were no limitations in the conveyance, nor was there any instrument executed between the parties at the time of the transfer which would serve to determine its purpose or character. Some years after, the son asserted ownership in the property, and denied his mother's interest in it. On this assertion of title the mother filed the present bill to set aside the conveyance, and to declare it to have been executed by way of a mortgage to secure the son for certain advances which he had made, and she also alleged that he had been instrumental in securing the transfer by divers misrepresentations, which the law would declare fraudulent. The case was tried by the court without the intervention of a jury on oral testimony, and resulted in a decree for the mother. There was little evidence, save that given by the respective parties, though there was some proof made of circumstances which tended, as the respective sides maintain, to support their different contentions.

There are divers errors assigned and argued by counsel in support of their claim that the case ought to be reversed, but that based upon the alleged insufficiency of the evidence to support the judgment is the only one which it is essential to consider, and which under any circumstances would be sufficient to justify setting the decree aside. As a basis upon which to rest the discussion of the insufficiency of the proof counsel accurately state the rule to be, that in order to overcome the effect of any absolute deed, and to change its legal significance from that of a conveyance to that of a mortgage, the testimony upon which the decree must rest should be precise, clear and unequivocal. That this is the law has been so often decided that a repetition of the rule will of itself serve to recall the numerous adjudications in which it has been declared. Without conceding that the evidence offered in support of the bill, together with the circumstances which surrounded the transaction and illustrated its history, did not as a whole furnish that unequivocal and clear proof which is essential to the maintenance of such a decree, it must be stated that the rule is not absolutely uniform in its application, nor is the

same identical proof required in all cases. Wherever the transaction is between parties whose relation are of a close fiduciary character the complainant is not held to the same exactitude and strictness of proof, nor is the testimony of fered in support of the bill to be viewed with the same scrutiny, as in those cases where the parties deal with each other at arms' length. Bohm v. Bohm, 9 Colo. 100.

Viewed in the light of these two principles it cannot be said, with such emphasis as to necessitate a reversal of this case, that the testimony does not reach that level of certainty essential to support the judgment. It is contended with great vigor that even though this be true, the weight of the testimony is against the finding, and for this reason the decree should be canceled. It is impossible not to concede that upon the record, as it is presented to this court, there is considerable basis for this contention, and if this court had to decide the question as an original proposition, upon the printed case, there might be grave doubt as to the decree which should be directed. But the cause is not brought within the rules which have always been laid down in this state as governing appellate courts in passing upon such an error. The record suggests nothing to indicate that the court was influenced by any other considerations than those which ought to control judicial tribunals in the rendition of their judgments. The decree is supported by the evidence offered by the appellee, by the circumstances of the transaction, and by the subsequent conduct of the parties; it is not therefore one of those cases where the judgment is so manifestly against the evidence as to justify an appellate court in reversing it. Kinney v. Wood, 10 Colo. 270; Green v. Taney, 7 Colo. 278; Ziegler v. Cole, 15 Colo. 295. The judgment is affirmed.

Affirmed.

L. H. MITCHELL, APPELLANT, V. WALTER S. VOAKE, APPELLEE.

DISMISSAL OF APPEAL FOR FAILURE TO SERVE NOTICE.-A condition precedent to the perfection of an appeal from a county court to a district court, under the act of 1885, is the service of a notice of the taking of the appeal in the opposite party, or his attorney. The failure to serve such notice, although the appeal has been otherwise regularly perfected, justifies its dismissal on motion of the appellee.

Appeal from District Court of Arapahoe County.

Messrs. WILLIAMS & BACHTELL, for appellant.

Mr. GEORGE A. SMITH, for appellee.

BISSELL, J. This action was brought in the county court of Arapahoe, in 1889. After trial and judgment the defendant endeavored to appeal to the district court. The appeal was prayed at the time the judgment was rendered, and allowed on condition that a bond be filed in a specified sum. Nothing else was done on the day that the judgment was entered. Subsequently the bond was filed according to the terms of the order, and every step essential to the perfection of the appeal taken, save that no notice was served on the other side according to the provisions of section 4 of the act of 1885, relating to appeals from the county court. When the case was brought into the district court the appellee moved to dismiss it because of the neglect to serve this notice according to the statute. Upon this ground the appeal was dismissed, and the action of the court in this particular is the error complained of. It was not error, and the judgment must be affirmed. The construction of the act of 1885 has been settled by several adjudications in the supreme court of the state, and this construction must be accepted as the law governing the case. Hunt v. Arkell, 13 Colo. 543; Law v. Nelson, 14 Colo. 409.

The decisions upon this question were rendered subsequent to the prosecution of the present appeal, and there is nothing to be done save to follow the law as declared. These opinions furnish a clear, precise and definite exposition of the statute, and in accordance with the construction which they establish it must be held, that under the facts appearing in this case, the service of the notice was a condition precedent to the perfection of the appeal.

The judgment must be affirmed.

Affirmed.

PETER MULVANY, APPELLANT, V. GREGORY GROSS, AP

PELLEE.

1. A PURCHASER'S PROMISE TO PAY ENCUMBRANCE NOT COLLATERAL. -A promise made by the purchaser of a crop of oats, on which there was a chattel mortgage, to pay the mortgage debt as a part of the price of the crop, is not a collateral promise within the statute of frauds.

2. EVIDENCE TO SUSTAIN BILL OF SALE.-The note and chattel mortgage were admissible in evidence in a suit by the mortgagee against the purchaser of the crops for the purpose of showing that they evidenced the debt mentioned in the bill of sale given by the mortgagor to the purchaser, notwithstanding a misdescription of the note in the bill of sale.

Appeal from District Court of Chaffee County.

The facts sufficiently appear in the opinion.

Messrs. G. K. HARTENSTEIN and J. B. McCoy, for appellant.

BISSELL, J. In May, 1888, Robert Holland and Henry Newby were indebted to the appellee, Gross, to the extent of six hundred dollars. On the 16th of that month, to

gether with Mrs. Newby, they executed a promissory note to the order of Mr. Gross, promising to pay that sum with interest on or before the 15th of October of the same year. Concurrently with the making of the note the parties executed a chattel mortgage upon a crop of oats then growing upon certain lands in Chaffee county which belonged to Newby, but were being farmed by Mr. Holland. The mortgage was put upon record, and the note remained unpaid at the time of the subsequent transactions. Sometime in the fall of the year, and while they were in stack, Holland and Newby jointly executed a contract of sale of the oats to the appellant, Peter Mulvany. The contract substantially provided for the sale of the entire crop, which it was supposed would amount to about four or five thousand bushels. According to this agreement Mulvany was to pay a certain price for the oats in the following manner:-six hundred dollars in cash, six hundred dollars, with interest on a note described as the Witcher and Gross note, four hundred and twenty-five dollars on a note to Peter Mulvany, and what might be due him on the account current, and the remainder, if any, to sundry parties named. The Witcher and Gross note was first mentioned in the contract, but the instrument contained no definite provision that it should be first paid out of the purchase price of the grain. The Gross note was the one referred to in the bill of sale as the Witcher and Gross paper. After the execution of this agreement, but before the delivery of the oats, Gross had an interview with Mulvany concerning the payment of his note and the liquidation of the mortgage debt. It does not appear that the agreement was referred to, but Mulvany said that he was to handle the crop, and he agreed to pay Gross's note out of the proceeds. Subsequently the crop was threshed and delivered. The price of the oats was not distributed according to the evident understanding and arrangement of the parties, nor according to the apparent terms of the instru ment, but six hundred dollars was paid in cash at the commencement of the delivery, one hundred dollars thereafter, VOL. I-8