Foster v. Berrier

• Decision Date: 01 April 1907
• Citation: 39 Colo. 398,89 P. 787
• Parties: FOSTER v. BERRIER.
• Court: Colorado Supreme Court

89 P. 787

39 Colo. 398

FOSTER v. BERRIER.

Supreme Court of Colorado

April 1, 1907

Appeal from District Court, El Paso County; L. W. Cunningham, Judge.

Action by S. B. Berrier against Alice Foster and others. From a judgment in favor of plaintiff, defendant Foster appeals. Reversed.

C. B. Ward and Robinson & McHarg, for appellant.

Robert L. Hubbard and Geo. W. Musser, for appellee.

STEELE C.J.

The plaintiff brought his action in the district court of El Paso county to quiet title to certain real estate situated in the city of Colorado Springs. In response to the complaint, the defendants answered by general denial, and, by further answer and cross-bill, the defendant Foster alleged that she purchased the property for a valuable consideration, having procured an assignment from the defendant Ellen Berrier of all her right, title, and interest in and to a certain bond conditioned to convey the property, and, further, that the owners thereof executed to her under said assignment a warranty deed for the premises. The replication alleges that no consideration whatever was paid by said Alice Foster to said Ellen Berrier, and that he, the plaintiff, purchased said property from the owners thereof, and caused them to make, execute, and deliver to him a bond for a deed, and that the said Ellen Berrier's name was, by his procurement inserted in said bond as the purchaser, and that said Ellen Berrier held the legal title thus created for the plaintiff and not otherwise, all of which facts the said defendant Alice Foster well knew before and at the time of the said pretended assignment. The court found that the plaintiff had paid all the money toward the purchase of said property under the bond for deed, and that he was the owner of the property, subject to certain mortgages and to a loan placed thereon by Alice Foster, that the said Alice Foster paid no money whatsoever to Ellen Berrier, and that, if she did pay any money to Ellen Berrier, she paid it with full knowledge and notice of the rights of the plaintiff and of his being in the undisputed possession at the time such money was paid.

Upon the trial the plaintiff testified: 'We bought the property from Mr. Fortsen. We have had two conversations in regard to buying it, and I told Mr. Fortsen to go ahead; I would pay for it. Annie Stockbridge and William Clark owned the property. I got a bond for a deed. Payments were to be made $10 a month. I was to have a deed when the lot was paid for. The bond was in Ellen Berrier's name. This was done because I always wanted her to feel that she would have a home if I should drop off or anything of that kind--that she would have a home. We paid the bank $10 a month and interest on the $10. I made four payments myself, and Mrs. Berrier made some. I furnished all the money for these payments. The money was furnished by me from my labors. I don't know Mrs. Foster. Mrs. Berrier does not live at home now don't know where she is. She left home on the 2d of June last. I made the last payment on the 2d of June.' Upon cross-examination he said: 'The purchase was made April 1, 1901. I told Mr. Fortsen to go ahead and sell the property, that I would pay for it; to sell to Mrs. Berrier, and I would pay for it. I told her to go ahead and make the deal, and I would pay for it. She made the deal, and I furnished the money. It was agreed that it should be in her name. The only reason for doing that was that in case I should happen to die she would know she had a home. It was purchased for her home; that was the original intention at that time of the purchase, and to be her property.' Upon redirect examination he said: 'I and Mrs. Berrier were living on the lot at the time she left. I am still living there.'

It does not appear in the pleadings that the plaintiff, S. B Berrier, and the defendant, Ellen Berrier, were husband and wife; but from the plaintiff's testimony it does so appear. The rule with respect to trusts resulting from the payment of the purchase price is not the same when such relationship exists as when the transaction is between strangers. In the case of Rowe v. Johnson, 33 Colo. 469, 81 P. 268, this court, quoting with approval the language used by the Court of Appeals in Doll v. Gifford, 13 Colo.App. 67, 56 P. 676, said: 'Ordinarily all that is necessary to establish a prima facie resulting trust is to show that the party seeking to enforce the trust...