Clark v. Knox

• Decision Date: 04 April 1904
• Citation: 76 P. 372,32 Colo. 342
• Parties: CLARK v. KNOX et al.
• Court: Colorado Supreme Court

76 P. 372

32 Colo. 342

CLARK v. KNOX et al.

Supreme Court of Colorado

April 4, 1904

Appeal from District Court, Arapahoe County; Booth M. Malone, Judge.

Suit by William Knox and others against A. J. Clark. From a decree in favor of complainants, defendant appeals. Affirmed.

Patterson, Richardson & Hawkins, for appellant.

H. E Luthe and Chas. D. Hayt, for appellees.

CAMPBELL J.

In May 1897, an action was begun in the district court of Arapahoe county by Susan T. Knox against A. J. Clark, and there proceeded to final judgment in defendant's favor, which was affirmed by the Court of Appeals. Knox v. Clark, 15 Colo.App. 356, 62 P. 334. The object of the action, and the issues therein tendered and decided, and thus tersely stated in the opinion of Mr. Justice Thomson: 'This proceeding was instituted by the appellant against the appellee to remove a cloud from a title which she claimed in certain real estate situate in the city of Denver, caused by the levy of a writ of attachment upon the property in an action wherein the appellee was plaintiff, and John W. Knox the husband of the plaintiff, defendant, which attachment had been sustained by the judgment of the court. The defendant admitted the attachment and the judgment, denied ownership in the plaintiff, and averred that the land was attempted to be conveyed to her by her husband for the purpose of cheating and defrauding his creditors, of whom the defendant was one. The prayer of the answer was that the alleged title of the plaintiff be adjudged to be subject to the attachment lien of the defendant.'

While the appeal in that action was pending, and in January, 1900 Susan T. Knox, plaintiff in the former action, and the predecessor in the interest of the appellees here, brought this action against A. J. Clark, defendant in that action. The present action concerns certain real estate in the city of Denver--different tracts from that on which the attachment writ in the former action was levied, but included in the same deeds in which the attached property was conveyed--and its object is to remove therefrom a cloud caused by a sheriff's deed issued to the defendant by the sheriff of Arapahoe county upon a sale under an execution sued out of the same judgment referred to by Mr. Justice Thomson in the foregoing excerpt, but at a later date than the levy of the attachment. Two defenses were relied upon in both actions. In one of these defenses precisely the same issue of fraud was pleaded in both suits. In the first action the other defense was that the title of the plaintiff to the property in dispute, evidenced by two certain deeds of conveyance from her husband, John W. Knox, vested after, hence was subject to, the lien thereupon which defendant acquired by virtue of the levy of his writ of attachment; while in the second action a similar, but not the same, defense set up was that plaintiff's title was subordinate to the lien of an execution levy made more than two years after the attachment levy, though both writs issued out of the same proceeding. In the first action evidence was produced as to both issues, they were argued by counsel, and the court decided both in favor of the defendant. In the second action, which was between the same parties, the findings of the trial court upon both issues therein tendered were in favor of the plaintiffs, the representatives of Mrs. Knox, and the decree entered thereupon removed the cloud caused by the sheriff's deed, and confirmed title in the plaintiffs to the premises in dispute. By appropriate supplemental pleading it was alleged that pending this litigation between these parties, and while there was a decision in his favor by the district court of Arapahoe county in the former suit upon both issues, and before the modification of the findings and affirmance of the judgment in the Court of Appeals, and while he in good faith believed that he had a valid lien upon the property involved in the present action, Mr. Clark, on the last day for redemption, redeemed from a tax sale which had been made of all the property included in the deeds from Mr. Knox to his wife, and did so for the purpose of preventing the title from vesting elsewhere. The court, finding that such redemption was made in good faith, and while Clark held a decree declaring the title of Mrs. Knox (the predecessor of the plaintiffs in interest) to be null and void, concluded that equity and good conscience required, and therefore so ordered, that plaintiffs' title should become absolute only when they repaid to the defendant the amount of taxes, with legal interest. Plaintiffs have assigned cross-error to this ruling.

