forwarded both instruments to the respective parties to whom they were so executed, by the same mail; that they thereupon respectively forwarded them by the same mail to the clerk of the said county of Linn for record; and that the said clerk informed the respective parties of the peculiar condition of their affairs relating to the matter, which information was conducted also by the same mail.

It is contended by each of the respective counsel that their claim is superior to the other. The appellant's counsel argues that the defendants Hibbard and Brazee had notice of the appellant's note and mortgage before said Sumpter sold the premises to them. In order to establish this, he proved by Solomon Hirsch, one of the members of the same firm with the appellants, that Hibbard, on the seventeenth day of November, 1880, admitted to him that Sumpter had told him, before he had agreed to sell him the farm, that he had given the note and mortgage for goods purchased of said firm. Hibbard, however, positively denies that he ever made any such statement; and, as I consider it, that leaves the matter the same as though no evidence had been given upon the point. Both witnesses are entitled to the same credit, and the testimony of the latter (Mr. Hibbard) neutralizes that of the former.

The respondents' counsel argues that the claim of his clients is anterior to that of the appellant. He attempts to establish this by claiming that the sale of the premises occurred on the fifteenth day of April, 1880, and that the mortgage was not executed until a subsequent time; but he cannot maintain it from the testimony. Hibbard testified, it is true, that he purchased the place for his firm, and closed the bargain on or about the fifteenth day of April, 1880; but Mr. W. R. Bishop testified that on the sixteenth day of April, 1880, Alexander Sumpter said to him that he had sold to Hibbard a certain tract of land in Linn county, and asked him if he knew the location, and notified him that he would ask him to describe the land to Mr. Hibbard before he left Portland; that the next day Sumpter and Hibbard came to the office of the Brownsville Woolen Mills Company and desired witness to describe the land. This last date is the same as that of the contract of sale, and the other writings before referred to. This testimony, taken in connection with that of Mr. Hibbard, set out in respondents' briefs, shows pretty conclusively that the sale was not completed before the seventeenth of April. Mr. Hibbard testified upon the point referred to as follows:

"Sumpter had a farm to sell in Linn county, Oregon. It contained, Sumpter said, 160 acres of land. He proposed to sell our firm that place on or about April 15, 1880; price being $2,060. Not knowing anything about the place, he referred us to Mr. Bishop. He went and called Mr. Bishop's attention to the place."

How can it be consistently claimed, in view of this evidence, that the sale and purchase were made before Mr. Bishop was consulted, when he was referred to by Sumpter as being acquainted with the

place and subsequently called upon to describe it? It is not at all probable that Hibbard first bought the land and afterwards sought the information regarding it, which he evidently intended to act upon before making the purchase. The evidence and circumstances show beyond question that the sale was not made prior to the seventeenth day of April, and that all that had taken place between the parties prior thereto had been negotiation simply. The contract of sale and the mortgage were evidently intended to be and were concurrent acts. Each bears the same date; each was executed upon the same occasion and for the same object, viz., to enable Sumpter to obtain credit. He had come to buy goods; had the land in question, and very probably intended to make such a use of it as would secure the greatest extent of credit. He would certainly not be likely under the circumstances to inform the parties with whom he dealt as to the purposes of his scheme, for that would have frustrated it. It appears also, from the circumstances, that either through a sense of justice or from policy he intended to leave the parties he traded with equally entitled to the property as purchasers and mortgagees. There evidently was method in his rascality, and he consummated it with adroitness. The appellant's counsel laid great stress upon the rule of equity that a party cannot claim to be an innocent purchaser of an estate when the consideration of the purchase is past indebtedness. The rule that the rights of a purchaser will not prevail over those of a holder of an outstanding equity unless he has paid value for the property, or parted with some security, does not apply to this case. Here the rights of the respective parties were created simultaneously. Sumpter was buying goods from all the parties interested in this case at the same time, and attempted to pay and secure them by means of the same property. When the respondents Hibbard and Brazee bargained for the land, the appellant's claim was not outstanding; neither right can be said to have been anterior to the other; consequently the rule which the counsel would invoke will not benefit him. The rights of the parties, viewed wholly from an equitable stand-point, are so nearly equal that human knowledge and intelligence are unable to distinguish any difference in favor of either. Both parties were attempting to secure their just rights, and I am unable to perceive that either attempted to take any undue advantage of the other. And I should most decidedly be in favor of adjudging the land a common fund, to indemnify them both, were it not for one fact in the case which, I think, gives the appellant the better right. The mortgage from Alexander Sumpter to the appellant was properly acknowledged and entitled to record; but the deed from Sumpter and wife to the respondents Hibbard and Brazee was not entitled to record, as there was no certificate from the proper officer to the effect that the clerk of the district court of Idaho territory, before whom the acknowledgment was taken, was such clerk, or that the deed was executed in accordance with the laws of that territory. Sections 11, 12, Misc. Laws,

