
    The Heirs of William R. Hunt, Deceased, v. The Heirs of William Robinson, Deceased
    Appeal from Colorado County.
    Wliero a colonist to whom a grant of land was made in 1835 contracted to sell the land before the expiration of six years after receiving his grant, and to make a full conveyance thereof to the purchaser as soon as the law would permit; and the purchaser went into possession of the land at the time of the contract and made valuable improvements thereon. Held, that such contract was illegal and void, and could not be enforced. [3 Tex. 490, 498; 9 id. 385; 10 id. 118; 13 id. 18; 1G id. TO; 18 id. 80; 31 id, 154; 37 id. 393.]
    This was an action brought by the heirs of Bobinson against the heirs of Hunt, on a contract to compel its specific performance. The contract is in substance as follows, viz.: “ In the town of San Felipe do Austin, on the 14th day of the month of December, A. D. 1832, before me, citizen, Horatio Chrisman, first and constitutional alcalde, and the witnesses who were called for the purpose, in addition to the. two assisting witnesses with whom I officiate, there being no legal j notary, personally appeared citizen William B. Hunt, whom I know, who said he had agreed to sell to citizen William Bobinson, resident of the precinct of Alfred, the league of land that as a colonist he has received in the colonial district of the empresario, Stephen F. Austin, situated on the left bank of the Colorado river, adjoining and above the land of Peyton B. Splane, as evidenced by title extended in his favor in the name of the state of Coahuila and Texas by the commissioner, citizen Miguel Arciniega, under date of the 23d of February of the present year, and also to extend the necessary deed in favor of the said Eobinson, or whomsoever shall represent him, as soon as •the law of the state will permit the alienation and transfer. He further agrees, promises and binds himself to sell and transfer, as soon as the law will permit him, to the said Eobinson the league of land aforesaid for one hundred and sixty-five dollars, which have been paid to him, and being had and received to his certain satisfaction, he renounces the laws of non numerata peounia, no intrega y prueba; and also in consideration of a tract of land which the aforesaid Eob-inson has this day fully and completely conveyed to him, which tract consists of a superficial area of 3,508,720 varas, more or less. In consideration of which he promises and binds himself and his property, both in possession and expectancy, present and future, that he will not sell the aforesaid league of land to any other person, even though more should be offered him; that he will execute in favor of the said Eobinson the necessary deed and that he will not violate the covenant here made; and in case he should do so, he will return to the said Eobinson the aforesaid one hundred and sixty-five dollars which he has received and the tract of land above mentioned, and will pay as a penalty three hundred dollars and the costs, damages, injuries and losses which said Eobinson should suffer from such violation, in which event he here makes a confession of judgment without further demand and he renounces the benefits of law 6, tit. 5, Partidas, 5; also law 2, tit. 1, book 10, N. E., and the four years allowed for demanding the completion of the first value of the land or rescinding the contract, which four years he gives and concedes as past and expired, inasmuch as there is no inadequacy in the price agreed upon, or if there should be any, he hereby makes full grace and donation of it, be it more or less, perpetually and irrevocably to the said William Eobinson, full power to use and enjoy the aforesaid league of land, to construct houses upon it, open labors and obtain from its waters and timbers all possible use and benefit; and to the judges who can take cognizance of this instrument by law he gives and confei’s full power, in order that they may compel him in the most prompt executive manner to its fulfillment as fully as could be done by the definitive sentence of a competent judge rendered under the authority upon an adjudicated subject; and he fully renounces all laws, exceptions and provisions that might be in his favor, etc.
    The defendants pleaded that the agreement was void:
    1st Because given contrary to law and public policy.
    2d. Because it had no stamp.
    3d. Because the seal was not legalized or authenticated according to law, and the writing not attested by the legal number of witnesses nor in the proper manner; and that the alcalde was not a notary public and had no authority to act as such.
    4th. That Hunt had no right to alienate more than one-eighth of his land. That he could not dispose of more than one-half of it, the other being the property of his wife and her heirs; and
    5th. That the contract was usurious and fraudulent.
    From the statement of facts, it appeared that Hunt and his heirs had been in possession of the land mentioned in the contract as received from Robinson ever since the date thereof, and had made valuable improvements thereon. That Robinson and his heirs had been in the possession of the league of land from the same time and had made valuable improvements.
    It was agreed that the rights of the widow of Hunt should be adjudicated as fully as if she had set up her community claim to the one-half of the league of land in proper form. There was no evidence of the time of the death of either Hunt or Robinson or of the value of the property held by Hunt at his death, or that of the share, if any, received by his widow.
    A jury having been waived, the judge decreed a specific performance of the contract in favor of the heirs of Robinson, and against the claim of the widow.
    The defendants thereupon appealed.
    
