be rendered, his wages are due and may be demanded at the close of each day or month, as the case may be. We think such services are comprehended within the meaning of the statute relied on, and that after demand for the amount due the laborer may maintain his attachment proceedings. The court was justified in sustaining the attachment sued out in this case. This conclusion disposes of the remaining assignment

of error.

The judgment will be affirmed.
Affirmed.

DE LAPPE v. SULLIVAN.

Filed February 8, 1884.

JUDGMENT AFFIRMED ON THE AUTHORITY of De Lappe v. SULLIVAN, ante, 107. APPEAL from a judgment of the county court for Lake county. The opinion states the facts.

Templer & Hodges, for the appellant.

G. G. White and T. C. Early, for the appellee.

By the COURT. The questions submitted for adjudication in this cause are identical with those considered in the case of De Lappe v. John Sullivan, ante, 107, which has just been decided. The evidence in no way changes or modifies the conclusions there arrived at. This appeal must therefore be determined in the same way.

The judgment of the county court will be affirmed.
Judgment affirmed.

WEISE ET AL. v. BARKER.

Filed February 8, 1884.

TENANTS IN COMMON WHO ARE JOINED AS PLAINTIFFS IN AN ACTION OF EJECTMENT are presumed to have consented to such joinder.

ONE TENANT IN COMMON MAY RECOVER POSSESSION OF THE WHOLE of common property, in an action of ejectment, as against an adverse possessor.

AMENDMENT JOINDER OF CO-TENANTS.-A complaint in an action of ejectment, brought by a tenant in common to recover possession of his undivided share in certain mining claims, as against an adverse possessor holding under an entirely different source of title, may be amended by joining as plaintiffs the other tenants in common, and seeking the recovery of the entire property. Such an amendment does not change the nature of the original cause of action.

PRIOR LOCATION OF A MINING CLAIM IS NOT Invalidated BY A MISTAKE OF THE RECORDER in recording such location by a name somewhat different from that stated in the certificate of location.

A VALID LOCATION OF A MINING CLAIM CAN NOT BE MADE while the same is in the actual possession of other prior locators. The description of a mining claim, as the same appears in the complaint and on the record, held sufficient.

APPEAL from a judgment of the district court for Park county. The opinion states the facts.

George, Maxwell, and Phelps, for the appellants.

W. P. Wade, George M. Dunn, and A. Danford, for the appellees. BECK, C. J. The principal errors assigned are, that the district court erred in allowing the amended complaint to be filed, and in making Ben

bow and Hussey parties to the action. The action was originally instituted by Barker and Wade as plaintiffs, alleging that they were entitled to one undivided one half, or each to one undivided one fourth of the Tauner Boy lode, and that the defendants had wrongfully entered upon said claim and taken possession thereof, to the exclusion of the plaintiffs and their grantors, etc. Afterwards leave was granted the plaintiffs, after service of notice upon the defendants, to file an amended complaint in said cause making the said Benbow and Hussey parties plaintiffs. The amended complaint alleges, among other things, "that plaintiffs are, and were at the institution of this suit, owners and entitled to the possession of said claim in the following proportions, to wit, each to an undivided one fourth, and that they claim the right to occupy and possess said premises by right of pre-emption and by virtue of full compliance with the local laws and rules of miners in said mining district, the laws of the United States and of said state of Colorado, and by actual prior possession as a lode mining claim. Plaintiffs in error assume that Benbow and Hussey were made parties to the amended complaint without their consent.

We have searched the record in vain for evidence to sustain this assumption. The averments of the amended complaint are to the effect that Benbow and Hussey are tenants in common with the original plaintiffs, Barker and Wade, and that each of said four plaintiffs is the owner of an undivided one fourth of the property sued for. All were proper parties to the complaint, and the presumption obtains that all consented to become parties plaintiffs, as otherwise those not consenting would have been joined as defendants: C. C., secs. 11, 13.

The amended complaint having been filed by leave of the court after notice to the defendants, and the defendants, having suffered a default to be entered against them, are in no position to complain of the judgment. On behalf of the appellants, it is insisted that the amendment changed the subject-matter of the action. This view can not be sustained. True, the original complaint only claimed for the plaintiffs Barker and Wade an undivided half of the Tanner Boy lode; but as against the appellants, they were entitled to recover the entire lode, and the original complaint might have been amended to claim the whole. The defendants did not claim to be co-tenants of Barker and Wade, but were claiming the entire lode by a wholly different and adverse title.

The law is, that in ejectment one tenant in common may recover possession of the entire tract as against all persons but his co-tenants: Mahoney v. Van Winkle, 21 Cal. 583; Hart v. Robertson, Id. 348.

