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 mortgage 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 a 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,

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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 the 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

not sustain the point attempted to be made. In that case the district court attempted to assume original jurisdiction in the first instance. In this case the proceedings were properly had and commenced in the county court, which, however, changed the venue to the district court. This the county court had the power to do for certain causes. Gen. St. § 509. It does not appear from the record in this case for what cause the venue was changed, but, a county court having such power under certain circumstances, it will be presumed, in the absence of any showing to the contrary, that the power was rightfully exercised.

The main argument of the objectors is addressed to that portion of the judgment of the court in favor of the administrator for the unpaid portion of the allowance to him by the New Mexico court. In this, we think, there was no error. The rule laid down by Schouler, and which has received the approval of all of the authorities to which our attention has been directed, is to the effect that it is the duty of a domiciliary executor or administrator, so far as may be consistent with his information and the exercise of a sound discretion, to see that ancillary letters of administration are taken out at the situs of the property belonging to the estate, or any portion of it, if it appear to be needful or prudent in order to collect and realize such assets. Schouler, Ex'rs, § 175; In re Ortiz's Estate, 86 Cal. 306, 21 Pac. 1034. And it makes no difference whether these letters are taken out by the domiciliary administrator or by another. The ancillary administration, however, is solely within the control of the court which grants the letters, and all of the assets of the estate within its jurisdiction must be accounted for to it. It is a separate and distinct administration, entirely independent of the domiciliary administration, except in so far that, when it is finally ended, and the administrator discharged, he may be compelled to account for and turn over to the domi ciliary administrator such amount as may remain in his hands after the settlement of all claims against, and expenses growing out of, the ancillary administration. Even this, possibly, should properly be done by an order of the court having charge of the ancillary administration. No question is raised as to the lawfulness of the action of the New Mexico court in allowing the administrator the compensation which it did. The administrator was entitled to pay himself the full amount from the money in his hands arising from the sale of the assets in New Mexico. Instead of this, he retained only a part of the sum, accounting for all of the balance to the domi ciliary administration. In reality, so much of the New Mexico allowance as he had failed to retain, and paid over to the domiciliary administration, was rightfully his money, and we see no reason why, this being the case, the Colorado court could not properly have allowed the claim. In effect, this did not vio

late, but was in accord with, the rule that all expenses of an ancillary administration shall be paid from the assets within the jurisdiction which granted the ancillary letters. In this case the proceeds of the New Mexico assets had been paid over to the administrator de bonis non acting under the domiciliary letters, and accounted for by him to the Colorado court; such payments having been made from time to time under the orders of the New Mexico court, but upon the express condition that the moneys so paid should be received subject to the payment of the costs of administration in New Mexico. The allowance by such court to its administrator was a part of these costs.

The appellants also raise some question as to the finding of the court of the value of the personal property coming into the hands of the administrator under the domiciliary administration. This was a matter of fact, and such finding, not being manifestly against the weight of the evidence presented, will be binding upon this court. The objectors also except to the allowance of $350 for services of counsel in the proceedings pertaining to the final report, on the ground that they conceded that 6 per cent. on the amount of the personal estate might be allowed. It appears, however, that this concession was not made until the parties were in court, and ready to proceed to trial, and, moreover, there were other objections to the report which remained to be and were considered, and one of them, at least,-that in reference to the allowance by the New Mexico court,was overruled. The court held that these legal services were rendered, that they were proper and necessary, and that their reasonable value was $350; and we are not disposed to interfere with this finding, there being nothing to show a different state of facts, nor that there was an abuse of discretion by the court.

