter, on, to wit, the 28th day of Aug., the defendant has good title, the purchaser 1897, duly expose the same for sale at pubiic gets it; if a partial title, he gets that; or, auction at the court-house door in said city if no title, he gets nothing; but he takes his of Durango, when then the same were sold chances on the title the defendant has, and, to the plaintiff, the Colorado State Bank, at if that proves worthless, he is without remits bid of $175.” The sheriff also returned edy. It behooves him to acquaint himself the execution satisfied. On the 6th day of with the title before purchasing, and his comAugust, 1897, Copeland served the following plaint afterwards that it was unsatisfactory notice upon the sheriff and the bank: "To will not be heeded. The foregoing is as full the Colorado State Bank, Plaintiff in the a statement of the doctrine of caveat emptor Above-Entitled Cause, and to J. H. Alexander, as the case before us renders necessary. Sheriff of Said County: You, and each of Rodgers v. Smith, 2 Ind. 526; Holtzinger v. you, will please take notice that lots 5 and 6 Edwards, 51 Iowa, 383, 1 N. W. 600; Bassett in block 84 in the city of Durango, Colorado, v. Lockard, 60 III. 164; Boggs v. Hargrave, 16 are the homestead of the undersigned, duly Cal. 560. But here the bank did not take the and legally claimed as such on the records of execution defendant's title, and it is not of the county of Laplata and state of Colorado, defects in that title that he complains. For and are exempt from seizure under any legal | aught that appears, the defendant's title was process whatever, up to the amount of $2,- good; but, whether it was good or bad, it 000.00; and in the event of sale of said prop- did not pass to the bank. Our statute proerty by virtue of the execution issued in the vides that every householder in the state, beabove-entitled cause, and the levy made on ing the head of the family, shall, by causing said property thereunder, the just and full the word "Homestead" to be entered of recamount of $2,000.00 must first be paid to the ord on the margin of his recorded title, be enundersigned, before title to said property can titled to a homestead, not exceeding $2,000 in be transferred to any person by virtue of such value, exempt from execution, and that any sale. Hereof take notice, for the undersigned creditor who is of the opinion that it is worth will enforce his rights to the full extent of more than $2,000 may, by filing an affidavit the law in such cases made and provided.” to that effect with the clerk of the district It appears that, notwithstanding the notice, court, proceed against it as in ordinary cases, the attorney of the bank directed the sheriff and, if it sells for more than $2,000, that sum to proceed upon the execution. On the 16th shall be paid to the owner, and the excess day of September, 1897. Copeland commenced to the creditor, but, if not, the title of the his action to anuul the proceedings of the owner remains unimpaired. Gen. St. $$ 1631, sheriff, and to cancel and set aside the certiti- 1632, 1637. It appears that the land the bank cate of levy and the certificate of sale; and attempted to sell had, prior to the filing of on the 1st day of December, 1897, the court the transcript of the judgment, been propentered a decree adjudging the certificate of erly designated by the judgment debtor as a lévy and the certificate of sale null and void, homestead, and that he was a householder and and quieting the title to the property sold in the head of a family. No affidavit was filed Copeland, in so far as it was affected by in behalf of the bank that the property was those certificates. On the 7th day of Decem- worth more than $2,000, and the sum bid ber, 1897, the bank filed in the district court, for it was much less than $2,000. Up to a in the matter of its judgment, its motion value of $2,000, it was exempt from execution; to expunge and erase all that portion of the and, whatever its value, no levy could lawreturn of the sheriff which showed that its fully be made upon it without the previous judgment against Copeland had been paid by filing of the affidavit. The levy of this exemeans of the sale, on the ground that the levy cution was therefore void. The subsequent of its execution, and the certificate of sale to proceedings depended for their validity upon it, had been adjudged vold, and the title to the levy, and, as it was void, so were they. the property, as against it, quieted in Cope- There was, in law, no levy, no sale, and no land, at his suit. This motion was sustained, satisfaction. The proceeding by Copeland to and from the order sustaining it Copeland avoid the levy and sale, and quiet the title in has prosecuted error to this court.

him, was unnecessary. Those were not voidThe theory on which Copeland relies to se- able merely, but absolutely void, and their incure a reversal of the order is that, as the validity could be shown in any proceeding at bank was the purchaser at a sale on execu- any time. Although the return of satisfaction, the maxim caveat emptor applies; the tion was also void, yet, while it remained, bank made the purchase at its own risk, and the bank might be unable to procure the isits bid, having been accepted, operated as an suance of another execution, and it was thereunconditional satisfaction of its judgment. fore proper that the return should be canWe do not think that the rule has any applica- celed. The maxim caveat emptor contembility to the case at bar. At an execution plates a valid sale. It charges the purchaser sale, the proceedings in connection with which with knowledge of faults or defects in the have been regular and valid, the purchaser subject of his purchase; but it does not apply takes whatever title or interest the execution to a case where the sale itself was void, and defendant may have; and it is of the defects there was consequently no purchase. Let the in that title that he assumes the risk. If order be affirmed. Affirmed.

