Bohm v. Bohm

• Citation: 10 P. 790,9 Colo. 100
• Parties: BOHM v. BOHM.
• Decision Date: 26 March 1886
• Court: Colorado Supreme Court

10 P. 790

9 Colo. 100

BOHM v. BOHM.

Supreme Court of Colorado

March 26, 1886

Appeal from superior court, city of Denver.

The plaintiff below, Mary Bohm, filed a complaint against the defendant, Magdalena Bohm, alleging the ownership and possession of plaintiff to 12 blocks of lots in Bohm's subdivision of the city of Denver; that she claimed title in fee thereto, but that said defendant claimed an estate or interest therein adverse to the title of the plaintiff. The complaint denies the validity of defendant's claim upon said premises; prays that she be required to set forth the nature of her claim; that plaintiff's title be adjudged valid, and that defendant be forever enjoined from asserting any claim of title to the said premises. The answer and cross-complaint of Magdalena Bohm alleges ownership in fee by the defendant on the fourth day of January, 1878, of a tract of land, embracing 80 acres, a parcel of which was and is the premises described and claimed by the plaintiff; that said tract of land was then incumbered by two deeds of trust executed to secure the aggregate sum of $3,000 and interest that defendant was then, as now, a widow; that she was without means to remove the said incumbrances, and was, at the date aforesaid, induced to execute to her son, Charles Bohm, a deed of the entire tract of land in fee, in consideration of his promise, upon which she relied and acted, that he would, upon execution and delivery to him of such conveyance, execute and deliver to said defendant a written declaration of trust to the effect that she held an undivided one-third interest in said entire tract of land free and clear of all liens and incumbrances, and in the proceeds thereof in case of sale. One of the foregoing allegations is in the words following: 'And the said Charles Bohm then and there, in consideration of such conveyance to him, and for the purpose of obtaining the legal title to said tract of land from the defendant herein, agreed with and promised the defendant that he would, upon the execution and delivery to him of said conveyance, execute and reduce to writing a declaration of trust,' etc., setting out the verbal agreement; that in consideration of the two-thirds of said tract vesting in said Charles Bohm absolutely, by said deed, he promised that he would assume pay, and remove all liens from the said tract of land, and that, upon demand, he would execute and deliver to the defendant said one-third interest in said tract of land, free and clear of all liens and incumbrances.

Then follows an averment that said Charles Bohm, on the fifteenth day of December, 1883, executed to the plaintiff, Mary Bohm a deed of the land in the complaint described, and of blocks 1, 2, 3, 4, and 5, in Bohm's subdivision of the city of Denver, which is the only conveyance under which the plaintiff claims. Following this is an averment that, at the time of this conveyance, plaintiff was the wife of the said Charles Bohm; that the conveyance was without consideration; and that before, and at the time of said conveyance, the plaintiff knew of the terms, conditions, and promises upon which the conveyance from defendant to Charles Bohm was made; consequently the plaintiff took the conveyance burdened with the trust.

Defendant alleges that Charles Bohm, intending to cheat and defraud her out of her interest in said land, failed and refused to execute the declaration of trust, although defendant frequently demanded that he execute the same within three years of the filing of the cross-complaint, and prior to the conveyance to the plaintiff; also that defendant frequently, since said conveyance to the plaintiff, demanded of the plaintiff a conveyance to her of an undivided one-third of said property, or a declaration of trust that the plaintiff held the undivided one-third interest in said land in the complaint described in trust for the defendant, which she always refused to make. The death of the said Charles Bohm is averred; that since the land was conveyed to the deceased deeds of trust upon the land have been executed; that the plaintiff has sold a large part of said entire tract of land, realizing therefrom the sum of $3,900, no part of which sum has been paid to the defendant, although defendant has demanded the one-third part thereof since the said sale. The defendant in the cross-bill avers that the relations between her and the said Charles Bohm, now deceased, and between her and the plaintiff, Mary Bohm, were such as to quiet all suspicions as to any intention on the part of either the plaintiff or the said Charles Bohm to defraud her of any of her rights in the premises; and that it was not until about the time of the said conveyance from Charles Bohm to plaintiff (and within three years of the time of the filing of the amended cross-complaint) that either the said Charles Bohm or the plaintiff refused to execute the declaration of trust, or that she discovered that they, or either of them, intended not to execute such declaration, but to defraud her of her rights in the premises. Said Magdalena Bohm avers that she is a widow, and is inexperienced in business matters; she always looked to and relied upon her said son to aid her in the transaction of her business, as one in whom she had a right to and could repose the utmost confidence. The prayer of the cross-bill is that the plaintiff be declared to hold an undivided one-third interest in the parcels of land in the complaint described, free and clear of all liens and claims, in trust for the defendant; that plaintiff be ordered to convey to the defendant, by a good and sufficient deed, a one-third interest in the entire parcels of land in the complaint described; that, if there be any incumbrances on the land, as betweedn the parties such incumbrances be declared a lien on the two-thirds interest belonging to the plaintiff; and for judgment for the sum of $2,300; and that the same be declared a lien on the undivided two-thirds interest in the parcels of land described in the complaint.

Bartels & Blood and Mr. Brown, for appellant.

John L. Jerome, for appellee.

BECK C.J.

The questions presented by the demurrer to the cross-complaint are: (1) Do the averments of the cross-complaint bring the defendant's case within the twelfth section of the statutes of limitations? (2) Do the facts and circumstances set forth in the cross-complaint constitute a cause of action? That is, do they take the case out of the statute of frauds, so as to permit parol proof of the verbal agreement alleged to have been entered into by and between Charles Bohm and his mother, Magdalena Bohm, at the time of the execution of the deed to the said Charles Bohm?

The first ground of demurrer is that the case presented by the cross-complaint is barred by the statute of limitations. The twelfth section of this statute is as follows:

'Bills for relief on the ground of fraud shall be filed within three years after the discovery, by the aggrieved party, of the facts constituting such fraud, and not afterwards.' Gen. St. § 2174.

It is alleged in the demurrer that it appears by the cross-complaint that the failure to execute the declaration of trust occurred, if at all, and was known to the defendant, more than three years prior to the filing of the cross-complaint. This proposition implies that the failure to execute the declaration of trust was equivalent to notice from the time of the execution of the deed of a fraudulent intent to deny the existence of the trust. When we consider the close family relationship of the parties,--that of mother and son,--and the implicit confidence which the mother says she reposed in the good faith of her son, we can readily understand why the mere failure of the son to put the verbal contract into writing might not, for a long time excite the suspicion of the mother that he intended to defraud her out of her property. The defendant alleges positively that she did not discover the fraud upon which she seeks relief until within three years of the filing of her said cross-complaint, and this allegation, in our judgment, stands unimpeached. Had the original transaction taken place between persons not occupying fiduciary relations to each other, the delay in seeking relief would afford strong grounds for holding that the action was barred. See Pipe v. Smith, 5 Colo. 146. But such is not the case here presented. The defendant alleges that she was a widow, inexperienced in business matters, and that she always looked to and relied upon her son as one in whom she had a right to and could repose the utmost confidence and trust to aid her in such matters; that the said plaintiff, Mary Bohm, was the wife of her said son; and that the relations existing between herself and the said parties were such as to quiet all suspicions of an intent on the part of either of them to defraud her of her rights in the said premises. If these allegations be true, and for the purpose of testing the sufficiency of the cross-complaint the demurrer admits them to be true, there seems to be...