Campbell v. First Nat. Bank of Denver

• Decision Date: 15 January 1896
• Citation: 22 Colo. 177,43 P. 1007
• Parties: CAMPBELL v. FIRST NAT. BANK OF DENVER.
• Court: Colorado Supreme Court

43 P. 1007

22 Colo. 177

CAMPBELL v. FIRST NAT. BANK OF DENVER.

Supreme Court of Colorado

January 15, 1896

Appeal from court of appeals.

Proceedings in attachment between the First National Bank of Denver and William L. Campbell, intervening and claiming the property attached. From a judgment of the court of appeals (2 Colo.App. 271, 30 P. 357) reversing a judgment in favor of Campbell, he appeals. Reversed.

On the 3d day of September, 1886, the First National Bank of Denver brought its suit against Albert L. Johnson upon the latter's promissory note to the former in the sum of over $9,000, and in aid thereof sued out a writ of attachment which, on the 4th day of the same month, was levied upon an undivided one-fourth interest in the Sierra Nevada lode standing at the time on the records of Lake county in the name of said Johnson. Thereafter, in this action, William L Campbell filed his petition of intervention; claiming the attached property as his own, on the ground that the consideration therefor was paid by him, though the title was taken in Johnson's name. This petition of intervention was denied by answer of the plaintiff bank, and, upon the issues of fact thus joined, trial was had before the district court without a jury, which found in favor of the intervener and entered a decree establishing his right to the undivided one-fourth interest in the property in question, and canceling the levy of the writ. Upon an appeal from this judgment to the court of appeals, the decree of the lower court was reversed, and it is from the judgment of the latter court that the intervener is prosecuting his appeal to this court. The findings of fact made by the trial court, upon which its decree was based, are as follows: '(1) That said intervener, William L. Campbell, advanced all the money by which the said one-fourth interest in the Sierra Nevada mining lode, described in his petition of intervention herein, was located and developed, and by which the title thereto was acquired, as alleged in his said petition. (2) That the location of said mining property was made in the name of the defendant, Albert J. Johnson, at the suggestion of said intervener; that the title thereto was taken and remained in the name of said Johnson, and was conveyed to and remained in the name of Peter Campbell, and was again reconveyed to and remained in the name of said Johnson, until the same was finally conveyed to said intervener, as alleged in said petition; and that said conveyances and reconveyances, and the holding of said property by Johnson and by said Peter Campbell, were with the free and voluntary acquiescence and consent of said intervener, and there was no consideration whatever for any of said conveyances or reconveyances, except the moneys advanced by said intervener as aforesaid; and, as between the said intervener and the said Johnson and said Peter Campbell, the said intervener was at all times aforesaid the sole and exclusive owner, in equity, of said one-fourth interest. (3) During the time between the original location and acquisition of said mining property and the levying of the attachment thereon in this action, the intervener exercised dominion and control over said one-fourth interest, sometimes in his own name, and sometimes in the name of the party in whom the legal title was vested as aforesaid; but for something over two years prior to the levying of said attachment said mining property was not worked, and there was no actual possession thereof--no pedis possessio--by any one. (4) The deed of said one-fourth interest in and to said mining property, executed and delivered to said intervener by said Johnson in December, 1885, was a good and valid conveyance, vesting in the intervener all the right, title, and interest to the property therein described which any other person or persons had theretofore had therein, so far as appears by this record and trial; but said deed was not recorded nor filed for record by said intervener until after the levy of attachment in this action on said property. (5) The plaintiff, at the time of the levying of the writ of attachment in this action, on said mining property, had no notice whatever of the existence nor of the execution and delivery of said deed dated December, 1885, by which said Albert J. Johnson conveyed said one-fourth interest in and to said mining property to said intervener. But the plaintiff did, at and before the time of the levying of said writ of attachment, have notice that the said intervener had, or claimed to have, some interest in said mining property so levied upon, and had the means and opportunity of inquiring of the intervener for definite information in respect thereto before making said levy.'