      BoMnson, for appellants,
    made the following points:
    1. The paper purporting to be a title bond from ¥m. R. Hunt to Robinson is not legally authenticated, there being, 1st. But one attendant witness. 2d. There is no seal attached to the instrument. 3d. The alcalde has no authority to act as notary public. 4th. The alcalde did not sign his name in the proper place. 5th. The names of the witnesses are not mentioned in the notarial act, as is required in the Partidas, and there seems to have been but one who attended and knew the transaction. 1 vol. Partidas, 224, law 54, p. 234; law 115, p. 244; laws 1, 2, 3, 4, 5, 7, 9; Story Oonfi. p. 524; Wheat.. Int. Law. p. 118, sec. 18, p. 119, sec. 19; vide Instructions to Corn-} missioners, of 1827, p. 81, sec. 27, in pamphlet; Sevenet et al. v. Le Breton et al. 8 N. S. 502; Maria Louisa v. Conchoix, 11 Mart. 243.
    2. The bond is not on stamped paper, and is not legalized as required bylaw — legalization cannot extend beyond two years. In this case it is for six years. Laws of Coahuila and Texas, vol. 1, p. 9, decree 11, and p. 97, decree 43; Story Confl. p. 524; 2 Bl. Com. p. 297; Chit. Cont. 514 and 574 and note [9]; 1 Stark. Ev. 318; 2 id. 771; 1 Kent, 466 to 468; 4 id. 464.
    3. The benefit of a prohibitory law cannot be renounced, for it is ■against public policy. Civil Code, arts. 11 and 12; 2 Partidas, p. 807. The renunciation was in fraud of the law. 1 Partidas, p. 60. The public policy of the country may be clearly seen by reference to the Preamble to Decree No. 16, p. 15; 2 Kent, 465-6-7; 4 U. S. Cond. p. 171; id. p. 61 and notes.
    4. The alienation was contrary to positive law, and therefore null and void. Colonization Law of 1823, arts. 22, 23, 29, and Laws of Coahuila and Texas, vol. 1, p. 15, Decree No. 16, and vol. 2, p. 247; Decree No. 272, sec. 36; Decree No. 190, art. 19; p. 191, art. 33; 10 Pet. pp. 362-3; 2 Partidas, 807; 4 Kent, 430, 464; 1 id. 466, 468.
    5. The bond is void because Hunt had no capacity to convey. 10 Pet. p. 360.
    6. Hunt could only donate or convey, under any circumstances, one-half of this, his headright, league of land. The other half belonged then, and still does, to his widow, and could only be conveyed by her signing and sealing the bond ordered, if the law in other respects had permitted her to do so. 1 Partidas, p. 514; id. p. 268, law 17.
    7. The title was not in Hunt, but in the Mexican government. He only held the evidence of a concession or conditional grant, which was not yet perfect and complete, but which might yet wholly fail, and the fee simple never vest in the grantee. ■ 2 Partidas, p. 793.
    8. The sale of the land must be rescinded on account of lesion, or inadequacy of price, apparent upon the face of the bond, it being for $165, which would not pay for surveying - and office fees in Austin’s colony. 2 Partidas, p. -700; Civil Code, arts. 1854, 2567, 2578; 2 Kent, 477, and note (a).
    9. The court may presume fraud and unfairness from the want of any adequate consideration apparent upon the face of the bond. 2. In the clauses of renunciation. 3. In the clause of donation. 4. In the judgment for vindictive damages and usury. 2 Partidas, p. 1218; 1 id. p. 60, law 44.
    10. TJsury may also be inferred or presumed from the penalty. 2 Partidas, pp. 809, 816.
    11. If the parties were prohibited at the date of the instrument (December, 1832) from making a conveyance of the land, then the obligor could not enter into and make stipulations to be performed m futu.ro which could not legally be performed in presentí. Chit. Cont. p. 540; 10 Pet. p. 474; Mitchell v. Doggett, 1 Florida, p. 371, and authorities there cited.
    12. The revolution of Texas does not affect or in any way change the rights of the parties now before the court. These became fixed •and vested at tbe date of the contract. "Wheat. Int. Law, p. 105; 12 Kent, p. 462.
    13. The distinct practice and clear policy of the government of Mexico was, to withdraw from commerce the lands conceded to colonists for a limited time, and compel the grantee to occupy and cultivate the same.
    14. The consent or omission of parties cannot make that lawful which is forbidden by law. 3 Mart. 255.
    15. A promise made in consideration of an act forbidden by law is void. Craig v. State of Missouri, 4 Pet. 410.
    Gillespie, on same side, for appellant.
    
