number of bonds issued being 2,214 of £10 each, drawing interest at eight per cent per annum. Of the bonds issued by the company, 2,500 of £10 each had six coupons attached, each for the payment of one half year's interest. Thomas Eyre Foakes, Herman Carl Schultz and Theodore H. Lowe were made trustees in the deed of trust. On November 19, 1885, Schultz died, and Harold Carter was appointed to succeed him. On May 20, 1886, Foakes resigned, and Thomas A. Masey was appointed his successor; and before the bringing of this suit Masey resigned, and John Gaskell was appointed his successor.

The number of bonds held by the plaintiffs at the time of bringing suit aggregated 1,257 of £10 each, amounting to £12,570, interest upon them £6,513; total, £19,083, or, in round numbers in federal currency, over $95,000. The bonds were due and payable on the first day of August, 1885. The company defendant made default, and paid neither principal nor interest.

Appellants Owers, Scott and Manning, and some others, claimed to be the owners of the mortgaged mining property as tenants in common ;-First, by virtue of a sale of the property made on the 14th day of December, 1884, by the sheriff, under an execution against the property of the defendant company, and a conveyance under such sale; second, defendant Owers claimed a lien upon the property by virtue of a judgment against the defendant mining company for $2,000, date not given, but long subsequent to the execution and record of the deed of trust.

While this action was pending, in June, 1891, the defendant company went into voluntary liquidation under the winding-up acts. An officer appointed by the high court of chancery was put in charge of its affairs, and everything pertaining to it.

By the complaint it was prayed that the priority of different liens be decreed, and strict foreclosure had under the trust deed.

The defendant, the Olathe Company, filed an answer by the

defendant Owers, appearing as its attorney, on November 18, 1889. Defendant Owers filed his answer November 22, 1889. The answer of defendants Scott and Manning was filed January 29, 1890. By the answer of the Mining Company its corporate existence and the purchase of the mining property as alleged in the complaint was admitted, and a general denial of all other allegations. For a special defense it was alleged that it never received any consideration for any of the bonds mentioned in the complaint, etc. In the answer of the defendant Owers he claimed to be an owner of an undivided one fourth (1) interest in the property by virtue of a sheriff's sale made in 1884, from which he deraigned his title; that he also claimed a lien upon the property by a judgment obtained against the company for $2,000, in March, 1885. Manning and Scott answered that they each were owners of an undivided one eighth (g) of the property, with titles under the same judgment and sale in 1884 as alleged by Owers. Replications were filed to these answers March 13, 1890.

On July 30, 1891, defendant Owers made application to file amended answers for himself, Manning and Scott, based upon his own affidavit, and tendered the proposed amended answer of himself, in which, in addition to the allegations contained in his former answer, he pleaded the statute of limitations of three years, and also the general statute of limitations of six years. On August 13, 1891, the court denied the application for leave to file a plea under the three years statute of limitations, and allowed a plea of the general statute of limitations to be filed, which was filed; and the answer of Manning and Scott was amended in the same manner. Defendant Owers also alleged in his answer that in 1883 he was regularly appointed attorney of the defendant company; that the officers, through collusion and conspiracy, claim such appointment was revoked, and asked leave to file the answer of the defendant company, and defend it, by virtue of being a stockholder. Upon this application no order appears to have been made.

A trial of the case was had upon the evidence of the plaintiffs, defendants offering none, resulting in a judgment for the plaintiffs, and a decree declaring the deed of trust a valid and existing mortgage and the prior lien upon the property, and ordering the property to be sold without redemption by the trustees to satisfy the claim of the plaintiffs. The court also found that the defendant Owers was the owner in fee of one fourth (†) and Manning and Scott of one eighth () of the property, but that such title and interest was subject to the mortgage and indebtedness involved in this suit.

Mr. J. W. TAYLOR, Mr. HARVEY RIDDELL and Mr. J. M. MAXWELL, for appellants.

Mr. C. C. PARSONS and Mr. F. L. BALDWIN, for appellees.

