Fagan v. Troutman

• Decision Date: 12 January 1914
• Citation: 25 Colo.App. 251,138 P. 442
• Parties: FAGAN v. TROUTMAN et al.
• Court: Colorado Court of Appeals

138 P. 442

25 Colo.App. 251

FAGAN v. TROUTMAN et al.

Court of Appeals of Colorado

January 12, 1914

Rehearing Denied Feb. 11, 1914

Appeal from District Court, City and County of Denver; Carlton M Bliss, Judge.

On rehearing. Affirmed.

For former opinion, see 24 Colo.App. 473, 135 P. 122.

Bell and Morgan, JJ., dissent.

John R. Smith, and H.B. Woods, both of Denver for appellant.

Edwin H. Park, of Denver, for appellees.

HURLBUT J.

This suit was instituted May 19, 1909. Appellees (plaintiffs below) allege in their complaint, in substance, that they are the sole heirs at law of James Davenport, who died intestate about April 8, 1909, and as such heirs are the owners and entitled to the possession of lot 22, block 186, Stiles' addition to the city of Denver, said Davenport dying intestate and being at the time of his death the record owner in fee of said premises; that on or about April 6, 1909 defendant (appellant) wrongfully took possession of the premises and wrongfully withholds the same from the possession of plaintiffs.

Answer, including cross-complaint, was filed, admitting the death of James Davenport, and that the legal title to said premises was in him at the time of his death, but denying the other allegations of the complaint. In the cross-complaint it is alleged that at the time of the death of said Davenport he held the premises in trust for defendant; that Davenport married defendant's mother, Ella Kaseby, October 8, 1891, at which time defendant was three years of age; that her mother died intestate in Denver October 3, 1901, leaving as her sole heirs defendant and James Davenport (her husband); that on and prior to December, 1894, the mother had saved up and had as her own money upwards of $700, which she had earned by and through her personal labor; that Davenport used said sum in the purchase of the undivided one-half interest in said premises, taking the title in his own name, but in trust for defendant's mother; and that during his lifetime Davenport recognized the title and interest aforesaid of the mother in and to the premises. A supplemental answer was thereafter filed, alleging that since the commencement of the action defendant had acquired the interest of plaintiff Thomas Russell in the premises, which the evidence showed to be an undivided one-thirtieth. Issues were joined by replication. Judgment was rendered in favor of appellees (excepting Thomas Russell), adjudging them to be the owners of the property and entitled to the possession thereof; Thomas Russell's interest being adjudged to be in defendant.

The record is short, contains but little testimony, and is practically undisputed. In order to recover upon the issues in this case, defendant must have established, at the trial, a resulting trust in the property in issue. In other words, the proofs must show that the money of defendant's mother was used by Davenport in the purchase of the said real estate, the title to which he took in his own name, and how much of said money was so invested. Under the pleadings here, if the evidence clearly and satisfactorily shows that any sum of money belonging to the separate estate of the wife was used by Davenport in the purchase of this property, and the amount thereof, or the proportion which it bore to the entire purchase price, the law would fasten a resulting trust thereon as the equitable result of such investment, to the extent of the interest established by the trust.

As to such evidence, the following is an epitome of all there is upon those issues, viz.: Deposition of J.W. Barnett: "Mrs. Davenport showed me a check for $500 which they (she and her husband) owned together. *** Mrs. Davenport was a hard-working, saving woman; she was a laundress and worked out by the day and gave it to Mr. Davenport to pay on the property and support the family." This deposition was taken in Missouri about 19 years after the marriage of Davenport and the mother. Deponent states that he lived with them for four months after the marriage, but fails to state when this was. The deposition states that while he lived with the Davenports the mother showed him a $500 check which she and her husband owned together, but does not pretend to state that any part thereof went into the property, nor how much of the $500 each one owned, nor how he obtained his knowledge that the mother worked out by the day and gave her earnings to Davenport to pay on the home. His entire evidence in this behalf has the appearance of being hearsay.

