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of the statute otherwise made manifest. If it were adopted, these subdivisions would still give conflicting rights of action for the death of one who, although a minor and unmarried, dies leaving children and also parents, as may be the case with a minor who is a widower, widow, or the mother of illegitimate children; and, as held by the Circuit Court, it would defeat a right of action for the death of an adult leaving parents, but no surviving spouse or child, although such a case, as before stated, is within the terms of the statute as written, and also within its purpose and spirit.
But there is another construction, which, while neither excluding any case within the terms used, nor including any not within them, harmonizes the three subdivisions, avoids all the difficulties suggested, and gives full effect to the purpose and spirit of the statute as a whole. The subdivisions are evidently intended to take rank and have effect in the order in which they occur, and their true meaning, as we think, may be stated in this way: If the deceased leave a husband or wife, the sole right of action will be in such survivor, save that, as against children, the right will be lost unless asserted by suit within one year; but if there be no surviving husband or wife, or the survivor fail to sue within one year, then the sole right of action will be in the children; and if there be no surviving husband or wife, nor any child, then, and then only, will the right of action be in the father and mother, or the survivor of them. The first subdivision does not make the right of the husband or wife dependent upon the majority of the deceased, nor does the second make the right of the children dependent upon his majority or upon his being married at the time of his death; and as the third is evidently designed to take rank and have effect in subordination to the other two, we think it should be interpreted as if it read: “If such deceased be a minor or unmarried, and leave no surviving husband or wife and no surviving child, then by the father and mother.” In no other way can the three subdivisions be completely harmonized without violating the sense of the statute as a whole. And no little support is given to this construction by the decisions of the appellate courts of the state, covering a period of several years, in which, without discussion of the question, the statute is treated as giving the parents a right of action for the death of an adult child leaving no surviving spouse or child. Denver, etc., Co. v. Wilson, 12 Colo. 20, 20 Pac. 310; Hindry v. Holt, 24 Colo. 464, 468, 51 Pac. 1002, 39 L. R. A. 351, 65 Am. St. Rep. 235; Mitchell v. Elevator Co., 12 Colo. App. 277, 55 Pac. 736.
The statute was largely copied from one in Missouri, which read "minor and unmarried,” and this is advanced as a reason for reading the Colorado statute in the same way; but we think it is a sufficient answer to say that, in adopting the statute, the Colorado Legislature not only changed the word "and" to "or," but otherwise modified the language used, and must have intended to give effect to whatever change of meaning naturally resulted therefrom. Crawford v. Burke, 195 U. S. 176, 190, 25 Sup. Ct. 9, 49 L. Ed. 147. One of the other changes is particularly significant. The Missouri statute limited the right of recovery under the second subdivision to the minor
children, and so gave an adult no right in respect of the death of a parent. But the Colorado Legislature, before adopting the statute, changed this subdivision so that it would embrace all children, whether minors or adults; and while this was being done it was not unnatural that the next subdivision should also be changed, as we think it was, so that the parents would have the same right to recover for the death of an adult child as for the death of a minor, that is, wherever there is no preferred beneficiary under the two preceding subdivisions.
We conclude that the Circuit Court erred in its interpretation of the tatute.
Another reason assigned by the Circuit Court for directing a verdict for the defendant was that there was no evidence of any pecuniary injury to the plaintiff from the death of the daughter. In substance, the evidence was as follows: When the deceased was two years old, her mother died at the family home in Texas, and shortly thereafter the child was taken by the father to an aunt near Greenfield, Mo., with whom she lived until she was 16. He then sent her to a school at Parkville, Mo., that she might prepare herself for teaching, and he paid the expenses incident thereto. She had been in this school three years and was on a visit to a sister in Colorado when she met her death. She was sympathetic, ambitious, industrious, of good health, fond of her father, and wanted to keep house for him, but had not as yet rendered any service to him or made any contribution to his support. After the mother died, the father continued to reside in Texas, but broke up housekeeping. He was chiefly engaged as a traveling machinist, and sometimes as a farm laborer; his earnings being about $50 per month. He had not married again, and was 60 years old. Considering this evidence in the light of the natural influence or prompting of filial ties, we think it would have sustained a finding that there was a reasonable expectation of substantial, though not large, pecuniary benefit to the father from a continuance of the life of the daughter. Pierce v. Conners, 20 Colo, 178, 182, 37 Pac. 721, 46 Am. St. Rep. 279; Gibson, etc., Co. v. Sharp, 5 Colo. App. 321, 327, 38 Pac. 850; Swift & Co. v. Johnson, 71 C. C. A. 619, 138 Fed. 867.