Two questions have been presented and argued upon this appeal: First, on plaintiffs' cross-error directed to the ruling of the court requiring plaintiffs to refund the taxes paid; second, on defendant's assignment whether, by the decision of the Court of Appeals in the former case, the question of fraud in the deeds under which Mrs. Knox claims title is res judicata, no question being raised as to the correctness of the finding that the delivery of the deeds antedated the levy of the execution.

1. The general rule is that one cannot make himself the creditor of another by paying a debt or obligation of the latter without his request or assent. Acting upon this principle, the Supreme Court of the United States in Homestead Co. v. Valley Railroad, 17 Wall. 153, 167, 21 L.Ed. 622, held that, where one of the parties to a litigation voluntarily paid taxes on certain lands which were the subject-matter of the suit, he has no right to be reimbursed for this expenditure, in case the title is adjudged not to belong to him, on the ground that the taxes were paid in good faith and in ignorance of the law. In the absence of a request from the true owner, it was there said that such payment was only voluntary, made with a full knowledge of all the facts, and therefore the party, having paid in such circumstances, had no claim for its repayment. Of similar import is Huddleston v. Washington, 136 Cal. 514, 69 P. 146. The Supreme Court of Iowa, in the Goodnow Cases, which disclose a state of facts quite similar to the case in hand, held that a promise upon the part of the true owner to repay the taxes would be implied, and that equity and common honesty uphold such a rule. Goodnow v. Stryker, 62 Iowa 223, 14 N.W. 345, 17 N.W. 506; Goodnow v. Litchfield, 63 Iowa 275, 281, 19 N.W. 226. In Iowa, etc., Land Co. v. Davis, 102 Iowa 128, 71 N.W. 229. some doubt is thrown upon the previous decisions by the same court, and there was manifested an intention not to extend the doctrine of the earlier cases. The facts of this case, we think, differentiate it from the Homestead Co. Case and the California case. Here Mr. Clark did not redeem from the tax sale until the last day for redemption. At that time there was a decree in his favor by a court of competent jurisdiction declaring his adversary's title void as against him and creditors generally, and although that decree did not in terms adjudicate that the title to the particular premises involved in this action was void, yet the title of plaintiffs' predecessor in interest to the property here involved was conveyed by the same deeds under which she held title to the tracts there in controversy, and, as these same deeds were then declared to be void because of the fraud of both the grantor and grantee, the legal effect of the decision so holding was to vitiate title to all the property attempted to be passed thereby. The redemption was made in absolute good faith, with a belief on the part of Mr. Clark that the title was in him, and this conviction was fortified by a decree of court. The payment was not made prematurely, but at the last moment before the title might, and, had not the redemption been made, would, have passed from all the parties to the suit. The plaintiffs have had the benefit of this payment. While in one sense the redemption was voluntary, yet in another it was compulsory, and we think the facts are sufficient from which a promise by the true owners to repay may be implied by a court administering equitable relief.

2. At the first trial, as has already been stated, Clark, in his answer, affirmatively pleaded as a defense that the plaintiff, Mrs. Knox, had no title under the deeds which she received from her husband, John W. Knox, who was the judgment debtor of the defendant, Clark, because they were made with the intent to hinder, delay, and defraud his creditors; and the other defense relied upon was that these deeds were not delivered until after Clark's writ of attachment in his suit against John W. Knox had been levied upon the property. The trial court found both these issues in favor of defendant--that the levy of the attachment preceded the delivery of the deeds, and that the transaction by which John W. Knox attempted to vest title in plaintiff was fraudulent. These two issues were squarely presented by the pleadings, argued by counsel, and considered by the court, and in the findings are express recitals that both issues were decided by the court upon which the judgment was entered. Had no appeal been taken from that decree, there is no question but that such determination upon both issues would be res judicata, and neither issue could be litigated in a subsequent action by either of the parties, whether the cause of action therein was the same as, or different from, that set up in the first; for while the rule is generally stated to be that the doctrine of res judicata does not apply unless in the second action the parties and the cause of action are the same as in the first, still if the parties are the same and the issues identical, the fact that the causes of action are different, or...