With reference to the cross error assigned by the administrator, we think that the district court was clearly in the right. The statute which bears upon this question reads as follows: "Executors and administrators shall be allowed as a compensation for their trouble a sum not exceeding six per cent. on the whole amount of personal estate, and not exceeding three per cent. on the money arising from the sale or letting of land; with such additional allowances for costs and charges in collecting and defending the claims of the estate and disposing of the same as shall be reasonable, to be allowed and paid as other expenses of administration." Gen. St. § 3630. This section was taken bodily from the statutes of Illinois, and the highest courts of that state have passed upon it and settled its meaning in several cases on all fours with the one at bar. In Willard v. Bassett, 27 Ill. 38, the question was squarely whether an attorney of the court, who was an administrator, was entitled to an allowance against the estate for professional services in cases

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which he prosecuted or defended as such administrator. Judge Caton, speaking for the court, said: "The authorities are uniform that this should not be allowed, and every principle of sound policy forbids it. If he chooses to exercise his professional skill as a lawyer in the defense of the estate, that must be considered a gratuity. To allow him to become his own client, and charge for professional services for his own case, although in a representative or trust capacity, would be holding out inducements for professional men to seek such representative places to increase their professional business, which would lead to most pernicious results. This is forbidden by every sound principle of professional morality, as well as by the policy of the law." There is no reference in this case made to the statute, but in the next case to which we are cited the statute is commented upon. Hough v. Harvey, 71 Ill. 72. In that it was held that the words "costs and charges" in the statute were intended to cover only such actual expenses-"money out of pocket," as the court terms it-incurred by the administrator in the business of the estate, and not to permit of any charges for extra services, or any services beyond the limit fixed by the statute. In the next case it was squarely decided that there was no warrant of law for allowing to administrators, as compensation for their services, a sum exceeding 6 per centum on the amount of the personal estate. Askew v. Hudgens, 99 Ill. 468. These decisions seem to be within the rule laid down and observed by the authorities generally. In Woerner on the American Law of Administration (section 529) it is said:

"The statutes of a number of states allow extra compensation to executors and administrators for the rendition of services to the estate outside of the scope of their ordinary duties. Unless such extra compensation is within the language or spirit of the statute, it cannot be allowed, because at common law their personal services are wholly gratuitous." A large number of authorities from a great number of states are cited in support of this position. Mr. Schouler lays down substantially the same rule. Schouler, Ex'rs, 545. Under the positive and plain restrictions of our statute we cannot see how it is possible to hold otherwise. It would seem to be true in this state, as expressed by some of the courts in other states, that, when a lawyer becomes a voluntary administrator, he takes his office cum onere, and, although he exercise professional skill in conducting the estate, he does not thereby entitle himself to additional compensation. In re Young's Estate, 4 Wash. 534, 30 Pac. 643. We see nothing in any of the authorities to which counsel for the administrator have cited us to shake us in such a conclusion. None of them seem at all applicable. Save in one, there is no reference to any statute controlling the matter; and hence we conclude that in those states there were no such statutes,

or, if there were, they did not have the restrictions imposed in ours. In the case cited from Ohio (Piatt v. Longworth's Devisees, 27 Ohio St. 159) it appears from the opinion of the court itself that it was based upon a statute which expressly permitted the court to allow to an administrator not only a certain per cent. for commissions, but such other sum as the court might deem reasonable for extra trouble. It is hardly necessary to say that no such provisions can, by any possibility, be read into our statute. In the case at bar it appears from the record before us that the administrator de bonis non, Mr. Stevens, discharged his duties in a highly creditable manner, and that by his efficient services the estate was saved from insolvency, and was more than enabled to pay its debts. The legal services which he rendered, and for which he asked compensation, were undoubtedly of material benefit to the estate, and the compensation asked for such services was, as found by the court, unquestionably reasonable; but we are constrained to hold, as did the trial court, however valuable the services may have been, and however meritorious the claim may be, that its allowance is forbidden by express provision of statute. For the reasons given, the judgment will be affirmed. Affirmed.

(13 Colo. App. 489)

COPELAND v. COLORADO STATE BANK OF DURANGO.

