Colorado Nat. Bank of Denver v. F. E. Biegert Co., Inc., of Denver
| Decision Date | 13 February 1968 |
| Docket Number | No. 21772,21772 |
| Citation | 165 Colo. 78,438 P.2d 506 |
| Parties | The COLORADO NATIONAL BANK OF DENVER, Successor Trustee, Plaintiff in Error, v. F. E. BIEGERT CO., INC., OF DENVER, Colorado et al., Defendants in Error. |
| Court | Colorado Supreme Court |
Grant, Shafroth, Toll & McHendrie, Peter J. Crouse, Denver, for plaintiff in error.
Fairfield & Woods, Royal C. Rubright, Charlton H. Carpenter, Arne J. Salmi, Denver, for defendants in error, The Title Guaranty Company; Prudential Insuance Company of America.
The Colorado National Bank (bank), plaintiff in error, is successor trustee to F. M. Catherwood, who died during the pendency of the proceedings from which this review stems. Catherwood was a defendant in one claim (No. 10, relating to Tract 262) of a multiclaim suit brought by Wheatridge Lumber Company to foreclose a number of mechanics' liens on various tracts of land. Wheatridge Lumber Company, plaintiff below, The Title Guaranty Company Prudential Insurance Company, and all of those designated by Wheatridge Lumber Company as defendants because they claimed an interest in Tract 262, were designated as defendants in error. However, Prudential Life Insurance Company and The Title Guaranty Company are the only ones who appeared and filed briefs in this court. Final disposition in the trial court is awaiting our determination of the issue which we have been asked to review.
Catherwood responded to the Wheatridge Lumber Company's complaint by answer, a counterclaim, and also by cross-claims against Prudential Insurance Company (Prudential), The Title Guaranty Company (Title Guaranty), and all other defendants alleged to have an interest in Tract 262. Prudential and Title Guaranty jointly filed a motion to dismiss the cross-claims for failure to state claims upon which relief could be granted. R.C.P. Colo. 12(b)(5). Final judgment was then entered on the granting of the motion to dismiss, the effect of which was to relegate Catherwood to last place in order of priority of liens. Although not asked for in the motion to dismiss, the district court, in its order, dismissed the counterclaim against Wheatridge Lumber Company and the cross-claims against All defendants. It was the granting of the motion to dismiss which provoked the issuance of the writ of error.
In this posture the only issue for our determination is whether or not the counterclaim and the cross-claims, which were pleaded by Catherwood, stated a claim upon which relief could be granted. We therefor must look to the four corners of the pleading in question to determine whether a claim was stated in any one of the cross-claims upon which relief can be granted. Gayton v. Department of Highways, State of Colorado, 149 Colo. 72, 367 P.2d 899. In so testing, all matters well pleaded will be assumed to be true. Martinez v. Southern Ute Tribe, 150 Colo. 504, 374 P.2d 691; Stapp v. Carb-Ice Corp., 122 Colo. 526, 224 P.2d 935.
Catherwood's pleading set up three separate claims. In the First claim, it is alleged generally that as of February 23, 1962, Catherwood was the beneficiary of a first deed of trust on unimproved Tract 262, securing the sum of $6,750, which deed of trust was a first lien (this has reference to the purchase price deed of trust); that on August 17, 1962, to enable C. E. Kentz Construction Company (Kentz), owner of Tract 262 (who purchased from Catherwood), to secure a construction loan from Prudential in the amount of $28,000, Catherwood, without any negligence on her part, signed and transmitted To tiTLe guaranty, the agent Of prudential, a release of her first deed of trust, together with a newly executed deed of trust from Kentz, with Catherwood as beneficiary, bearing the original date and securing the original indebtedness of $6,750; that the release and new deed of trust were transmitted to Title Guaranty, as agent of Prudential, with instructions that upon the release of the original first deed of trust by the recordation thereof the new deed of trust be recorded, upon the condition that the new deed of trust be subordinate only to a deed of trust for the benefit of Prudential and that there be no other liens of any kind or nature prior to the lien of the new Catherwood deed of trust; that Title Guaranty, acting in its capacity as agent for Prudential, on August 22, 1962, recorded the release of the original Catherwood deed of trust and the Prudential deed of trust; subsequently, on September 24, 1962, after the commencement of work and the furnishing of materials in July 1962 by Wheatridge Lumber Company and others, Title Guaranty recorded the new deed of trust for Catherwood; that the conditions under which the release of the original Catherwood deed of trust was delivered to Title Guaranty had been broken; that Prudential and Title Guaranty wrongfully and mistakenly recorded the release of the original Catherwood deed of trust in violation of Catherwood's instructions; and that as between Catherwood and all other parties to the action the release of the original deed of trust is null and void and should be set aside and the original deed of trust be declared a first lien on the property.
In the Second claim of the amended cross-claims, Catherwood realleged most of the facts set forth in the first claim and further alleged that the release of the Catherwood deed of trust was furnished to Title Guaranty and Prudential with the understanding that the Catherwood lien was being subordinated only to the construction loan from Prudential to the extent of the actual amount to be loaned by Prudential for material and labor, but not to exceed $28,000; that less than s28,000 was actually incorporated into the property and that the lien of Prudential is prior and superior to the lien of Catherwood, only to the extent that monies advanced by Prudential were actually incorporated into an improvement on Tract 262; and asked that there be an accounting.
In her Third claim of the amended cross-claims, Catherwood alleged that she delivered the release of her original deed of trust to Title Guaranty and...
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