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pipe line across the plaintiff's land to the spring. Colorado & U. Coal Co. v. Walter (1924) 75 Colo. 489, 226 Pac. 864. The court points out that the purpose of the statute, as recited therein, was "to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations,' etc." The court said: "In the instant case . . such uncertainty and insecurity exist. Both parties claim a right to the water in question. Defendant proposes to take property, admitted to belong to plaintiff, to enable it to reach and take this water, which plaintiff claims. Under our decisions, plaintiff cannot, in the eminent domain case, contest the feasibility of defendant's scheme, or its right to take the water of said spring."

The Declaratory Judgment Statute or Code of New York authorizes the court to assume jurisdiction to render a declaratory judgment construing a provision of the Constitution of the state, limiting the amount which may be raised by a municipality by taxation. Board of Education v. Van Zandt (1922) 119 Misc. 124, 195 N. Y. Supp. 297, affirmed in (1922) 204 App. Div. 856, 197 N. Y. Supp. 899, which is affirmed in (1923) 234 N. Y. 644, 138 N. E. 481. The court said: "The constitutionality of such a proceeding as this one for a declaratory judgment, where an actual controversy exists involving only a question of law, and the power of the supreme court to authorize such a procedure in such a case, are not open to question."

Where there is no one before the court adversely affected by the provisions of certain statutes, and no one who has any real interest in questions raised with regard thereto, a declaration construing the statutes will not be made. Goetz v. Smith (1925) 152 Tenn. 451, 278 S. W. 417.

The Federal court has refused to take jurisdiction over a proceeding under the Declaratory Judgment Act of a state to construe a statute of the state and determine the rights of the petitioner thereunder, although it alleged that it had been threatened with civil and criminal punishments and penalties for violations of the act,

which were about to be enforced thereunder. Liberty Warehouse Co. v. Grannis (1927) 273 U. S. 70, 71 L. ed. (Adv. 303), 47 Sup. Ct. Rep. 282.

The court will not make a declaration as to whether an act of Parliament is ultra vires, in an action against the attorney general, where the plaintiff has no special interest in the matter of the validity of the act. Smith v. Atty. Gen. [1924] (Can.) S. C. 331, [1924] 3 D. L. R. 189.

It was held in Liberty Warehouse Co. v. Grannis (U. S.) supra, that the Federal court would not take jurisdiction in behalf of a nonresident of the state, to determine its rights under a statute of the state, although it was engaged in business in such state, and alleged that its rights were materially and seriously affected by this statute.

It is held in West v. Wichita (1925) 118 Kan. 265, 234 Pac. 978, that the owner of property located in different zones in a city, who has not applied for any building permits for the erection of buildings in any of such zones, is not entitled to a declaratory judgment as to the validity of the zoning ordinance on the ground that many of the provisions of the ordinance may interfere with uses which he may desire to make of his property in the future, or prevent its sale.

e. Title to real and personal property. (Supplementing annotations in 12 A.L.R. 84, and 19 A.L.R. 1133.)

The vendees of land purchased at an executor's sale are entitled to a declaratory judgment with regard to the rights of certain infant heirs of a deceased devisee, and to establish their title as to such heirs. Patterson v. Patterson (1926) 144 Va. 113, 131 S. E. 317.

In Cohn v. Cohn [1923] 4 D. L. R. 511, 56 N. S. 289, the plaintiff was held entitled to a declaratory judgment confirming her title to land, where she was in possession of the property and concededly the owner of an undivided one-half thereof, but her title to the other undivided half was denied by the heirs of the grantor in a deed to her, which was lost. The plaintiff's right to this judgment was sustained, not

withstanding that the defendants, while not admitting the execution and delivery of the lost deed, stated that they had not asserted and did not assert any right to the land.

Where there is no one disputing the complainant's title to certain land, and no controversy between him and anyone claiming any interest therein, either present or future, the court will not take jurisdiction to render a judgment construing a deed upon which the title rested, since such a decree would involve a declaration of future rights. White v. Kelton (1921) 144 Tenn. 327, 232 S. W. 668.