It may be that in the further progress of the case it will become necessary to consider whether the provision in section 1508 for a minimum recovery of $3,000, irrespective of actual pecuniary injury, is valid, and, if so, whether that section is thereby made penal in the sense that it may be enforced only in the courts of Colorado (see Philpott v. Missouri Pac. Ry. Co., 85 Mo. 164; Carroll v. Missouri Pac. Ry. Co., 88 Mo. 239, 246, 57 Am. Rep. 382; Marshall v. Wabash R. Co. C. C.] 46 Fed. 269; Dale v. Atchison, etc., Co., 57 Kan. 601, 47 Pac. 521; Matheson v. Kansas City, etc., Co., 61 Kan. 667, 60 Pac. 747; Adams v. Railroad Co., 67 Vt. 76, 30 Atl. 687, 48 Am. St. Rep. 800; Huntington v. Attrill, 146 U. S. 657, 13 Sup. Ct. 224, 36 L. Ed. 1123; Stewart v. Baltimore & Ohio R. R. Co., 168 U. S. 445, 18 Sup. Ct. 105, 42 L. Ed. 537; Brady v. Daly, 175 U. S. 148, 25 Sup. Ct. 62, 44 L. Ed. 109 ; Boston & Maine R. R. Co. v. Hurd, 47 C. Č. A. 615, 108 Fed. 116, 56 L. R. A. 193; s. c. 184 U. S. 700, 22 Sup. Ct. 939, 46 L. Ed. 765; McCabe v. American Woolen Co. [C. C.] 124 Fed. 283; s. c. 65 C.
C. A. 59, 132 Fed. 1006; Malloy v. American Hide & Leather Co. [C. C.] 148 Fed. 482; Wharton's Conflict of Laws [3d Ed.] $$ 4b, 480a; Atlanta v. Chattanooga Foundry, 61 C. C. A. 387, 392, 127 Fed. 23, 28, 64 L. R. A, 721; s. c. 203 U. S. 390, 397, 27 Sup. Ct. 65, 51 L. Ed. 241; Johnson v. Southern Pac. Co., 196 U. S. 1, 17, 25 Sup. Ct. 158, 49 Ľ. Ed. 363); but the attitude in which the case is presented to us in such that we do not deem the present consideration of these matters necessary or wise.
Some question was raised in argument respecting the sufficiency of the evidence of negligence on the part of the defendant, but this need not be noticed further than to say that the evidence, wi hout exculpating the defendant, and without any suggestion of fault on the part of the deceased, disclosed that her death was caused by an accident to the train on which she was a passenger, and so the case was brought within the rule announced by the Supreme Court in Gleeson v. Virginia Midland R. R. Co., 140 U. S. 435, 443, 444, 11 Sup. Ct. 859, 35 L. Ed. 458:
"That the happening of an injurious accident is in passenger cases prima facie evidence of negligence on the part of the carrier, and that (the passenger being himself in the exercise of due care) the burden then rests upon the carrier to show that its whole duty was performed, and that the injury was unavoidable by human foresight.
The law is that the plaintiff must, show negligence in the defendant. This is done prima facie by showing, if the plaintiff be a passenger, that the accident occurred.”
See, also, Wall v. Livezay, 6 Colo. 465; Sanderson v. Frazier, 8 Colo. 79, 5 Pac. 632, 54 Am. Rep. 544; Denver & Rio Grande R. R. Co. v. Fotheringham, 17 Colo. App. 410, 68 Pac. 978.
For the error in directing a verdict for the defendant, the judgment is reversed, with a direction to grant a new trial.
(155 Fed. 513.)
CLARK v. LYSTER.
(Circuit Court of Appeals, Eighth Circuit.
April 27, 1907.)
1. PARTNERSHIP-PARTNERSHIP PROPERTY-REAL ESTATE USED IN BUSINESS.
Real estate not purchased with partnership funds does not become partnership property, though used for partnership purposes, unless there is some agreement that it shall be so considered.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 38, Partnership, 88
101-108.] 2. MORTGAGES—MORTGAGEABLE INTEREST—ELIGIBILITY TO RECORD.
Two partners in a manufacturing business who owned the real estate used therein as equal tenants in common entered into a contract by which one retired from active participation in the business but remained as a silent partner for a term of five years, leaving the most of his capital invested. He also conveyed to his partner his half interest in the real estate “as a basis of credit,” but took a bond for its reconveyance absolutely and unconditionally at the end of the term without subjecting it, as between the parties, to the risks of the business. After the expiration of the term, when he had become entitled to a reconveyance but had not received it, he executed a mortgage on his interest in the real estate to secure a valid indebtedness. Held, that such real estate was not property of the partnership but of the individual partners; that the mortgagor was the equitable owner of a half interest therein which was mortgageable as real estate, and that the mortgage given was valid, no rights of partnership creditors having intervened, and was entitled to record under Gen. St. Kan. 1901, § 1221, if not as a technical mortgage, as “an instrument in writing” affecting real estate, which record wa constructive notice to all subsequent purchasers of its contents.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 35, Mortgages, $$ 10,
11, 201.] 3. ESTOPPEL-EQUITABLE ESTOPPEL-ACTS CREATING.