    
      J. Weil), for appellees.
    The grant to Hunt was made in February, 1832. It was therefore made under the colonization law of 1825, and must be governed by that law. The provisions of the law of April, 1832, cannot be applied to it without giving to that law a retrospective operation which-would violate the constitution of Mexico and of the state of Coahuila and Texas. Const. Mex. art. 148; 1 White Kecop. 407; Const, of 0. & T. art. 170; Laws 0. & T. p. 337.
    There is no prohibition in the colonization law of 1825 against the alienation of lands previously cultivated. No time is specified when the alienation could or could not be made. Prior cultivation is all that was required to authorize it. Laws O. & T. p. 20, art. 27.
    It is neither alleged nor proved that Hunt’s land had not been cultivated previous to the sale to Pobinson; and that being the ground upon which tbe appellants rely to show that the sale was contrary to law, they should have alleged it in their pleas, otherwise it ■could not be expected that the plaintiffs below would prepare themselves to prove the cultivation. 1 Mart. (N. S.) 330.
    The provision of the law which prohibited colonists, or “ new settlers,” from alienating their lands previous to cultivation, was made for the exclusive benefit of the state, and the state had a right to dispense with the performance of that condition. No one unauthorized by the state had a right to inquire whether the law in this respect had been complied with or not. The alienation was valid, even though +he land had not been cultivated, until the state thought proper to inquire into it and enforce the penalty (which was a forfeiture of the land), provided it should appear it had not been done. In this case the forfeiture was not claimed, even if it had accrued; and its not being claimed was a tacit acknowledgment on the part of the state that it yielded its right to claim it, and of its willingness that the purchaser should hold upon the terms prescribed to the original grantee. Besides, all laws prohibiting the alienation of lands by the colonists or new settlers were repealed in 1834, and from' that time the contract for the sale was a valid one, whatever might be said about it before. After that period, the state itself could not have enforced the forfeiture. Laws of C. & T. p. 252, art. 36; 3 La. 62; 5 Oranch. 283; 2 CT. S. Oond. 258, 346; 1 Binn. 601; 8 Watts, 517; 1 Hill, 324.
    The alienation of the land to Bobinson previous to cultivation, if such were the fact, was not against the policy of the law. That policy was simply to insure the cultivation of the land, and the record shows that it was promoted and sustained by the arrangement between Hunt and Bobinson, as Bobinson went upon the land, and not only cultivated it, but made valuable improvements. Laws 0. & T. p. 19, arts. 27, 28, 30, also p. 252, art. 36; Story Eq. p. 57, see. 755, sf to cases arising under the statute • of frauds and determined upon similar principles.
    If the contract between Hunt and Bobinson in 1832 is regarded as an executed one — an absolute alienation of the land —- then it is insisted that Bobinson acquired by it a full and perfect right to the land against all the world, except the state. It is admitted he took it subject to the right of inquiry by the state as to the performance oi the precedent condition of cultivation. But the state having waived that inquiry, and deprived itself of the power to make it, by the repeal of the prohibition in 1834,.the right became absolute in Bobin-son, and if the evidence of title which he had received from Hunt was. insufficient, Hunt was bound to make him a more perfect title.
    But should this contract be regarded as an executory one, only as an agreement to alienate the land at a future period when by law he might be authorized to do it, then it was not an alienation in violation of law. It was an agreement upon sufficient consideration to do an act which was neither immoral nor against the letter or policy of the law, when it was to be executed; and it was precisely such an agreement as a court of equity would enforce. 4 Story Eq. p. 54, sec. 751; 1 White Becop. 150, 159.
    If Hunt or his heirs ever had a right to object to the sale, on account of its having been made in violation of law (which is denied), they did not object while that right existed; on the contrary, after the repeal of the law which prohibited alienation before cultivation, they affirmed the contract by permitting Bobinson and his heirs to go on. and improve the lands without objection, and by retaining the price and continuing to enjoyall the benefits resulting from the sale. See 2 Story Eq. p. 62, secs. 759 and 761, as to the effect of part performance to take a parol contract out of the statute of frauds. The principles are alike.
    The pleas in this case are intended to present questions similar to those which would have arisen (had Hunt’s heirs been the complainants) in an application to a court of equity to rescind the contract or sale from Hunt to Bobinson; and to have sustained such an application, they must have alleged and proved either a gross inadequacy of price or fraud and misrepresentation by which the seller was misled and deceived. Nothing of the sort has been done here. The appellants have neither alleged nor shown an injury which would justify a court of equity in setting aside the sale for their benefit.
    Besides, before they could have claimed the interposition of a court of equity in their behalf, they must themselves have done equity. They should have shown that they had offered to pay back the money received and the interest, and to reconvey the land which they obtained from Bobinson; and also to pay for the improvements which Bobinson and his heirs had in good faith put upon the land which he purchased from their ancestor.
    The next objection urged against this bond is that it is void for the want of a stamp — that is, it should have been written on stamped paper.
    There is no foundation for this objection in law, and still less in reason. By the 32d article of the colonization law of 1825, new settlers were exempt for ten years from every species or denomination of taxes,'except such as should be imposed to prevent or repel foreign invasion. This exemption embraced the stamp tax as well as every other kind. But if there were any doubt on the subject, that doubt would be removed by reference to law 43, p. 97, Laws C. & T. This is not a title; it is only an obligation to make a title, and therefore does not come within the exception in the first article of the law.
    The 3d, 4th and 5th objections to the bond are so conclusively answered by the judge in his opinion pronounced in the court below that there is nothing left for counsel to do in respect to them here.
    The next positions assumed in the pleas are that Hunt had no right to sell more than one-eighth of his land; and 2d, that he had no right to sell more than one-half of it, the other half being the property of his wife and her heirs.
    
