counsel that, without any entry of the word "homestead" in the margin of the record, the land, acquired and proved upon as a preemption entry, being occupied as the residence of the family of the entry man, is exempt by virtue of the general statutes of Colorado. In the fourth defense it is averred that Nathan Weare obtained a final receiver's receipt for the land from the United States, as a pre-emption entry man, on December 7, 1888, and on December 14, 1888, caused the word "homestead" to be written on the margin of the record of said receiver's receipt, and signed the same, which signature was duly attested by the county clerk and recorder of Weld county, Colo.; that the land does not exceed $2000 in value, and was constantly occupied as a homestead by the wife of said Weare. Appellee Johnson, plaintiff below, having duly obtained judgment against said Weare, November 13, 1888, in the district court of Weld county, on December 6, 1888, eight days before this homestead marginal entry was made, duly filed in the county clerk's office a transcript of judgment of docket entries in due form, which remained on permanent file in said office, as well as recorded therein; that execution issued on the judgment December 5, 1888, and was levied on the land December 17th. The question raised by this defense is: Was the lien of Johnson's judgment upon the land defeated by the subsequent entry of the word "homestead" on the margin, before the levy of the execution?

Howze & Willsea, for appellants. H. N. Haynes and W. J. Weeber, for appellees.

HAYT, C. J. (after stating the facts). It is admitted in the third amended defense that the defendant Nathan Weare took nothing by his homestead filing in the United States land office, as he had previously exhausted his homestead right. The title acquired by him was by virtue of the pre-emption laws, and not otherwise; hence no exemption is claimed under the provisions of the United States statutes with reference to homesteads, as in the case of Mercantile Co. v. Davis, 18 Colo. 93, 31 Pac. 495. Exemption is, however, claimed under the proviso of the following statute of this state, viz.: "Every interest in land, legal and equitable, shall be subject to levy and sale under execution, and the claim or possessory right of any defendant in execution, in or to any public lands, may be levied upon and sold under execution, in the same manner as if the same were held by such defendant in fee-simple: provided, that nothing in this chapter contained shall be so construed as to give any plaintiff in execution the right to levy on any land filed on by any person, in the land office of the Colorado land district, and occupied as a homestead by the defendant in execution." Mills' Ann. St. § 2582. The proviso has reference solely to lands the title of which still remains in the govern

ment. It was inserted, we think, as a precautionary measure to prevent any apparent clash between the state statute and the provision of the federal statute making a homestead taken thereunder exempt from liability for any debt contracted prior to the issuance of patent. Rev. St. U. S. § 2296. The language of the state statute, following as it does the declaration in general terms that "the claim or possessory right of any defendant in execution may be levied upon and sold," etc., clearly indicates that the proviso refers to lands filed upon and held merely by possessory title, and not to lands after final proof has been made, and to which a receiver's receipt has been issued. The demurrer to the third defense was therefore properly sustained.

The demurrer to the amended fourth defense calls for a consideration of the following statutory provisions:

"A transcript of the docket entry of any judgment in the judgment docket, certified by the clerk, may be filed with the recorder of any county; and from the time of filing such transcript the judgment shall become a lien upon all the real property of such judgment debtor not exempt from execution in such county, owned by him, or which he may afterwards acquire, until the said lien expires. The lien shall continue for six years from the entry of judgment, unless the judg ment be previously satisfied." Code 1887, § 232.

"Every householder in the state of Colorado, being the head of a family, shall be entitled to a homestead not exceeding in value the sum of two thousand dollars, exempt from execution and attachment, arising from any debt, contract or civil obligation entered into or incurred after the first day of February, in the year of our Lord one thousand eight hundred and sixty-eight.” Mills' Ann. St. § 2132.

"To entitle any person to the benefit of this act, he shall cause the word 'homestead' to be entered of record in the margin of his recorded title to the same, which marginal entry shall be signed by the owner making such entry and attested by the clerk and recorder of the county in which the premises in question are situated, together with the date and time of day upon which such marginal entry is so made." Id. § 2133.

