
    Wells v. Francis et al.
    1. In equity the rule is, that all persons materially interested in the result should be made parties to the suit.
    
      2. The relation of the parties to a title bond is that of mortgagor and mortgagee; the action for a vendor’s lien is analogous to the foreclosure of a mortgage; and the rule that a person claiming adversely to the title mortgaged need not be made a party applies to the former as well as the latter action. A strong analogy also exists between the action for a vendor’s lien and a suit for specific performance, but in the latter the above rule as to adverse claimants likewise prevails.
    3. If it does not appear on the face of a contract, or otherwise, that the trustees act as agents, or in a fiduciary capacity, it is unnecessary to go beyond the terms of the contract,
    4. Adverse claimants of title to realty cannot resist the suit of one joint tenant therefor, on the ground that his co-tenants are not asserting their interests in the same action.
    5. The general rule that a judgment or decree is inadmissible as evidence, except in suits between parties or privies thereto, is not inflexible; it is sometimes adnjissible between others as an introductory fact to an important link in a chain of title relied upon.
    6. The action for a vendor’s lien may be maintained against one holding actual possession under a title bond of a part of the public domain, with extensive and valuable improvements thereon.
    7. A patent which is not void on its face for fraud or irregularity in procuring the same can only be impeached therefor in a direct proceeding to set it aside. %
    8. Title procured to that which may properly be termed a trust estate, by the trustee, for his own advantage, and against the interest, and without the consent, of his beneficiary, will be declared in equity to be held in trust for the latter. And one who, with full knowledge of the situation, colludes with the trustee in procuring such adverse title is in no better position than the trustee himself.
    
      9. An agreement signed by but one party thereto, without any present consideration passing, is a naked promise, and, at least until part performance, cannot be enforced by or against either party.
    10. It is the duty of a court of equity to render exact justice between the parties before it in each particular case, so far as such a course is consistent with that certainty in legal rules and security of legal rights which must form the basis of all stable jurisprudence. And a court of equity will refuse its aid to give the plaintiff what the law would give him if the courts of common law had jurisdiction, without imposing upon him conditions relating to the subject-matter in controversy which the court considers he ought to comply with, although the subject of the condition is one the court would not otherwise enforce.
    
      Appeal from District Court of Clear Creeh County.
    
