Gutheil v. Polichio, 14268.
| Decision Date | 16 January 1939 |
| Docket Number | 14268. |
| Citation | 103 Colo. 426,86 P.2d 972 |
| Parties | GUTHEIL v. POLICHIO. |
| Court | Colorado Supreme Court |
In Department.
Error to District Court, Arapahoe County; Samuel W. Johnson, Judge.
Action by Paul Polichio against Lilla B. Gutheil and others to set aside conveyances of realty as made to hinder, delay, and defraud creditors. Judgment for plaintiff, and named defendant brings error.
Affirmed.
Hecox & Deahl and Alter & Upton, all of Denver for plaintiff in error.
Horatio S. Ramsey, of Littleton, for defendant in error.
This action was instituted by defendant in error, plaintiff below to set aside a conveyance of real estate by defendant plaintiff in error here, on the ground that it was transferred for the purpose of hindering, delaying and defrauding creditors. He was successful in the trial court and plaintiff in error seeks reversal of the judgment rendered against her by writ of error. The Star Investment Company and Stansbury Thompson also were defendants below, but do not appear here. In case No. 13,944, in this court, Star Investment Co. v. Polichio, [1] a supersedeas was granted, that action being the one in which defendant in error had recovered judgment against the company, but the writ of error therein was dismissed on motion.
At the time defendant in error brought his damage action, July 7, 1934, the company owned eighteen acres of valuable land near Aurora known as the Gutheil Park Nurseries, which was subject to a deed of trust for $5,000, and also the Greenwood Ranch upon which was a first deed of trust for $30,000. August 8, 1934, the company contracted with Thompson to convey all of the property to him in consideration of the payment of $1,000 to the company and his reconveying to it, or to someone it should designate, a tract of forty-eight acres, clear of all encumbrance. A. H. Gutheil, defendant's husband, admitted that he knew at the time of the reconveyance that the re-transfer was to be to his wife.
About the same time, November 16, 1935, a deed of trust to secure $23,530 on the eighteen acre nursery for the use of the wife, subject to a $5,000 first deed of trust in favor of the Title Guaranty Company, was recorded, and it is to set aside these two conveyances; viz., the $23,530 deed of trust and the deed of reconveyance to plaintiff in error, that this action was instituted.
The original Star Investment Company was organized in 1909; in 1918 A. H. Gutheil, above mentioned, was acting as its secretary, and he continued to so act down to the present time, being the only paid officer of the company. About 1918, according to his testimony and as evidenced by the minutes of the corporation, a loan of $22,120 was obtained from Mrs. Gutheil, the money being a part of $50,000 which she had received from the United States government for some land purchased from her and which became part of the site for the Fitzsimmons Hospital. This $22,120 was allegedly used for the purpose of acquiring new and better stock for the nursery and for improvements of the property.
The details of the entire transaction are fully set out in copies of the minutes of the corporation. According to these minutes three notes were given to Mrs. Gutheil for $15,000, $5,000 and $2,120, respectively, and signed as follows: The notes were dated May 15, 1818 (error apparent), August 15, 1918, February 15, 1919, payable on or Before six years, on or Before May 15, 1924, respectively. A clause in each of the notes reads as follows: 'As a condition precedent to the making of this loan and the financing of this, The Star Investment Company, by the said Lilla B. Gutheil and as per resolutions of the Board of Directors on May 6th 1918, the said Lilla B. Gutheil, or by her accredited agent, shall have the irrevocable right, to demand at any time and receive from said The Star Investment Company, security upon that Company's assets, for the payment of this note or for any unpaid balance thereon, or for any renewal of the amount that may then be due thereon.'
Small amounts of interest were apparently paid from time to time, according to the minutes, and the notes renewed until the final renewal note for $23,550 was given October 1, 1935, which, as heretofore indicated, was secured by the deed of trust recorded November 16, 1935.
The company had an authorized capital of $15,000, with only two shares of stock issued, one to Penrose, the president, and the other to Gutheil as secretary. In addition to his being secretary and as such having the care and custody of the books, Gutheil also was treasurer and manager. The president testified that although his name was signed to the notes and the minutes, he knew little about the actual operation of the company's business. For all practical purposes it was a one man corporation.
During all this time Gutheil acted as the accredited agent of his wife and it was in that capacity that he exercised 'the irrevocable right, to demand * * * and receive from said The Star Investment Company, security * * * for the payment of this note.'
None of the alleged indebtedness to Mrs. Gutheil was ever disclosed in any of the annual reports of the corporation filed with the...
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...improper actions. See Fink v. Montgomery Elevator Co., 161 Colo. 342, 350, 421 P.2d 735, 739 (1966); Gutheil v. Polichio, 103 Colo. 426, 431, 86 P.2d 972, 974 (1939); La Fond v. Basham, 683 P.2d 367, 369 (Colo.App.1984); Krendl & Krendl, supra at Micciche, 727 P.2d at 372-73. A variety of f......
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In re Unglaub
...§ 38-8-102(12); Thomason, 202 B.R. at 770. A transaction between a husband and wife is presumptively fraudulent. Gutheil v. Polichio, 103 Colo. 426, 86 P.2d 972, 974 (Colo.1939). Nevertheless, the movant must still establish an intent to hinder, delay, or defraud. Mohler v. Buena Vista Bank......
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...or defraud creditors of the husband." Armstrong v. Fishbach, 95 Colo. 64, 67, 32 P.2d 828, 829 (1934). Accord Gutheil v. Polichio, 103 Colo. 426, 431-32, 86 P.2d 972, 974 (1939); Thuringer v. Trafton, 58 Colo. 250, 144 P. 866, 868 The Morgans have failed to meet this burden of proof. Indeed......
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