Since the case was tried in the court below, the precise question raised by the demurrer to the amended fourth defense has been passed upon by the court of appeals of this state. The effect of the special statute, as well as that of the general law, is set forth in the opinion in Woodward v. Bank, 2 Colo. App. 369, 31 Pac. 184, so clearly as to relieve us from any extended review of the question. See, also, Letchford. v. Cary, 52 Miss. 791; Stone v. Darnell, 20 Tex. 11; Wildermuth v. Koenig, 41 Ohio St. 180; Hawthorne v. Smith, 3 Nev. 182; Bank In v. Treadway, 17 Fed. 887, 8 Sawy. 456. Woodward v. Bank, supra, it was held that

the judgment lien acquired by the judgment creditor upon the real estate of the debtor must yield to the special law in case of homesteads. The two statutes are in pari materia, and must be construed together. Applying the law to the facts, the court makes use of the following language, which is particularly in point in the present case: "The property in question not having been subjected specifically to the judgment lien by the levy of an execution before it was withdrawn as a homestead, it was exempted from the levy of the execution." The homestead act provides that the homestead shall be exempt from "execution and attachment." If it is exempt from execution, it must of necessity be exempt from the lien of the judgment, as a judgment lien that cannot be enforced is of no avail. This construction is in accord with the course of the law, constitutional and statutory, in this state, and in harmony with all the decisions of this court. Acquiring a homestead and its preservation for the family is a matter of public interest in a free government. The constitution requires the general assembly to pass liberal homestead and exemption laws. It does not in terms require the courts to liberally construe such laws as may be passed, but liberal exemption laws would be of slight avail to the debtor if illiberally construed against him. And such a construction would be out of harmony with the every utterance of this court upon the subject. Says Helm, J., in Barnett v. Knight, 7 Colo. 365, 3 Pac. 747: "Two governing principles underlie all homestead legislation: First. The beneficent design of protecting the citizen householder and his family from the dangers and miseries of destitution consequent upon business reverses or upon calamities from other causes; and, second, the sound public policy of securing the permanent habitation of the family, and cultivating the local interest, pride, and affection of the individual, so essential to the stability and prosperity of a government. Homestead exemption is entirely the creature of statute, but the statute is not in derogation of the common law, for at common law the creditor had no right to sell the debtor's land; and the rule is fully established that the statutory provisions are to be liberally construed for the purpose of giving effect to the principles above named." To give the statute the construction contended for by appellees would be extending its terms in favor of the creditor, to the manifest injury of the householder, and this we cannot do. The homestead exemption having been claimed in this case before the levy of any writ of execution or attachment, the property was exempted by the very terms of the statute, and the demurrer to the fourth defense should not have been sustained. The judgment will accordingly be reversed, and the cause remanded for further proceedings in accordance with this opinion. Reversed.

(20 Colo. 397)

ROCKWELL v. COFFEY et al. (Supreme Court of Colorado. Oct. 15, 1894.) PURCHASE OF LAND - NOTICE OF STATE OF TITLE -PENDING SUIT-ESTOPPEL.

1. Parties and attorneys of record in a suit for the specific performance of a contract for the sale of land, who purchase the land under executions issued by them, take it with notice of the state of the title as declared by an opinion rendered in the suit reversing a decree and remanding the case.

2. Pending a suit for the specific performance of a contract for the sale of a certain portion of a mining lode, the entire lode was sold under executions issued by plaintiffs in such suit. Held, that they were not estopped to claim title under the contract of sale to that portion of the lode embraced therein, as against a purchaser with notice of their claim, on the ground that they received the proceeds of the sale of such portion, as it will he assumed that the other interests only were the ones for which the consideration was paid and accepted.