    Appellant filed complaint in Clear Creek district court against appellees, averring:
    That September 6, 1870, George Way was the owner of premises then situate in the public domain, to wit, a certain mill site and water-power with the mill building, etc., and on or about the same day executed to the Franklin Silver Mining Company a title bond, conditioned to convey the same; that about February 1, A. D. 1871, the Franklin Company assigned the same to one McFarland; that about August 25, 1871, Way, in lieu of said bond, executed another like bond, conditioned to convey the premises to McFarland on or before September 6, 1872, on payment of certain moneys to Way, and other moneys, parcel of the purchase money, to plaintiff; December 6, 1872, McFarland assigned said bond to defendant Francis, and Francis, in consideration thereof, promised to pay plaintiff the moneys by McFarland payable to him, and Way, in consideration of the premises, and in substitution for the former bond, executed to Francis a title bond, conditioned to convey the premises to him; at the time of the execution of the first bond, the Franklin Company was admitted by Way to possession, and afterwards transferred such possession to McFarland, who transferred possession of said premises to said Francis about December 6, 1872; that Way, and those from whom he derived title, had, before the execution of the first bond, erected upon the premises mill buildings and other buildings, and expended $40,000 or thereabouts therein; that on the 8th day of September, A. D. 1873, plaintiff was entitled to a lien on the premises for the moneys to him due and owing, and on that same day filed in the district court of Clear Creek county his bill against said Francis and others, to enforce said lien; that said Francis was then, and still is, a non-resident; that due notice was given; that said Francis appeared and answered; that plaintiff proceeded with all due diligence in the prosecution of said suit; that at June term, 1879, decree was given establishing the lien for said moneys, $2,950, and it was ordered, adjudged and decreed that said Francis pay, etc., and in default, sale, etc. Sheriff to execute the deed.
    Sale made October 28, 1879, and premises struck off to plaintiff and deed executed.
    At the time of exhibiting said bill, the premises were in the mineral lands of the public domain, and were then • occupied by said Francis as a mill site, with a mill for the reduction of gold and silver-bearing ores.
    That both said McFarland and Francis were always non-residents, and during all the time of the occupancy and possession of said premises by them respectively, they were represented by defendants Andrew W. Myers and Augustus Blackman, until some time in summer of* 1873, and they, as agents, were in charge of said mill; some time in summer of 1873, said Andrew W. was removed, and said Augustus Blackman became, and for a long time thereafter, and until the 1st January, 1879, or thereabouts, was the sole agent of said Francis in the possession of said premises; that in 1872, by extension of the government surveys, it was ascertained that said mill site was on S. W. \ of sec. 32, T. 3 S., R. 72 W., and at some time afterwards, Jonas Myers, a brother of said Andrew W., and then residing at said mill as one of the servants of said Francis, by procurement of said Andrew, applied in United States land office to enter said lands, and afterwards said Jonas was permitted to enter said lands of the United States, — patent issued June 20, 1875; that though said Francis was then absent from the territory, and said Andrew W. and said Augustus were the agents of said Francis, occupying said premises under him, receiving his wages, and in duty bound to protect the title, neither of them informed said Francis of the entry of said land by said Jonas, but concealed the fact, and the fact of his application, from said Francis; that said Francis, about June, 1873, discovered that entry of said lands had been made by said Jonas, and said Jonas thereupon, on demand of said Francis, entered into a written acknowledgment that said Jonas held the title in trust for said Francis, and covenanted to convey said title, and the whole of said quarter section, to said Francis, free of all incumbrance, on payment of $300, on or before the expiration of thirty days from date of securing government title; that said Francis, being a citizen of the United States, and said mill, etc., being situate upon non-mineral lands in the mining districts of the public domain, said Francis was entitled at the date last aforesaid to enter and purchase said mill site, etc., from the government, subject to the right of plaintiff; that said Jonas was never a settler or the owner of any improvements upon said quarter section, and never cultivated any part thereof; and the entry made by said Jonas was procured by the fraudulent combination of said Andrew, Harriet, Augustus, Henry and Joseph, and by imposition and deceit by them practiced upon the officers of said land office, whereby said officers were kept in ignorance of the right of said Francis and plaintiff, and were led to believe that said Jonas was an actual settler, and entitled to purchase the same; that said Jonas hath not conveyed any part of said lands to said Francis, but, intending to defraud said Francis and this plaintiff, said Jonas, on October 24, 1874, conveyed one-fourteenth of said quarter section to said Henry Wilson, five-fourteenths to said Blackman, and one and one-half fourteenths to defendant Lehman.
    At the time of said several conveyances, all said defendants had notice of the rights of said Francis and plaintiff in the premises.
    That until about October 28, last past, plaintiff had no notice or information of the entry of said lands, or of said several conveyances and agreements, or either, but believed that said Jonas had executed proper conveyance to said Francis.
    That defendant Parsons claims to have a judgment lien; avers that it was recovered fraudulently, by connivance of Blackman, to cloud the title, etc. That the conveyances of said Jonas to said Wilson, Blackman and Lehman were executed without consideration; that Harriet Myers claims some interest; that she is the wife of Andrew, and whatever interest she hath was obtained with full knowledge of the rights of plaintiff and said Francis, and without consideration.
    Prayer that defendant be restrained from selling, and decreed to hold the title derived from the United States in and to said mill site, etc., in trust for plaintiff, and to convey, etc.
    Answer of Blackman:
    Admits the title and possession of Way, the bond executed by Way to the Franklin Company, the assignment of it to McFarland, the execution of the second bond by Way to McFarland; denies the alleged assignment of this bond to Francis; admits that, December 6, 1872, Way executed a bond for the premises to Francis; admits that Way let the Franklin Company into possession, and that said company transferred such possession to McFarland; denies that McFarland transferred said possession to Francis; avers that on or about December 6, 1872, McFarland’s bond was canceled and surrendered, and possession restored to Way, who then and there delivered same to Francis.
    Denies that plaintiff was at any time entitled to a lien upon said premises. Admits that plaintiff filed his bill of complaint in the district court of Olear Creek county against said Francis about the day stated in the complaint; that said Francis appeared and answered; that plaintiff obtained a decree as alleged; that a sale took place, and that plaintiff became the purchaser, and received a deed from the sheriff.
    Admits that, at the time of exhibiting said bill of complaint, the mill site was situated in the public domain, and was occupied by said Francis as a mill site, with a mill and expensive and valuable machinery thereon, of the value of $40,000; denies that the mill site was mineral land; admits that said Francis and said McFarland are, and always have been, non-residents; that said Blackman and said Andrew W. Myers were in charge of said mill as agents and servants of said McFarland and Francis until some time in the fall of 1873, when said Blackman was appointed the sole agent of said Francis.
    Admits that said mill site is situate in the section, town and range stated, and that in 1872 Jonas Myers applied at the United States land office to enter said lands, and did enter the same, and on the 20th June, 1875, received a patent therefor, and became thereby the absolute owner, which title related back to the time of his application in the land office; that at the time said Jonas made application for said land in the land office said Francis had no interest therein, but before the entry and payment therefor he became interested by virtue of the hond of December 6,1872; that, after becoming so interested, he was informed of the application of Jonas, and agreed, in consideration of receiving from said Jonas a deed for the mill site and water-power, on said Jonas’ obtaining a patent, to contribute all moneys necessary for making such application and paying for said land, one hundred and sixty acres; and said Myers agreed, in consideration of the payment of this money, to convey to said Francis the water-power and mill site; that said Francis was repeatedly requested by said Jonas to perform his said agreement, and furnish the money necessary, but refused, and said Jonas paid for said land, with his own money, $600; denies that McFarland did not know of the entry by said Jonas; denies that he was not fully advised of said application, and the various steps taken to perfect the title at the time of said application, and that the patent was issued with the full knowledge and consent of said McFarland and said Francis; denies that said Jonas ever agreed with said Francis to convey to said Francis any interest in said lands, except upon the terms aforesaid; admits that said Andrew W., for part of the time while said application for patent was pending, and said Blackman for the balance of the time, were the agents of said McFarland and Francis; denies that they failed or refused to inform said McFarland of said application.
    Admits that said Jonas has not conveyed any portion of said property to said Francis. Admits the conveyances charged to Wilson, Bla’ckman and Lehman.