(13 Colo. App. 553)

date for office shall refuse or neglect to file a BOARD OF TRUSTEES OF TOWN OF

statement of his election expenses, as prescribed

in section 6, he shall be deemed guilty of a misGILLETT v. PEOPLE ex rel. KEITH.

demeanor, and forfeit his oflice, does not author

ize a forfeiture of office for failure to file a state(Court of Appeals of Colorado. Nov. 13, 1899.)

ment within the time prescribed by section 6,MANDAMUS – ALTERNATIVE WRIT SUFFI- 20 days after the election. CIENCY-REMOVAL OF MAYOR FROM OF

10. On proceedings in mandamus to contest the FICE-GROUNDS-PLEADING--APPEAL.

right of removal of a mayor by the board of 1. An alternative writ of mandamus must trustees it is incumbent on the board of trustees, state a cause of action, in order to support a as respondent, to show that charges of somejudgment.

thing constituting a legal cause of amotion 2. The sufficiency of an alternative writ of were preferred, and that they were sustained by mandamus, to state a cause of action, may be legal evidence. first raised on appeal. 3. An alternative writ of mandamus set forth

Error to district court, El Paso county. the election and qualification of the relator as Mandamus by the people of the state of mayor, his entry on the duties of his office, and

Colorado, at the relation of O. W. Keith, his continuing to exercise the functions and perform the duties thereof between certain dates

against the board of trustees of the town of set forth, and alleged that respondent board of

Gillett. A peremptory writ was awarded, and trustees illegally, wrongfully, and without war- respondent brings error. Affirmed. rant of law pretended to remove and oust him from his office, and have ever since unlawfully,

Orr & McKesson and George Gardner, for wrongfully, and against his rights refused, and plaintiff in error. still refuse, to recognize him as mayor, or permit him to perform the duties of his office, notwithstanding he has been at all times willing WILSON, J. This was a proceeding in and qualified so to do. Held, that the writ

mandamus, instituted against the board of states a cause of action, it not being necessary

trustees of the town of Gillett to .compel the to set forth the reasons why the board of trustees attempted to remove the relator.

restoration of relator, Keith, to the office of 4. Under the rule that the rules of pleading mayor of the town, from which he claimed in civil actions prescribed by the Code are ap- to have been unlawfully and wrongfully oustplicable to proceedings in mandamus except in cases where a different or special rule is provid

ed by the respondent. An alternative writ ed by the Code or statute, a defect in an alter- was issued, to which respondent made annative writ of mandamus may be cured by the swer, admitting the election of the relator to allegations of the answer.

the office, his occupancy thereof for several 5. Failure to demur to the answer to an alternative writ of mandamus, and the filing of a re

months, but alleging that charges had been ply, does not admit the legal sufficiency of the preferred against him, and, after due trial answer, so as to preclude the rendering of judg

before the board of trustees, he had been ment for the relator, where the matters set up in the answer or return furnish no legal justifi

found guilty, and removed from office. The cation for respondent's acts.

charges were as follows: "That the said 0. 6. Gen. St. $ 3390, provides, inter alia, that W. Keith is guilty of conduct unbecoming an the mayor of an incorporated town may be re

officer in the following instances: (1) That moved from office by a concurrent vote of four members of the board of trustees. Const. art.

on or about the 13th day of April, 1897, he 12, § 1, authorizes a mayor to exercise the du- refused to recognize on said board of trustees ties of his office until his successor is duly quali- E. D. Sloan and John Yeaman, duly-qualified fied, unless "removed according to law.' Arti

members of said board of trustees, and percle 13. $ 3, provides that officers not subject to impeachment (which includes mayors) shall be mitted E. D. Brundage and Frank Harper, subject to removal for misconduct or malfeas who were not members of said board of trusance in office in such manner as may be provid

tees, to sit on said board, and to vote upon ed by law. Held that, the statute not enumerating causes of removal, the only grounds of re

questions submitted to said board aforesaid. moval of a duly elected and qualified mayor are (2) That 0. W. Keith, on or about the 4th those specified in the constitution.

day of May, 1897, declared a certain vote a 7. It is no ground for the removal of a mayor

tie, when the vote of the board stood two to by the board of trustees, as authorized by Gen. St. $ 3390, that he refused to recognize certain three, and usurped his authority by casting a members of the board of trustees, and permitted vote with the majority, and declaring the others, not members, to sit on said board, and

question carried. (4) That the said 0. W. to vote; and that he declared a certain vote a tie when it was not, and usurped his authority

Keith violated the provisions of the election by casting a vote with the majority, and declar- law of the state of Colorado by placing moning the question carried; since the board of ey in the hands of W. L. Cotton, and also in trustees is exclusively the judge of the qualifica

the hands of S. B. Harding, to bet upon his tions of its own members, and the ruling of the mayor in reference thereto could not affect the

election while he was a candidate for the situation, and also because an appeal would lie said office of mayor; and that said money is from any ruling or decision of the mayor.

still in the hands of said stakeholders. (5) 8. Laws 1891, p. 168, making it unlawful for any candidate to provide, or agree to provide,

That the said 0. W. Keith neglected, refused, money to be used by another in making any bet and failed to file the statement of his election on any event arising out of the election, and de

expenses with the town clerk and recorder claring that a violation thereof shall be a misdemeanor, does not authorize the removal by

within twenty days from the day of his electhe board of trustees of a mayor who has vio- tion, as required by law, and for which lated it, in the absence of a prosecution and con- neglect the election law says he shall be viction of such offense in a court of competent deemed guilty of a misdemeanor, and shall jurisdiction. 9. Section 9 of the corrupt practices act

also forfeit his office.” There was a third (Laws 1891, p. 108), providing that, if a candi- charge, but it was not urged, and was with

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