be filed within five years after the cause thereof shall accrue, and not after." Gen. St. 1883, § 2175. We are of the opinion that the present case is not one contemplated by the statute; but conceding, for the moment, that it is, the question to be decided is: "When did the cause of action accrue to the plaintiff?" The answer to this question will determine whether the suit was commenced in time. Counsel very earnestly contend that it is unnecessary that the defendant should have denied or repudiated the trust, but that, on the contrary, the right to sue vested instantly upon the payment of the debt, and refer us to a number of authorities which it is claimed sustain that position. An examination of these authorities, or some of them, will therefore be proper for the purpose of seeing whether counsel's reliance is well grounded.

In Hecht v. Slaney, 72 Cal. 363, 14 Pac. 88, Slaney had filed a petition in insolvency. Afterwards, he filed a petition to have certain real estate set apart to him as a homestead. No notice was given of the filing of the latter petition, or of the time for its hearing, and, by an order of the court, the property was set aside as prayed. Some years afterwards, Hecht, a judgment creditor, filed his bill, alleging that the representations in the petition were false and fraudulent, and made for the purpose of defrauding creditors, and praying that Slaney be adjudged to hold the property in trust for his creditors, and that it be applied to the payment of his debts. The court held that, as the trust originated in a wrong, the statute commenced to run at the time of the commission of the. wrong, and that Hecht, having suffered the statutory limit to expire, was barred. To the same effect is Howell v. Howell, 15 Wis. 55. A partner had bought land with partnership funds, without the consent of his copartner, and had the conveyance made to a third person, who took it with knowledge of the facts. The court, holding that a cause of action accrued to the other partner immediately, says: "The trust in such cases originates in a fraud, which is in itself as complete and absolute a denial of the rights of the injured party as it is possible to have; and every day which passes, without reparation of the injury, is a continuation or repetition of it. William Howell might have commenced his action the moment the land was purchased." Further notice of the cases cited is unnecessary. There is none which, in its facts, approaches more nearly the present case than the foregoing. The two cases reviewed Ideal with a class of trusts within which this, whatever else it may be, does not fall. If we class this as a trust, it results from the agreement or understanding of the parties, and is therefore what is known as a "resulting trust," and counsel are correct in so distinguishing it. But the trusts considered in the foregoing cases did not arise

out of any contract, either express or implied, between the parties. They arose from fraud committed by one party upon the other, and were what is termed "constructive trusts." Where a person clothed with some fiduciary character wrongfully or fraudulently conducts a transaction so as to gain an advantage to himself over another person interested, the law converts him into a trustee, contrary to his intention, and against his will, and a constructive trust arises. Counsel's position, in support of which these cases are cited, is that the statute commenced to run, not when the defendant refused to make the conveyance, but when, by reason of payment of the note, the plaintiff had the right to demand it. But when, by an analysis of the cases, we reach the principle which they establish, and apply it to the facts before us, we are forced to a directly contrary conclusion. Those cases, upon their own facts, hold that in order to set the statute in motion it was not necessary that the trustee should have denied or repudiated the trust; and the reason for so holding was that the trustee had already, by the very acts upon which the law founds such a trust, as effectually denied and repudiated it as it was possible for him to do. Any further denial would have been superfluous, and could have added nothing to that already existing. The cases fix the time when the statute commenced to run as being the time when the wrong was committed; and as the wrong was, in itself, a repudiation of the trust, the statute therefore began at that repudiation. Let us apply this principle to the facts as found here, and see where it will lead us. There was no fraud in the original transaction. The trust grew out of the contract between the parties. By accepting the deed as security for the money loaned, the defendant acknowledged the trust. He acknowledged it again when he received the money and surrendered the note. During the whole period between the inception of the transaction and the final refusal of the defendant to execute the deed, although the plaintiff was in possession of the property, and he was out of possession, he never, by word or act, indicated that he claimed anything by virtue of the deed, inconsistent with its character as a mortgage. He did not execute a release, and deliver it to the plaintiff, it is true; and, until demand was made upon him for that purpose, he was under no obligation, legal or moral, to do so. His acts and his silence equally affirmed the trust. A reconveyance was finally demanded of him, and then, for the first time, he attempted a denial and repudiation. His refusal to make the deed was the first appearance of a claim inconsistent with the trust. This was the only wrong in the history of the case which could set the statute in motion, and, in accordance with the doctrine of the very cases relied upon by the defendant, it was then, and not before, that