REED, J., delivered the opinion of the court.

Although the finding of the court was that Owers was the owner of the undivided one fourth and Manning and Scott each owners of one eighth, such finding was harmless, as the court further found such interests were subject to the lien of the deed of trust; but we are at a loss to know upon what the court based its decree of such ownership. It was alleged in the pleadings, and the interest of Owers stated in his affidavit filed in support of his motion to amend the answer, but no proof was offered in support of or to establish any title or lien in any of the three defendants who attempted to contest plaintiffs' suit; nor was any proof offered to estab lish the claim of Owers that he was a stockholder. Consequently, as far as they were concerned, the result was equivalent to a default. The appearance of Owers for the defendant Mining Company was at least questionable. No authority was shown. It was stated in his affidavit that he was duly appointed in 1883 as the attorney, but the officers, by conspiracy and collusion," claimed such relation or au

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thority had been revoked, but at what time is not stated. He afterwards asked to be allowed to defend for the company, as its attorney, by reason of his being a stockholder; and that he was a stockholder was never proved, nor the motion granted. As he, in the year 1884, as alleged, commenced to assert title through a judgment and sale of the property, and shortly after obtained a judgment for $2,000 against his client, which he asserted as a lien, it would seem that, if the authority had not been revoked by the company, his own acts of antagonism were sufficient to sever the relation. His acts were so inimical to the rights and interests of his clients as to conclusively show the ending of the relation, and his knowledge and acquiescence ;-and in his affidavit, filed July 30, 1891, he alleges that at the time of filing the answers of himself, Manning and Scott, as late as January, 1890, he was ignorant of the default of the company in payment of interest, and the voluntary dissolution of the company. In the conduct and disposition of this suit his interests were so opposed to his alleged client, the Mining Company, that his own defense and that of the company were incompatible. Had the attention of the court been called to it, or his authority to appear called for, it must have resulted in his answer for the company being stricken out, and a default taken against the company. As it was, his relation to the company being such as to preclude his appearance to represent it, and neither he nor his associated defendants having shown any interest in the property in controversy, the finding and decree must have gone as it did, as a matter of course. Except for the finding of the court that the parties had interests in fee, appellants would be regarded as volunteers in the litigation, without any legal standing in this court upon appeal.

Plaintiffs held in bonds of the company and accrued interest over $80,000 against the property. The alleged interests of the defendants was the result of a judgment of $500, divided into fourths and eighths, obtained after the mort

gage and asserted as a title, adversely, while the principal defendant claimed to be the attorney.

The equity of the decree, under the circumstances, cannot be questioned, and we might with propriety stop at this point and affirm the findings and decree, but the zeal, labor and ability expended by counsel for appellants demand greater consideration and attention, and although the defense appears throughout to have been far more technical than substantial, it was maintained upon the trial with marked ability, and is urged in the same manner in this court.

There are sixteen assignments of supposed errors. The first: That the court erred in denying appellants' motion for leave to plead the repealed statute of limitations of three years. The second to the fifth, both inclusive, are specific allegations of error in the admission of evidence of the plaintiffs. The remaining eleven are general and formal. It seems hardly necessary, in assigning errors, to print a page or two of supposed errors dependent upon the preceding ones, conclusions naturally and inevitably following the finding as to those alleged specifically.

Evidently the contention that the cause of action was barred by the general statute of limitations was abandoned, but in appellants' oral argument, at quite length, and in the printed argument of counsel, the contention is that the act repealing the statute of three years' limitation was unconstitutional and void; consequently, that such statute was in force and available as a defense. Much time and labor was expended by counsel of appellees in resisting such contention.

The right to interpose the plea was based upon the affidavit of defendant Owers, filed July 30, 1891, in which he says that at the time of filing his answer, and those of Scott and Manning, *** he was under the impression and belief that the three years' statute of limitations had been repealed, and that the act repealing it and fixing the time at six years was valid, and proceeds: "That the district court of Arapa