    Denies that at the time of the several conveyances and agreements spoken of in said complaint as made by said Jonas to Wilson, this defendant had any notice of the rights of plaintiff to the ground in question.
    Denies that said Francis had any right therein; denies that plaintiff did not have notice of the rights of Jonas Myers in the premises, prior to 28th October last; that he became familiar with the terms of the agreement between said Jonas and said Francis as early as 1875; that as soon as said conveyances were made, they were recorded, and became notice to the world.
    Denies that Parsons claims any interest. Avers that his judgment has been fully satisfied. Denies that the conveyances of said Jonas to this defendant and said Henry Wilson were without consideration; but expressly avers the contrary, and that each of said conveyances was and were based on a good and valuable consideration.
    March 5, 1880. Answer of Andrew W. Myers and Harriet filed; substantially like that of Blackman.
    June 18, 1880. Answer of Lehman filed. As to the bill from the beginning to folio 20, he has no knowledge, information or belief; admits the conveyance to him by said Jonas Myers on or about that time for a good and valuable consideration; admits the agreement; “denies that at the time, as charged in folio 22 of the complaint, that he had full notice of the rights of the said Caspar S. Francis and the plaintiff in the said premises; ” avers that plaintiff had actual or constructive notice of “said several conveyances and agreements, or one and all of them, on or about November, 1874.” “Denies that the said conveyances by said Jonas Myers to him and others, as stated in the complaint, were executed without the payment of any consideration whatsoever by them, or either of them, to said Jonas Myers; but alleges that the conveyance by said Myers to him was for good and valuable consideration, paid, had and received by said Myers.”
    June 18, 1880. Supplemental answer of Augustus Blackman, that May 18, 1876, taxes assessed for 1875 upon said premises were due, and on that day the treasurer sold the premises to Atkins; deed made May 19, 1879, and conveyed to defendant. That in 1877 the premises were sold to Mills for the unpaid taxes of 1876; deed executed to Mills June 18, 1880; conveyance to defendant, June 23d. Replication to the answers of Blackman and Andrew W. and Harriet Myers. Denies that the bond of Way to McFarland was ever canceled or surrendered, or that possession of said premises was ever restored to Way. Avers that McFarland took said' bond as trustee for divers persons, to wit, said McFarland, said Francis and others; and the bond executed to said Francis was executed by consent of said McFarland, and all concerned, in substitution for the bond executed to McFarland. Whether said Francis ever agreed to contribute the moneys necessary for the entry of said land, or if so, whether he performed said agreement, defendant hath not and cannot obtain information sufficient to found a belief. Denies that Jonas paid for the lands with his own money, or paid the expenses necessary for entering said lands. Denies that plaintiff ever heard or understood, until the coming in of said answer, that any such agreement, as in the answer alleged, was ever entered into between said Francis and said Jonas. Avers, if any such agreement was made, the same was made and entered into while plaintiff’s said suit was being diligently prosecuted against said Francis; and plaintiff, if it should be necessary to secure his right, is still, notwithstanding the default of said Francis, entitled to the benefit of said agreement. Denies that plaintiff had either actual or constructive notice of the several conveyances of said premises by said Jonas Myers, until shortly before the filing of plaintiff’s complaint herein, nor until after the purchase of said premises in pursuance of said decretal sale.
    June 23, 1880. Replication to answer of Lehman. Denies that said Lehman paid anything whatever to said Jonas Myers for said conveyance. Denies notice of any of the agreements or conveyances in the answer mentioned.
    Replication to supplemental answer of Blackman. That at the time of the alleged assessment and levy of taxes for 18J5, and at time of levy and assessment for 18y6, and thereafter until now, said Blackman was in the actual possession of said premises, by means whereof it became and was the duty of said Blackman to pay said taxes without suffering said premises to be sold.
    2. That if the supposed title derived by said Atkins or Mills, in manner as stated, etc., hath at any time come to said Blackman, said Blackman, at the time of obtaining each of said supposed titles, was holding said premises as trustee for plaintiff.
    3. As to so much, etc., if any such assessment of taxes as supposed, etc., for the year 1875, was ever made, said premises were then part of. the public domain of the United States.
    Avers the assessment and levy of taxes upon said premises for 1875, and the sale of said premises for nonpayment; traverses seriatim and specifically, compliance with either or any provision of the statute.
    5. That if any sale was made to said Atkins for the non-payment of the taxes of 1875, said Atkins did not discharge the taxes subsequently accruing.
    6. As to so much, etc., as sets forth the assessment of said premises, and the levy of taxes for 1876, traverses seriatim and specifically, compliance with either or any of the provisions of the statute.
    Default of Francis.
    Answer of Jonas Myers. Conforms to the answer of Blackman, except as follows: That after his application to enter said land, * * * said McFarland and Francis, or one of them, became indebted to this defendant Black-man, Wilson, Lehman and Andrew W. Myers, each, * * * by reason of labor in and around said mill, and for materials for making improvements upon same, and running and operating said mill; that in order to secure these men * * * the money due them, it was agreed between McFarland, Francis and defendant, that defendant should enter said lands, and in case McFarland and Francis, or one of them, did not pay, etc., they should receive from defendant a title in proportion to the amount due them respectively, * * * after said land was entered; said Francis and McFarland wholly failed to pay said, etc., whereupon, with the knowledge and consent of said Francis, defendant conveyed, etc.
    Beplication to answer of Jonas Myers. Answer of Parsons admits' that the judgment recovered by him against said Blackman has been fully paid. Disclaimer. September 20, 1880. Default of Francis vacated, alias summons awarded.
    Default of Wilson entered.
    Judgment order. Bill dismissed.
    The bill of exceptions discloses:
    The deposition of Alonzo Mason:
    I am seventy years old; from 1865 to 1875 resided at Masonville, Clear Creek county; know the mill there — put up by Federal Union Co.; know plaintiff, and Andrew and Harriet Myers, Blackman and Jonas Myers. Andrew Myers and Blackman had the management of the mill for a Pennsylvania company. Recollect when Jonas came out; from that time until 1875 he lived in one of the mill houses; used to see him in the mill and the yard. Never saw him do anything but look at the boys stirring the furnaces. He had no residence separate from the mill house that I know of. Used to know the corners of the quarter section on which mill is situated.
    Jonas Myers npver had any house or cultivation or settlement anywhere in that quarter section to my knowledge. A. W. Myers came to me in 1872 or 1873, and wanted me to withdraw an adverse claim I [had put in against the entry of that quarter, and to use my influence with Elisha Wells and Joseph Bennett to withdraw theirs; said he wanted to pre-empt that piece where the mill stood, to make it more permanent for the Pennsylvania Company. I told him Judge Wells had a claim against the land, and asked him if it would injure that claim. He said no, not at all.
    The deposition of W. A. Arnold:
    I am fifty years old; was receiver of the land office at Central City from May 1, 1869, to December, 1873; resided at Central City from that time to May, 1880; after my official connection with the land office terminated I was engaged in practice as an attorney before the land office. I know something about the entry by Jonas Myers of the S. W. of sec. 32, Tp. 3’S., 72 W. Application was made to enter that land in his name while I was receiver. June 19, 1872, there was a hearing before myself and the register to determine the mineral or non-mineral character of the land. The person most active in making that application and pressing the inquiry was the defendant Andrew W. Myers. He paid the fees and expenses. These proceedings were adjudged irregular by the commissioner of the general land office. About June 28,1873, Andrew W. Myers employed me to institute proceedings for a new hearing, which was had. I conducted it. The land was adjudged non-mineral; and the commissioner allowed the entry. A. W. Myers then employed me to draw up papers for the entry. He was the active man in all these proceedings, and paid me my fees. Jonas Myers was present at all these proceedings, but never gave me any directions. At the time of the entry of the land Joseph M. Marshall was register and E. W. Henderson receiver. I know the defendant Blackman. He w;as a witness to the fact of cultivation and settlement at the time of the entry.
    The deposition of Joseph M. Marshall:''
    I am fifty-seven years old; know the plaintiff and the defendants Blackman, Andrew Myers and Jonas Myers. Was register of land office at Central City from November 1, 1873, to July 1, 1879. Recollect very well the preemption cash entry of S. W. J sec. 32, T. 3 S., R. 72 W., made in name of Jonas Myers. The entry was made after I came into office. Andrew W. Myers was the active party in making the entry. He transacted the entire business with his attorney, Col. Arnold. He presented this man, whom he called Jonas Myers, to make the affidavits required for the pre-emption. My recollection is that Andrew W. Myers paid the price of the land and the fees. I am pretty-confident that Andrew W. Myers and_Augustus Blackman were the witnesses.
    