Deposition of Pat Ming: "During our conversation he (Mr. Davenport) told me that when he married Ella Barnett he was in debt and she gave him money that she had previous to her marriage to help him out of debt for their home." This deponent met Davenport in Missouri 16 years before the deposition was taken. He states he knows nothing about the purchase of real estate by either Davenport or his wife. He was detailing a conversation which had taken place about 16 years before, and the alleged statements thereof are flatly contradicted by the record, which conclusively shows that Davenport was not in debt at the time of the marriage; that he had bought and paid for an undivided one-half of the home property two years before the marriage, and did not invest a dollar in purchasing the remaining half until more than three years after the marriage, at which time he bid that interest in at a foreclosure sale for money he had loaned thereon. So this evidence should be wholly disregarded.

Mahalia Ming testified: "Mrs. Davenport was my sister. They purchased and owned their home in Denver, Colo. They both saved money from their work, and my sister took from Kirkwood, Mo., when they were married about $500, which was put into the home. My sister Mrs. Davenport, went to Denver in 1891 from Kirkwood, Mo., taking with her $500. She married Mr. Davenport shortly after and helped him to pay their home out of debt, which Mr. Davenport had bought before their marriage. Mrs. Davenport was a hard-working, saving woman. She saved her money and improved the home, and helped pay it out of debt." This evidence is necessarily pure hearsay, except as to the $500, which deponent says was taken by her sister, Mrs. Davenport, from Kirkwood. The deposition clearly indicates that she was never in Colorado but once, viz., in 1901 during the six weeks of her sister's last illness. With the exception noted, it is clear that this witness had no personal knowledge whatever of a single issuable fact testified to by her. She does not pretend to state that Davenport ever spoke to her concerning such matters.

All of these depositions are by witnesses who were relatives of appellant, and who no doubt gave their testimony as favorably for her as their consciences would warrant.

Testimony of Anthony Dyer: "We (Mr. Davenport and witness) were talking about Mrs. Davenport, and I asked him if Nellie didn't come in for her mother's share of the property, and he said yes; that her mother helped him make the money to get the property with, and he certainly would see that she would have it, *** if it was not for Nellie and her mother he wouldn't be able to hold the property." If Davenport made the statement attributed to him by this witness, then it is clear that he considered the entire home property as his own, and intended at some future time, by deed or will, to transfer the same to appellant. If Davenport had taken the mother's money and put it in the property, agreeing and promising to hold it in trust for her, and that it was to be hers, as pleaded in the cross-bill, then it is reasonable to suppose that he would not have made such statements.

Walter C. Scruggs testified: "He (Davenport) told me his wife was going ahead with the property and keeping up the payments, for he wasn't making a dollar, and 'her mother worked hard and has put more money in this place than I have.' That was about a month before he died. *** Just about a year *** about six months before he died, *** I was talking with him again about his property *** I asked him, 'How much you got now?' 'Well,' he says, '$1,500 in the bank,' and he says the most of that was his wife's money that she had made before she taken sick and died, washing and ironing." This evidence warrants a strong presumption that the mother put no money into the home property, but, on the contrary, whatever money she earned, as well as the $500 brought by her from Missouri, represented the greater part of the certificates of deposit amounting to $1,500.

It must not be overlooked that the distinguished judge who tried the case below without a jury found the issues against appellant. As we read the record, it so strongly supports the findings and decree that nothing short of an arbitrary refusal to follow the decisions of our Supreme Court, as well as of this court, would warrant us in disturbing the decree.

William Barnett testified that at the time he and Davenport bought the property they borrowed money from one Reed to make part payment thereon; that they paid Reed's note within two years from the time they bought the property, viz., 1887; and that he afterwards borrowed some money of Davenport upon the property in 1891.

Upon this evidence, what amount of money could the trial court say was paid by the mother upon the purchase price of the property, or what amount she invested therein, and when? True, the witness Ming states that the mother took about $500 from Kirkwood, Mo., when she married, and that it was put into the home, but there is no evidence to show at what particular time any money was paid on the home, what specific amount, and where or to whom the same was paid. No circumstances whatever are shown attending the payment of any money by the mother to Davenport,...