First Nat. Bank of Pueblo v. Kavanagh

• Decision Date: 09 December 1895
• Citation: 7 Colo.App. 160,43 P. 217
• Court: Colorado Court of Appeals
• Parties: FIRST NAT. BANK OF PUEBLO v. KAVANAGH et al. [1]

43 P. 217

7 Colo.App. 160

FIRST NAT. BANK OF PUEBLO v. KAVANAGH et al. ^[1]

Court of Appeals of Colorado

December 9, 1895

Appeal from district court, Arapahoe county.

Action by the First National Bank of Pueblo against Roderick F Kavanagh and another to set aside a transfer of property. There was a judgment for defendants, and plaintiff appeals. Affirmed.

Jerome & Hood and Chas. E. Gast for appellant.

Felker & Dayton, for appellees.

BISSELL J.

No matter of law about which there is any dispute is so presented by this record as to necessitate either analysis or discussion. According to our view of the record, a very brief statement of the general facts which form the history of the case will be enough to indicate the basis of our judgment and render the decision intelligible.

The First National Bank of Pueblo filed its complaint in February, 1893, to set aside a certain transfer which had been made by Roderick F. Kavanagh to Ella T., his wife. The corporate character of the plaintiff was stated. The pleading recited the recovery of two judgments against Roderick for a little more than $7,800, in September 1892. The source of the bank's title is not stated, though probably this is wholly unimportant. In the summer of 1891, Roderick F. Kavanagh, Henri Vidal, and W.P. Lytle were the owners of a restaurant called the "Tortoni." It seems to have been run under that name without any formal copartnership sign, and to be owned by the parties according to the interests which they respectively purchased. In July, Roderick Kavanagh bought Lytle out, and gave him the two notes on which the bank subsequently recovered judgment. We are not advised as to how long Lytle held them, nor the circumstances which attended their transfer to the bank. It is charged Kavanagh remained in possession of his entire interest from that time forward until November, 1891, when he made a sale or transfer to his wife, Ella, without any consideration. It is charged the transaction lacked the elements of good faith, was colorable, and made with the intent to defraud creditors, and that thereby Ella T. acquired no interest in the property. The contents of the bill need not be further stated. The defendants answered, and asserted the good faith of the transaction. The answer was deemed insufficient, and the defendants amended by a statement in detail of the entire history of the transaction between Roderick and Ella. From this answer it is generally gathered that when the bill of sale was made by Roderick to his wife, in November, 1891, she had his note for $8,500, due in three years, with 10 per cent. interest, which she surrendered in exchange for Roderick's interest in the property. The defendants likewise offered evidence tending to show that, long prior to this time, Mrs. Kavanagh's father and her husband had been interested in the ownership of certain lands in El Paso county, and had certain government titles, or evidences of title, to quite a body of land, which was ultimately sold to a stranger, William Gaw, who paid about $10,000 for it. These parties testified to the arrangement which was made between Turner, the father, Roderick, the husband, and Ella, whereby a portion of it was to be devoted to the procurement of a home for Mrs. Kavanagh in Denver. The evidence tended to show the purchase of the property on California street, the taking of the title in the husband's name for purposes of convenience, as was stated, and the ultimate transfer of that property to Elitch, who was the owner of the restaurant for another interest which Roderick held in it at the time he bought from Lytle. What has been stated will indicate very clearly the nature of the transaction, the character of the defense, and the real controversy between the parties.

In cases arising between creditors of the vendor and vendee of personal property, all agree on certain general principles of almost universal applicability, and there is seldom much disagreement respecting their statement or the circumstances which both permit and require their enforcement. To be unimpeachable, the transaction must be characterized by the utmost good faith. We are not concerned with the refined distinctions drawn in those cases which show good faith on the part of the vendee, and the want of it on the part of the vendor, wherein it is necessary to inquire...