      The deposition of Augustas Blackman:
    I am forty-nine. Beside in Georgetown. Know the Masonville mill; there is one house, one bam, and the mill there; these were there when the Franklin Company purchased. The Franklin Company did not put up any improvements; the improvements were commenced by George F. McFarland. He put up ten stamps, six Varney pans, three settlers, a reverbatory furnace, and an Arey furnace; all these were put up by G. F. McFarland and Caspar S. Francis, 1870-1873. A. W. Myers was the general manager for McFarland and for Francis, and appointed me as agent under him. Myers lived at Mason-ville in one of the houses I have mentioned, in 1870-71-’72-73. He had general charge. I was subject to his orders up to June, 1873; up to that time I was in the employ of George F. McFarland. There was no time in 1870, 1871, 1872, and up to June 10, 1873, when the property was in the possession or control of any one else, I think. I was in charge after June 10, ’73, to October, ’73, and then remained in charge for a long time. Nothing was said to me about leaving. When there was any business they called on me. I remained there two years after that, living in that house on the mill property. I then moved to Georgetown; there was a Frenchman living there, and I told him to look after the mill property. I kept the keys and have them yet.
    Defendants’ attorney here admitted that at all times after September 8, ’73, defendants Blackman and A. W. Myers had actual notice of the pendency of the former suit of the present plaintiff against Caspar S. Francis, George F. McFarland, George Way, Erskine McClellan and Chas. B. Fish, and the claim of lien, asserted by plaintiffs therein as set forth in the complaint in this cause, and that the other defendants in this suit had such notice of said matters as the record of said suit afforded.
    I know Jonas Myers; he resided in Masonville from 1870 to November or December, 1873. Then he moved to Georgetown, and resided there until he left the country, two years afterwards.
    While he lived at Masonville he lodged at the mill house principally. He was an employee of the company, and received wages as an employee. Boarded part of the time at the company’s boarding-house, and part of the time he batched. By the company I mean George F. McFarland and Gaspar S. Francis. He never had any residence in that vicinity, except the mill house. I knew about the application made in the name of Jonas Myers to pre-empt the quarter section where the mill property is situate. A. W. Myers wanted a patent. That was the only way to do, so he had it entered in the name of Jonas. The paper marked “D. S. B. 1,” attached to deposition of John Wiest, in this case, is, I believe, in my handwriting. It was prepared at instance of Francis, Wiest and Guss. McFarland and Francis, or those whom they represented, had expended about $25,000 on this mill up to that time. The money for the payment of the land was furnished by the defendants, Henry Wilson, Joseph Lehman, Jonas Myers, A. W. Myers, Harriet Myers and myself. We paid our proportion of the cost of the entry, each man. That was all we paid Jonas Myers for his conveyance of an interest in this land. Neither Wilson nor Lehman paid any other. Lehman worked at the mill off and on for about a year and put some money in. After Jonas Myers had taken steps to enter the land for Francis, he had gone as far as he could without money. Francis had agreed to pay the expenses to get a patent, as I supposed; and as he wouldn’t send any money, as he protested a draft that was sent for money to pay this thing with, and was so much indebted to each of us, Jonas said if we would pay our proportions according to the different amounts due each of us, he would go on and perfect the title, and deed to each to secure our debts. Can’t remember now whether at that time there was any talk between us or any of us as to the plaintiff’s claim.
    [Defendants’ attorney here stipulated that the witness at all times, while residing at the land in. complaint mentioned, was residing at the mill of the company, and whenever at work for the company was employed as the servant of Geo. F. McFarland or Caspar S. Francis.]
    Cross-examined:
    So far as I know, Francis and McFarland were representing other parties; never knew the exact state of things. Remember the commencement of the former suit by Mr. Wells. Had a talk with him at Thatcher’s Bank, Central. He said at that time, “ Jonas Myers has taken steps for a patent?” I told him, “yes.” Francis owed me, Lehman, Wilson, and the Myers, at time we agreed to enter the land, $14,000. Our object in taking title from Jonas was to secure these claims. The conveyances he made were in pursuance of this arrangement. The patent was recorded August 20, 1875.
    [Plaintiff here admitted the record of the patent at the date mentioned.] Neither Francis nor any of the parties in interest have made any objection to our holding a legal title to the property. Neither Francis nor any one else has offered to comply with the bond made by Jonas.
    ■ I now claim to own the interest conveyed to me by Jonas.
    Re-examined: Don’t recollect that any one else was present at the bank in Central. It was about the time you talked about commencing suit, or had commenced one.
    [Admitted that Wilson and Lehman would testify substantially to the same effect as Blackman in respect to the entry, and the conveyance to them of their interests in the land, and the consideration of such conveyances.]
    The deposition of E. T. Wells in his own behalf:
    Denied the conversation with Blackman. Never heard that Jonas Myers had made application to enter this land till summer or fall of 1875.
    Never had any intimation he had actually entered it, until some time after the last decree was given in the former cause; as late as November, 1879; and then first heard of the conveyances made by Jonas Myers to Wilson, Blackman and Lehman; also then learned for the first time that Harriet Myers was making claim to some interest in the property.
    The deposition of S. L. Kelso:
    That Jonas Myers never had any residence on the quarter section, except at the mill, where he was a servant.
    Also certified copy of decree given in plaintiff’s favor June 25, 1879, in his former suit mentioned in the complaint against Francis, McFarland and others, adjudging the sum of $2,950, and alien upon the mill and premises, and all interest of Francis, and all equity which by virtue of the bonds, etc., he had therein; directing sale and deed.
    The deposition of John Wiest:
    I know the Masonville mill; know of the title bond executed by Way to the Franklin Company; it was assigned to Geo. F. McFarland February, 1871, in trust for the parties who contributed money for the improvement of the mill. * * *
    Know of bond executed by Way to Francis about December 6, 1872, for same premises.
    This bond was executed in lieu of the bond to McFarland, for the purpose of changing the trustee; to be held in trust by Francis for the same parties. The bond to Francis was to be a substitute for the bond to McFarland.
    A. W. Myers visited Philadelphia in the fall, 1872, and it was then agreed that Fr'ancis should be substituted for McFarland as holder of the equitable title to the mill, and that he should hold the title on the same trusts as McFarland. No new right was to be obtained by any associate ■under the new bond, but the rights of all parties should be the same as when McFarland held the bond. The new bond was merely in substitution for that previously held by McFarland.
    I went out there with O. S. Francis and A. L. G-uss in summer of 1813. We found A. W. Myers and A. Black-man in charge of the property. Went for the purpose of an examination into the management. I heard on that occasion of the application made by Jonas Myers to enter the quarter section in his own name; neither of us knew of it before that. A. W. Myers proposed it, in order to have it in name of some one who could be trusted to assign the title to O. S. Francis, the trustee, for the benefit of the associates. Don’t think Jonas said how he came to make the application. Blackman gave us, while there, a bond in his handwriting, signed by Jonas Myers, to execute to Francis a deed.
    The paper now shown me, marked “ D. S. B. I.,” is the paper.
    Bond of Jonas Myers to Casper S. Francis, dated June 9, 1813, conditioned as follows:
    Whereas, the above Jonas Myers has sold to said Casper S. Francis the S. W. £ sec. 32, T. 3 S., K. 18 W., Clear Creek county, Colorado, for $300, to be paid to said Jonas, or deposited to his credit in some responsible bank in Philadelphia or New York, on or before the end of thirty days from the date of said Jonas’ receiving a government title to said land.
    The deposition of A. L. Guss: Testifies to the same facts as the witness Wiest.
    Defendants’ case. The deposition of A. W. Myers:
    Know the property and the parties. Francis became indebted to me in $5,900 or $6,000. It was an open account, running during the whole time I was there. The same parties were interested all the time. Francis also became indebted to Blackman for near the same amount; to Wilson for about $1,000; to Lehman in some $1,200 to $1,500. Know about Jonas Myers making an application to enter at the land office in Central City, the land on which the works are situated.
    Blackman, Harriet Myers, Lehman, Jonas Myers and Wilson contributed the money to make the entry of that land in the land office. Know about Jonas executing a bond to Francis about June 10,1873. Francis never took any steps, to my knowledge, to comply with this bond. He was notified three or four times, to my knowledge, by letter.
    These several parties contributed their pro rata proportion of the money to enter this land according to their claims, because they saw no other show to get the money.
    •X- -;r *s£ vr -X* *X* *X* •X*
    Certificate of receiver of land office at Central City that the records of said office show that Jonas Myers made application to enter S. W. \ sec. 32, T. 3 S., 72 W., October 10, 1874, and entered and paid for said land October 19, 1874.
    -x- * -x- * * * * -x-
    A stipulation as follows: Agreed that, if H. Blackman was on the stand, he would swear he and the other defendants, except Francis, Parsons and A. W. Myers, have been in possession of said premises in question, holding the same adversely to Francis and plaintiff since the land was entered; that he, Blackman, paid the money to the register and receiver for said land. * * *
    Messrs. Wells, Smith and Macon, for appellant.
    Mr. L. C. Rockwell, for appellees.
   Helm, J.

