Burchinell v. Butters

• Decision Date: 13 January 1896
• Parties: BURCHINELL v. BUTTERS.
• Court: Colorado Court of Appeals

43 P. 459

7 Colo.App. 294

BURCHINELL v. BUTTERS.

Court of Appeals of Colorado

January 13, 1896

Error to district court, Arapahoe county.

Action by Lucia B. Butters against William K. Burchinell. Judgment for plaintiff. Defendant brings error. Reversed.

This was an action of replevin brought by the defendant in error against the plaintiff for the recovery of chattels (household furniture, a piano, etc.) taken by the plaintiff in error, as sheriff, by writ of attachment, in a suit against Sara L. Butters and Henry A. Butters, defendant in error (plaintiff) claiming to be the owner of the chattels. Henry A. Butters and Sara L. Butters were husband and wife, and while that relation existed bought a house. The title was made to the wife, and husband and wife jointly executed notes for the purchase money. The house was furnished with the goods in controversy in this suit, the property of the wife, Sara L. Husband and wife jointly occupied the house, and used the furniture, until the death of Sara L. Subsequently, the husband remained in possession and occupation, assisted by a housekeeper. Sara L., as far as appears by the record, died intestate, and no administration of her estate was had; the indebtedness upon the joint notes remaining unpaid. While affairs were in this condition, on July 6, 1891, Henry A. married defendant in error, installed her in the house, and attempted, as shown by the evidence, to invest her with the ownership of the goods in controversy. Although in some unimportant particulars the witnesses failed to agree, the evidence was substantially the same, as rehearsed by those present, and was that at the wedding breakfast the husband made the new wife a present of the household goods and the horse and phaeton. "He did not make a speech; just sat there, and said she should have the horse and buggy, and the household goods. That was all that was said and done about that." In the language of another witness, Mr. Butters said "that he then and there gave her all the household effects, and the horse Dick, and phaeton and harness. These were enumerated. They had been the property of the former Mrs. Butters." Butters and wife occupied the house, and used the furniture, horse, and phaeton, until November following when the wife, as testified to, had to "go to a lower altitude," left Colorado, and has not since returned. Butters remained some time later, rented the house and furniture, collected the rent, used horse and phaeton, when he, too, left for a lower altitude, and has not since returned. On the 20th day of July, 1892, C.H. McLaughlin sued out an attachment on two overdue promissory notes of $250 each, made by Sara L. and Henry A. Butters, which was levied upon the goods in controversy. At the time of the levy the goods were in the possession of McLaughlin, plaintiff in attachment. The case was tried to the court, finding and judgment for the plaintiff (defendant in error), and a writ of error sued out, and case brought to this court.

Bennet & Bennet, for plaintiff in error.

REED P.J. (after stating the facts).

Many errors are assigned, several of which it will not be necessary to discuss. Upon the trial defendant asked leave to amend his answer of general denial, after the plaintiff had offered the evidence in regard to title by gift from the husband, claiming surprise, and tendered a verified amendment, alleging, among others, the fact that, at the time of the alleged gift and pretended transfer of the property and for some time before, C.H. McLaughlin was a bona fide creditor of the husband, H.A....