It has been held that where vendees have accepted a warranted title, and are in the full and undisputed possession of the land, what may or may not happen to their title or possession is simply a speculative argument that is not now, and may never become, an actual controversy about rights or duties, and it was not the purpose of the Declaratory Judgment Act to impose upon the courts the burden of answering abstract and and speculative propositions of law as to the title of their grantors, simply to satisfy the curiosity or fears of the vendees about possible controversies that may or may not arise out of their executed contract. Shearer v. Backer (1925) 207 Ky. 455, 269 S. W. 543.

ee. Vendor and purchaser. (Supplementing annotation in 19 A.L.R. 1134.)

In Newsum v. Interstate Realty Co. (1925) 152 Tenn. 302, 278 S. W. 56, the court refused to render a declaratory judgment in behalf of the vendor of land to determine the conflicting claims of different brokers to commissions for the sale of the land, where the exhibited contracts did not determine the rights of either broker, and did not show facts upon which the legal relations of the owner to the brokers rested.

In Proctor v. Avondale Heights Co. (1923) 200 Ky. 447, 255 S. W. 81, the court made a declaration as to the rights of the real estate company to convey certain land to a waterworks company under a contract by the terms

of which the real estate company acquired this and other land in a subdivision.

f. Life tenants.

No later decisions herein. For earlier cases, see annotation in 12 A.L.R. 86.

g. Husband and wife. (Supplementing annotations in 12 A.L.R. 86, and 19 A.L.R. 1135.)

A declaratory judgment will be granted, determining the rights in the estate of a person dying intestate, of a first wife and certain children, and an alleged second wife, where there is an actual controversy between the parties, dependent upon the validity of a decree divorcing the intestate and his first wife; also, a decree divorcing the alleged second wife and her first husband. Dodge v. Campbell (1927) 128 Misc. 778, 220 N. Y. Supp. 262.

h. Legitimacy.

No later decisions herein. For earlier cases, see annotation in 12 A.L.R. 86.

i. Employer and employee. (Supplementing annotations in 12 A.L.R. 86, and 19 A.L.R. 1135.)

A declaratory judgment will not be granted to determine the rights of an employee of an insurance company and the company, under a contract providing for certain commissions to the employee upon amounts collected as premiums upon policies the employee has secured, where the company has discharged the employee so that he can no longer collect those premiums. Loesch v. Manhattan L. Ins. Co. (1926) 128 Misc. 232, 218 N. Y. Supp. 412. The court said: "The defendant has dispensed with plaintiff's services. The law cannot compel his reinstatement, but can only give him relief by way of compensation. By its act the defendant has terminated the contract. Plaintiff, therefore, seeks a declaration, not of his rights under the contract, to guide him in his future conduct, but of his rights and remedies arising in consequence of the breach. But every ordinary action for breach of contract

results in such a declaration of rights of the injured party, implied in the consequent money judgment which converts a theoretical recognition of a right into a practical measure of relief. The case at bar being an action of that type, it is difficult to see why a declaratory judgment, as such, is necessary, when the plaintiff may obtain more complete and immediate relief by existing forms of actions."

ii. Attorney and client.

No later decisions herein. For earlier cases, see annotation in 19 A.L.R. 1135.

j. Private associations and corporations. No later decisions herein. For earlier cases, see annotations in 12 A.L.R. 87, and 19 A.L.R. 1135.

k. Public authorities.

(Supplementing annotations in 12 A.L.R. 87, and 19 A.L.R. 1135.)

A declaration will be made with reference to the respective rights of the members of a sinking fund commission. Craig v. Sinking Fund Comrs. (1924) 208 App. Div. 412, 203 N. Y. Supp. 236. The court said that it would be difficult to find a more appropriate case for the application of the law permitting declaratory judgments. "We are told that important public interests are involved, the speedy determination of which is imperative. It is, therefore, necessary that the respective rights of the parties be determined without delay. Their determination will probably promote the public welfare and render possible the performance of acts necessary for the advancement of the business interests of the city."

In State ex rel. Hopkins v. Wooster (1922) 111 Kan. 830, 208 Pac. 656, in a proceeding by the state on the relation of the attorney general against the superintendent of public instruction, it is held that the court is authorized to declare the law with reference to the powers of the defendant.