      Tliese objections might be met by saying that the record does not show that he sold more than one-eighth or one-half of his lands; but I will meet them upon the presumption that he did. The first does not appear to have been relied on, and if it were, it is difficult to perceive by what authority it could be sustained. The wildest fancy in respect to the rights of children under the civil law has never gone so far as to assert that the father could not dispose of property by sale during life which he himself had acquired.
    As to the other objection: If this were community property, the husband, being the administrator of the community, had the right to sell it. The right of the wife to acquets and gains attaches only upon the dissolution of the marriage — or, rather, they exist only in such acquets and gains as are found when the community is dissolved.
    But it may be doubted whether the land sold by Hunt to Bobinson would have constituted a part of the community of acquets had Hunt died possessed of it. In Louisiana it has been frequently held that grcmts ixom the sovereign to either of the spouses did not enter into the community, and it is difficult to draw a distinction between grants made to settlers in that state by the authority of the king and those made to settlers here by the authority of the government. The motives for the grant were the same in both instances. 1 Mart. (N. S.) 333; 4 id. 212; 5 id. 98.
    There not being a particle of evidence in the record to sustain the last plea, it is unnecessary to notice it.
    Mr. Chief Justice Hemphill did not sit in the cause.
    
      
       The reporters regret that they cannot give a brief of Mr. Gillespie’s argument ta, this cause. It has not been furnished them, nor could they obtain it after a diligent search for it among the papers of the supreme court. They regret it because the case was argued for the appellants in this court by Mr. Gillespie alone, although Mr. Eobinson, who was one of counsel below, submitted to the court the brief which is here inserted.
    
   Lipscomb, J.

This case was urged at the last term of the court, and has been held under advisement.

A great many points have been made and discussed by counsel, but the most important and the one to which we shall confine our attention is the legality of the contract on which a specific performance was decreed.

The appellants seek to reverse the judgment of the court below on the ground that the contract, at the time it was entered into, was contrary to law; that the law forbid the alienation of the land — the subject of the contract; and we are referred to the 19th article of decree No. 190 of the congress of Ooahuila and Texas, published on the 28th of April, 1832. It is in the following words, viz.:

“No new settler, Mexican or foreigner, shall under any title or pretense sell or alienate the land or water that falls to his share until after six years from the time of taking possession.” Laws of Coahuila and Texas, 191.