Thomas, Hartzell, Bryant & Lee, for appellant.

Charles J. Hughes, Jr., for appellee.

CAMPBELL J. (after stating the facts).

At the threshold of this case, we are confronted with specific findings of fact made by the trial court, which were virtually set aside and held for naught by the court of appeals when this case was decided by it. The learned judge who wrote the vigorous opinion has stated the reasons for his conclusion in forcible and perspicuous language. The case is reported in 2 Colo.App. 271, 30 P. 357. As we read the decision, the intervener's case was held bad in all its phases--First, because there was no proof of an agreement between intervener and Albert Johnson, creating an express trust; second, because there was not sufficient proof of a resulting trust, and, if there were, the transfer by Johnson of the trust property to Peter Campbell, having been made in fraud of the federal statute (the object of the transfer being to defeat the jurisdiction of the federal court in threatened litigation between the owners of this and other mining property), and the subsequent conveyance by Peter Campbell back to Albert Johnson also being, as it is said, in fraud of the creditors of Peter, discharged the property of that trust, if it existed, and that the property then stood in the name of Johnson, relieved of all equities in favor of the intervener, and just as if Johnson was then the legal and equitable owner of the property, down to and including the day when the writ of attachment was issued; that, therefore, the rights of the intervener and bank are to be determined, the one as the holder of a prior and unrecorded deed, the other as an attaching creditor. And the ruling upon this branch of the case was that under the decision of this court in McMurtrie v. Riddell, 9 Colo. 497, 13 P. 181, the rights of the bank were superior, inasmuch as there was no proof of notice to the bank, or its equivalent, of the alleged claims of ownership by the intervener before the levy of its writ. Unembarrassed by the decision of the court of appeals, our first impression, at least upon reading the foregoing findings of fact made by the trial court would naturally be, under the rule of this court, that the decree establishing the rights of intervener as superior, founded upon such findings, should be affirmed, if there were any legal evidence in the record to support them. A very careful examination of the entire record leads us to a conclusion, both as to the facts and as to some of the conclusions of law, different from that announced by the court of appeals. While the petition of intervention contains an averment of an express agreement between Johnson and Campbell, whereby a trust was created in this property, yet a fair construction of the entire pleading is that it sets forth a resulting trust in favor of Campbell, of which the plaintiff bank had notice at the time of its levy of the writ of attachment, when the property stood upon the records in the name of Johnson. If, however, there was such uncertainty in the petition in this regard as that a demurrer upon that special ground would have been sustained, there has been a waiver by the bank of this defect, by its answering over. As there was no evidence in the case as to the existence of an express trust, but the evidence was directed towards the establishing of a resulting trust, it is only as to the latter that the evidence will be considered.

That the title to this property was taken in Johnson's name is conceded, and the evidence as to the other essential fact upon this phase of the case (the payment of the consideration by Campbell) is all one way. Campbell positively swears that he paid the entire costs and expenses of making the location and securing the patent, and there is nothing to contradict his statement. After the patent was obtained he paid all the costs for the development of the mine, and of the litigation in which it was involved. Of course, these subsequent payments do not constitute Campbell a beneficiary, any more than does the fact that, prior to the location, Campbell advanced to Johnson large sums of money, for which the latter was then indebted. But as the latter facts are admissible upon the real issue, as tending to show the financial condition of Johnson to be such that he was not able to buy any property, because he had no money, so, also, are these subsequent payments admissible as showing the acts of the parties in relation to this property, and as bearing upon their understanding as to who was the equitable owner. We are satisfied from the evidence that all the money paid for location and patenting this mine was contributed by Campbell, and that it was his money at the very time that title was taken in Johnson's name, and that it was then their intention that Johnson should hold it as trustee for Campbell. No authority need be cited to the effect that a resulting trust would thus arise, but Warren v. Adams, 19 Colo. 515, 36 P. 604, may be referred to as an instructive case as to this...