Farrand v. Beshoar

• Decision Date: 19 October 1886
• Citation: 9 Colo. 291,12 P. 196
• Parties: FARRAND v. BESHOAR.
• Court: Colorado Supreme Court

12 P. 196

9 Colo. 291

FARRAND v. BESHOAR.

Supreme Court of Colorado

October 19, 1886

Error to district court, Las Animas county.

Action to declare a trust in the real estate of plaintiff in error.

In the year 1871 plaintiff in error was a married woman, living with her husband, Charles M. Farrand. Owing to domestic trouble they concluded to and did separate. On or about June 21 of that year, in connection with such permanent separation, and as a part of the agreement therefor, Charles M. Farrand conveyed to plaintiff in error, and to C. H. Farrand, their minor son, in equal undivided parts, by absolute deed certain real estate in Trinidad, of the value of $5,000. At that time the said Charles M. Farrand was indebted to a number of persons, including defendant in error. On September 13 of the said year, (1871,) plaintiff in error and the said C. H. Farrand executed to defendant in error their promissory note for $493.95, payable three months after date; $393.95 of the amount representing the said indebtedness of Charles M Farrand to defendant in error, the remaining $100 being a loan of cash to the said minor son, C. H. Farrand.

In 1877, the said note being unpaid, in whole or in part defendant in error brought suit thereon against plaintiff in error. In his complaint he alleged the infancy of the said C. H. Farrand, the coverture of the plaintiff in error at the time the note was made, and the other facts above narrated; also that plaintiff in error had succeded, by deed of conveyance, to the moiety of the estate mentioned, held by the said C. H. Farrand. The complaint further alleged that the said conveyance by Charles M. Farrand was made subject to the agreement upon the part of plaintiff in error and C. H. Farrand to assume and pay the debts of the said Charles M. Farrand, including that of defendant in error; also that the note aforesaid, save as to the $100 loaned as aforesaid, was executed in pursuance of an accounting and determination of the aggregate amount due from the said Charles M. Farrand to defendant in error, and likewise in pursuance of the trust agreement above mentioned. A final decree was entered on the twenty-second of March, 1880, recognizing a trust in the property in favor of defendant in error. To reverse that decree this writ of error was sued out.

Section 1515 of the General Statutes, referred to in the opinion, reads as follows: 'No estate or interest in lands, other than leases for a term not exceeding one year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered, or declared, unless by act or operation of law, or by deed or conveyance in writing, subscribed by the party creating, granting, assigning, suffendering, or declaring the same, or by his lawful agent thereunto authorized by writing.'

Yeaman & John and Benedict & Phelps, for plaintiff in error.

Wells, Smith & Macon, for defendant in error.

HELM J.

All the facts connected with this suit existed during the year 1871. Hence we are obliged to consider the questions presented with reference to the status and rights of plaintiff in error, as a feme covert, previous to the territorial acts of 1872 and 1874 on the subject of married women. The suit was commenced early in the year 1877 and before the present Code of Procedure became a law. We are therefore also to consider this case under the practice as it existed prior to the adoption of that instrument. The record discloses a consideration for the note offered in evidence. Regarding it, so far as the obligation of defendant's husband is represented therein, as simply...