Appeal from district court, Boulder county. Action by H. N. Coffey and others against one Emigh and others, in which Lewis C. Rockwell sought to intervene. From а judgment sustaining a demurrer to intervener's petition, he appeals. Affirmed.

L. C. Rockwell, pro se. Belford & Galloway, for appellees.

HAYT, C. J. Lewis C. Rockwell now seeks to intervene in a certain action heretofore decided by this court, in which the judgment of the district court of Boulder county was reversed, and the cause remanded to that court for further proceedings in accordance with the opinion filed. See Coffee v. Emigh, 15 Colo. 184, 25 Pac. 83. The decision in Coffee v. Emigh, supra, covered three cases between the same parties relating to the same subject-matter. The particular case in which this intervention is filed is referred to in that opinion as "an action for specific performance." The facts as they were then disclosed by the record will be found fully set forth in the statement preceding that opinion.

The premises with reference to which a specific performance of a written agreement was then sought by the plaintiffs, Coffey et al., are the same as those to which intervener Rockwell now claims title, and for this reason a further statement of the result of the previous suit is necessary to a proper understanding and determination of the present controversy. The written agree ment, a specific performance of the terms of which was then asked, provided, among other things, that the defendants, Emigh et al., should execute to plaintiffs proper deeds of conveyance to a certain portion of the Emancipation Lode, to wit, the first 50 feet north of the south line of the Western Slope Lode. The court, in passing upon the issues then before it, said of this written agreement: It "seems to us to be certain, fair, reasonable, and just. The parties had entered into and continued in possession of the property in pursuance of its terms for

a long time. Both parties are still able to carry out the contract. Plaintiffs are willing so to do. No good reason has been shown why defendants should not be required to perform on their part." And the judgment was reversed, and the cause remanded for further proceedings in accordance with the opinion. It was supposed at the time that when the case reached the lower court a motion for judgment would be made and sustained, but for some cause, not appearing in the record, it was allowed to slumber in the lower court for upwards of two years, and until after Rockwell had filed his petition of intervention, when plaintiffs moved for judgment in accordance with the former opinion of this court. This motion was not sustained at the time, apparently on account of Rockwell's petition. Plaintiffs thereupon sought to compel by mandamus the entry of judgment in the district court in their favor. This remedy was refused by this court as not available under the circumstances. See People v. Judge of District Court, 18 Colo. 500, 33 Pac. 162. The petition of intervener, after reciting the history of the litigation between the plaintiffs and defendants with reference to the premises in conflict between the Western Slope and the Emancipation Lodes down to and including the judgments of reversal rendered by this court, alleges that thereafter certain executions issued out of this court at the instance of the plaintiffs and against the defendants. It is then alleged that said executions were directed to the sheriff of Boulder county, and were by that officer levied upon "all the right, title, and interest which the defendants had in and to the Emancipation Lode, including, to wit, the identical property and premises mentioned in said plaintiffs' amended complaint," and for which defendants had obligated themselves by the written agreement to execute a conveyance to plaintiffs, a specific performance of which said agreement this court had held that plaintiffs were of right entitled to. It is further alleged that after due notice the sheriff sold the property at public sale to N. K. Smith, one of the parties to the former suits, and that before the statutory time for redemption had expired C. C. Emigh confessed judgment in favor of A. L. Emigh, both the Emighs also being parties to the record in the main action. Rockwell, the attorney of record for the defendants in those cases, also obtained a judgment by confession against Jackson. It is also alleged that A. L. Emigh and L. C. Rockwell redeemed the property from the execution sale, and received the sheriff's deed therefor. Rockwell, having subsequently obtained a conveyance of the interest from A. L. Emigh, is the sole plaintiff named in the intervention proceedings.