It is believed to be a rule of universal application that to undertake to do an act forbidden by the law of the place where it is to be done is an invalid agreement, and imposes no legal obligation. There is a moral obligation in the absence of a penalty to obey the law. Courts are organized under the law and are required to administer it, and it would seem to be an anomaly were they so far to sanction its violation as to give effect to a contract forbidden by the very law that they are bound to respect and enforce. In the 5th Partidas, title 11, law 28, it is said, “ that every contract made contrary to law or to good morals, though under a penalty of an oath, ought not to be observed,” thus holding the obligation not to violate the law paramount to that imposed by an oath. By the Code Napoleon, one of the conditions essential to the validity of every contract is lawful cause, p. 304. The ' cause is unlawful when it is prohibited by law — when it is contrary to good morals or to public policy. Id. p. 309; same doctrine, 1 Pothier, 62.

At common law, whatever is contrary to public policy invalidates a contract — trading with an alien enemy is against public policy and renders the contract on such traffic void. Mr. Chitty says “ that not only is an alien enemy unable to sue in this country on a contract made by him, but the contract is not available, even against him, in. favor of an Englishman, though made abroad; and being void if made during the war, the return of peace does not afford the latter any ground of action, but the right of action is only suspended until the return of peace, if the contract was made before the commencement of the war.” Chit, on Contracts, 3d Am. ed. 51. The principle to be deduced from the authority last cited is, that for certain causes the enforcement of a contract may be suspended without invalidating the contract; and, further, that if the impediments to contracting exist at the time it is entered into, it invalidates the contract, even after the removal of the impediment.

It seems that a distinction was once made in the English courts, when the law only forbid the doing an act, and when it imposed a penalty for doing it. A contract in violation of the first was not valid, whilst the latter did not destroy the obligation by contracting to do the act forbidden by law under a penalty. But the current of authority is now destructive of any such distinction — holding all contracts against law alike invalid. Chit. Con. p. 230-1; 5 Term, 242; 5 B. & A. 335. My object in referring to the last authorities is to show that in the English courts there is no longer any distinction between a law merely forbidding an act and one forbidding under a penalty. The same authority will show that the distinction once attempted between things mala jprohibita and mala in se cannot be sustained — that either invalidates a contract.

In the supreme court of the United States in the case of Craig et al. v. The State of Missouri, 4 Pet. 410, the doctrine of the invalidity of a contract contrary to law was fully and ably discussed. The question arose on a suit brought by the state of Missouri on a note given by Craig et al. The defense was, that the consideration for which the note was given was loan office certificates, loaned by the state. If the certificate issued at the loan office was a bill of credit, the act of the legislature creating the office and authorizing the emission of the certificates as a loan was in contravention of a provision of the constitution of the United States, and void.

Chief Justice Marshall, after discussing the character of the certificates issued, and arriving at the conclusion that they were bills of credit, proceeds, “The certificates for'which this note was given, being in truth Mils of credit, in the sense of the constitution, we are brought to the inquiry — is the note valid of which they form the consideration? It has been long settled that a promise made in consideration of an act which is forbidden by law is void. It will not be questioned that an act forbidden by the constitution of the United States, which is the supreme law, is against law. The Chief Justice refers to the case of the Springfield Bank v. Merrick et al. 14 Mass. 322, and Hunt v. Knickerbocker, 5 Johns. 327, as authorities of state courts of the highest respectability, in support of the same doctrine, and adds, that it never has been doubted that a note given on a consideration which is prohibited by law is void.

