Allen v. Tritch

• Decision Date: 01 April 1880
• Citation: 5 Colo. 222
• Court: Colorado Supreme Court
• Parties: ALLEN v. TRICH ET AL.

5 Colo. 222

ALLEN v. TRICH ET AL.

Supreme Court of Colorado

April, 1880

Appeal from District Court of Arapahoe County.

Alexander P. Allen, filed his complaint in the District Court of Boulder County, against George Tritch and others, creditors of Gay S. Allen; the cause was brought by change of venue to Arapahoe county, and there tried. The complaint was to the effect following:

It alleged that on May 7th, 1876, Alexander P. Allen became the owner of the undivided one-half of certain real estate in Boulder county, describing it; that he derived title from Gay S. Allen May 17, 1876, who was then owner of the fee; that plaintiff was possessed from date of conveyance to the filing of complaint; avers payment of consideration, without notice of any adverse claims; that Tritch, on the 6th day of October, 1876, caused a writ of attachment to issue from the District Court of Boulder County, for $7,712.68, and levied the same on said property, as the property of Gay S. Allen. Avers plea in abatement by Gay S. Allen in said cause, and judgment thereon in favor of Tritch; final judgment against Gay S. Allen in said cause for plaintiff, Tritch, for $8,307.00 damages and costs; issue of execution Nov. 5, 1877 and levy on said real estate and notice of sale; that Gay S Allen never had any interest in said lots after May 17, 1876 that said levy and its record is a cloud on title of plaintiff; that Tritch will proceed to sell if not restrained, and thereby further cloud title.

Demand for injunction to restrain sale and to restrain further issue and levy of execution, and for cancellation of levy and record of same.

An injunction was allowed.

Defendants filed a demurrer to to complaint, and moved to dissolve the injunction.

The motion was denied, and defendants ruled to answer.

Defendants answered substantially as follows:

'Deny on information and belief that plaintiff, May 17, 1876, or ever was seized in fee of said lots; deny plaintiff derived title from Gay S. Allen, and avers that the title was conveyed without any consideration and fraudulently; deny that plaintiff paid Gay S. Allen full value for said real estate without knowledge of any claim thereon, and deny that he paid any value for same; deny that Gay S. Allen has never had any claim to said real estate since May 17, 1876, but avers that he was at all times since seized in fee thereof; deny that plaintiff has been in possession of said property, and avers possession in Gay S. Allen since pretended sale, and has received the rents and profits; deny that Gay S. Allen has never had any claim or title since May 17, 1876, and allege that said sale and conveyance was fraudulently made to hinder and delay creditors, and that plaintiff had such notice, and that the sale was void.'

Defendants also filed a counter-claim or cross-complaint, averring that on 6th of Oct., 1876, Tritch commenced action vs. Gay S. Allen by attachment, in Boulder District Court for $7,712.68, caused it to be levied on said lots as property of Gay S. Allen; that said Gay filed plea in abatement, which was found against him; that judgment followed verdict; that in said suit Tritch alleged that Gay S. Allen had sold and conveyed his property fraudulently, and to hinder and delay creditors, which was denied and found true by said verdict.

That Oct. 30, 1877, final judgment on merits was rendered in favor of Tritch v. Gay S. Allen, for $8,307.00 and costs; that Nov. 5th, Tritch caused execution to issue to sheriff of Boulder County; that execution has been returned by sheriff unsatisfied; that at and for a long time before the levy, and at the date of the judgment and return of the execution, Gay S. Allen was owner and entitled to the equitable and beneficial interest in said real estate; that May 17, 1876, and before Gay was insolvent, that he made the deed to plaintiff to defraud and hinder and delay creditors; that the deed was without valuable consideration shown voluntary and fictitious; that plaintiff holds the title in secret trust for Gay-so to aid him in defrauding creditors, and that plaintiff knew all these facts at time deed was made; that at date of deed plaintiff did not pay Gay anything in money or property; that he did give Gay a mortgage purporting to secure 10 notes, payable in 1 to 10 years each, for $1,300; that Oct. 6, 1876, plaintiff had not paid any of said notes, but now fraudulently pretends that he has paid all, though notified of said levy; that July 24th, 1876, plaintiff made to Gay power of attorney, empowering him to sel and convey, or lease said property, or to exchange it for other property, and receive the purchase-money and rents, and giving him full power over property as before sale, and averring that the sale, deed, notes, mortgage and power were all made to defraud creditors, and especially Tritch; averring a legal lien by his levy against said property; that his judgment is due and unpaid; that Gay has no property subject to execution except that described above.

Demands judgment canceling deed to plaintiff, power of attorney and mortgage, for an account for all property received from Gay; that he be restrained from interfering with said property, and that Tritch's judgment be satisfied out of proceeds of said property.

The plaintiff filed a special replication. Subsequently judgment was rendered in pursuance of the prayer of the cross-complaint, canceling the deed, mortgage and power of attorney, enjoining the plaintiff from conveying, incumbering, or interfering with the property, and dissolving the injunction, which had been issued in behalf of plaintiff. To reverse that judgment, Alexander P. Allen prosecutes this appeal.

Messrs. BROWNE & PUTNAM, for appellant.

Messrs. SYMES & FOOT, for appellee.

ELBERT C. J.

Under section 57 of the Code, the defendants were entitled to file their cross-complaint asking affirmative relief. It is claimed, however, that the cross-complaint here interposed is substantially a creditor's bill, and that a judgment creditor's remedy by creditor's bill no longer exists, the framers of the Code having substituted there for 'proceedings supplemental to execution.' Chap. 20. Hexter v. Clifford et al. Decided at the present term.

The supplemental proceedings provided by the Code appear to be chiefly directed to discovery, and in this respect at least they are to be regarded as taking the place of the former bill of discovery. They are not adapted, however, to reach the disputed property of the judgment debtor; no contested title to property can be determined. Gasper & Seymore v Bennet, 12 How. Pr. 307, and cases cited. The cross-complaint here seeks the cancellation of a deed and mortgage made in fraud of creditors. The right of a judgment creditor to equitable relief in case of the fraudulent transfer of...