In a suit to foreclose a mortgage, given to complainant by his son, against a grantee of the property, it appeared that defendant and the mortgagor were partners in a manufacturing business, and owners as tenants in common of the real estate used in the business. They entered into a contract by which the mortgagor retired as an active partner, but remained for a term of five years as a silent partner, leaving the most of his capital in the business, and also making defendant a loan to be used in the business and accounted for subject to its risks. He also conveyed his interest in the real estate to defendant "as a basis of credit," but took a bond for its reconveyance at the end of the partnership term. About that time he and defendant became involved in litigation respecting the latter's accounting under the partnership agreement, which did not, however, involve or affect the real estate. Pending such litigation, and after he had become entitled to a reconveyance of the real estate but had not received it, he executed the mortgage in suit to complainant, covering his interest in such real estate, to secure a valid indebtedness, which mortgage was duly recorded. Subsequently a settlement of the litigation was effected between the parties by which defendant paid the mortgagor a sum of money in full of his interest in the business and the loan and received a quitclaim deed to the mortgagor's interest in the real estate. Nothing was said in regard to the mortgage, and defendant had no actual knowledge of it. Complainant, who resided in another state, hearing of the pending settlement, visited his son, and, on completion of the settlement, received part payment of the mortgage debt from the proceeds, a portion of which he gave to his son to be invested for the benefit of his family. It was in dispute whether he arrived before or after the completion of the settlement, but in any event he took no part therein. Held, that there was nothing in such facts or in complainant's conduct which created an equitable estoppel to prevent him from enforcing his mortgage against the property for the balance due him.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 19, Estoppel, $$ 165– 187.) Appeal from the Circuit Court of the United States for the District of Kansas.
This was a bill in equity to foreclose a mortgage given April 27, 1901, by Herbert H. Clark and his wife to Harvey S. Clark, his father, conveying an undivided one-half interest in certain real estate situated in Wilson county, Kan., to secure the payment of certain notes amounting to $35,000 described in the mortgage, upon which $19,500 remained unpaid when the suit was brought. This mortgage was duly recorded in the office of the register of deeds of Wilson county on April 29, 1901. The mortgagors and also one Frederick E. Lyster, who held the title to the mortgaged premises at the time the suit was brought, were originally made defendants. Subsequently the suit was dismissed as to the Clarks and prosecuted only against defendant Lyster. His answer admits the execution of the mortgage as charged, but avers that at the time it was given Clark, the mortgagor, had no mortgageable interest in the land conveyed, that the notes claimed to have been secured by the mortgage had all been paid and satisfied, and that the mortgagee by reason of certain facts was estopped in equity from enforcing his security. The main facts, as disclosed by the pleadings, proof, and proceedings below, are as follows: Defendant Lyster and Herbert Clark, the mortgagor, had prior to April 27, 1895, been copartners in the manufacture of linseed oil, and were then the owners in fee simple, as tenants in common, each of an undivided one-half interest in the real estate which had been used by them in connection with their manufacturing business, the one-half of which belonging to Clark constituted the land which he subsequently mortgaged to his father. Their partnership was on that day dissolved, and new agreement entered into by which Clark was to retire from active participation in the business, but to retain as a silent partner for a term of five years thereafter his interest in it. He agreed to leave his portion of the partnership capital, except $5,000, in the business, to loan Lyster $25,000 for five years, to pay annually to Lyster $2,500 in lieu of rendering personal services in carrying on the business, and in order to afford Lyster a basis of credit and commercial standing he agreed to convey and did convey to Lyster by a quitclaim deed his one-half undivided interest in the mill property, taking from Lyster a bond for a deed to reconvey the same to him on September 1, 1900. They proceeded with the business under the new agreement until about the expiration of the term, when Clark brought his action against Lyster to wind up their partnership business and for an accounting of all moneys due to him from Lyster under the agreement of April 27, 1895. On March 1, 1902, while that action was pending, Clark and Lyster settled and compromised all their differences involved in the suit. Lyster paid Clark $40,000 in full of all his dues, whether for money loaned or profits made. Clark dismissed his suit, and agreed to and did convey by a quitclaim deed his one-half equitable interest in the mill property which he had on April 27, 1901, mortgaged to his father and for which he then held Lyster's bond for a deed. At the time of that settlement Lyster had no actual as distinguished from constructive knowledge of the existence of the mortgage sued on, or of the fact that Clark's father had any right or interest in the property, and believed he was acquiring from Clark an unincumbered title to the same. After Clark received the $40,000 from Lyster pursuant to the terms of the settlement, he paid more than $16,000 of it over to his father in partial satisfaction of the mortgage debt, and the latter, being then 79 years old, made a present to his son of $10,000 to be invested for the support of his family. Lyster, after making his settlement with Clark on March 2, 1902, under the belief that he was the owner of an unincumbered title to the land in question, erected thereon permanent improvements of the value of $20,000, and was not actually informed of complainant's claim until this suit was be