In Yale University v. New Haven (1926) 104 Conn. 610, 47 A.L.R. 667, 134 Atl. 268, a declaration was made as to the right and power of the plain. tiff to erect an overhead bridge or arch across a certain street in a city, and

as to the right and power of the city to authorize or permit its erection.

Where by the Declaratory Judgment Act any person whose rights are affected by a statute may apply for and secure a declaration of his rights or duties with reference thereto, provided always that an actual controversy exists with respect thereto, candidates for presidential electors on a certain party ticket are not entitled to maintain a proceeding for a declaration as to the right of such party to appoint challengers and inspectors at the election to be held. Axton v. Goodman (1924) 205 Ky. 382, 265 S. W. 806. The court said that no one of the defendants had any duties to perform with respect to the appointment of challengers or inspectors, or their admission to or exclusion from the booth, nor had any of them any rights that would be affected in the least by the presence or absence of inspectors or challengers at the polls. Therefore, the petition presented the case as a mere difference of opinion, and not an actual controversy between the parties in interest.

A declaration will not be made in behalf of certain taxpayers with regard to the right of a portion of the county magistrates to transact county business, where the remaining magistrates had refused to act, but before the hearing the full membership of the county qualified and were attending sessions of that tribunal. Hodges v. Hamblen County (1925) 152 Tenn. 395, 277 S. W. 901.

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In Coke v. Shanks (1925) 209 Ky. 723, 273 S. W. 552, a proceeding for declaratory judgment was dismissed without prejudice, where it was brought by taxpayers against the state highway commission and others to obtain a declaration as to an alleged illegal excessive expenditure by the state highway commission, and to enjoin the issuance of warrants for an alleged deficit, where no persons holding claims against the estate who would be interested in the judgment were made parties. Reference was made to the provision of the Declaratory Judgment Act which requires that, where such relief is sought, all

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STATE TRUST & SAVINGS BANK, Admr., of Grover W. Harrison,

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Guardian and ward, § 28-discharge of sureties on bond.

Sureties upon a guardian's bond are discharged where a settlement between guardian and ward has been allowed to stand unchallenged for two years and ten months, during which time the sureties, knowing of the settlement and release and relying upon the same, have assumed new relations, incurred new liabilities and obligations, and have lost opportunity to obtain indemnity from the guardian.

[See annotation on this question beginning on page 61.]

Headnote by PARKER, Ch. J.

APPEAL by defendants from a judgment of the District Court for Sandoval County (Hickey, J.) in favor of plaintiff in an action brought to fasten a lien on certain property. Reversed.

The facts are stated in the opinion of the court.
Messrs. Milton J. Helmick and

George C. Taylor, for appellants:

The record existence of the release for two years and ten months, and the failure of the ward to attack it, released the sureties, who had been lulled into security by it, and who had relied upon it.

21 Cyc. 238; Aaron v. Mendel, 78 Ky. 427, 39 Am. Rep. 248; Hardin v. Taylor, 78 Ky. 593; Kirby v. Taylor, 6 Johns. Ch. 248; Douglass v. Ferris, 138 N. Y. 192, 34 Am. St. Rep. 435, 35 N. E. 1041; Newberry v. Wilkinson, 118 C. C. A. 111, 199 Fed. 673; Greenup v. United States Fidelity & G. Co. 159

Ky. 647, 167 S. W. 910; Hart v. Strib-
ling, 25 Fla. 435, 6 So. 455; Baum v.
Hartmann, 226 Ill. 160, 117 Am. St.
Rep. 246, 80 N. E. 711; People use of
Johnston v. Borders, 31 Ill. App. 426.

Plaintiff's claim is barred by laches, both by the laches of the ward in attacking the settlement with his guardian, and by the laches of the plaintiff in instituting the instant case.

