range dividing the waters of the Platte from the waters of the Blue, to the point of intersection with the first correction line south; thence east on said correction line to the western boundary of Jefferson county; thence south on said boundary to the Platte river; thence up the center of said river to the place of beginning." sonable to disregard the expression “dividing the waters of the Arkansas and Platte" than "the northwest corner." [4] If the point of beginning or any other call is ascertained, the course will be extended or changed to meet the call. Tison v. Smith, 8 Tex. 147; Marsh v. Ne-ha-sa-ne Co., 18 Misc. Rep. 314, 42 N. Y. Supp. 996; Lake county, at section 32, is described as Cowles v. Reavis, 109 N. C. 417, 13 S. E. follows: "Commencing at a point on the summit of the Snowy Range, at the northwest corner of the county of Park, and running due west to the western boundary of the territory; thence * to the summit of the range dividing the waters of the Platte and Arkansas rivers; thence northerly on said summit to the place of beginning." The "Snowy Range" is the Continental Divide. Grand County v. Larimer County, 9 Colo. 268, 11 Pac. 193. The "range dividing the waters of the Platte and the Arkansas" is marked "Park Range" on the map and ends at A. Beyond that point the range no longer divides the waters of the Platte and Arkansas, but those of the Platte and the Ten Mile, a tributary of the Blue; consequently, says Summit county, this course cannot be continued to meet the call "point of beginning" if C is to be taken as that point, and therefore we must, it is claimed, disregard the call for point of beginning and begin and end the perimeter of Lake county at A. [1] The rule by which this may be done is a familiar one, but it is applicable only if the call for the point of beginning is undeterminable or manifestly wrong; otherwise the call cannot be disregarded. Mayo v. Blount, 23 N. C. 283; Herrick v. Hopkins, 23 Me. 217. [2] We must not disregard any call unless to do so is unavoidable. Hord v. Olivari (Tex.) 5 S. W. 57. If we disregard any, we must hold that which seems most reasonable and certain. 930. The course on the summit should there fore be continued to meet the call for the point of beginning at C. We are convinced that this conclusion is the correct one by the Acts of 1868 (R. S. 1868, p. 162) and 1872 (S. L. 1872, p. 82), redescribing Lake county by metes and bounds which close thus: "To the summit of the range which divides the waters of the Platte and Arkansas rivers, along the summit of the range and western boundaries of the counties of Fremont and Park in a northwesterly direction to the point of beginning." This description stands as the law in our statutes to-day. Compare R. S. 1908, § 1116. It does not limit the final course to the range dividing the Platte and Arkansas, but permits us to follow the western boundary of Park county, and so justifies us in continuing, and therefore requires us to continue the course on the summit of the range to C. There are other arguments on both sides of which we consider those of Lake rather the better, but we do not discuss them, be cause none of them is conclusive, and because we think that the above considerations control the case. The judgment is affirmed. (70 Colo. 517) FIRST NAT. BANK OF LA JUNTA v. (Supreme Court of Colorado. Dec. 5, 1921. [3] The northwest corner, if not M, is C, because the evidence shows that the angle C projects further to the northwest than M1. or any other point in the boundary of Park county, and there is no point, other than C, except M, which answers the call at all. It is true that the final course, strictly construed, ends at A, but the Park Range then joins and becomes a part of the Snowy Range. At C the two ranges divide again, the Park Range running north, and the Snowy Range or Continental Divide turning east. The range from A to C then might easily be regarded as either or both, and so we may justly be said to be on the same summit in continuing from A to C. There was a mistake, and it seems more likely that it was in extending the course than in locating the It would seem, therefore, more reaFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes limitations in note held void. by waived all benefits of the statute of limitaA provision in a note that the makers theretions, being for an indefinite time and permanently removing the statute from operation, held void. 2. Judgment 447(3)—Limitation is meritorious defense justifying suit for equitable relief. corner. The statute of limitations is a meritorious defense sufficient to support a suit for equitable relief from a judgment. 3. Judgment 447 (1)—Meritorious defense need not be shown in suit to vacate for want of jurisdiction. Plaintiff suing to set aside a judgment was not required to show a meritorious defense to (203 P.) the original action, where the judgment was The running of limitations was not interrupted as to one signing notes as joint maker by the collection of money on a chattel mortgage and trust deed executed as additional security by the other joint maker, though the eollections were with his knowledge and consent and under his direction. 