(Court of Appeals of Colorado. Nov. 13, 1899.) EXECUTION-VOID LEVY-CAVEAT EMPTORSETTING ASIDE SATISFACTION.

The maxim caveat emptor does not apply to a purchase by an execution creditor at the execution sale, where the levy was void, and in such case the entry of satisfaction of the judgment may be set aside.

Error to district court, Laplata county.

Action by the Colorado State Bank of Durango, Colo., against M. H. Copeland. The judgment was for plaintiff, and from an order allowing plaintiff's motion to expunge that portion of the sheriff's return showing that plaintiff's judgment had been satisfied, defendAffirmed. ant brings error.

F. C. Perkins, for plaintiff in error. O. S. Galbreath, for defendant in error.

THOMSON, J. On the 26th day of April, 1897, the Colorado State Bank of Durango obtained a judgment for $162.10 against M. H. Copeland, before a justice of the peace of Laplata county. On the 28th day of the same month a transcript of the judgment was filed in the district court of the same county. On the 4th day of the following August, execution issued upon the judgment, which upon the 6th day of November, 1897, was returned into the district court, indorsed as follows: "I, the undersigned, sheriff of said county, do certify that I did duly levy the within execution on lots five (5) and six (6) in block eightyfour (84) in the city of Durango, and that

thereafter, on, to wit, the 28th day of Aug., 1897, duly expose the same for sale at public auction at the court-house door in said city of Durango, when then the same were sold to the plaintiff, the Colorado State Bank, at its bid of $175." The sheriff also returned the execution satisfied. On the 6th day of August, 1897, Copeland served the following notice upon the sheriff and the bank: "To the Colorado State Bank, Plaintiff in the Above-Entitled Cause, and to J. H. Alexander, Sheriff of Said County: You, and each of you, will please take notice that lots 5 and 6 in block 84 in the city of Durango, Colorado, are the homestead of the undersigned, duly and legally claimed as such on the records of the county of Laplata and state of Colorado, and are exempt from seizure under any legal process whatever, up to the amount of $2,000.00; and in the event of sale of said property by virtue of the execution issued in the above-entitled cause, and the levy made on said property thereunder, the just and full amount of $2,000.00 must first be paid to the undersigned, before title to said property can be transferred to any person by virtue of such sale. Hereof take notice, for the undersigned will enforce his rights to the full extent of the law in such cases made and provided." It appears that, notwithstanding the notice, the attorney of the bank directed the sheriff to proceed upon the execution. On the 16th day of September, 1897. Copeland commenced his action to anuul the proceedings of the sheriff, and to cancel and set aside the certificate of levy and the certificate of sale; and on the 1st day of December, 1897, the court entered a decree adjudging the certificate of levy and the certificate of sale null and void, and quieting the title to the property sold in Copeland, in so far as it was affected by those certificates. On the 7th day of December, 1897, the bank filed in the district court, in the matter of its judgment, its motion to expunge and erase all that portion of the return of the sheriff which showed that its judgment against Copeland had been paid by means of the sale, on the ground that the levy of its execution, and the certificate of sale to it, had been adjudged vold, and the title to the property, as against it, quieted in Copeland, at his suit. This motion was sustained, and from the order sustaining it Copeland has prosecuted error to this court.

The theory on which Copeland relies to secure a reversal of the order is that, as the bank was the purchaser at a sale on execution, the maxim caveat emptor applies; the bank made the purchase at its own risk, and íts bid, having been accepted, operated as an unconditional satisfaction of its judgment. We do not think that the rule has any applicability to the case at bar. At an execution sale, the proceedings in connection with which have been regular and valid, the purchaser takes whatever title or interest the execution defendant may have; and it is of the defects in that title that he assumes the risk. If

