Eppich v. Blanchard

• Decision Date: 02 November 1914
• Docket Number: 7675.
• Citation: Eppich v. Blanchard, 143 P. 1035, 58 Colo. 139 (Colo. 1914)
• Parties: EPPICH v. BLANCHARD.
• Court: Colorado Supreme Court

143 P. 1035

58 Colo. 139

EPPICH v. BLANCHARD.

No. 7675.

Supreme Court of Colorado

November 2, 1914

Error to District Court, City and County of Denver; Harry C Riddle, Judge.

Action by William F. Blanchard against Louis F. Eppich and others. Judgment for plaintiff upon the pleadings, and defendant Eppich brings error. Reversed and remanded.

Chas. G. Clement and Frank McLaughlin, both of Denver, for plaintiff in error.

George Q. Richmond, of Denver, for defendant in error.

BAILEY J.

The defendant in error, Blanchard, brought suit against the plaintiff in error, Eppich, and others, to quiet title to certain real property situated in Denver that had been sold under execution on a judgment obtained by Blanchard against one Anna J. Barnard, former owner of the property, who was joined as a defendant in this action. Barnard, while the property yet stood of record in her name, gave a promissory note for $1,000 to I. F. Peck and wife, which later passed by indorsement to Blanchard. In April, 1909, Blanchard recovered judgment thereon against Barnard, who, before such judgment was rendered, executed to Eppich her warranty deed for the property in question, dated April 2d, 1909, reciting a consideration of one dollar, which deed was forthwith recorded. On the same day Eppich executed a trust agreement in connection with that conveyance, for the benefit of Barnard and one Frank McLaughlin, which was not recorded. McLaughlin's interest arose out of a contract with Barnard, by which he forbore prosecuting a certain action theretofore instituted against her to recover a large sum of money said to be due him, claiming a lieu against the property in suit with lis pendens filed, upon condition that she deed the property to Eppich for their mutual benefit, to be disposed of on terms set forth in the trust agreement. The property was at all times mentioned subject to other incumbrances which have no bearing upon the merits of this controversy. Blanchard caused this property to be sold as the property of Barnard under the judgment recovered against her, as a result of which a sheriff's deed purporting to convey to Blanchard all right, title and interest, legal and equitable, of Barnard therein and thereto, was regularly and duly executed on March 22d, 1910.

The complaint alleges, among other things that the deed to Eppich was without consideration, wholly voluntary, sham and fictitious, made with knowledge of the indebtedness of Barnard to the plaintiff, Blanchard, in connection with the secret trust agreement, with the fraudulent intent and purpose of preventing and defeating his claim, and prays to have the same declared void and set aside as casting a cloud on his title. The answer of Barnard admits the allegations of the complaint, and sets up the execution and delivery by her, since the institution of this suit, of a quitclaim deed to Blanchard of any and all her right, title or claim in and to the premises. Eppich answering denied that the conveyance to him was without consideration, voluntary sham or fictitious, made with knowledge of the indebtedness of Barnard to Blanchard, or with fraudulent intent or purpose of defeating a recovery by Blanchard of any sum due from Barnard. As a separate and further defense, and as a consideration for the conveyance to him by Barnard of the property in question, Eppich sets up a composition between Barnard and McLaughlin of their differences, fixing the amount of her indebtedness to the latter and providing for its payment out of a portion of the proceeds to be derived from a disposition of the property in question by Eppich under the terms of the trust agreement, and the dismissal accordingly of the McLaughlin suit against Barnard, to which reference has been hereinbefore made. It was further alleged that McLaughlin is a necessary party to a final and complete determination of the issues involved, with prayer to have him made a defendant. Plaintiff moved for judgment on the pleadings, which was sustained, and Eppich prosecutes this writ of error.

The first proposition urged for a reversal is that the complaint states no cause of action. There is no allegation that the defendant Barnard was insolvent, or had no other property from which the judgment in question could be satisfied. These were necessary and essential allegations to warrant recourse to equity for relief. To state a cause of action in equity a complaint must affirmatively show that plaintiff has no full, adequate or speedy remedy at law. Bursdall v. Waggoner, 4 Colo. 256; Emery v. Yount, 7 Colo. 107, 1 P. 686; Spooner v. Travelers' Ins. Co., 76 Minn. 311, 79 N.W. 305, 77 Am.St.Rep. 651; and 2 Moore on Fraudulent Conveyances, p. 851, and cases cited. The complaint here does not even purport to do this, and was therefore clearly insufficient because of such failure.

The second ground urged under the assignments is that the court erred in rendering judgment on the pleadings. This objection is well laid. On motion for judgment upon the pleadings the allegations of the answer are taken as true, and since there is here a material issue of fact raised, no such judgment was warranted. Lowell v. Bonney, 14 Colo.App. 230, 60 P. 830; Mills v. Hart, 24 Colo. 505, 52 P. 680, 65 Am.St.Rep. 241; Hastings v. Bank of Longmont, 4 Colo.App. 419, 36 P. 618; Rice v. Bush et al., 16 Colo. 484, 27 P. 720; Porter v. Grady, 21 Colo. 74, 39 P. 1091; Richards et al. v. Stewart, 53 Colo. 205, 124 P. 740; and Kimber v. Gunnell Gold M. & M. Co., 126 F. 137, 61 C.C.A. 203.

It is a well settled rule that a motion for judgment on the pleadings cannot be made to serve the...