The following questions are presented by the record in this case, viz.:

First. Were the patentee and his grantees, who are the appellees in this suit, necessary parties to the action of appellant for a vendor’s lien? By failing to make them parties thereto, is he now estopped from testing the validity of their claim of title to the premises in controversy?

Second. Was it necessary in that action to sue Francis as trustee, or to make his cestuis que trust parties, in order to reach the entire equitable interest conveyed and held by him under the title bond?

Third. In view of the answers which may be given to the foregoing questions, what are appellant’s rights, as disclosed in this action, against the patentee and his grantees?

The suit for a vendor’s lien was an equitable action, and the rule is, that, in equity, all persons materially interested in the result of the litigation should be made parties.

The issue tried in that suit was the plaintiff’s right to a vendor’s lien upon the equitable interest held by Francis in the premises in controversy; appellant, who was plaintiff there, sought no relief whatever against appellees; he simply undertook to subject the equitable title, which passed from Way to Francis under the title bond, to the payment of purchase money due upon the sale of the premises. The fact that appellant became the purchaser at the sale under his decree is unimportant; lie obtained by such purchase just what any third person would have secured, i. e., the equitable interest conveyed by the title bond and reached in the decree, together with the rights of Francis in connection therewith. This sale and purchase'in no way materially affected appellees; it simply resulted in substituting appellant for Francis, and establishing, so far as title to the property is concerned, between appellant and appellees, the identical relation theretofore existing between the latter and Francis, to the extent, at least, of tire interest covered by the decree; it certainly could make no material difference to appellees whether this relation existed between them and Francis or between them and appellant. Therefore, under the equity rule above stated, appellees were not necessary parties to that action.

