Agnew v. Agnew

• Decision Date: 03 November 1919
• Docket Number: 9396.
• Citation: 185 P. 259,67 Colo. 81
• Court: Colorado Supreme Court
• Parties: AGNEW v. AGNEW.

185 P. 259

67 Colo. 81

AGNEW v. AGNEW.

No. 9396.

Supreme Court of Colorado

November 3, 1919

Department 2.

Error to District Court, Pueblo County; J. E. Rizer, Judge.

Suit by Josephine D. Agnew against Clarence Agnew. Judgment for plaintiff, and defendant brings error.

Reversed and remanded.

S. S. Packard and James A. Park, both of Pueblo for plaintiff in error.

M. G Saunders and E. F. Chambers, both of Pueblo, for defendant in error.

DENISON J.

The plaintiff, Josephine D. Agnew, brought suit against her husband, Clarence Agnew, to enforce a resulting trust in a ranch in Pueblo county, which she alleged had been bought with their joint funds, but was in his name and possession.

The complaint alleged (par. 1):

'That the defendant and the plaintiff are and at all times hereinafter mentioned have been husband and wife, and the joint owners of the following described real property * * * [here follows description of a ranch] and certain chattel property, * * * and that the same was acquired by and with moneys contributed by each of said parties. * * *'

These allegations were admitted by the answer.

The court found that all the property real and personal was bought with plaintiff's funds, and 'that all of said property was purchased and acquired by defendant with moneys contributed and intrusted to him by plaintiff from her separate estate and earnings, and that said defendant now holds the title thereto in trust for said plaintiff,' and decrees a conveyance by defendant to plaintiff of the whole of the said real estate. The decree proper does not dispose of the personal property, except some water stock.

The above-quoted allegations in the complaint having been admitted by defendant, the finding that the whole of the real property was the property of plaintiff was, of course impossible. These statements have the force of judicial admissions, and cannot be controverted by either party. Wig. Ev. §§ 1057, 1064, 1065, 2588, and cases there cited; 31 Cyc. 87; Kutcher v. Love, 19 Colo. 542, 546, 36 P. 152.

For this reason the case must be reversed; but we notice some other points for the guidance of the court upon new trial:

1. The plaintiff and defendant both testify that they had a joint purse. She says:

'I usually kept $25 for my expense money since we owned the ranch. If Mr. Agnew had the check cashed he gave me $25 for my expenses. If I had it cashed I kept it out and gave him the rest of my check to meet our general expenses, after we moved to the ranch, which was in March, 1916.'

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