4 Colo. 419 (Colo. 1878), Whitsett v. Kershow

Citation:4 Colo. 419
Opinion Judge:STONE, J. THATCHER, C. J.
Party Name:WHITSETT v. KERSHOW et al.
Attorney:Messrs. WELLS, SMITH & MACON, for appellant. Messrs. CHARLES & DILLON, for appellees.
Case Date:December 01, 1878
Court:Supreme Court of Colorado

Page 419

4 Colo. 419 (Colo. 1878)



KERSHOW et al.

Supreme Court of Colorado

December, 1878

Page 420

Appeal from District Court of Arapahoe County.

THIS was a suit in equity brought by Richard E. Whitsett, the appellant, against Elizabeth M. Kershow and John N. and John S. Filmore, the appellees, heirs at law of John S. Filmore, deceased, praying a conveyance by them to him of certain real estate in the city of Denver. The bill substantially shows: That in August, 1861, the complainant was appointed by the governor of the Territory of Colorado adjutant-general; that he performed the duties about nine or ten months; that about the same time the governor also appointed John S. Filmore paymaster; that about November 8th, 1862, Filmore was appointed assistant paymaster in the army of the United States; that complainant received from said Filmore $824.41, as part payment of salary, etc., as adjutant general, and gave said Filmore his pay accounts therefor; that about June 4, 1862, said Filmore apprised complainant that the government of the United States declined to allow him the said payments; that unless complainant indemnified him in case the said Filmore should fail in receiving credit by the United States for same,

Page 421

he would be compelled to suffer loss to the amount of such payment, and requested complainant to furnish him security for the amount so paid.

That in consequence of such representations, complainant on June 4, 1862, executed to said Filmore a deed absolute in form of the undivided one-half of lots 15 and 16, block 45, East Denver, and two-thirds of lots 1 and 2, block 46, described, etc., etc., solely for securing and ind emnifying said Filmore against loss of the amount paid to complainant, etc., in case he should be denied credit therefor in settlement of his accounts with United States.

That at the time of giving the information aforesaid to complainant, touching the refusal of the government to allow said payments, said Filmore stated that the government might thereafter allow the same, and agreed that in such event, he would reconvey to complainant said lots, etc.; that about December 25, 1864, said Filmore died intestate, leaving his widow, Elizabeth M., and two minor children, John Norman, about the age of 8, and John Septer, about the age of 6; that about May, 1868, said Elizabeth married Jere. Kershow, Esq.; that after the death of said Filmore, and before the marriage of said widow, Amos Steck, administrator of John S. Filmore, filed upon said lots as trustee for the said widow and minor children, and in pursuance of such filing, deeds for said property were by the probate judge issued and delivered to said Steck under and by virtue of an act of Congress, approved May 28, 1864, and the laws of said Territory, etc., he having theretofore entered said lands, in trust, etc., as provided in said act of Congress. That Feb. 15, 1868, Steck conveyed said lots to Rogers, then administrator, in trust for the use of the said Elizabeth M. and said minor children. That January 6, 1868, said Rogers conveyed to said Elizabeth M., then administratrix, etc., in trust for the heirs at law of said J. S. Filmore; that the payment by said J. S. Filmore to complainant has finally been credited and allowed by the United States, in the settlement of the accounts of said Filmore

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as paymaster as aforesaid; that since such allowance and credit complainant has applied to said Elizabeth to reconvey to him said premises, etc.

Prays that said Elizabeth M., John Norman, and John Septer be summoned and required to answer, etc., but not on oath; and that said Elizabeth be required to convey to complainant said premises; in default the master to convey. Prayer for general relief, etc.

Elizabeth M. Kershow was appointed guardian ad litem to infant defendants. Answer of infants in common form.

Answer of Elizabeth M. Kershow. Admits the conveyance by complainant to J. S. Filmore, as charged in the bill; denies that it was for the purpose charged; denies the promise of Filmore, charged, to reconvey; admits the death of J. S. Filmore intestate, at the time charged; admits the heirship and successorship charged; admits her marriage with Kershow; admits the filing by Steck as charged; the conveyance by Steck to Rogers and Rogers to respondent; admits that all said conveyances were you the trusts charged; denies the demand for reconveyance by complainant charged, or that complainant was entitled to such reconveyance; neither admits nor denies the residue of bill, and calls for strict proof.

Alleges that June 3, 1861, complainant conveyed said lots to Stout, and at the date of his conveyance to J. S. Filmore was had no title or claim to said lots; that J. S. Filmore was compelled to purchase of Stout, and paid therefor $700; that said J. S. Filmore acquired his right to claim said lots under the act of Congress, etc., and through the title acquired from Stout, and not from said complainant.

The defendant also pleaded the statute of frauds. The case was referred to the master to take proofs. The cause was heard upon the bill, answer and master's report, and a decree rendered dismissing the bill. To reverse this decree Whitsett appealed to this court. The evidence, deemed material, is stated in the opinion.

Page 423

Messrs. WELLS, SMITH & MACON, for appellant.

Messrs. CHARLES & DILLON, for appellees.


Notwithstanding the great contrariety of decisions upon the subject, it may be considered as well settled that upon proper proofs of intent of the parties, a court of chancery may decree that a conveyance absolute in form is to have the force and effect of a mortgage or trust. 2 Lead. Cas. Eq. 1013; Bispham's Eq., s 155; 2 Wash. Real Prop. (4th ed.) 49; Lindaur v. Cummings, Ex'r, 57 Ill. 195. But it is equally well settled that where it is sought as against a deed, absolute in terms, to establish a trust by parol evidence alone, in order to take the case out of the statute of frauds, the contract must be established by clear, certain and conclusive proof, unequivocal in all its terms. Johnson v....

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