As a general rule, a party will not be allowed to intervene between the trial and the rendition of a judgment. Good practice

requires the petition to be filed before the trial is entered upon, and, had the plaintiffs in the main suit exercised proper diligence in following up their victory obtained in this court, Rockwell would have been too late with his intervention, as a new trial was not ordered. Hocker v. Kelley, 14 Cal. 165; Henry v. Elevator Co., 42 Iowa, 33. But assuming, for the purposes of the case, that by reason of the laches of the plaintiffs this petition of intervention came in time to warrant consideration upon its merits, and it is clear that the judgment of the district court sustaining a demurrer to the pleading and dismissing the petition must be sustained, for the reason that it does not state facts sufficient to entitle Rockwell to intervene. The rule is well established that the lien of a judgment and execution attaches only to the judgment debtor's real interest in the property. Freeman, in his excellent work on Executions, says at page 1128: "The purchaser at an execution sale takes his title subject to such liens, easements, and equities as it was subject to in the hands of the defendant in execution, unless he can show that he is a purchaser in good faith, and without any notice, actual or constructive, of the existence of such lien, easement, or equity." The sheriff was only authorized to levy upon the right, title, and interest of the defendants in the property, and it appears from the allegations of this petition that this is all he attempted to levy upon or assumed to sell by virtue of the executions. Moreover, all parties in any way connected with the sale as purchasers or redemptioners were connected with the suits, either as parties or attorney, from its inception, and are chargeable with notice of the exact condition of the title as declared by the court in its former opinion. Under that decision the defendants held simply the naked legal title to that portion of the Emancipation Lode now in dispute, and this was held subject to a certain written agreement confirmed by this court requiring them to execute to the plaintiffs, as the holders of the equitable title, a full and complete conveyance of such legal title. The purchaser at the execution sale acquired only the interest in the Emancipation Lode held by the defendants; in other words, they purchased subject to the terms of the written agreement as construed by this court.

It is contended in this case that the plaintiffs are estopped from claiming the property in dispute, because it is alleged in the petition, and consequently is a conceded fact as against the demurrer, that plaintiffs received the consideration paid upon the sale under execution; but this argument is without force in view of the fact that the defendants had title to other portions of the Emancipation Lode, and not to the territory in dispute, and it must be assumed that these other interests only were the ones for which the consideration was paid and accepted. In the oral argument something was pred

icated by intervener upon the alleged peculiar wording of these executions, but the executions are not before us, and the allegations of the complaint cannot be strengthened thereby. The presumption is that the cause stated in the petition of intervener is as favorable to him as the facts will justify. The allegations are not sufficient to authorize an intervention, and for this reason the demurrer was properly sustained, and the petition dismissed. The judgment of the district court will accordingly be affirmed. Affirmed.

ELLIOTT, J., did not participate in the hearing and decision of this case.

On Rehearing.

(Dec. 5, 1894.)

PER CURIAM. In the petition for rehearing it is urged that, "assuming that Emigh and Jackson had no interest whatsoever in the property sold, but that it actually belonged to the execution creditors, who levied upon it, and caused it to be sold, as to the intervener it was wholly immaterial whether the property belonged to the execution creditors or the execution debtors. He purchased whatever title all parties had in the property." This is the only matter relied upon for a rehearing, although it is stated in the petition in different forms. It is claimed that the facts averred constitute an estoppel. As shown in the principal opinion, the levy was made only upon the right, title, and interest of the defendants in the Emancipation Lode. By a decree of this court, rendered prior to this levy, that part of the lode now claimed by intervener was awarded to the owners of the Western Slope Lode under the compromise agreement, and a conveyance decreed accordingly. As we endeavored to show in the former opinion, Smith bought only the right of the execution debtors to the Emancipation Lode. His purchase included all the territory in conflict between the Emancipation and Western Slope Lodes except that portion covered by the decree, of the existence of which decree the parties had notice. It thus appears that one of the essential elements of an estoppel by conduct is entirely wanting in this case, the purchaser being fully advised of the true state of the title. "Where the condition of the title is known to both parties, or both have the same means of ascertaining the truth, there is no estoppel." Brant v. Iron Co., 93 U. S. 326; Patterson v. Hitchcock, 3 Colo. 533; Griffith v. Wright, 6 Colo. 248. The argument of appellants based upon the averment of the petition that "the sheriff of said Boulder county subsequently levied said executions upon all the right, title, and interest which the defendants had in and to the Emancipation Lode, including, to wit, the identical property and premises mentioned in said plaintiffs' amended complaint, and hereinbefore described as a portion of the

