Arnett v. Berg

• Decision Date: 09 February 1903
• Citation: 71 P. 636,18 Colo.App. 341
• Parties: ARNETT v. BERG et al.
• Court: Colorado Court of Appeals

71 P. 636

18 Colo.App. 341

ARNETT v. BERG et al.

Court of Appeals of Colorado

February 9, 1903

Appeal from district court, Boulder county.

Action by Mary G. Arnett against Frank A. Berg and others. From a judgment in favor of defendants, plaintiff appeals. Reversed.

T.M Robinson and Petrus Nelson (T.A. McHarg, of counsel), for appellant.

Esteb &amp Wolff (O.A. Johnson, of counsel), for appellees.

GUNTER J.

General demurrer to complaint sustained. From judgment of dismissal plaintiff appeals.

The complaint alleges that, April 19, 1893, Frank A Berg was the owner of lots 10, 11, and 12, block 4, Rose Hill addition to the city of Boulder; that on said date he gave a trust deed thereon to secure the payment of a promissory note of $300, payable to one Harlow; that July 15, 1893, he deeded said lots, without consideration, to his wife, Anna Berg; that, January 22, 1894, said Frank A. Berg and Anna Berg made a trust deed on said lots securing the payment of a promissory note of $249 payable to Frank Lounsberry; that June 17, 1895, Frank A. Berg agreed with plaintiff, Mary G. Arnett, to convey to her said lots in consideration of her agreeing to discharge the said Harlow and Lounsberry notes, and in pursuance thereof made a deed of said lots to plaintiff; that at the date of last-mentioned conveyance plaintiff was in ignorance of the conveyance of January 22, 1894, by Frank A. Berg to Anna Berg, and plaintiff then and there believed that she was acquiring said lots subject to the trust deeds securing the notes assumed; that said Anna Berg, at the time of making the said contract between Frank A. Berg and plaintiff, and at the time of the execution of the deed from Frank A. Berg to plaintiff, knew of the contract and deed, and intended that plaintiff should acquire thereby all the rights of herself and husband in said lots; that she consented to the making of said contract and deed, and acquiesced therein, until April 8, 1899; that plaintiff went into possession of said lots, in pursuance of said agreement and deed, under the belief that she thereby became the owner thereof, and that ever since said date, except from June 1898, to May, 1899, during which time Jennie Devlin held title to said lots 11 and 12, she has been, and now is, the owner and in possession of said lots, and while so in possession has made valuable and permanent improvements thereon; that in pursuance of said agreement with Frank A. Berg she has discharged the said two notes assumed by her, and that the trust deeds securing the same have been released; that she has paid all taxes assessed upon said lots for the years 1894 to 1897, inclusive, and for the first half of 1898; that no claim upon said lots was made by the said Anna Berg until April 8, 1899; that on last-mentioned date Anna Berg, with the concurrence of Frank A. Berg, without any consideration therefor, executed a warranty deed purporting to convey said lots to one Pyle, who paid no consideration therefor, but took the same in secret trust for Anna Berg and Frank A. Berg, with the intent of defrauding plaintiff of her interest therein. On the date of the execution of said deed by Anna Berg to Pyle, the latter gave a trust deed on said lots to secure a pretended note to her of $300. Plaintiff prays judgment quieting the title in her as against Frank A. Berg, Anna Berg, Pyle, and the trustee in the trust deed securing said pretended note of $300. Other relief is asked immaterial to this ruling. The complaint contains the further allegation that the value of the property involved does not exceed the sum of $2,000.

Appellees contend that the judgment of dismissal should be affirmed and assign as reason therefor that the cause of action sued on was equitable, that the county court has no equity jurisdiction, and therefore its judgment,...