the statute commenced to run. Not only are we sustained in this conclusion by the reasoning in the cases referred to, but the court in Howell v. Howell, supra, comes directly to our support. In the course of the opinion, Dixon, C. J., says: "It follows that the cause of action set forth was barred in the lifetime of William Howell, unless, as counsel supposed, it was necessary that there should have been a denial of the trust before the statute would begin to run. But that doctrine is applicable only to express or acknowledged trusts, where the trustee had afterwards repudiated the rights of the cestui que trust, and set up a claim to the trust property in his own right, and not to those implied or equitable trusts which spring from the originally wrongful and fraudulent acts of the party to be charged, and which were never recognized or admitted by him." Therefore, accepting counsel's theory that this was a trust to which the statute would apply, as the action was commenced immediately after the refusal by the defendant to make the deed, it was not barred.

But we are disposed to rest our decision of the case upon other grounds. This is not an action to redeem. The defendant was never in possession of the mortgaged property, applying its rents and profits in payment of the debt, so as to make an accounting necessary. There was no uncertainty or dispute as to the amount which had been paid, so as to require an ascertainment of that for the purposes of redemption. The debt had been fully paid, and the note which evidenced it canceled. The bill makes no allegations which require an investigation to ascertain what, if anything, is still due, in order that the plaintiff, by payment of the balance, may redeem his property. It is simply a bill to cancel a mortgage which had already been satisfied. While the debt which a mortgage was given to secure remains unpaid, it is valid and efficacious for the purpose of the enforcement of the mortgagee's remedy against the mortgaged property; but, when the debt is fully paid, the mortgage is defunct,-it becomes null and void; it is useless in the hands of the mortgagee for any purpose,-and, as long as it is unreleased upon the record, it remains a mere cloud upon the title of the mortgagor, to be removed, if necessary, in a proper proceeding for that purpose. The statute of limitations contemplates a loss by one party, on account of his delay, of some right or possession which inures to the benefit of the opposite party, so that what one loses the other gains. Here the defendant would gain nothing if the plaintiff's action were barred, and he would lose nothing if it were not. It is immaterial whether the effect of the mortgage is to vest the legal title in the mortgagee or leave it in the mortgagor. In either case, when the debt is paid, the mortgage is, in equity, extinguished, and a reconveyance is necessary only for the purpose

of making the record title of the mortgagor complete. We have no statute which limits the time within which a party in possession shall proceed to remove a cloud from his title, and, as no lapse of time can restore vitality to a mortgage which has been paid and extinguished, so no lapse of time will bar a mortgagor from proceeding to cause the fact of its extinguishment to appear upon the record. The decree will be affirmed.

(4 Colo. App. 126)

MADERA v. HOLDREGE.

(Court of Appeals of Colorado. Nov. 27, 1893.) SHERIFFS AND CONSTABLES UNLAWFUL SEIZURE -TREBLE DAMAGES-ACCRUAL OF ACTION-SUFFICIENCY OF COMPLAINT.

1. Gen. St. 1883, § 1868, provides that if any officer, under any execution or other process, shall seize any exempt property, such officer shall be liable to the party injured for three times the value of the property so seized. Held, that the right of action for treble damages does not accrue immediately on the seizure of exempt property, but that the officer had the right to return the property after demand by the debtor.

2. A complaint states facts sufficient to constitute a cause of action, without an allegation that the action is brought to recover the statutory penalty, where it alleges plaintiff's title, his right under the statute, the levy of process, his demand and the refusal to return, and his right to the possession of the property, and prays treble damages therefor.

Appeal from district court, Boulder county. Action by Ell A. Holdrege against Shep Madera for treble damages for the seizure of exempt property. Judgment for plaintiff. Defendant appeals. Reversed.

The other facts fully appear in the following statement by BISSELL, P. J.:

This suit was brought against an officer to recover treble damages for the seizure, under a writ of attachment, of property which the alleged debtor claimed was exempt from execution. The General Statutes of 1883 (section 1868) provide: "If any officer or other person, by virtue of any execution or other process, or by any right of distress shall take or seize any of the articles of property hereinbefore exempted from levy and sale such officer or person shall be liable to the party injured for three times the value of the property illegally taken or seized, to be recovered by action of trespass with costs of suit." In February, 1892, I. T. McAllister commenced an action against Ell A. Holdrege before a justice in Boulder county, to recover $53.05, and sued out a writ of attachment in aid of the suit. The process was put in the hands of Frank Metcalf, a constable, in the ordinary way. The officer levied the writ on a stallion belonging to Holdrege, and took him away. At the time