But there is another way of determining this question. The title of appellees is adverse to the interest of both appellant and Francis. It is derived directly from the general government by patent, and Francis and appellant hold from another source. As we shall presently see, it is claimed that the law created a resulting trust, in connection with appellees’ patent title, in favor of Francis; but this fact, if established, does not change the status of the parties so far as the source of title is concerned, and the nature of their holding for the purposes of that suit.

Title bonds are said to be mortgages at common law. Merritt v. Judd, 14 Cal. 73. And the relations of the parties are that of mortgagor and mortgagee. Button v. Sawyer, 5 Wis. 598; Lewis v. Harkins, 23 Wall. 123; 1 Jones on Mortgages, sec. 226.

The action of appellant against Francis for a vendor’s lien was analogous to the proceedings for foreclosure of a mortgage.

The equitable doctrine may be considered throughly established, that the only necessary parties to the latter action are the mortgagor, mortgagee and persons who have acquired rights or interests through them in the mortgaged premises; sometimes, also, prior incumbrancers may be brought in for the purpose of liquidating their demands. But a person claiming adversely to the title mortgaged has no interest in the mortgage, cannot be affected thereby, and should not be made a party to the foreclosure suit. The rights of such a person cannot, except by consent, be litigated and settled in such proceeding. And a bill which undertakes to accomplish this object is bad on demurrer for misjoinder and multifariousness. Dial v. Reynolds, 6 Otto, 340; Croghan v. Miner et at. 53 Cal. 15; Banning v. Bradford, 21 Minn. 308, and cases cited; Chamberlin v. Lyell, 3 Mich. 549; Roberts v. Wood, 38 Wis. 68.

A strong analogy also exists between the action for a vendor’s lien and that for specific performance. Both grow out of the contract of purchase and directly affect the same principal parties; the object of one is to compel performance of a contract; that of the other is to secure the judicial declaration of a lien upon the property for the purchase money payable under the contract, and both are equitable. So far as the question now under consideration is concerned, we discover very little difference in principle between the two.

But in actions for specific performance the same rule obtains in this respect as in the foreclosure of mortgages. A mere stranger claiming under an adverse title should not be made a party.” 1 Daniel’s Oh. Pr. 230, and cases cited; Lange v. Jones, 5 Leigh, 192.

We are of the opinion that appellant was not obliged to make appellees parties to his action for a vendor’s lien. It is very doubtful, had he done so, whether he could have thus determined their rights under the patent.

We observe, in passing, that that action was commenced four years prior to the adoption of our present Code of Procedure, though, perhaps, this fact in no way affects the question.

The decree in the vendor’s lien suit is not entirely free from ambiguity; but giving it the most rational construction, we conclude that the court intended therein to award a lien upon the entire interest passing from Way under the title bond; the sale and purchase thereunder were evidently had upon the theory that the decree actually accomplished this result. These views accord with. the admitted averments of the complaint in this case.

It seems that, while both McFarland and Francis really acted as trustees, the trust was secret and the transactions were had in their individual names and capacities; the title bonds were executed to them as individuals; there does not appear to have been any declaration of the trust or mention of the beneficiaries in writing or of record; the notes for purchase money, even, were signed individually and not as trustee.

The district court may have deemed it a proper case for the application of the rule that, “if it does not appear on the face of the contract or otherwise that the trustees acted as agents, or in a fiduciary capacity, it is unnecessary to go beyond the terms of the contract.” 2 Perry on Trusts, sec. 874, and cases cited; Brown v. Cherry, 56 Barb. 635.

But we are not prepared to admit that appellees ought to be heard upon this objection. Under any view that can be adopted, Francis himself had some interest in the title bond, and this individual interest passed to appellant under the decree and purchase. Suppose Francis was also acting as trustee for others, and that his cestuis que trust have rights that were not reached or affected by the decree; the decree would not entirely fail of effect on this account. Neither Francis nor these beneficiaries are here complaining. Oan appellees be heard to deny appellant’s right to a judgment in this action against them on this ground? If only the individual interest of Francis was reached by the vendor’s lien decree, the relation of appellant to these cestids que trust is analogous to that of joint tenants; and as to their title and rights in the property, those of appellees are adverse. If the court should order appellees to convey their patent title to appellant, he would hold the same in trust for the beneficiaries of Fi-ancis to the extent of their interests. They might assert their rights, if any they have, whenever they deemed it advisable so to do; but we cannot conceive that appellees can be permitted to defeat appellant’s action on the ground that these beneficiaries have not hitherto claimed, and are not now demanding in this proceeding, a recognition of their interests.

It is doubtful if, under the pleadings, any necessity existed for offering in evidence the decree awarding a vendor’s lien; but in any event there was no error in its admission; for, .unless rendered unnecessary by the pleadings, it was essential as a prerequisite to the introduction of the sheriff’s deed, and therefore constituted the “introductory fact ” to an important link in the chain of title upon which appellant relied; this decree, like the deed resting upon it, was admissible for what it was worth; the decree was not intended to conclude defendants in this action; no such result could follow its introduction, for defendants were neither parties nor privies to the suit in which it was rendered. The general rule, that judgments and decrees are inadmissible in evidence, except in suits between parties and privies thereto, is not applicable to the objection, arising as it does in the case before us. It was said by Mr. Justice Story, in a case where this question arose under similar circumstances, that “to reject the proof of the decree would be, in effect, to declare that no title derived under a decree in chancery was of any validity, except in a suit between parties and privies, so that in a suit by or against a stranger it would be a mere nullity. It might with as"much propriety be argued that plaintiff was not at liberty to prove any other title deeds in this suit, because they were res inter alia acta.” Barr v. Gratz's Heirs, 4 Wheaton, 213; Gregg v. Forsythe, 24 Howard, 179; 1 Wharton’s Evidence, sec. 821; Coursin v. Pa. Ins. Co. 46 Pa. St. 329; Cassler v. Shepman, 35 N. Y. 533; Prince v. Griffin, 16 Iowa, 555; Koogler v. Huffman, 1 McCord. 495.

Appellant, through his purchase of the property at the sale under the decree rendered in the vendor’s lien suit, simply succeeded to the rights connected with the interest conveyed by Way in the title bond.

