Baird v. Baird

• Decision Date: 03 October 1910
• Citation: 48 Colo. 506,111 P. 79
• Parties: BAIRD v. BAIRD et al.
• Court: Colorado Supreme Court

111 P. 79

48 Colo. 506

BAIRD v. BAIRD et al.

Supreme Court of Colorado

October 3, 1910

Appeal from District Court, El Paso County; W. S. Morris, Judge.

Suit by George H. Baird and others against Louisa M. F. Baird to redeem land from a conveyance alleged to be a mortgage. Judgment for complainants, and defendant appeals. Reversed and remanded.

Frank J. Baker and P. M. Kistler, for appellant.

Vanatta & Dolph, for appellees.

HILL J.

The complaint in this case avers that the absolute deed given by William J. Baird to Gustavus J. Baird for a one-half interest in a certain farm in El Paso county, together with a half interest in certain lots in Colorado City, at the time of its execution (September 11, 1877) constituted a mortgage. The appellant is the devisee of Gustavus J. Baird. The appellees are heirs of William J. Baird. The two Bairds were brothers. No bad faith is averred on the part of the appellant or her predecessor in interest in procuring the conveyance, but counsel for appellees rely entirely upon the view that the transaction constituted a mortgage, and that appellees (plaintiffs below), as the heirs of William J. Baird, since deceased, may assert a right to the reconveyance of the property upon payment of the mortgage debt with interest to include an accounting of rents, profits, etc. If their major premise be correct, their conclusion correctly follows unless the remedy is barred by limitation, or for some other reason cannot be enforced.

There is a question concerning the sufficiency of the complaint as to whether the appellees are not estopped from asserting the claim at this late date upon the grounds of negligence under the doctrine of laches and stale demand by reason of the absence in the complaint of any allegation in any manner attempting to excuse the laches of William J Baird during his lifetime and those of the appellees thereafter. The complaint was not filed until about 29 years after the execution of the instruments and 24 years after open, notorious, adverse, and continuous possession was taken and asserted by Gustavus Baird and after his death by this appellant. The authorities seem to be uniform in holding that courts of equity will only grant relief in case the application therefor is made without unreasonable delay, and the rule is that the claimant should set forth in the bill specifically what were the impediments to an earlier prosecution of the claim, and how he or she came to be so long ignorant of his or her alleged rights, and the means used by the respondent to keep him or her in ignorance and how he or she first came to the knowledge of his or her rights. This question was thoroughly discussed in the case of Godden v. Kimmell, 99 U.S. 210, 25 L.Ed. 431, where the foregoing doctrine was quoted and recognized as the universal rule. The same doctrine appears to have been recognized in this jurisdiction. De Mares v. Gilpin, 15 Colo. 76, 24 P 568; Graff v. Town Co., 12 Colo.App. 106, 54 P. 854; Hagerman v. Bates, 5 Colo.App. 391, 38 P. 1100; Great West Min. Co. v. Woodmas of Alston Min. Co., 14 Colo. 90, 23 P. 908. Whether this rule is applicable where a deed is to be declared a mortgage is not necessary to determine, for, without passing upon this question, we shall assume that the mortgage issue is sufficiently presented by the pleadings and proceed to consider whether the evidence sustains appellees' theory. The equitable rule that an absolute deed may be shown by parol to be in effect a mortgage has in this state received express Legislature recognition. Civ. Code, § 261. But it should be observed that, to establish this fact, the proof must be clear, certain, satisfactory, unequivocal, trustworthy, convincing, and, some cases say, conclusive; in short, as stated in some former decisions of this court, the case must be made out with that fullness and precision which is essential to a conviction in a criminal case--beyond a reasonable doubt. Whitsett v. Kershow, 4 Colo. 419; Graff v. Town Co., 12 Colo.App. 106, 54 P. 854; Townsend v. Petersen, 12 Colo. 491, 21 P. 619; Armor v. Spalding, 14 Colo. 302, 23 P. 789; Perot v. Cooper, 17 Colo. 80, 28 P. 391, 31 Am.St.Rep. 258; Davis v. Hopkins, 18 Colo. 153, 32 P. 70; Butsch v. Smith, 40 Colo. 64, 90 P. 61; Enos v. Anderson, 40 Colo. 395, 93 P. 475.