the defendant has good title, the purchaser gets it; if a partial title, he gets that; or, if no title, he gets nothing; but he takes his chances on the title the defendant has, and, if that proves worthless, he is without remedy. It behooves him to acquaint himself with the title before purchasing, and his complaint afterwards that it was unsatisfactory will not be heeded. The foregoing is as full a statement of the doctrine of caveat emptor as the case before us renders necessary. Rodgers v. Smith, 2 Ind. 526; Holtzinger v. Edwards, 51 Iowa, 383, 1 N. W. 600; Bassett v. Lockard, 60 Ill. 164; Boggs v. Hargrave, 16 Cal. 560. But here the bank did not take the execution defendant's title, and it is not of defects in that title that he complains. For aught that appears, the defendant's title was good; but, whether it was good or bad, it did not pass to the bank. Our statute provides that every householder in the state, being the head of the family, shall, by causing the word "Homestead" to be entered of record on the margin of his recorded title, be entitled to a homestead, not exceeding $2,000 in value, exempt from execution, and that any creditor who is of the opinion that it is worth more than $2,000 may, by filing an affidavit to that effect with the clerk of the district court, proceed against it as in ordinary cases, and, if it sells for more than $2,000, that sum shall be paid to the owner, and the excess to the creditor, but, if not, the title of the owner remains unimpaired. Gen. St. §§ 1631, 1632, 1637. It appears that the land the bank attempted to sell had, prior to the filing of the transcript of the judgment, been properly designated by the judgment debtor as a homestead, and that he was a householder and the head of a family. No affidavit was filed in behalf of the bank that the property was worth more than $2,000, and the sum bid for it was much less than $2,000. Up to a value of $2,000, it was exempt from execution; and, whatever its value, no levy could lawfully be made upon it without the previous filing of the affidavit. The levy of this execution was therefore void. The subsequent proceedings depended for their validity upon the levy, and, as it was void, so were they. There was, in law, no levy, no sale, and no satisfaction. The proceeding by Copeland to avoid the levy and sale, and quiet the title in him, was unnecessary. Those were not voidable merely, but absolutely void, and their invalidity could be shown in any proceeding at any time. Although the return of satisfaction was also void, yet, while it remained, the bank might be unable to procure the issuance of another execution, and it was therefore proper that the return should be canceled. The maxim caveat emptor contemplates a valid sale. It charges the purchaser with knowledge of faults or defects in the subject of his purchase; but it does not apply to a case where the sale itself was void, and there was consequently no purchase. Let the order be affirmed. Affirmed.

(13 Colo. App. 553)

BOARD OF TRUSTEES OF TOWN OF GILLETT v. PEOPLE ex rel. KEITH. (Court of Appeals of Colorado. Nov. 13, 1899.) MANDAMUS - ALTERNATIVE WRIT — SUFFICIENCY-REMOVAL OF MAYOR FROM OFFICE-GROUNDS-PLEADING-APPEAL.

1. An alternative writ of mandamus must state a cause of action, in order to support a judgment.

2. The sufficiency of an alternative writ of mandamus, to state a cause of action, may be first raised on appeal.

3. An alternative writ of mandamus set forth the election and qualification of the relator as mayor, his entry on the duties of his office, and his continuing to exercise the functions and perform the duties thereof between certain dates set forth, and alleged that respondent board of trustees illegally, wrongfully, and without warrant of law pretended to remove and oust him from his office, and have ever since unlawfully, wrongfully, and against his rights refused, and 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 and qualified so to do. Held, that the writ states a cause of action, it not being necessary to set forth the reasons why the board of trustees attempted to remove the relator.

4. Under the rule that the rules of pleading in civil actions prescribed by the Code are applicable to proceedings in mandamus except in cases where a different or special rule is provided by the Code or statute, a defect in an alternative writ of mandamus may be cured by the allegations of the answer.

5. Failure to demur to the answer to an alternative writ of mandamus, and the filing of a reply, does not admit the legal sufficiency of the answer, so as to preclude the rendering of judgment for the relator, where the matters set up in the answer or return furnish no legal justification for respondent's acts.

