Barlow v. Hitzler

• Decision Date: 06 May 1907
• Citation: 90 P. 90,40 Colo. 109
• Parties: BARLOW et al. v. HITZLER.
• Court: Colorado Supreme Court

90 P. 90

40 Colo. 109

BARLOW et al. v. HITZLER.

Supreme Court of Colorado

May 6, 1907

Error to District Court, Montrose County; Thereon Stevens, Judge.

Action by Alexander C. Hitzler, as administrator with the will annexed of the estate of Samuel Turbutt, deceased, against Lavinia F. Barlow and another. From a judgment for plaintiff defendants bring error. Affirmed.

On October 1, 1891, George L. Jacobson and John S. Mooney executed and delivered to Henry J. Aldrich, as trustee for the benefit of the Colorado Securities Company, a deed of trust on certain property in Montrose county to secure the payment of their promissory note for the principal sum of $1,300 due and payable October 1, 1896, and 10 coupon notes of $52 each. On the 1st day of December, 1891, said notes and trust deed were assigned to Samuel Turbutt, of Baltimore, Md Four of the coupon notes were duly paid. On March 20, 1896 the remaining six and the principal note were owned and held by Turbutt. In January, 1893, while Turbutt was the owner of the notes, and without any default in the payment of the principal or the remaining coupon notes, and, without any request to foreclose from Turbutt, Aldrich, the trustee pretended to foreclose the deed of trust, and executed and delivered a release deed of the premises to Mary Mooney the mother of John Mooney, for the nominal consideration of $25. This release deed was recorded in the office of the county clerk of Montrose county on November 24, 1893. In May, 1893 John S. and Mary Mooney executed a second trust deed conveying the premises to Aldrich, as trustee, to secure the payment of their note for $1,200, and certain coupon notes attached, in favor of the Colorado Securities Company. The lastmentioned notes were subsequently sold and assigned by the securities company to Lavinia F. Barlow. Afterwards Aldrich resigned as trustee, and William H. Whitehead was appointed by Lavinia F. Barlow as successor in trust under the latter trust deed. Under the power thus conferred Whitehead foreclosed the second trust deed, and sold the property to Barlow. On March 20, 1896, Turbutt commenced this action in the district court of Montrose county against John L. Jacobson, John S. Mooney, Mary Mooney, Henry J. Aldrich and William H. Whitehead. An amended complaint against the same parties was filed October 24, 1896, which set forth the foregoing facts, and averred that the pretended sale and foreclosure by Aldrich of the first-mentioned trust deed and pretended sale thereunder to Mary Mooney were fraudulent, and by him fraudulently designed to cheat and defraud plaintiff, and that the said Mary Mooney and William H. Whitehead had full knowledge of all said fraudulent acts and intent. Summons was duly issued in the action, and the service of a summons was attempted to be made by publication. This attempted service was wholly insufficient to give the court any jurisdiction of the defendants or the property. No appearance was entered by either of the defendants. However, at the November, 1897, term of said court, plaintiff introduced evidence and obtained what is designated as a decree, but which amounts to merely a finding of facts by the court, no final decree being rendered. No further steps were taken in the action until December 11, 1899. In the meantime Turbutt had died, and on the last-mentioned date Dennis Murto, as administrator to collect of his estate, filed a complaint in the nature of a bill of revivor and supplement. In this complaint the administrator set forth the original complaint as amended and the proceedings which had been had thereon, the fact that the plaintiff Turbutt had died, and his appointment as administrator to collect. It averred that the facts set forth on the original complaint as amended were true, and alleged that subsequent to the commencement of the action Lavinia F. Barlow, pretending to be the owner of the note mentioned in the deed of trust executed by John and Mary Mooney to the defendant Aldrich as trustee, being of date May 27, 1893, attempted to appoint William H. Whitehead as successor in trust under an instrument purporting to be dated March 30, 1896, and not filed till May 22, 1896, and William H. Whitehead, claiming to be such trustee, had executed and delivered to the defendant Lavinia F. Barlow a deed purporting to be a trustee's deed bearing date May 20, 1896, purporting to convey the above described premises to her. Lavinia F. Barlow was added as a party defendant. Upon the filing of this complaint, a new summons was issued, directed to all of the defendants, including Barlow, and service was duly made by publication. Whitehead and Barlow filed separate answers setting upon substantially the same defenses. First. They alleged the termination of the suit by reason of the proceedings theretofore had, and the pretended decree theretofore rendered, and the removal of the case from the docket. They also pleaded the statute of limitations. Mills' Ann. St. § 2911. Second. That the revival proceedings were not commenced till more than a year after Turbutt's death, and the appointment of the administrator; that the failure of service of the original summons was attributable to the negligence of plaintiff's attorney; that the action was ended by the taking of the former decree, and the removal of the case from the docket. Third. They set up Barlow's title under the release deed from Aldrich and the second deed of trust. The fourth and fifth defenses set up tax deeds for the property from the treasurer of Montrose county to themselves. Barlow, in addition to setting up tax deeds, alleges the payment of certain subsequent taxes and an improvement on the land by the purchase of a water right in the Loutsenhizer ditch. All the material allegations of the answers were traversed by replications, except that the defendant Barlow had been in possession of the premises, the execution of the tax deeds, and the payment of subsequent taxes. The court found the issues in favor of the plaintiff; that the plaintiff had a prior lien on the premises under the first deed of trust; that Barlow's trust deed constituted a second lien on the premises giving her the right to redeem from the first; that Whitehead was acting as Barlow's agent in purchasing the tax titles standing in his name for her use; that neither Barlow nor Whitehead could obtain affirmative relief under their tax deeds, for the reason that after being given an opportunity to plead them as cross-complaints t...