5. Judgment 46(1)-Warrant of attorney does not authorize confession after debt bar red. A warrant of attorney contained in notes authorizing any person to confess judgment conferred no authority to confess judgment after the remedy for the debt was barred by limitations. Department 1. Error to District Court, Pueblo County; James A. Park, Judge. Suit by William H. Mock against the First National Bank of La Junta, Colo. Judgment for plaintiff, and defendant brings error. Affirmed. John H. Voorhees, of Pueblo, for plaintiff in error. M. G. Saunders and E. F. Chambers, both of Pueblo, for defendant in error. in the original action? The record shows that that action was brought more than six years after the maturity of the notes. The defendant bank contends that the plaintiff, William H. Mock, could not invoke the stat ute because the notes contained the following language: "We, the makers, * tions. hereby waive all benefits of the statutes of limita There is considerable conflict of opinion as to the validity of a provision in a contract waiving the benefit of the statute of limitations. Note, Annotated Cases 1916A, 686. The waiver is generally held valid if it is for a reasonable time only. In the instant case, however, it purports to be for an indefinite length of time and to remove the statute from operation permanently. Bowers on Waiver, § 218, it is said: In "The effect of a waiver of the statutes of limitations can in no sense be extended to a perresult is that such waiver creates a new pemanent removal of its operation. The logical riod, starting the statute afresh and extending the same length of time as originally applying, unless the agreement is for a waiver for a limited time, in which event suit must be brought within a reasonable time or the bar may again be invoked." In Moore v. Taylor, 2 Tenn. Ch. App. 556, the court said that "A contract to permanently waive the operation of the statute of limitations would be contrary to public policy and void." In Mutual Life Ins. Co. v. United States Hotel Co., 82 Misc. Rep. 632, 144 N. Y. Supp. 476, is found the following language: A would be flying in the face of the statute. consideration of public policy is embodied in the statute of limitations, and, while its provisions may be waived at a trial by not pleading the statute, its provisions cannot be waived in advance for unlimited time." ALLEN, J. This is a suit in equity to set aside a judgment in so far as it affects the plaintiff. The judgment now sought to be vacated was against the plaintiff, William H. Mock, and other persons. It was rendered in an action wherein the defendant in this action, the First National Bank of La Junta, Colo., was plaintiff, and William H. Mock, "An agreement made at the inception of a the plaintiff in the instant case, Walter H. liability to the effect that the statute of limitaMock and others were defendants. The orig-tions will never be interposed as a defense inal action was one to recover upon two promissory notes, signed by the defendants as joint makers. In that action the defendant William H. Mock, who is plaintiff in this suit, was not served with summons, but, without his knowledge, an answer was filed for him by an attorney at law assuming to act under a warrant of attorney which is incorporated in the promissory notes in question. The complaint in the instant case alleges, among other things, that at the time the original action was brought the notes, as to this plaintiff, were barred by the statute of limitations. The trial court, in the instant case, found or held to the same effect, and vacated the judgment in the original action as to plaintiff with an order permitting him to file answer and plead "such defenses as he may have." [1] The principle question presented is: Could the plaintiff have pleaded and successfully relied upon the statute of limitations To the same effect is Wright v. Gardner, 98 Ky. 454, 33 S. W. 622, 35 S. W. 1116.. If the statute could be waived so as to remove it permanently from operation, then, as said in Hoffman v. Fisher, 2 Wkly. Notes Cas. (Pa.) 17, the waiver would result in "a perpetual burden upon a defendant and his estate." In Kellogg v. Dickinson, 147 Mass. 432, 18 N. E. 223, 1 L. R. A. 346, there was an indorsement on a note to the effect that the indorser would "not take any advantage of the statute of limitations." Of this the court said: "If construed to cover an indefinitely long time in the future, it would be extraordinary, and contrary to the policy of the law." For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes This court has held that the statute may be waived by not pleading it. Mountain Waterworks Co. v. Holme, 49 Colo. 412, 113 Pac. 501. But, as said in Crane v. French, 38 Miss. 503: ter H. Mock for "additional security," and he gave a chattel mortgage and a trust deed to the bank, and together