6. Gen. St. § 3390, provides, inter alia, that the mayor of an incorporated town may be removed from office by a concurrent vote of four members of the board of trustees. Const. art. 12, § 1, authorizes a mayor to exercise the duties of his office until his successor is duly qualified, unless "removed according to law.' Article 13. § 3, provides that officers not subject to impeachment (which includes mayors) shall be subject to removal for misconduct or malfeas ance in office in such manner as may be provided by law. Held that, the statute not enumerating causes of removal, the only grounds of removal of a duly elected and qualified mayor are those specified in the constitution.

7. It is no ground for the removal of a mayor by the board of trustees, as authorized by Gen. St. § 3390, that he refused to recognize certain members of the board of trustees, and permitted others, not members, to sit on said board, and to vote; and that he declared a certain vote a tie when it was not, and usurped his authority by casting a vote with the majority, and declaring the question carried; since the board of trustees is exclusively the judge of the qualifications of its own members, and the ruling of the mayor in reference thereto could not affect the situation, and also because an appeal would lie from any ruling or decision of the mayor.

8. Laws 1891, p. 168, making it unlawful for any candidate to provide, or agree to provide, money to be used by another in making any bet on any event arising out of the election, and declaring that a violation thereof shall be a misdemeanor, does not authorize the removal by the board of trustees of a mayor who has violated it, in the absence of a prosecution and conviction of such offense in a court of competent jurisdiction.

9. Section 9 of the corrupt practices act (Laws 1891, p. 168), providing that, if a candi

date for office shall refuse or neglect to file a statement of his election expenses, as prescribed in section 6, he shall be deemed guilty of a misdemeanor, and forfeit his office, does not authorize a forfeiture of office for failure to file a statement within the time prescribed by section 6,— 20 days after the election.

10. On proceedings in mandamus to contest the right of removal of a mayor by the board of trustees it is incumbent on the board of trustees, as respondent, to show that charges of something constituting a legal cause of amotion were preferred, and that they were sustained by legal evidence.

Error to district court, El Paso county.

Mandamus by the people of the state of Colorado, at the relation of O. W. Keith, against the board of trustees of the town of Gillett. A peremptory writ was awarded, and respondent brings error. Affirmed.

Orr & McKesson and George Gardner, for plaintiff in error.

WILSON, J. This was a proceeding in mandamus, instituted against the board of trustees of the town of Gillett to compel the restoration of relator, Keith, to the office of mayor of the town, from which he claimed to have been unlawfully and wrongfully ousted by the respondent. An alternative writ was issued, to which respondent made answer, admitting the election of the relator to the office, his occupancy thereof for several months, but alleging that charges had been preferred against him, and, after due trial before the board of trustees, he had been found guilty, and removed from office. The charges were as follows: "That the said O. W. Keith is guilty of conduct unbecoming an officer in the following instances: (1) That on or about the 13th day of April, 1897, he refused to recognize on said board of trustees E. D. Sloan and John Yeaman, duly-qualified members of said board of trustees, and permitted E. D. Brundage and Frank Harper, who were not members of said board of trustees, to sit on said board, and to vote upon questions submitted to said board aforesaid. (2) That O. W. Keith, on or about the 4th day of May, 1897, declared a certain vote a tie, when the vote of the board stood two to three, and usurped his authority by casting a vote with the majority, and declaring the question carried. (4) That the said O. W. Keith violated the provisions of the election law of the state of Colorado by placing money in the hands of W. L. Cotton, and also in the hands of S. B. Harding, to bet upon his election while he was a candidate for the said office of mayor; and that said money is still in the hands of said stakeholders. (5) That the said O. W. Keith neglected, refused, and failed to file the statement of his election expenses with the town clerk and recorder within twenty days from the day of his election, as required by law, and for which neglect the election law says he shall be deemed guilty of a misdemeanor, and shall also forfeit his oflice." There was a third charge, but it was not urged, and was with