The case of McElyea v. Hayter, in 2 Porter, 145, in its features, presents a strong resemblance to the case before us. It was an action to try titles. The land in controversy had been entered by McElyea under the pre-emption law of congress, passed on the 29th day of May, 1830, which expressly inhibited all assignments and transfers of the right of pre-emption prior to the issuance of the patent. Previous to the issuance of the patent to McElyea, he executed a power of attorney to one Campbell, authorizing him to convey the land to Hayter when the patent should issue. Campbell, in pursuance of the power, executed the conveyance for the land, and this action was brought to recover possession. The title was not to be made until after the issuance of the patent, but the contract to convey and the power of attorney was anterior and at a time when alienation was forbidden. The court held the conveyance void. Chief Justice Saf-fold says: “The principle is not necessarily the same as if, instead of this power, a bond for title had been executed at the same time, and McElyea had afterwards, when in possession of the patent, executed the deed pursuant to the previous void agreement. . In this latter ease the subsequent execution of the conveyance would have constituted a new contract when there was no restriction against it; but if suit were brought on such bond to recover the penalty or damages for the breach, it is clear that no such recovery could be had because of the illegality of the contract with reference to the subject-matter at the time when made; ” and he cites the case of Armstrong v. Toler, 11 Wheat. 258, as sustaining the correctness of his views.

In comparing the above case with the one before us, there appears to me to be a most striking similarity of features. In the Alabama case the power to sell was not to be executed until the patent had issued, when the patentee well might do so, agreeably to law. In the case before ns the deed was not to be executed until the time prescribed by law had elapsed. We have seen that by the decree No. 190, alienation was expressly forbidden until the expiration of six years from going into the possession of the land conceded.

The- case of a contract, forbidden by law when it is entered into but the law afterwards repealed, is not perceived to stand on a footing different, in principle, from the contract on which the suit under consideration was instituted — both are contrary to law at the time of their being entered into; the former ceases to be so by the repeal of the law; the last, by the expiration of the time prescribed. On the effect of a repeal of a statute on a contract entered into in contravention of it before such repeal, we have numerous adjudicated cases of the highest authority. Judge Story, after treating of illegal contracts on account of their being contrary to law, proceeds: “And it will make no difference that the laws have been since repealed, or that the war has since ceased; for the contract being clearly in fraud, of the Imo existing at the time, the execution of it ought not to be enforced by the courts of the country whose laws it was intended to evade.” Story Confl. 205. The same doctrine is found in Hannah v. Eve, 3 Cranch, 242, and in 14 Mass. 242, cited above. In this last case Chief Justice Parker remarks: “The subsequent repeal of a statute can have no effect upon a contract made while it was in force.

As well might a contract made for the purpose of trade with an enemy during a war be purged of its illegality by the return of peace. The supreme court of Florida, in a case of usury, after the statute had been repealed, have asserted the same doctrine: That if the contract be on a usurious consideration at the time it was entered into, the subsequent repeal of the law cannot wipe out the taint of usury, Mitchell v. Doggett, 1 Fla. No. 2, 356.

It is frequently a most perplexing question to determine whether a contract is against public policy, when it is not forbidden by express law, but when it is so forbidden there is no such difficulty presented.

To apply the principles we have examined, and which seem to be common to all countries, no one can for a moment doubt that the contract on which the suit xxnder consideration was instituted in the court below was foi’bidden by the law then in force, and the fact that it was not to be executed until the legal impediment was removed can impart to it no validity. It was not at the time a legal subject of contract of alienation, and the legal impediment to the subject matter of the contract presented as strong a ground of objection to its validity as the disability of one of the parties to contract — and in principle it would be as objectionable as to hold one, who contracted during minority to convey after coming of age, to performance.

The fact that the parties to the illegal contract mutually went into the enjoyment of the consideration that passed and made considei’able improvements can be of no influence in this suit. The petition states no facts and makes no averments that would admit of, or let in proof by which a confirmation or new contract was entered into, after the legal disability had been removed. The suit is founded on the contract, admitting by its terms that it is contrary to law. The petition shows as much and asks to have this contract, so admitted to be contrary to law at th'e time it was made, carried into specific execution.

The plaintiffs below may have rights founded on the strongest equity; and if they have, such rights would be protected if fairly presented to the court. The naked fact of a long continued possession without interruption or adverse claim; acts of ownership and assertion of right within the knowledge or presence of the adverse party,, have been held to be grounds on which a title would be presumed. If the suit bad been brought to quiet the complainants in the enjoyment, and such a state of facts presented as would raise a reasonable-presumption of a confirmation, or would constitute a new and a distinct contract afterwards, when there was no legal restriction, the powers of the court are sufficiently ample to afford relief.

But all such considerations are excluded in the present suit, and we have no hesitation in deciding that the contract sued on and sought to be enforced is illegal and void.

The judgment of the district court of Colorado county is in all things reversed, and the cause directed to be dismissed.  