Appeal from Superior Court of Denver.

THIS suit was instituted by appellee M. B. Carpenter, plaintiff, against appellants Joseph and Anna Williams and one Alfred J. Ware, as defendants. The gist of the complaint is that Jerome B. Chaffee, having acquired title to an undivided one- fourth interest in and to certain mining properties in this state through the foreclosure of a trust-deed made by defendant Ware, to secure the payment of his note of $2,000 and interest to appellant Joseph Williams and two others, on the 14th of July, 1885, agreed to sell the same to the appellee Carpenter, on condition that he paid or deposited $2,500 to the credit of said Chaffee in the First National Bank of Denver on or before August 14, 1885; that said Chaifee, on the same day, made a. quitclaim deed of the premises and placed it in the hands of his attorney, L. B. France, instructing him to deliver it, together with Ware’s trust-deed and note, to appellee, upon compliance with the conditions of payment; that appellee made the deposit of $2,500 to the credit of said Chaifee in said bank upon the 14th day of August, 1885, and that afterwards Chaffee drew out the money so deposited, and appropriated the same to his own use; that appellant received from said bank a certificate showing such deposit, and exhibited the same to France, and demanded the deed and other papers; that France refused to deliver them until a claim made by Williams upon Ware should be settled, and thereupon appellee agreed with the defendant Joseph Williams that t-he deed of Chaffee and the trust-deed and note should be turned over by said France to Joseph Williams, to be held by the latter a reasonable time to enable Williams to effect a settlement with Ware of certain controversies then existing between them; that the papers were delivered by France to Williams in pursuance of said agreement, and that Williams accepted and retained the same “upon the express condition that the same should be turned over to the plaintiff upon the payment to him, the said Williams, of his claim or demand upon said Ware, in case it should appear that the said Ware was indebted to the said Williams.” It is also averred that neither Williams nor Ware have made any effort to effect a settlement, although often requested so to do by appellee, but have allowed an unreasonable time to elapse since the notes and deeds were so deposited with Williams without any attempt at such settlement; that Ware was not at the time of said deposit, and is not now, indebted to Williams; that said Williams claims that the papers are now held by the defendant Anna Williams, and that both said defendants refuse to deliver them to plaintiff, although often requested so to do; that they, and each of them, are insolvent and unable to respond in damages to the appellee for wrongfully withholding the delivery of the papers; and that Chaffee has died since they went into the hands of Williams. The defendant Ware made default. The defendants Joseph and Anna Williams joined in an answer, denying the agreement set out in the complaint, and alleging that at the date of Ware’s note appellants Joseph Williams, Charles S. Abbott and John Sanderson were mining on the premises under a license from Ware, the sole owner of the properties, and that Ware, being pressed for money to save the same from a forced sale, applied to Williams for a loan of $2,000, offering to him as an inducement one-fourth of the proceeds of a sale of the whole property, when the same could be sold, in consideration of which Williams loaned the $2,000, taking Ware’s note and the trust-deed on one-fourth interest in the properties; that Williams assigned the same to Jerome B. Chaffee, from whom he had borrowed the $2,000, as his security for the money. It is also alleged that Chaffee held the title derived through the foreclosure for the benefit of Williams in accordance with the arrangement made with Ware at the time of the loan, and that this was one of the conditions of the sale by Chaffee to appellee. Defendants further aver that the payment or deposit of $2,500 and the settlement of said Williams’ claim were to be made within thirty days from the 14th day of July, 1885, and that the quitclaim deed of Chaffee was left with his attorney, L. B. France, to be delivered to the appellee only upon condition that the payment or deposit and settlement were made within said thirty days; that appellee did not pay or deposit the said $2,500, nor settle the claim of said Williams, within the thirty days; that after the thirty days appellee demanded the deed and papers of France, who refused to deliver them, for the reason that Williams’ claim had not been satisfied; that thereafter France, with the consent of appellee, turned the papers over to Williams to be held by him as his own security for the satisfaction of his claim under the arrangement with Ware; that his claim has not been satisfied or released; and that the appellant Anna Williams holds the papers as a marriage gift from Joseph Williams of his interest in the properties.

Upon these issues the case was tried to the court. As the result of such trial the issues were found in favor of appellee, and judgment was entered accordingly, requiring the defendants Joseph and Anna Williams to immediately surrender and deliver up to the plaintiff the said deed of Chaffee and the note of Ware which were then in the possession of and under the control of the defendant Anna Williams. Judgment was also given the plaintiff for costs, and an order made that execution issue therefor. Appellants bring the case here for review upon appeal.

Mr. J. A. BENTLEY, for appellants.

Messrs. M. B. CARPENTER and C. W. WRIGHT, for appellee.

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