The amended complaint alleges that the plaintiffs are the owners and entitled to the possession of the lode. It further alleges that each plaintiff is the owner of an undivided one fourth of the lode. The stipulation of facts filed in the cause shows that all the plaintiffs derive title from the same source, that is, from the same act of location. It also shows that the defendants claim title by virtue of a location of the same lode, made long subsequent to the plaintiffs' location. Defendants were in no manner prejudiced by the filing of the amended complaint. same title alleged in the original complaint was stated and relied upon for a recovery in the amended complaint. Defendants were not interested in this title, but claimed adversely to it. It was therefore wholly immaterial to them whether the action was brought in the names of the several co-owners against them, or in the names of a portion thereof.

The

But the point is made that plaintiffs' location was invalid because the name of the lode was by mistake recorded "Farmer Boy" instead of "Tanner Boy," as it was written in the location certificate. This was a mistake of the recorder, and can not avail the defendants in this case. The certificate itself appears to have complied with the statute: Gen. Laws, secs. 1813, 1814.

Plaintiffs were not responsible for the mistake of the recorder: Myers v. Spooner, 55 Cal. 258. Besides, the defendants were not misled by the alleged error. They have permitted judgment to go against them by default. Their default admits every issuable fact stated in the plaintiffs' complaint: Harlan v. Smith, 6 Id. 173; Hutchings v. Ebeler, 46 Id. 557. Among other issuable facts stated in the complaint is the following: "That heretofore, to wit, on or about the eleventh day of Febru ary, 1880, while plaintiffs and their grantors were in peaceable, open, notorious, and exclusive possession of said claim, working the same as aforesaid, defendants wrongfully and unlawfully entered upon said claim and took possession thereof, ousting plaintiffs and their grantors, and have ever since wrongfully held possession of said premises, to the exclusion of plaintiffs and their grantors."

The stipulation filed in the cause concedes that the lode was properly staked by the plaintiffs; that the mistake in the record was made by the recorder; and that the defendants staked and relocated said lode as abandoned property after the location by the plaintiffs. Upon the merits, then, the appellants have no standing in this case. The record shows actual possession in the appellees, which is prima facie evidence of title, and as we said in Lebanon M. Co. v. Con. Rep. M. Co., 6 Col. 380: "Entering upon premises in the actual possession of another for the purpose of performing the acts necessary to constitute location and possession, amount only to a trespass, and can not form the basis for the acquisition of title." Whether the location of Barker and his co-tenants be valid or not, their possession is sufficient to defeat a recovery by the appellants. We are further of opinion that the description of the lode set out in the amended complaint, as it appears in the record proper, transcript, folios 18-23, is sufficient to identify the claim sued for. The boundaries of the claim are given, and in addition the following: "The discovery tunnel is about one half mile below the old town of Timberline on the line of Buckskin creek, on the south side of said creek, and two hundred feet north-west from the discovery tunnel on the Ioda lode." The judgment is affirmed.

DUSING V. NELSON.

Filed February 8, 1884.

A JUDGMENT TO BE FINAL MUST SHOW BY THE ENTRY ON THE RECORD, in intelligible language, a determination of the rights of the parties to the action, what relief has been granted, if any, or that the defendant has been dismissed without day. A judgment which does not conform to such requirements will be held to be interlocutory merely. JUDGMENT AND FINDINGS IN FAVOR OF THE PLAINTIFF WILL BE PRESUMED TO BE SUPPORTED by the evidence when the same is not produced before the appellate court. PURCHASE OF TRUST ESTATE BY EXECUTOR OF CESTUI QUE TRUST.-The maker of a promissory note, secured by a trust deed of land, which authorizes the trustee to sell such lands upon default in the payment of the note, can not object to a purchase at such sale by the executor of the beneficiary under the trust deed, when such purchase resulted greatly to his advantage.

ERROR to the county court of Jefferson county. The opinion states the facts.

Brown & Putnam, for the plaintiff in error.

A. H. De France, for the defendant in error.

BECK, C. J. This was an action of ejectment, brought by Nelson, the defendant in error, against Dusing, the plaintiff in error, to the March term, 1880, of the court below, to recover possession of a quarter-section of land. The last entry of record in said cause at the March term is in the following words: "And now, after the demurrer being overruled to defendant's additional answer, comes the said plaintiff and files his replication to said answer, whereupon the said defendant asks for judgment on said replication and the papers in this cause. And now the court, being fully advised in the premises, finds that there is not sufficient matter alleged in said replication on which to found an action. Whereupon it is considered ordered and adjudged by the court that the said defendant have and recover of and from the said plaintiff his costs and disbursements by him in this behalf laid out and expended, taxed at seven dollars and five cents, and that he have execution therefor."