The

Western Slope Lode," was fully considered and reviewed in our former opinion, although the averment was not incorporated into the opinion. In fact all the allegations of the pleading have been carefully weighed. pleading does not show that the execution creditors desired the sheriff to levy upon more than the interest of the execution debtors in the property, or that the sheriff assumed to or did sell other than such interest, and this is the only interest acquired by Rockwell. His interest in the Emancipation Lode is therefore subject to the right of the owners of the Western Slope Lode to a conveyance, as provided by the terms of the written agreement as construed by this court in Coffee v. Emigh, 15 Colo. 184, 25 Pac. 83. A rehearing will be denied. Rehearing denied.

(20 Colo. 320)

VICTOR COAL CO. v. MUIR. (Supreme Court of Colorado. Nov. 20, 1894.) COAL MINES-FAILURE TO PROP ROOF-INJURY TO MINER-CONTRIBUTORY NEGLIGENCE.

1. Where the plaintiff (an experienced coal miner) had observed and tested a large rock in the roof of the room where he was working. and found the same to contain natural cracks or slips, and knew the rock to be a bad rock, which certainly ought to be propped, and yet continued his work, within a few feet of the rock, without propping it, until it fell and crushed his arm, held, that plaintiff was guilty of contributory negligence such as would bar his action at common law. The rule announced in Lord v. Refining Co., 21 Pac. 148, 12 Colo. 390, approved and applied.

2. The primary object of the statute concerning "coal mines" (Sess. Laws 1885, pp. 137141) was to secure the health and personal safety of all persons engaged in underground coal mining. While it is the duty of the "mining boss" to see that sufficient timber of suitable lengths and sizes is placed in the working places of the mine, the duty of securely propping the roof of the mine, by actually setting such timbers thereunder, is devolved upon any miner. workman, or other person having the control of any working place in the mine, and the willful neglect of such duty is a misdemeanor under the statute.

3. Where the plaintiff found that he could not securely prop the roof of the mine in the working place under his control, and yet thereafter continued to expose himself to imminent danger from the falling of a large rock in the roof, which he knew to be bad, and which he knew ought to be propped, and gave no notice and took no step to prop the same, and the rock fell and injured him, held, that he was guilty of violating the statute in not taking steps to obtain suitable timber for propping the roof, or in not giving immediate notice of its condition, and that his negligence was willful, since it indicated a reckless disregard of the consequences to his own life or limb, and that such contributory negligence was a bar to his action under the statute.

4. Greater diligence should not be exacted of miners than common prudence requires them to exercise, considering the circumstances under which their work is carried on. In case of injury to a miner from a defective roof, where its dangerous condition is not obvious without critical inspection, the defect being latent, and not actually known to the miner, he may not be held guilty of such contributory neg ligence as would prevent his recovery.

(Syllabus by the Court.)

Appeal from district court, Las Animas county.

Action by Walter Muir, by next friend, Robert Muir, against the Victor Coal Company.

There was a judgment for plaintiff, and defendant appeals. Reversed.

Action for personal injuries occasioned by alleged negligence. Defenses: General denial, contributory negligence, etc. Verdict and judgment for plaintiff. Defendant appeals.