(pages 516, 517, Gen. Laws Or.;) Musgrove v. Bonser, 5 Oregon, 313. The same may be said of the mortgage, so far as the execution thereof by Lydia Sumpter is concerned. But its e.ecution by Alexander Sumpter, and his acknowledgment thereof, were sufficient to entitle it to record; and as to him, and those claiming under him, it was properly recorded.

The position of the respondents' counsel, that the mortgage, not having been recorded within the five days specified in section 26, Misc. Laws, (page 518, Gen. Laws, Or.,) would not give it priority over an unrecorded conveyance, or one recorded subsequently, is untenable. The section last referred to will bear no such construction as that. It provides merely that a conveyance not recorded within five days after its execution shall be void against any subsequent purchaser in good faith, etc., of the same property, whose conveyance shall be first duly recorded. The prior recording of the prior conveyance at any time after its execution will give it precedence. So will the prior recording of the subsequent conveyance give it precedence over a prior one subsequently recorded, although neither of them be recorded within the five days. A mortgage, under our recording act, stands upon the same footing as an absolute conveyance, and if the mortgagee take it in good faith and for a valuable consideration, the recording of it will give it a preference over a prior unrecorded deed, though the latter should be recorded no more than five minutes thereafter. If a subsequent grantee or mortgagee obtains in such a case a priority over a former one by virtue of the recording act, then, a fortiori, should the appellant in this case, where the equities between the parties are equal. The demurrer to the complaint was properly overruled. The description of the premises in the mortgage is capable of being made certain. The term "notification" clearly indicates that the claim there referred to was a donation claim, and it does not appear but that it is shown upon the maps and plats of the United States land-office, and can be found in the field from its description in the mortgage. I should infer that it does so appear, and that it could be so found without difficulty.

Under this view the decree appealed from will be reversed, and the appellant entitled to a foreclosure of the mortgage to the extent of Alexander Sumpter's interest in the premises at the date of the said mortgage.

LORD, J., concurring.

SUPREME COURT OF COLORADO.

18 Colo. 188)

ATCHISON, T. & S. F. R. Co. v. NICHOLLS.

Filed March 20, 1885.

1. PRACTICE-COLORADO-SUMMONS.

Sections 35 and 37 of the Civil Code, prescribing what the summons shall contain, are mandatory.

2. SAME-ACTIONS OF TORT-WRIT-NOTICE TO DEFENDANT.

In actions other than of contract for the recovery of money, section 37 of the Civil Code prescribes that the writ shall contain à notice to defendant that if he fail to answer the complaint the plaintiff will apply to the court for the relief demanded therein.

3. SAME

AMENDMENT OF SUMMONS AFTER ENTRY OF DEFAULT.

An amendment of a summons to accommodate an action in tort, attempted alter entry of default, is futile.

4. SAME-WRIT-CAUSE OF ACTION.

By section 35 of the Civil Code the writ must embody a statement of the cause of action. In default of this, a reference in the writ to the complaint as showing the cause of action will not suffice.

