Du Bois v. First Nat. Bank of Denver

• Decision Date: 01 June 1908
• Citation: 96 P. 169,43 Colo. 400
• Parties: DU BOIS v. FIRST NAT. BANK OF DENVER et al.
• Court: Colorado Supreme Court

96 P. 169

43 Colo. 400

DU BOIS v. FIRST NAT. BANK OF DENVER et al.

Supreme Court of Colorado

June 1, 1908

Error to District Court, City and County of Denver; John I Mullins, Judge.

Action by the First National Bank of Denver and others against Eliza M. Du Bois and another. There was a judgment for plaintiffs and defendant Eliza M. Du Bois brings error. Affirmed.

R. H. Kane, Thomas Carlton, Dan B. Carey, and O. A Erdman, for plaintiff in error.

Chas. J. Hughes, Jr., Gerald Hughes, and Barnwell S. Stuart, for defendants in error.

CAMPBELL J.

On the 5th of February, 1895, Louis B. Du Bois was indebted to the First National Bank of Denver in the sum of about $7,000. As collateral security therefor, and for all advances thereafter to be made to him by the bank, he executed on that day and delivered to George E. Ross-Lewin his promissory note in the sum of $25,000, secured by a trust deed to Thomas Keely upon real estate. From time to time thereafter Du Bois obtained further loans from the bank, and gave notes and renewal notes for them and the earlier indebtedness. During the continuance of this indebtedness Du Bois made a payment upon the same in November, 1897, which was credited upon the principal debt and indorsed upon the collateral note. In June, 1899, his wife, Eliza M. Du Bois, brought her action against him in the district court for divorce, alimony, and a division of the property, and in the following October obtained a decree dissolving the marriage relation and an award of an undivided one-third interest in the property covered by the deed of trust here in controversy, and on the 25th of the same month, by virtue of the provisions of the decree, a deed of conveyance was executed and delivered to her for this one-third interest, and the deed was then placed on record. In June, 1903, the indebtedness, interest, and taxes which Louis B. Du Bois was obligated to pay were then past due and unpaid, and the bank and Ross-Lewin, holder of the collateral note, and Keely, as trustee, filed their complaint in the pending action to foreclose the deed of trust, and apply the proceeds obtained therefrom to the indebtedness of Du Bois to the bank. Mrs. Du Bois was made a defendant in the action as a claimant of an interest in the property covered by the trust deed as the result of the award to her in the divorce proceeding and the deed made in pursuance thereof. Plaintiffs got judgment against Mr. Du Bois for the amount of indebtedness, and a decree went for foreclosure of the trust deed. To review this judgment Mrs. Du Bois sued out this writ of error. Of the alleged errors the following assignments only are deemed worthy of consideration:

The court was right in overruling her motion to make the complaint more specific. The complaint was not so general as to be misleading. It could readily be understood by defendant. Her demurrer upon the ground that the complaint on its face showed that the action was barred by the six-year statute of limitation was properly overruled. The complaint contained an allegation of a payment upon the indebtedness in question made less than six years before the action was instituted.

Plaintiff's motion to strike certain parts of the answer was properly granted. These contained references to allegations of the complaint in the divorce proceedings brought more than five years after the trust deed was given, whose pertinency to anything involved in the present action is not apparent. They are not matters that can be taken against the bank or which affected the validity of its security. Even though the bank knew that Du Bois and his wife were not living together harmoniously, it did not prevent the bank in good faith and in the ordinary course of business from making loans of money to him, and taking security for the payment of the same. If the bank had knowledge of their domestic infelicity, it could not reasonably be held, at its peril, to anticipate that she would bring an action for divorce and obtain a decree therein for an interest in her husband's mortgaged property. But, if the bank could foresee such an end to their unhappiness, its lien on the property, taken in good faith, would not be subordinate to the purchaser's title which she subsequently secured.

The attempt of defendant by separate defenses of the answer to assail the transactions between her husband and the bank upon the ground of fraud is ineffectual. She would have to allege facts, not conclusions, constituting fraud; but her pleading is wholly insufficient in such particulars.

The objections to the insufficiency of the evidence and errors of the court in admitting evidence in behalf of the plaintiffs are not good. A careful examination of the record shows that both by legitimate record evidence and oral testimony the material allegations of the complaint were established. It appears with equal clearness that none of the defendant's defenses were proven.

Passing now to the more important questions we observe that in one of the defenses of her answer the defendant pleads the six-year statute of limitation. Had no payment been made by Louis Du Bois to the bank upon this indebtedness, the bar of the statute would have been complete in February 1901; but before that time, in November 1897, the debtor made a payment upon the debt, which, as to him, suspended the running of the statute, and this suit was begun before the expiration of six years from the date of such payment. The defendant, however, says that although the effect of this payment was to elongate the statute as to her...