of the levy, neither the officer nor the defendant said anything concerning the claim or right of exemption, and the ordinary course pursued by officers in the service of process was taken by Metcalf. After the

property was taken, the defendant served a notice on the officer, claiming the animal as a work horse, and exempt under the law. Within a short time an attempt was made to release the levy and return the property. Metcalf seems to have had occasion to leave town, and delegated Madera, the defendant in the ultimate suit and the appellant here, to act for him in respect of this matter. Madera and McAllister, in response to the demand, took the horse down to Holdrege's place, and attempted to redeliver him. They took it into the yard, and tendered it to Holdrege, who refused to take it. Thereupon the horse was tied to a wagon in the yard, and Madera told Holdrege that he brought him back at Metcalf's request, in response to the demand. Madera was also a constable. After this attempted delivery, Madera demanded of Holdrege that he turn over to him other property, which it was claimed he owned, to be taken in satisfaction of the writ, and to answer for the debt; stating that, in case the debtor failed to do this, he would again levy a writ on the animal. Some doubt is left in the record as to precisely what Holdrege said concerning other property, but, at all events, he turned over none. Madera thereupon produced a second writ of attachment, which had been issued in the same suit of McAllister against Holdrege, served a copy on the defendant, and took the horse. Afterwards, Holdrege served a demand on Madera for the return of the animal, making the same claim asserted in the notice to Metcalf. The notice was served on the 3d of March. Madera did nothing in response to this notice for several days, and on the 8th of March the present suit was instituted. Judgment was entered in the original action of McAllister v. Holdrege on the 5th of March, and, on the 7th, an execution was issued for its enforcement. Nothing was done under this execution, so far as the proof shows, and, at all events, no sale of the property had occurred, or other disposition been made of it, when the present action was brought, and at the time of the subsequent occurrences, which will be stated. Some time after the service of the notice on Madera, but at what precise date the abstract does not show, in response to the demand which had been served on him, Madera undertook to return the animal. He took him down to Holdrege's place, and tried to enter the yard, and found the entrance barred. He saw Holdrege, however, at that time, and told him what he had come for, and offered him the horse. Concerning this matter there is no dispute, since Holdrege himself testifies that he absolutely refused to take it, and that Madera offered it to him. and would have turned it over had he not declined to receive it. At the time of this last transaction, another Richmond appeared in the field, armed with an authority which the exemption statute did not affect. It seems that on the 5th of December, 1891,

Holdrege had made a chattel mortgage to the First National Bank of Boulder which covered this and other property. The mortgage contained the usual conditions, and matured, if there were no other breach, by the lapse of time, in May. Like all other instruments of this description, a levy of a writ of attachment on the property gave the holder the right to declare the whole sum due. The history of this mortgage and its transfers is not clearly stated in the abstract, nor did the jury find anything about it. It appears that, prior to the seizure to be afterwards noted, McAllister bought the mortgage of the bank, but at some time intermediate its enforcement parted with the title, and possibly with all interest in it, to some other person, and that title became vested in J. H. Crary, who was one of McAllister's employes, and who testified that he was the owner. When Madera took the horse down to Holdrege's place, and sought to deliver it under the demand, he was followed by another officer, who held this mortgage, and, when Holdrege refused to receive the animal, this representative of the mortgagee took the property out of Madera's possession under the authority which the instrument contained, and the horse was subsequently sold thereunder. Holdrege attempted to pursue his rights, and notified the parties concerned that the mortgage was not due, and that they were without the right to sell; contending that it was being used as an instrument by McAllister to enforce the payment of the debt by a claim of a breach of a condition created by his own act, to wit, the issue of the writ of attachment. The cause was submitted to the jury under sundry instructions, which stated generally what property was exempt, the terms of the statute, and the rule concerning the right of the mortgagor of chattels to claim an exemption. The court also instructed the jury: "If you believe that at the time that the writ of attachment was levied in this case, that the defendant in this suit, who is the plaintiff here, had other working anmals besides the one in question, you are instructed that it was his duty, within a reasonable time, to turn over such animals for the satisfaction of the debt, and he is not entitled to claim any exemption until he does so. If you find for the plaintiff, find for three times the value of the horse, as shown by the evidence." As usual, the evi dence of value was conflicting, but the jury found a verdict against the officer for $375, for which judgment was entered, with costs, and the case was appealed to this court.