5. SAME-APPEARANCE AS CURING DEFECTIVE SUMMONS-MOTION TO QUASH. A special and limited appearance by a defendant, in order to make a motion to quash a judgment by default, will not cure or waive a defective summons. 6. SAME-JUDGMENT BY DEFAULT WHILE A MOTION IS PENDING.

Under section 150 of the Civil Code a default cannot be entered while a motion is pending.

Appeal from county court, Bent county.

Chas. E. Gast, for appellant.

John E. Pitt, for appellee.

HELM, J. This action was brought against the appellant company, to recover damages for an alleged injury to plaintiff's person, caused by the negligence of the company's employes or servants. The negligence complained of consisted in so operating a locomotive and cars as to come in contact with a baggage or express truck of defendant's, standing upon its depot platform at Los Animas, thereby causing the said truck to strike the plaintiff's person with force and violence, and wound him. The sum of $500 as damages was demanded in the complaint. A special appearance was entered by defendant, and two motions were filed within the statutory time for pleading: one to quash the summons; the other to quash the return of the sheriff thereon. While these motions were pending and undisposed of, the court entered a default for want of an answer against defendant. Some 13 days thereafter, and in term time, on motion of plaintiff, both of defendant's motions were stricken from the files. Upon plaintiff's motion, also, the summons was amended; and on the next day a judg ment was rendered against defendant upon the default theretofore entered.

All these matters appear from the record proper, and no bill of exceptions was needed to preserve them; neither was an exception to

the judgment nor a motion for new trial a necessary prerequisite to a review in this court of alleged errors resting upon them. Therefore, appellee's position, that we should not examine the questions presented, is incorrect. Sections 35 and 37 of the Civil Code, prescribing what the summons shall contain, are mandatory. Smith v. Aurich, 6 Colo. 388, and cases cited. The latter section provides that a notice shall be inserted in the writ in substance as follows:

"First. In an action arising on contract, for recovery of money or damages only, that the plaintiff will take judgment for a sum specified therein if defendant fail to answer the complaint. Second. In other actions, that if the defendant fail to answer the complaint the plaintiff will apply to the court for the relief demanded therein."

As already stated, this action was brought to recover damages for a tortious injury; no contract was pleaded or mentioned; yet the notice to defendant in the summons was: "If you fail to appear and answer the complaint, as above required, the said plaintiff will take judgment against you for said sum of five hundred dollars, with interest and costs." This was no compliance whatever with said section 37; and, under the authorities, the process was fatally defective. The summons should have notified defendant that, in case of failure to answer, plaintiff would "apply to the court for the relief demanded" in the complaint. Holding, as we must, that the statute is mandatory, the foregoing conclusion is inevitable. And if there be any force to the argument that it is unreasonable, and at times productive of hardship, legislative aid must be invoked. The attempted amendment of the summons in this particular after entry of default, without notice and in the absence of defendant, was futile. As amended, the summons was never served upon defendant, and no opportunity was given to respond thereto.

Section 35, above mentioned, requires that the writ embody a statement of "the cause and general nature of the action." The process in this case informs defendant that "the said action is brought to recover the sum of five hundred dollars, due from defendant to plaintiff upon certain damages claimed to have been incurred by plaintiff by reason of the negligent operating of said road, its locomotives and appurtenances, by its agents and servants, particularly described in the complaint." This is not a sufficient statement of the cause and general nature of the action. Defendant is not in the slightest degree apprised as to what the "certain damages" mentioned consist of. For aught that appears in the summons it may be that these damages are for injuries to freight shipped over defendant's road; or for the killing of plaintiff's cattle or horses strayed upon the track; or for setting fire to his buildings or crops; or it may be that the claim for $500 arises through an injury to plaintiff's person, or the destruction of his baggage, while he was a passenger upon one of defendant's trains.

In this insufficient statement we have another fatal objection to the process under consideration. People v. Greene, 52 Cal. 577; Porv.6p,no. 8--33