The complaint, stripped of its formalities, is as follows: "(1) That plaintiff is a minor under the age of twenty-one years, wherefore he sues by his next friend and natural guardian, Robert Muir, and that defendant is a corporation duly incorporated and existing under and by virtue of the laws of the state of Colorado. (2) That defendant is and was on the 17th day of September, A. D. 1889, and for a long time prior thereto, engaged in the business of coal mining, and is and was at said time the owner and proprietor of a certain coal mine in Las Animas county, known as the "Victor Coal Mine," and that there were employed underground in said mine, at said time, more than ten men during each twenty-four hours, and that plaintiff was at said time an employé of defendant laboring in said mine, mining coal. (3) That defendant, wholly disregarding its duty towards plaintiff, negligently failed to keep the traveling ways and work ing places of said mine in good repair and in safe condition, and negligently and willfully failed to furnish sufficient timbers for the purpose of propping the roof of said mine, and negligently and willfully failed to place timbers of suitable lengths and sizes in the working places of said mine, and negligently and willfully failed to secure or see that the loose coal, slate, and rock overhead was secured from falling in and upon the traveling ways and working places of said mine, and negligently and willfully failed to em ploy for said mine a competent and practical inside overseer or mining boss, and that, by reason of defendant's violation of its duty, and of its said negligent and willful failure to comply with its duties, on the 17th day of September, 1889, while plaintiff was la boring in said mine as the employé of defendant, mining coal, a large rock fell from the roof of said mine, and fell upon the plaintiff, breaking and crushing his right arm so that it had to be amputated above the elbow, and otherwise greatly bruising and injuring plaintiff. (4) That, by reason of such injuries, plaintiff suffered great men tal and physical pain, and was and is maimed and crippled for life, and deprived thereby of his only means of making for himself a support and living, to plaintiff's great damage in the sum of twenty-five thousand dollars. Wherefore plaintiff demands judgment," etc.

From testimony of plaintiff:

In chief: "Walter Muir-Nineteen years

old. *

About September 17, 1889, John McDonald and I were mining coal. I had nearly finished mining, when I heard a crack, and jumped back, when a rock fell from the roof of the place in which I was working and caught me. It was from three and one-half to four feet from the edge of the coal to the rock which fell. When I heard the crack, I supposed the coal was going to fall, and jumped back, but if 1. had had time to think I knew that the coal was still solid, and not likely to fall. I jumped back to get out of the way of the coal. Q. State, if you know, what was the cause of that rock falling. A. Well, I pelieve if I had had a prop under it, or two props, one prop I don't think would have been enough; might have had two or three props, it would, if the rock had been going to fall, given warning. But it didn't give any warning at all. Q. How was the room propped at that time? A. The room was pretty well propped all the way back over where they had done all the work that was done before I was hired to work. * Q. You can tell the jury, as near as you can, about in what position it caught you. A. The rock was near the center of the room, and when I jumped back I jumped behind this prop that I had set last,-this nearest prop to the face. I was lying down, mining, and when I jumped back I caught my arm under the rock. It was my right arm. Q. You may show the jury how much of the arm was taken off. (Witness exhibits his right arm to the jury, showing that it had been amputated just above the elbow.) A. On the day of the accident, there was not any props around the ground anywhere. I looked in the morning. Got only one. That was the one, I think, that we set on the side where John McDonald was working. I examined the place where props had been kept. I went out, intending to get some props that had been left at a prospect hole down along the creek, but they were gone. There were no props on the ground at the time of the accident. No props had been placed in the room where I had been working by the company, either on the day of the accident or on any previous day. Q. How did you get your props when you got props? A. When I started to work there, the props were all one length. John McDonald meas ured the length, height of the coal, and then we went out on the prop pile, and sawed the props, carried them down to the side of the track, and in the morning would wait for the driver, and put them on the truck, and go with the truck inside, and unload them when we got to the place. We were required to cut them ourselves the proper length. Q. I will ask you whether any one connected with the mine had been in the habit of inspecting the coal of your room and the passageway along the side of your room with regard to props and the coal overhead? A. I don't think there was anybody.