R. H. Whiteley, for appellant. J. R. Zuver and H. C. Henderson, for appellee.

BISSELL, P. J., (after stating the facts.) This judgment was evidently entered on a misconception of the privilege and the duty of the exemption claimant, of the authority

and responsibilities of the officer under the writ, and of the proper construction of the exemption statute. There is considerable conflict in the cases concerning the duty of the claimant with respect to the assertion of his rights of exemption, and the powers of the officer with reference to the seizure of property. So far as those questions arise in this case, the particular principle involved has been settled by the supreme court, and we need not look further for authority on which to declare the law. As a general proposition, it is established that the officer may enforce his writ against whatever property he finds in the defendant's possession, whether he be serving a writ of attachment or a writ of execution, unless the only property which the defendant has subject, to levy is within the protection of the exemption statute. The earlier case undoubtedly declared the law to be that the duty rested upon the defendant to claim the exemption if he desired to insist on it. The subsequent decision draws a distinction between the case where the only property owned by the defendant is clearly within the statutory limit, and a case where the defendant has other property subject to levy; the later decision holding that, in the first instance, the levy is illegal, and, in the latter, that the defendant must assert his rights. Behymer v. Cook, 5 Colo. 395; Harrington v. Smith, 14 Colo. 376, 23 Pac. 331. These authorities do not state when the right of selection shall be exercised, nor when the claim shall be made; but since, under some circumstances, the claimant must make his selection, the rule adopted in those cases which impose the duty on the claimant is the only one which can be followed. In general, those authorities state that the selection may be made, and the notice concerning it may be given, at any time prior to sale under the process by which it was taken. Of course, the rule would be the same in attachment as after judgment, although in the former the right to exercise the privilege would probably continue until the final entry, and an attempt to sell under the execution. Thomp. Homest. § 839; Freem. Ex'ns, § 211 et seq. In this case it is fairly deducible from the record that the defendant had other property than the horse which was seized. Since this is true, it follows that the officer had a right to take the property into his custody; and it thereupon devolved on the claimant to assert his rights, and notify the officer that this particular horse was selected by him as a work-horse, and claimed as exempt under the statute. This the appellee did, and his notice was entirely regular, and it became the duty of the officer, on receipt of it, within a reasonable time thereafter to return the property to the custody of the attachment defendant. The importance of this statement will be recognized when it is remembered that the officer holding the first writ (Metcalf) undertook to

discharge this duty, sent the horse back, and tendered it to Holdrege, who refused to receive it. No right of action could have accrued to Holdrege, as against Metcalf, under this state of facts, for if the law cast upon him the duty to exercise the right of selection, and likewise gave to the officer holding the writ the right to seize the property, it necessarily follows that the right of return must accrue to the officer upon the service of the notice of the demand, and that this return, if made or tendered, would relieve him from liability to treble damages under the statute. Thus far the case is plain, and seems to have been accepted, since no action was brought against Metcalf for an illegal seizure.

The case is nearly as plain under the facts which surround Madera's connection with the transaction. When the horse was returned and tendered to Holdrege, and tied to the wagon for the purposes of surrender, Metcalf's rights as an officer, under his writ, were gone, and it was incumbent upon Holdrege to resume possession, and no right of action had then accrued to him for trespass for the taking. At this point, Madera, who held the second writ, was doubtless in error in the assertion of his powers thereunder, and the court was in error in its instruction on this subject. When Madera left the property with the defendant, under Metcalf's instructions, he undertook to compel Holdrege to turn out other property for the satisfaction of the process which he held, and, when this was not done, he asserted a right to retake the exempt animal into his possession. In this he was clearly wrong. There is no known principle of law under which an officer can force a person against whom he holds a process to aid him in discovering property, Dor can he use his process as a club for the purposes of extracting the information. If it happens that, at the time he attempts to make his levy, the property which he is about to seize is exempt under the statute, the defendant may insist on his rights, and his neglect, or his refusal even, to point out other property, will not clothe the officer with the power to take that around which the statute has thrown its protecting arm. It may be that this principle is not absolutely universal, and that, if the defendant had two horses, and fraudulently concealed one to prevent the service of the writ on it, claiming the other as exempt, by which proceeding he would obtain the benefit of two horses in place of one, the law would uphold the officer in taking that which was in sight, though claimed to be exempt. This seems to be the ruling in the case of Yates v. Gransbury, 9 Colo. 323, 12 Pac. 206. But the present case furnishes no facts to which this rule can be applied. The court consequently erred when it stated the law to be that it was the duty of the defendant to turn over the other animals in satisfaction of the claim, and that he was without the right

to insist upon the exemption until he had performed this duty.