No further steps were taken in said cause until the December term, 1880, of said court, when the plaintiff moved the court to vacate the judgment for costs entered at the March term, and for a rehearing of the defendant's motion for judgment upon the pleadings. This motion was resisted by the defendant's counsel, but the court sustained the motion, vacated the judgment for costs, and granted a rehearing of the application for judgment upon the pleadings, to which rulings of the court the defendant duly excepted. Afterwards, on the rehearing, the motion for judgment on the pleadings was overruled and the cause set down for trial before the court without a jury, by consent of parties. The finding and judgment were for the plaintiff.

The first error assigned questions the power of the court to vacate the judgment entered at the March term. Two terms of court had intervened after the entry of the so-called judgment before the coming of the December term at which the subsequent proceedings were had. If, therefore, the order entered at the March term was in fact a final judgment in the cause, the court had no power to set it aside, and to rehear and redetermine the issues after the lapse of two terms of court: Freeman on Judgments, secs. 90, 96.

The court below appears to have taken the view that the action taken at the March term did not constitute a final judgment, and was not a final disposition of the case. We are of opinion this view is correct. Pothier says: "A judgment to have the authority or even the name of res judicata must be a definite judgment of condemnation or dismissal:" Pothier Abr., pt. 4, c. 3, sec. 3.

If the order entered in a cause does not put an end to the action, but leaves something further to be done before the rights of the parties are determined, it is interlocutory and not final. To be final, it must end the particular suit in which it is entered.

It is said that a judgment "that the defendant go hence, and that he recover his costs," etc., though not formal, is a good final judgment, because no further action can be taken while it remains in force, but that a judgment for costs alone is not final: Freeman on Judgments, secs. 12, 16; see also Young v. Stonebraker et al., 33 Mo. 117; Adams v. Trigg, 35 Id. 190.

As we said in Alvord v. McGaughey, 5 Col. 244: "While a strict compliance with forms is not essential in the entry of judgment, yet to constitute a final judgment, the record must not only indicate that an adjudication took place, but the entry must have been intended as the entry of a judgment." This intention must be fairly deducible from the language employed in the entry. Thus tested, a final judgment will show, in intelligible language, a determination of the rights of the parties to the action, what relief has been granted, if any, or that the defendant has been dismissed without day. The supposed judgment in this case, not conforming with the above requirements, must be held to be interlocutory merely.

Looking now at the case as presented upon the merits, we find but little conflict in the facts as stated in the pleadings. The amended answer on one side, and the replication on the other side, assume to set out the facts concerning the origin and history of the plaintiff's title. And since the record shows that testimony was produced on the trial in support of the allegations of the complaint and replication (none of which has been preserved), and the finding and judgment having been for the plaintiff, the presumption obtains that the allegations of fact on the part of the plaintiff were duly proven.

Dusing, on the ninth of December, 1876, executed to one Oliver Graves, as trustee, a trust deed upon the land in controversy, to secure the payment of a promissory note for the sum of thirteen hundred dollars, given by Dusing to one A. C. Butler, payable in two years, with interest thereon at the rate of one and one half per centum per month. After maturity of the note, default having been made in the payment thereof, the premises having been duly advertised for sale, as required by the trust deed, they were, on the twenty-fourth day of November, 1879, offered at public sale by the trustee. There was then due upon the note about the sum of eighteen hundred dollars. The highest bid offered by an outsider was the sum of six hundred and twenty-five dollars. Thereupon the trustee bid, for the executors of the estate of said Butler, who was then deceased, by virtue of a power of attorney held by him for that purpose, the sum of fifteen hundred dollars; and that being the highest bid, the premises were struck off and sold to said executors for that sum. A few days afterwards, and before a deed was executed to the executors, in pursuance of said sale, Nelson, the plaintiff, purchased the premises from the executors, through the said Graves, for the sum of eighteen hundred dollars; and by direction of the executors this entire sum was indorsed upon Dusing's note, and a deed executed by said trustee directly to Nelson. In the execution of this deed, then, consists the whole irregularity upon which the defense is based.

That there is no equity in the defense is apparent from the fact that the defendant realized an additional credit upon his note of three hundred dollars over and above the amount bid at the sale, by reason of the plaintiff's purchase and of the transfer of the title to him. If the trustee Lad executed a deed to the executors in pursuance of the public sale to them, crediting their bid, fifteen hundred dollars, upon defendant's note, and the executors had then executed a deed to Nelson, retaining for the use of the Butler estate the additional three hundred dollars realized by the latter sale, there would exist nothing of the present defense, except the point that "the executors could not purchase at the trustee's sale, even if present."