with an officer of the bank procured this plaintiff, William H. Mock, to sign the notes as a joint maker. The bank realized certain sums from the "There appears to be a plain distinction between declining to take advantage of a priv- sale of the properties covered by the chattel The bank ilege which the law allows to a party, and bind- mortgage and the deed of trust. ing himself by contract that he will not avail claims that such collections are to be regardhimself of a right which the law has allowed to ed as payments by the principal debtor at the him on grounds of public. policy. * *It time the money was receivea, and that such would scarcely be contended that a stipula- payments or collections interrupted the runtion inserted in such a note, that he would nev-ning of the statute of limitations not only as er set up such defense, would debar him of the defense, if he thought fit to make it." The same view is expressed in Bridges v. Stephens, 132 Mo. 524, 34 S. W. 555. Since the waiver in the instant case is one for an indefinite time, and permanently removes the statute of limitations from operation, under the authorities above cited it should be, and it accordingly is, held to be void. The stipulation in the note will not preclude the plaintiff, William H. Mock, from interposing the statute of limitations as a defense to the original action. to Walter H. Mock but also as to this plaintiff, William H. Mock. This contention need not be considered further than as it applies to William H. Mock. As to him the statute Colo. App. 444, 72 Pac. 602, it was held that was not interrupted. In Coulter v. Bank, 18 payments made upon a promissory note by one of two joint makers will not stop the running of the statute of limitation as to the other maker. In 25 Cyc. 1356 it is said that "Now the almost universal rule is that an acknowledgment or new promise by one of several joint debtors will not interrupt the statute of limitations as to the others." [2, 3] The plaintiff in error further contends that, as this is a suit in equity to obtain relief against a judgment, the plaintiff below must show a meritorious defense, and The bank seeks to avoid this rule by statthat the statute of limitations is not such a ing that the collections "were made with the defense. This contention cannot be sustain- knowledge and consent and under the direced. The authorities generally regard the tions of William H. Mock." If that fact is statute of limitations as a meritorious de- true, the rule still applies. William H. Mock fense in cases of this kind. 23 Cyc. 1033. In did not make any acknowledgment of his a note in 61 L. R. A. 746, the annotator states own indebtedness by any agreement as to thatwhat could be done with a joint debtor's property. There was no such acknowledgment on his part as to interrupt the running of the statute as to him. "The weight of authority now is that after default is excused a plea of the statute of limitations will be regarded as a meritorious and an issuable plea." [5] Other questions are discussed in the briefs, but it is not necessary to notice in In a note in L. R. A. 1916F, 856, it is stated this opinion any of them except that relat that "Under the later cases the plea of the statute of limitations is held not to be unconscionable, but meritorious." ing to the warrant of attorney which appeared in the notes in question, authorizing any person to confess judgment. That warrant of attorney conferred no authority to confess judgment after the remedy for the Cases on the subject are collected in the debt became barred by the statute of limitanotes above referred to. Moreover, in view tions. 14 Standard Enc. of Procedure, 826. of what is hereinafter stated in this opinion The defendant bank contends that the rule with reference to a warrant of attorney has been announced to the contrary in Cross which is involved in this case, the record v. Moffat, 11 Colo. 210, 17 Pac. 771. In that shows that the judgment obtained in the orig- case, however, the note itself was not barred. inal action was rendered without jurisdic- and the warrant of attorney was regarded as tion of the person of the plaintiff in the in- security for the debt. The Cross Case is not stant case. That being the situation, the decisive of the instant case on this point. plaintiff was not required to show a meri- The subject is discussed in Matzenbaugh v. torious defense to the original action. Crip- Doyle, 156 Ill. 331, 40 N. E. 935, where the pen v. X. Y. Irrigating Ditch Co., 32 Colo. court, following Walrod v. Manson, 23 Wis. 447, 76 Pac. 794; Wilson v. Hawthorne, 14 393. 