Eagan v. Mahoney

• Decision Date: 14 July 1913
• Citation: 134 P. 156
• Parties: EAGAN v. MAHONEY et al. [d]
• Court: Colorado Court of Appeals

134 P. 156

EAGAN v. MAHONEY et al. ^[d]

Court of Appeals of Colorado

July 14, 1913

Appeal from District Court, City and County of Denver; Greeley W Whitford, Judge.

Action by William Mahoney, Sr., and others against John Mahoney and James T. Eagan. From a judgment for the plaintiffs, and for the defendant Mahoney on his crossbill against the defendant Eagan, the defendant Eagan appeals. Affirmed.

See also, 21 Colo.App. 209, 121 P. 108.

Schuyler & Schuyler and Henry Trowbridge, all of Denver, for appellant.

John H Reddin and J.R. Allphin, both of Denver, for appellees.

KING J.

July 20, 1892, Michael Mahoney conveyed to his brother, John, one of the defendants in this case, the legal title to lots 39 and 40, block 22, Colfax Avenue Park subdivision of the city of Denver, in trust. The conditions of the trust were expressed in a writing of even date with the deed, and provided that said John Mahoney should dispose of the lots to the best advantage, and out of the proceeds retain one-fifth thereof for his own use, and pay one-fifth thereof to each the father, mother, sister, and another brother of the said trustor and trustee. The trust was never executed. November 19, 1903, a treasurer's tax deed was executed and delivered, by which said lots (with others) were conveyed to W.C. Mitchell, pursuant to a tax sale made November 13, 1900, for the unpaid taxes of 1899. This treasurer's deed was recorded December 28, 1903, at page 498 of Book 1499 of the records of said county. Thereafter such title to said lots as Mitchell received by said deed vested by mesne conveyances in Eagan, one of the defendants, appellant herein. March 27, 1909, the cestuis que trust above named, except said John Mahoney, commenced this action against the trustee, alleging the trust and the failure and refusal of the trustee, after repeated requests, to execute the same; that plaintiffs were entitled to have the property partitioned among themselves, or disposed of as provided in the trust agreement, and the proceeds thereof divided; that the property was so situated that it could not be conveniently partitioned among the five persons interested, and prayed that the trust be executed, either by partition of the property or a sale thereof and division of the proceeds. Plaintiffs also alleged that the defendant Eagan claimed some interest or estate in said real property adverse to plaintiffs, which was a cloud upon plaintiffs' title and interest, and asked that said cloud be removed and the title quieted. To this complaint Eagan made answer, admitting his claim, and alleging that he was the owner of said property in fee simple under and by virtue of the treasurer's tax deed hereinbefore mentioned, and further, invoked the bar of the five-year statute of limitations, namely, section 3904, Mills' Ann.Stats. To this answer plaintiffs replied, admitting, the execution and record of the treasurer's tax deed, but alleging that it was void for reasons appearing on its face and aliunde. Thereafter the defendant John Mahoney made answer, admitting all the allegations of plaintiffs' complaint, and filed cross-complaint against his codefendant, Eagan, in which he set forth, in substance, all the allegations of plaintiffs' complaint, and alleged that he held the legal title to the property in trust; that said Eagan claimed some interest under and by virtue of the treasurer's tax deed aforesaid; that said tax deed was void, and a cloud on his title, and asked that the same be removed. To this cross-complaint Eagan filed answer, alleging paramount title under said tax deed, denying its invalidity, and praying that he be declared to be the owner of said premises in fee simple. All the pleadings allege or admit that the real estate in controversy was vacant and unoccupied at the time of the beginning of the suit. After the issues were made up, the defendant Eagan filed supplemental answer, alleging that since the said suit had begun he had taken actual possession of the lots, but upon motion this answer was stricken. Judgment was rendered in favor of plaintiffs upon their complaint, and in favor of the defendant John Mahoney upon his cross-complaint, ordering the execution of the trust, the sale of the property and division of the proceeds, and quieting the title as against the defendant Eagan.

1. We think plaintiffs had sufficient interest in the real estate in question, under the deed and trust agreement, to sustain their action to quiet the title thereto, or to remove a cloud therefrom, as against the defendant Eagan. The contention that under the doctrine of equitable conversion plaintiffs had neither legal nor equitable estate in the property, but only in the proceeds thereof, cannot be sustained when invoked only by the defendant Eagan, a stranger to said trust, for the purpose of defeating the intention of the trustor. That doctrine is an invention of equity applied for the purpose of guarding the interests of beneficiaries, and of effecting the intention of the trustor, and we believe should not be exercised for the purpose of defeating it. Moreover, the necessity of protecting the trust fund (in this instance real estate) by redeeming from the tax sale, or removing the cloud, is evident, and we think plaintiffs had sufficient interest to make them proper, if not necessary, parties, with or without joining the trustee as a party plaintiff, to a proceeding to quiet title to such estate. Munson v. Marks, 52 Colo. 553, 124 P. 187.

It is manifestly not necessary that a demand be first made upon the trustee to protect the title by bringing action to quiet the same, when, as in the instant case, the trustee has neglected the trust, and is a party defendant to a suit for the purpose of enforcing its execution.

2. Counsel's claim that the defendant Mahoney's cross-bill or cross-complaint cannot be sustained as a cause of action against the defendant Eagan, for the purpose of quieting title as against him, because the same is not defensive, and therefore not a counterclaim such as the Code provides, cannot be upheld. The counterclaim or cross-complaint mentioned in sections 56 and 57, Mills' Ann.Code, is equivalent to a cross-bill in equity practice. Allen v. Tritch, 5 Colo. 222, 225; Travelers' Ins. Co. v Redfield, 6 Colo.App. 190, 40 P. 195. And we think it cannot be successfully asserted that under the circumstances of this...