Although this is true, no injury seems to have come to Holdrege by reason of the officer's conduct, nor did any cause of action come to him by reason of it. He refused to take the horse when Metcalf returned it, and although it was probably, in the contemplation of the law, in his possession when it entered the yard, and the officer transcended his rights when he retook it into his possession, the legal status of the parties was settled by their subsequent proceedings. After Madera took the horse away, Holdrege served a written demand on him for its return, claiming his statutory privilege. The case shows that after this demand, though at what precise date cannot be determined, Madera took the horse back to Holdrege's place, and attempted to redeliver it. He went to the yard, found the gate closed, and asked Holdrege to open it, that he might return the animal. Holdrege declined, and absolutely refused to receive it, and confesses on the stand, in the course of his testimony, that Madera would have delivered the horse to him if he would have received it. Under these circumstances it cannot be held that he had a cause of action against the officer for a trespass as for an illegal taking, unless the construction of the statute which the court evidently adopted, and on which counsel insist, is justified by its terms. We do not so conclude. The phraseology of the act undoubtedly is that "if any officer," etc., "shall take or seize," etc., "any of the articles," etc. On the argument it was seriously insisted by counsel that the right of action for treble damages under the act accrues immediately upon the taking or seizure of property, and if it is not returned, under the exemptioner's demand, before suit brought, the status of the parties is thereby settled and concluded. It was contended that they occupied precisely the same situation they would in the case of a seizure of the property of one by another, and a refusal to surrender on demand, which is always proof of conversion in the action of trover. But we think there must be, in a case of this description, something which is equivalent to a conversion of property by the officer to entitle the defendant to the enforcement of this penalty. To "take and seize" must be held to include, in its legal significance, the elements of conversion. No other construction would prevent the most manifest injustice. If the right of action for treble damages accrues immediately upon the seizure of exempt property under process, the defendant could recover from the officer at once three times its value, replevy what had been taken, pay his debt, have money and the goods left, and be likened unto the disciples on the banks of the Sea of Galilee, when they gathered up more than 12 basketfuls of fragments beyond the amount of the original feast. If it be the law that the duty of se

lection must, under some circumstances, be discharged by the claimant, and may be exercised at any time prior to the sale, this construction is impossible. This right to claim the exempt property draws after it a coequal right to be enjoyed by the officer to return it on demand. If the officer may lawfully seize under his writ, and the defendant may afterwards lawfully assert the exemption, it follows that the right of return must come to the officer after demand made.

The appellants attack the complaint because of the failure of the pleader to insert an allegation that the action was brought to recover the penalty specified in the statute. A good deal of stress was laid on the discussion of this proposition, and counsel seem to consider the pleading so fatally defective as to be subject to the criticism that it did not state facts sufficient to constitute a cause of action. It is not vulnerable to this objection. The pleader aptly and sufficiently stated all the facts constituting his cause of action,-his title, his right under the statute, the levy of process, his demand, the refusal to surrender, and all other facts essential to show his right to the possession of the property, and the recovery of three times its value; and for this he prayed. These allegations were certainly a sufficient statement of a cause of action. Had they been adequately supported by the testimony, this would have enabled the plaintiff to succeed. His failure to prove a refusal to return the horse after demand, should the same result be reached on a subsequent trial, would doubtless defeat his recovery, and the absence of both averment and proof of conversion would then become of first importance, if the court should be called on to pass on the matter of costs.

In the statement of facts preceding the opinion, we have recited a meager history of the mortgage under which a third party took the property from the custody of Madera after Holdrege's refusal to receive it, and under which it was subsequently sold, and applied to the satisfaction of the mortgage debt. Under some circumstances, this proceeding might possibly operate as a defense to the officer when he was sued under the statute for the illegal taking. The matter is not sufficiently developed in the present record to enable us to speak definitely concerning it. It was not pleaded by way of defense, nor was the proof about it sufficiently specific to entitle us to express a definite conclusion concerning the legal results flowing from its enforcement. Counsel have insisted that, if the property were taken under the mortgage, then the officer could not be held liable, since the law would assume, under the circumstances, that the property was in Holdrege's possession when the mortgagee attempted to enforce it. It is insisted otherwise, that the mortgage really belonged to McAllister, the creditor, who was