99 Am. Dec. 187, held that as soon as a Colo. 530, 24 Pac. 548, 20 Am. St. Rep. 290. note becomes barred the warrant of attorney [4] The promissory notes in question rep- is functus officio. The Wisconsin court said: resented indebtedness of the maker, Walter "It is not reasonable to suppose that the H. Mock, to the bank. The bank asked Wal-party executing a warrant of attorney with a (203 P.) note intends to confer any authority by it be- above quoted and adding thereto a "proviso," yond the life of the note." of which the following is a part: We find no error in the record. The judg ment is affirmed. "Provided, that cattle, sheep or horses that range or are kept or herded in one county a part of the year and range or are kept or herded in another county the remaining part TELLER, J., sitting for SCOTT, C. J. of said year shall be assessed and taxed in eiand WHITFORD, J., concur. (70 Colo. 534) HUTCHINSON v. HERRICK, County Treasurer, et al. (No. 10181.) (Supreme Court of Colorado. Dec. 5, 1921. Rehearing Denied Jan. 9, 1922.) Taxation 47(2)-Cattle not to be assessed in two counties. ther of said counties, and such taxes shall be divided between said counties in proportion to that part of the year said stock remained in each county." Chapter 191, Laws 1911. Section 5608, R. S. 1908, reads: "Except as otherwise provided herein, personal property shall be listed and assessed in the county where it shall be on the first day of April in the then current year." It appears from the complaint in this case Where live stock was situated in the coun- that on April 1, 1916, plaintiff resided in Delty where the owner resided on April 1st and ta county, Colo., where all his live stock was was duly assessed for the year under Rev. St. situated and had been duly assessed for the 1908, § 5608, it could not be again assessed in year; that thereafter, on the ground that another county on the ground that some of some of this live stock ranged in Gunnison it ranged in such other county during a por-county during a portion of the year, it was tion of the year under Laws 1911, c. 191, § 1, likewise assessed there, under authority of as that would constitute double taxation and would be contrary to the first-mentioned stat-the act of 1911; that a similar situation ocute, and the sole authority for both being found curred in 1917, 1918, 1919, and 1920; that in Rev. St. 1908, § 5763, re-enacted as a part the treasurer of Gunnison county issued his of the act of 1911, which has been held uncon- distress warrant for the taxes so assessed, stitutional. and, by virtue thereof, the sheriff has seized certain of plaintiff's live stock and advertised the same for saie. Plaintiff prays En Banc. Error to District Court, Gunnison County; that the assessment be held void, that the Thomas J. Black, Judge. sale be prohibited, and that further proceedAction by James F. Hutchinson against M. ings in this, and similar cases in the future, B. Herrick, as County Treasurer of Gunnison be enjoined. Defendants demurred to this County, and others. Judgment for defend-complaint on the ground, inter alia, of insufants, and plaintiff brings error. Reversed. ficient facts. The demurrer was sustained. Fairlamb & Hotchkiss, of Delta, and Moy- Plaintiff elected to stand on his complaint, nihan, Hughes, Knous & Fauber, of Mont- and to review the judgment thereupon entered against him he brings error. rose, for plaintiff in error. Stone & Kochevar, of Gunnison, for defendants in error. It was agreed below, in open court, that if the act of 1911 was unconstitutional judgLeslie E. Greene, of Denver, amicus curiæ.ment should be entered for plaintiff, if constitutional for defendants. The demurrer BURKE, J. A portion of section 5763, R. was argued and submitted solely upon this S. 1908 (Laws 1902), reads as follows: ground. In support of the constitutionality of the "When any live stock is driven into a county act of 1911 it is contended that the so-callfor the purpose of grazing therein, at any time in any year, it shall be liable to be assessed ed "proviso" can, and should be, upheld as for all taxes leviable in that county for that an independent act; that, so considered, the year, the same as if it had been in the county title is sufficient; that the purported amendat the time of the annual assessment, and it ment of an invalid act is not, of necessity, shall be lawful for the county assessor in each void; that the new portion of the act concounty of the state of Colorado, to assess cat-tains none of the objectionable features tle, sheep and horses, as of any date such assessor may desire, providing that the same shall be assessed as of some day between the first day of January and the thirty-first day of December in each year." For the which rendered said section 5763, R. S. 1908 unconstitutional; that it is complete and independent in itself and every presumption is in favor of its constitutionality. purposes of this case all these are admitted. This clause was held unconstitutional by The fact remains that the live stock in questhis court. Carbon County S. & C. Co. v. tion was subjected to a double assessment Routt County, 60 Colo. 224, 152 Pac. 903. and that the assessment in Gunnison county Prior to the decision in that case, the section was contrary to said section 5608, R. S. 1908. had been amended by re-enacting the clause The sole authority for both is to be found For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |