Childers v. Baird

• Decision Date: 03 May 1915
• Docket Number: 8030.
• Citation: 59 Colo. 382,148 P. 854
• Parties: CHILDERS v. BAIRD et al.
• Court: Colorado Supreme Court

148 P. 854

59 Colo. 382

CHILDERS v. BAIRD et al.

No. 8030.

Supreme Court of Colorado

May 3, 1915

Error to District Court, Douglas County; W. S. Morris, Judge.

Action by Mary Catherine Childers against Anna Maria Baird and another. Judgment for defendants, and plaintiff brings error. Reversed, and cause remanded, with directions.

F. W. Sanborn and George Allan Smith, both of Denver, for plaintiff in error.

Allen &amp Webster, of Denver, for defendants in error.

HILL J.

The plaintiff in error brought this action to have declared void a deed executed by her father in his lifetime to her mother Anna Maria Baird, for 1,650 acres of land with water rights in Douglas county, and also to be adjudged the owner of a one-fourth interest therein as one of the heirs, etc. Among other things, she alleges that the deed, after being made out, was never delivered by the decedent to his wife, Anna Maria Baird, but remained in the sole and exclusive custody keeping, and control of the decedent, and that at the time of his death he still retained possession and control of said deed; that after his death Anna Maria Baird fraudulently and unlawfully obtained possession of this deed, had it recorded and claims by virtue of it to own this property; and that she never paid any consideration for the deed. Issues were joined upon these questions. At the close of the plaintiff's testimony the defendants' motion for nonsuit was sustained, and the action dismissed. She brings the case here for review.

It stands admitted that Mr. Baird departed this life intestate August 11, 1911, and that unless title passed under this deed he was the owner of the lands and water in controversy at the time of his death. A. S. Carmichael, a real estate agent witness for plaintiff, testified, in substance, that about a week before the execution of this and other deeds by the deceased and his wife they talked about making deeds to each other, in the event that either was taken away, that they would make deeds so that in case of death the property of one would belong to the other; that Mrs. Baird spoke up and said, 'Come, John, * * * have them made out,' and said to the witness, 'Will you make them out for us; we will be down to your office?' that the deceased got some tax receipts and various evidences of descriptions of his property and gave them to the witness, and told him to draw up the deeds, which he did, as well as a deed from Mrs. Baird to the deceased for a piece of property in Denver; that later they came to his office; that the deeds were ready; that he called in a notary public, who took their acknowledgments to them; that there were two deeds from Mr. Baird to Mrs. Baird, one to the Douglas county property (involved in this action), and one to Denver property, and one by Mrs. Baird to Mr. Baird for a piece of Denver property; that they signed their respective deeds; that when the notary finished Mr. Baird took all of them, put them in his pocketbook, or in something, and said, 'I want it understood that this property never passes from my control until after I am gone,' and, calling his wife by name, he said, 'I want you to understand that this is my property, and only to take effect after I am gone the same as your deed would imply;' that witness said to him, 'You had better put these in safe-keeping,' to which he said, 'Yes; I will put them in my box where none of them will be lost this time;' that after this deed was executed Mr. Baird put it in his pocket and took it away. The deed involved, which is in evidence, bears date October 10, 1910, and shows that it was acknowledged October 29, 1910. Continuing, the witness states that he never saw it again until after Mr. Baird's death, when Mrs. Baird said, 'Now, Mr. Carmichael, you will remember there was some deeds or papers made out at the time we were down to your office; Mr. Baird put those away in the bank in a box, in the Broadway Bank; I don't know what to do; I am not familiar with the customs of getting those things; will you be good enough to go with me?' that they and her daughter (the plaintiff in error) then went to the Broadway Bank, where witness said to Mr. Tibbels, cashier, 'This is Mrs. Baird;' that Tibbels said to her, 'I have seen you sitting out in your carriage with your husband, but I have never met you before;' that witness then said to Tibbels, 'Mrs. Baird has the key here to her box; Mr. Baird, you know, is gone, and she would like to get some papers;' that the cashier produced the box, and witness looked through the papers, found among them the three deeds heretofore referred to and a bill of sale to personal property together; that he said to Mrs. Baird, 'These papers will be all we need; this one we don't need,' which remark referred to the deed from her to her husband; that he put it back in the box; that the box was then put in its place, and the key returned to Mrs. Baird, who said to witness, 'Al, you take these down and put them in the safe,' and also, 'When can you and I go to the Rock to file that deed?' that witness replied he could not say, he was pretty busy at present, but possibly a little later; that he took the deeds and put them in his safe; that from two weeks to two months later--exact date unknown--Barney Baird (the defendant in error, David B. Baird) came to his office and said, 'Ma and I are going to Castle Rock; let me have that deed;' that witness gave him the deed to the Douglas county lands. This deed shows it was filed for record September 1, 1911. The witness further states that when they went to the bank Mrs. Baird had the key to the box; that he had seen Mr. Baird with the key to this box; that the deceased had told witness that they were the keys to the box.

Mr. Tibbels, the cashier of the Broadway Bank, testified that the deceased rented a vault in that bank June 14, 1911, in his own name; that he never saw Mrs. Baird enter that vault but once, at which time there was a gentleman with her, and he thinks a lady also; that at the time the deceased rented the vault he said, 'If my wife wants to get in this vault let her in;' that he said nothing with reference to renting the vault for his wife to store her papers in that witness remembered; that he could not recollect whether it was before or after Mr. Baird's death that he saw his wife there with a man and a woman; that Mrs. Baird, however, was there but once, to his recollection.

Plaintiff testifies that sh...