Birch v. Steppler

• Decision Date: 02 June 1888
• Citation: 18 P. 530,11 Colo. 400
• Parties: BIRCH v. STEPPLER.
• Court: Colorado Supreme Court

18 P. 530

11 Colo. 400

BIRCH v. STEPPLER.

Supreme Court of Colorado

June 2, 1888

Commissioners' decision. Appeal from district court, Arapahoe county.

This action was brought by the plaintiff below, who is appellant here, to recover the possession of lot 24, in block 27, in Case & Ebert's addition to the city of Denver, and to recover damages for the detention and occupation of said premises. The defendant, answering the complaint, denied all the allegations thereof, and alleged that she was the lawful and equitable owner of the premises, and that she had been seized in fee of the same since the 26th day of June, 1878 and filed her amended third defense and cross-complaint, as follows: 'And now comes the defendant, by leave of the court first had and obtained, to amend her third defense to this action as she might be advised, and files this for her third defense, as so amended, and as an equitable defense to said action, and as a cross-complaint therein. The defendant alleges that the plaintiff ought not to be admitted or allowed to allege that she is the owner, or has any right or title or claim whatever to the said premises described in said complaint, to-wit, lot twenty-four, (24,) in block twenty-seven, (27,) in Case & Ebert's addition to the city of Denver, in the county of Arapahoe, and state of Colorado; that the only apparent claim or title the plaintiff ever had to said premises was a quitclaim deed for the premises from William H. Clise, dated May 22, A. D. 1876; that said quitclaim deed was made at the instigation and request of the plaintiff and her husband, Samuel Birch, and when made was delivered to the plaintiff, and by her placed for record in the recorder's office of Arapahoe county immediately after the execution of the same; and defendant further alleges that said quitclaim deed was made without any consideration whatever from the said plaintiff, and only for the purpose hereinafter stated. The defendant further alleges that on the 23d day of December, A. D. 1874, Samuel Birch the then owner of said premises, executed a deed of trust to William F. McCartney, as trustee upon said premises, to secure William H. Clise the sum of one hundred and fifty dollars, and interest thereon, and further that on the 16th day of December, A. D. 1875, the said Samuel Birch executed another deed of trust on the same premises to Henry C Dillon, trustee, to secure the said William H. Clise the further sum of one hundred and fifty dollars, and interest on the same; that on the 14th day of December, A. D. 1875, the said Samuel Birch made and executed a warranty deed of the same premises to William H. Clise; that on the 25th day of October, A. D. 1877, the aforesaid William F. McCartney, by virtue of the deed of trust aforesaid, wherein said McCartney was trustee, made a trustee's deed of the same premises to the said William H. Clise, and that on the 27th day of June, A. D. 1878, the said William H. Clise and William F McCartney made and executed a warranty deed of the same premises to this defendant, Bertha Steppler, and the defendant alleges that the said deed so made by said Clise and McCartney was made at the instigation and request of the plaintiff in this suit; that as aforesaid the deed from Samuel Birch to William H. Clise was made not only with the knowledge but at the request of the plaintiff in this suit that the money due from said Samuel Birch to the said William H. Clise, so secured as aforesaid by the two deeds of trust aforesaid, had not been paid at the time of the making of the aforesaid deed by Samuel Birch to William H. Clise, nor at the time of the making of the aforesaid quitclaim deed by William H. Clise to the plaintiff, nor had it been paid at the time of the execution of the aforesaid trustee's deed by William F. McCartney to the said William H. Clise; and the defendant further alleges that at the time of the making of the quitclaim deed aforesaid by the said William H. Clise to the plaintiff in this suit it was agreed between them that the said William H. Clise was to sell said property for and on account of the money so due him as aforesaid and so secured by the two deeds of trust aforesaid; and the defendant further alleges that the said William H. Clise never claimed to be the absolute owner of the said premises by virtue of either the trustee's deed aforesaid or of the deed from Samuel Birch to the said William H. Clise, but that by virtue of their conveyances he only claimed the same as security for the moneys so due him as aforesaid; and the defendant further alleges that said money so due to said William H. Clise was not paid until the sale of the premises to this defendant on the 26th day of June, A. D. 1878, and that then the money so due to said Clise was paid to him out of the purchase money paid by this defendant for said premises,--the said sum so due to said Clise being at that time about six hundred dollars; that said plaintiff was an active participant in said sale, and in all things done in connection therewith, and especially with the payment of money to Clise arising from said sale; and the defendant further alleges that the quitclaim deed hereinbefore stated to have been made to the plaintiff in this suit was made with the understanding and agreement between the said Clise and the plaintiff that she had taken no interest in said premises, but that she held the same in trust only for the purpose of paying the money so due William H. Clise as aforesaid; and the defendant, further answering, alleges that she bought the said premises in good faith, and alleges that before she bought or paid for the said premises, to-wit, on the 26th day of June, A. D. 1878, and at divers other times before said purchase, she visited the premises for the express purpose of seeing plaintiff in this suit, who was then in possession of the said premises, with reference to the same, and to inquire of her if she had or claimed any interest in the said lot or premises; that this defendant then and there, and before she would purchase the said premises, stated and explained to the plaintiff in this suit that she, this defendant, was about to purchase the said lot and premises if she, the plaintiff, was willing thereto, and if she, the plaintiff, had no claim upon the same, but that if she, the plaintiff, had any objection to the purchase, or had any claim upon the premises, she would not buy the same, and the defendant then and there told the said Catherine Birch of whom she was about to buy said premises, to-wit, William H. Clise, and what she was to pay for the same, and to whom; that the plaintiff then and there disclaimed any and all interest in said lot and premises, and then and there persuaded the defendant to buy said lot and premises, and there showed the defendant through the various apartments of the house on said premises, and that the plaintiff then and there and at various other times held out other inducements to the defendant to buy said premises; and the defendant alleges that but for the representations so made as aforesaid by the plaintiff to this defendant she would not have purchased said premises, but that relying upon the representations so made by the plaintiff, she, the defendant, did purchase said premises, and did pay therefore the full value thereof, that is to say, the sum of eight hundred dollars; and the defendant further alleges that the plaintiff approved of and ratified said sale after the same was so made to this defendant as aforesaid; that the money so due to William H. Clise as aforesaid was paid to him out of the purchase money paid by this defendant with the knowledge and at the request of said plaintiff; and, further, that the plaintiff received and appropriated to her own use the balance of the purchase money after the payment to said Clise as aforesaid; and the defendant further alleges that afterwards, to-wit, on the 3d day of July, A. D. 1878, the plaintiff in this suit, with full knowledge of all the facts aforesaid, turned over and delivered up the possession of the said lot and premises to this defendant under and by virtue of the purchase aforesaid, and that the plaintiff quit the possession at the same time that she delivered the possession to this defendant; and the defendant further alleges that she has paid all taxes and assessments of every kind on or against said lot and premises, as well for the year 1878 as for all years subsequent thereto; that the defendant has occupied said premises from the 3d day of July, A. D. 1878, to the present time, and that she has been in the full, open, notorious, uninterrupted, unobstructed possession during all that time, without any claim or demand whatever from the plaintiff until the bringing of this suit; and the defendant alleges that the action of the plaintiff in the premises is fraud of the grossest character, and that she is estopped and should be estopped to set up any claim or demand or title to the said...