It is urged by counsel for appellees, that by such purchase appellant took nothing; counsel says that Francis never had any interest in the realty, either individually or as trastee, the same being a part of the public domain; and therefore, in the first place, no vendor’s lien could properly be decreed; and secondly, no interest in the realty and improvements passed by the decree and purchase thereunder.

To this we must answer that Francis, by his agents, had possession of the premises, and had expended upwards of $20,000 in permanent improvements thereon. He was entitled, upon proper proceeding therefor, to a patent conveying the mill site; by the territorial statutes any person in the actual occupancy of public lands belonging to the United States, with $100 worth of improvements thereon, might maintain trespass, ejectment and other actions applicable to injuries upon realty, for wrongful interferences therevvith; his interest therein was declared to be transferable, and was subject to sale under execution; as a matter of fact, the interest of Francis’ grantor, Way, was originally obtained by purchase at sheriff’s sale. The actual possession of Francis appears to have continued to the date of the decree. We think, under all the circumstances of the case, that Francis had. a tangible interest in the realty, as well as the improvements, which was covered by the decree, although before the decree was rendered the fee was claimed adversely to him.

We now proceed to consider the remaining and'most difficult question presented in this case.

Assuming the foregoing conclusions to be correct, what is the attitude of appellant, who has succeeded to the rights of Francis, toward appellees? And what are their respective rights in connection with the property in controversy? Appellees, it will be borne in mind, are Jonas Myers, the patentee, and his grantees.

It is not disputed that all of the appellees, at the time they became interested, were fully aware of the bond to Francis, and of his rights in the mill property. So the further discussion of this subject is not embarrassed by any complication arising from the interest of purchasers for valuable consideration without notice of the rights of Francis.

We do not understand that appellant undertakes in this action to challenge the validity of the patent on the ground of fraud upon the government. This court has held that a patent, which is not void upon its face for irregularity or fraud in procuring the same, can only be impeached therefor “in a direct proceeding to set it aside.” Poire et al. v. Leadville Imp. Co. 6 Col. 406.

Besides, this patent covers one hundred and sixty acres of land, including the mill site and improvements; appellant makes no claim, and could not be heard to complain, as to any other part except the premises in dispute.

If we rightly comprehend his position, he does not question the validity of the patent; his contention is, that appellees held the fee thereunder as trustees of a resulting trust, Francis' being the beneficiary; and that as the successor of Francis he is entitled to a decree compelling them to execute the trust.

• It appears that appellees, with the exception of Harriett Myers, were employed by Francis at one time or another upon the mill premises; and that when .the proceedings were renewed for patent and the entry made, two of them were still in his service, and were acting as his agents in possession, he being a non-resident.

Appellant asserts, as matters of law, that since Black-man and A. W. Myers were the employees and agents of Francis, holding possession and managing the property solely for him as their employer and principal, they could not acquire and retain adverse title thereto; that occupying this fiduciary relation towards him, they would not be permitted to procure absolute title to his estate; that such title thereto, so procured, inures to his benefit by estoppel; that they, and those who conspired and confederated with them to obtain the patent, did so in fraud of his rights, and that all parties to this conspiracy are estopped by the fiduciary relation of Blackman and A. W. Myers from denying his claim to that portion of the patented ground embracing the mill site and improvements connected therewith. And that upon the facts in this case, under the foregoing legal principles, appellant, as successor to the rights of Francis, is entitled to a decree as aforesaid.

There is no doubt concerning the correctness of the propositions, that “no one whose duty to another is inconsistent with his taking absolute title to himself will be permitted to purchase for himself;” that “ no one can hold a benefit acquired by fraud or a breach of his duty; ” and that title procured to that which may properly be termed a trust estate, by the trustee or agent for his own advantage, and against the interest and without the consent of his beneficiary, employer or principal, will be declared in equity to be held in trust for the latter. 1 Perry on Trusts, sec. 206, and cases cited; Ewell’s Evans Agency, pp. 358 and 359, and cases cited; Wharton’s Commentaries on Agency, secs. 244 and 241; Pomeroy’s Equity Jurisprudence, sec. 959; Rings et al. v. Burns et al. 10 Peters, 280; Threadgill v. Pintard, 12 Howard, 38; Bush v. Marshall, 6 Howard, 291.

We are disposed to hold, with appellant, that the rest of appellees are in no better position than are Blackman and Myers; at the time of the renewed patent proceedings they had full knowledge of the equitable rights of Francis, which knowledge was obtained while they were in his employment upon the premises; with this information thus acquired, though no longer his agents, they conspired with Blackman and Myers, who were; and through this conspiracy obtained whatever interest they hold under the patent. It would be a lame conclusion, indeed, for us to say that, in a court of equity, under these circumstances, they have any greater rights or any stronger claims in connection with the disputed pr-emises than have their confederates, Blackman and Myers.

We must pause here and consider what effect, if any, the bond or agreement given by Jonas Myers to Francis had upon the rights of the parties.

It is conceded that that instrument was of no binding force; it was conditioned for the conveyance to Francis of title to the quarter section within thirty days after patent, upon payment by the latter of $300 therefor. Aside from the question of fraud, claimed to be apparent on the face of the instrument, it is sufficient to say that it was signed by but one party, was without any present consideration, and therefore a mere naked promise. It could not, at least until part performance of its conditions, be enforced by or against either person, mentioned therein.' It was executed and delivered on the 10th of June, 1813; at that time the patent entry had not been made; no deed to the land had been given by Jonas to any person; there is nothing to show that Francis then had notice of any collusion of his agents, Blackman and Myers, or either of them, with Jonas in the patent proceedings; the agreement makes no allusion to the mill site or improvements, but covers the whole quarter section applied for. In view of the great value of'these improvements, it appears reasonable to suppose that the $300 to be paid was a reimbursement simply to Jonas for his expenses in procuring the patent, and compensation for the part of the quarter section not claimed under the title bond from Way. If this transaction shows anything at all with reference thereto, it is that Francis claimed, and Jonas recognized and conceded, the ownership of the mill site and improvements. It could hardly be possible that Jonas asserted any right to this property, or that Francis admitted that Jonas had any interest whatever therein.

