Fehringer v. Martin

• Decision Date: 08 July 1912
• Citation: 22 Colo.App. 634,126 P. 1131
• Parties: FEHRINGER v. MARTIN.
• Court: Colorado Court of Appeals

126 P. 1131

22 Colo.App. 634

FEHRINGER v. MARTIN.

Court of Appeals of Colorado

July 8, 1912

Rehearing Denied Oct. 14, 1912

Appeal from District Court, El Paso County; W.S. Morris, Judge.

Action by F.H. Martin against Adolph Fehringer, as administrator and sole heir at law of Otto Fehringer, deceased, for release or reconveyance of mortgaged premises, with cross-complaint by defendant. Judgment for plaintiff, with money judgment for defendant, and defendant appeals. Dismissed.

William C. Robinson, of Colorado Springs, and Thomas, Bryant &amp Malburn, of Denver, for appellant.

WALLING, J.

Appellee brought this action in the district court against the appellant, as the administrator, and the sole heir at law of Otto Fehringer, deceased. The complaint alleged that the plaintiff (appellee here), in the lifetime of defendant's intestate, executed to the latter two promissory notes for the principal sum of $2,000 and $3,000, respectively, and that, for the purpose of securing the payment of the $2,000 note, the plaintiff, at the same time, executed to said Otto Fehringer a warranty deed for the premises described in the complaint; that said deed was intended by both of the parties to be, and was, in fact, a mortgage to secure the payment of the note for the principal sum of $2,000 above mentioned. It was further alleged that the plaintiff paid to Otto Fehringer, in his lifetime, the debt secured by the mortgage deed in full, and had further paid all of the note for the principal sum of $3,000, except a balance of principal and interest amounting to $570.75. The complaint alleged the tender to the defendant administrator of the sum of $570.75 as the balance due on the $3,000 note, and prayed for the reconveyance or release of the mortgaged premises, the surrender of plaintiff's notes, for cancellation, and general relief. Demurrers were filed by the defendant separately, as administrator and as heir at law, alleging that the court was without jurisdiction of the subject of the action, that the facts stated in the complaint were insufficient to constitute a cause of action, and that there was a misjoinder of parties defendant. The demurrers were overruled, and an answer was filed by the defendant, as the administrator and sole heir at law of Otto Fehringer. The answer admitted that the deed described in the complaint was given as a mortgage security for the indebtedness of the plaintiff to defendant's intestate but denied that the amount of the indebtedness secured thereby was as stated in the complaint, and denied that the secured indebtedness had been paid. It admitted that the defendant, as administrator of Otto's estate, held the two promissory notes described in the complaint, and alleged that not more than $1,000 had been paid on the entire indebtedness represented by them. The answer further alleged that the warranty deed was in fact executed for the purpose of securing an indebtedness of plaintiff to defendant's intestate, amounting to a large sum, of which the two promissory notes represented a part, and upon which there remained unpaid the sum of $4,100; and that the defendant was, and had been at all times since his appointment as administrator, ready and willing to execute to the plaintiff a proper release or reconveyance of the premises described in the complaint, upon the payment of the balance of the indebtedness secured thereby. Judgment was asked, on behalf of the defendant, as administrator, against the plaintiff, for the sum of $4,100, and interest. The replication consisted of denials of the statements in the answer, which were at variance with the allegations of the complaint.

The issues were tried by a jury, who returned a special verdict to the effect that there was due from the plaintiff to the estate of Otto Fehringer, deceased, the sum of $570.75, and that the indebtedness secured by the deed given by the plaintiff to defendant's intestate had been fully paid. Thereafter, a judgment was entered in the cause, wherein it was found by the court that the deed mentioned in the pleadings was a mortgage, given to secure the payment of plaintiff's indebtedness, to the amount alleged in the complaint, and that the indebtedness secured had been paid in full; and it was decreed that "the said mortgage is hereby declared fully released and discharged as an incumbrance upon the title of the plaintiff to said described premises," etc. It was further therein adjudged that the defendant administrator recover of the plaintiff the sum of $570.75, and that he have execution therefor, and that the plaintiff recover his costs of the defendant. From that judgment this appeal was prosecuted. No appearance has been made by the appellee, in the Supreme Court or in this court.

The cause having been reached, in its order, for final determination, a motion was filed, on behalf of appellant asking that it be remanded to the Supreme Court; the ground of the motion being that the cause relates to a freehold, in that it involves the title to the property described in the deed given by appellee to appellant's intestate, as hereinabove stated. The position of appellant's counsel is thus concisely stated in their brief accompanying the motion to remand: "An examination of appellee's complaint will show that the fee-simple title to the property described therein stands in the heirs at law of one Otto Fehringer, deceased, by virtue of a deed executed by appellee and his wife to Otto Fehringer in his lifetime, which deed appellee asks to have canceled. It is quite apparent, therefore, that, if appellee's contention is sustained, the logical and necessary result will be that the heirs of Otto Fehringer will lose a freehold estate, and appellee will gain one." This does not seem to accurately state the nature of the controversy between the parties. By the allegations of the plaintiff's complaint, the deed mentioned was not intended to and did not convey a...