Wallace v. Swepston, 74 Ark. 520, 109 Am. St. Rep. 94, 86 S. W. 398; Sweet v. Lowry, 123 Minn. 13, 47 L.R.A. (N.S.) 451, 142 N. W. 882; Brandes v. Carpenter, 68 Minn. 388, 71 N. W. 402; Patterson v. Hewitt, 11

N. M. 1, 55 L.R.A. 658, 66 Pac. 552; Newberry v. Wilkinson, 118 C. C. A. 111, 199 Fed. 684.

Messrs. H. B. Jamison and Marron & Wood, for appellee:

The question of the existence of laches rests in the discretion of the trial court, and the chancellor's decision will not be disturbed on appeal, except for abuse of discretion.

21 C. J. 217, 218; Galway v. Metropolitan Elev. R. Co. 128 N. Y. 132, 13 L.R.A. 788, 28 N. E. 479; Treadwell v. Clark, 190 N. Y. 51, 82 N. E. 505; Stevenson v. Boyd, 153 Cal. 630, 19 L.R.A. (N.S.) 525, 96 Pac. 284; Chapman v. Bank of California, 97 Cal. 155, 31 Pac. 896; Willard v. Bullen, 41 Or. 25, 67 Pac. 924, 68 Pac. 422; Gibson v. Herriott, 55 Ark. 85, 29 Am. St. Rep. 22, 17 S. W. 589; Patterson v. State Bank, 55 Ind. App. 331, 102 N. E. 881; Evans v. Woodsworth, 213 Ill. 404, 72 N. E. 1082.

The finding of the trial court on question of laches is sustained by substantial evidence.

Patterson v. Hewitt, 11 N. M. 1, 55 L.R.A. 658, 66 Pac. 552; Townsend v. Vanderwerker, 160 U. S. 171, 40 L. ed. 383, 16 Sup. Ct. Rep. 258; Harrison v. Harrison, 21 N. M. 386, L.R.A.1916E, 854, 155 Pac. 356; 12 R. C. L. p. 1167, ¶ 57; Kirby v. Taylor, 6 Johns. Ch. 242; Douglass v. Ferris, 138 N. Y. 192, 34 Am. St. Rep. 436, 35 N. E. 1041.

Parker, Ch. J., delivered the opinion of the court:

This is a suit brought by the plaintiff (appellee) against the defendants (appellants) to fasten a lien upon their property. The lien was claimed by reason of a judgment obtained by plaintiff's testator in a suit against his guardian. The three Oteros (defendants) acquired the property from their father and mother by inheritance and devise, and their father was during his lifetime surety on the guardian's bond. The district court entered a decree establishing the lien and ordering sale of the property, from which decree this appeal has been perfected.

The facts in the case are that on May 5, 1890, one Mariano S. Otero executed a bond as surety. The bond was a guardian's bond of one George W. Harrison as guardian of the estate of one Grover

William Harrison, his infant son. After the ward became of age, he executed a release to his guardian. of all claims against him, said release being executed on or about March 31, 1908. Said release was induced by fraudulent representation and concealment on the part of the guardian. Shortly thereafter the ward became dissatisfied with the settlement he had received from his guardian at the time of reaching his majority, and employed counsel, who made an investigation of the affairs of the guardian and ward. As a result of that investigation, the guardian made further payment of $10,000 in cash and conveyed to the ward certain real estate in St. Louis, Mo., in full settlement of the matter, and the ward executed a full release to the guardian on June 1, 1908, which release was promptly filed and entered of record in the probate court of Bernalillo county, where the guardianship was pending.

At the time this settlement was made, the ward and his counsel knew that the settlement was not full and fair, and was not based upon a full disclosure by the guardian. Just how great the disparity was between the amount due him and the amount he was receiving, and the various kinds of property to which he was entitled, neither he nor his counsel knew. But his counsel knew that no disclosure was made by the guardian, and was satisfied that he owed the ward many thousands of dollars more than were being paid. Such knowledge of counsel is clearly to be imputed to the ward in the absence of some showing that the ward was deceived by his counsel, which is not even hinted in the case. They made the settlement, however, rather than charge the father with the frauds which they knew had been practiced upon the ward. This settlement stood unchallenged from June 1, 1908, when it was executed, until March 31, 1911, when the ward brought suit in the district court of Bernalillo county against his guard

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