The failure of Francis to comply with the bond and pay the $300, as specified therein, is mentioned by Myers in testimony and commented upon in argument. But, in our judgment, this is a matter of no significance; for, in the first place, he was not under obligation to do so; and secondly, Jonas had rendered it impossible to comply on his part by previously deeding away most of the property.

We do not think this transaction bears materially upon the interests and rights of the parties to this suit. .

In view of all the facts and circumstances disclosed by this record, and the law bearing upon the various questions presented, our conclusion is that appellees hold title to the premises in dispute in trust for appellant.

But it appears from the answer of Jonas Myers, and also from the evidence, that when the entry was made Francis was indebted to Jonas and the other appellees; that such indebtedness aggregated a large sum, and was for labor and services in running and operating the mill, and for materials furnished in making improvements upon the mill property; it likewise, in the same manner, appears that the collusion in obtaining the patent was mainly for the purpose of securing the payment of these demands; also that the sums contributed toward patent expenses and the interests deeded by Jonas to the other appellees are in proportion to the amounts of their respective claims against Francis.

This was not the way for appellees to obtain security for the payment of their demands; their conduct, notwithstanding this indebtedness, is considered in equity a betrayal of the trust reposed in them; it is not in keeping with the scrupulous regard for the employer’s interests exacted under the fiduciary relation existing. We do not think this grievance of appellees prevents the application to this case of the equitable doctrines already announced. But since it palliates their offense greatly, by furnishing an honest motive, and removing the factor of intentional fraud, we are not disposed to ignore it.

It is the duty as well as the province of a court of equity to render exact justice between the parties before it in each particular case, so far as such a course is consistent with that “certainty in legal rules and security of legal rights,” which must form the basis of all enlightened and stable jurisprudence.

The well known maxim, that he who seeks equity must do equity, may properly be invoked in deciding this question. It is said that “the court of equity refuses its aid to give the plaintiff what the law would give him if the courts of common law had jurisdiction to enforce it, without imposing upon him conditions which the court considers he ought to comply with, although the subject of the condition should be one which' the court would not otherwise enforce.” Pomeroy’s Eq. Jurisp. sec. 385.

The conditions above mentioned, imposed upon the plaintiff, must relate to “something connected with the subject-matter of the very suit in controversy.” Id. sec. 387.

The demands of appellees against Francis were for labor done and materials furnished upon the premises in dispute; their principal object in procuring the patent was to obtain security for the payment of these debts, which grew out of and are connected with the subject-matter of the relief sought by plaintiff. Were Francis himself here seeking a conveyance of the trust estate, we have no doubt but that a court of equity would say to him: “You are entitled to this relief, because of the rule and the important principle underlying the same, which prohibits a trustee in possession from procuring title to the trust. estate for his own benefit; but in this particular case the moving cause for this act of your agents was the desire of, obtaining security for debts connected with the property, which you justly owe them; and while equity would not, in the first instance, assume jurisdiction to coerce payment of these debts, it will say that you must do equity by paying them, as a condition of granting you the relief prayed.”

The equitable rule has been announced more broadly than this, though the correctness of the extension is questioned. It is held that where a trustee purchased land in his own name, but in reality for the benefit of his cestui que trust, and paid the purchase money with his own funds, the beneficiary must, as a condition in the decree for conveyance, first repay the trustee the amount of other advances to or for him, not connected in any way ivith the property so purchased. Pomeroy’s Eq. Jurisp. sec. 392, and cases; Story’s Eq. Jurisp. sec. 64e, and cases.

But appellant is not in the exact position Erancis would occupy were the latter plaintiff in this suit.

It is conceded that for upwards of six years appellees were aware of the péndency of appellant’s action for a vendor’s lien, though they were not parties thereto; during this period, therefore, they had knowledge of his claim for purchase money against the premises. With this knowledge the only means they adopted to obtain security for their debts was to procure the patent. Appellant’s diligence in proceeding in the proper manner to subject the property to the payment of his claim, at least gave him a right in the nature of a prior equity.

In view of these and other matters disclosed by the record, we are of opinion that appellant is entitled to more consideration than Erancis would be, were he before us in the same attitude. And if appellant is willing to accept the amount of the original purchase money found due him in the suit for a vendor’s lien, with in-' terest, in lieu of the conveyance, upon the conditions aforesaid, we are disposed to give him the privilege.

Counsel for appellees has entirely ignored in argument the rights claimed under the tax deeds; the length of this opinion justifies us in declining to enter into a discussion of the subject; we will, therefore, dismiss it with the statement that, in our judgment, no rights were thereby acquired which interfere with the foregoing conclusions.

The decree will be reversed, but we deem it unnecessary to retry the entire case. Appellant may cause to be taken proofs to establish the amount of the just demands of appellees against Francis and McFarland for labor, etc., upon the premises; also the amounts disbursed by them for taxes, and a fair proportion of the patent expenses; and, upon payment of the aggregate thereof, with legal interest thereon, within forty days after such determination, he shall be entitled to a deed to the premises in controversy as described in the decree for a vendor’s lien. Provided, that if, within forty days from the date of remanding this cause, appellant shall, in lieu of compliance with the foregoing directions, elect to accept from appellees the sum of $2,950 found due him in said decree, together with legal interest thereon from the date of such decree, and also the costs adjudged to be due him in that suit, then and in that event, if appellees, within forty days after notice of such election, shall pay the same, they may retain title to the property as it now appears of record; failing to make such payment within the time aforesaid, after notice of appellant’s election, appellees shall be deemed to have waived their right to retain title, and shall, upon reimbursement to them of the proper proportion of the patent and tax expenses, determined as aforesaid, and legal interest thereon, .convey the same to appellant. The costs of this appeal will be equally divided between the parties.

The cause will be remanded, with directions to the district coui’t to proceed to judgment in accordance with the views and suggestions herein expressed.

Reversed.  