Appellees have engaged in a difficult undertaking. They are to prove a parol defeasance agreement, made over 28 years prior to the commencement of the suit, by and with the ancestors of the parties who died about 11 years prior to the bringing of this action. It appears for some years prior to September 11, 1877, the two brothers were equal owners of the ranch in controversy situate in El Paso county. William was in possession of the property and had been for some time. Gustavus lived in the East, and advanced to William certain moneys used in the purchase of William's interest in the property and for other purposes. Conditions ran along in this manner until Gustavus came out, when they had a settlement by which it was shown that William was indebted to his brother Gustavus in the sum of $1,200. Whether this amount was made up of sums previously advanced to William by Gustavus, or in part paid by Gustavus to parties who, at the time, held incumbrances against the half interest of William or otherwise, is not quite clear. It is consistent to assume it was both; in any event, that amount was then due and its payment urged by Gustavus. The testimony concerning this settlement was given by Mrs. R. L. Cone, a sister of the brothers, who was present when it was made, and stated: '* * * When they finished their settlement, * * * Gustavus wanted him (William) to settle it all up, and he could not do it without borrowing the money, and he did not know where he could get it at that time; and Brother Gustavus made some objections to a trust deed on account of it calling him out here again and it would be expensive to him, providing he had to foreclose it. I cannot my which one proposed the deed; but giving a deed and a bond for a deed was proposed at that time, and it was given. Each of them owned an undivided half interest in this land. Gustavus had put in money into the property and William had put in money, time, and labor, and that is what they settled on.' It appears that, contemporaneous with the execution of the deed, Gustavus gave to William a bond for a deed which called for a conveyance of this one-half interest from Gustavus to William upon the payment by William to Gustavus of $1,200, five years from date, with interest at the rate of 10 per cent. per annum, to be paid yearly. The bond states that William J. Baird has given his promissory note for said amount. It further provides that, if the said William shall forfeit his claim to said deed, then all sums paid on said note more than the amount of said interest shall be refunded, provided said note cannot be enforced, with the other usual covenants in a bond of that kind. These instruments were properly recorded at that time. Mrs. Cone testifies that she does not know whether Gustavus took a note for the $1,200 or not. Appellees failed to show that $1,200 was not a reasonable value of the one-half interest of the ranch at that time. The evidence, if it tends to show anything upon the subject, goes to establish that $2,400 or $2,500 was a reasonable value of the entire ranch property. The deed and bond for deed included a half interest in some ?? at Colorado City (the exact value of which is not shown), but from the correspondence their then total value was probably about $300.

William continued in possession of the ranch property until some time after the expiration of the five-year period named in the bond for deed, when it appears he had not paid any of the principal and only $80 of the interest called for by the bond. Gustavus, about 1883, upon account of such nonpayment, took possession of the entire ranch, made some improvements, paid the taxes in his own name, had agents rent it for him, and applied all the proceeds to his own use and in all respects assumed entire ownership as his own and continued to retain possession from that time until the time of his death, also that of his brother, which occurred about a week apart during the year 1896. After the death of Gustavus, similar possession, claim of ownership, etc., was continued by appellant up to the time of trial. Possession was given Gustavus voluntarily by his brother William, who thereafter wrote him from Colorado Springs in February, 1884, in which letter, referring to this ranch, he states: 'I suppose my interest in the ranch is forfeited. I think perhaps by another year I could have paid for it, but it is hard to tell. I believe you said, if I did not pay for it, that you would pay me back what I paid you when you were here. I think the ranch could be sold for a fair price if you had a man hold of it that was not more inclined to tell the disadvantages of it than the advantages, but, whatever you do, do not sell any water. If you do, you will never sell the place. The old ditches has the water when scarce and new ones has to go dry.'

On May 23, 1886, at Colorado Springs, William again wrote his brother Gustavus in the East. The material part concerning this controversy was as follows: 'I will go back to my last letter. I wished then to know what you intended to do about what I paid in on the place. You agreed to pay me back all that I paid in on the place when you were here if I failed to pay for the place. The old town lots I sold you one half of for one hundred and fifty dollars which was turned on the place, the other half I had no business giving you a deed for but you thought it would be better as I was in debt some and might lose them. To all appearance I have lost...