Fox v. Lipe

• Decision Date: 08 January 1900
• Citation: 59 P. 850,14 Colo.App. 258
• Parties: FOX et al. v. LIPE et al.
• Court: Colorado Court of Appeals

59 P. 850

14 Colo.App. 258

FOX et al. v. LIPE et al.

Court of Appeals of Colorado

January 8, 1900

Error to district court, Arapahoe county.

Creditors' bill by Emeline B. Fox and others against Elizabeth Lipe and others to enforce the collection of a judgment. From a decree in favor of defendants, complainants bring error. Affirmed.

Robert W. Bonynge, for plaintiffs in error.

R.H Gilmore, for defendants in error.

BISSELL P.J.

Herein a bill was filed by Mrs. Fox and her children, on behalf of themselves and other creditors who might come in, against Mrs. Lipe and sundry other persons, as administrator and heirs at law of Clark Lipe, to enforce the collection of a judgment which had been obtained in Illinois against Lipe and charge it on some real estate in Denver which had been bought by Mrs. Lipe, as alleged, with money furnished her or given to her by her husband about the time of the purchase in 1883. The theory of the bill was that a constructive trust arose, because the consideration was furnished by the husband, and the title taken in the name of the wife. It was averred she purchased it with these funds to prevent the enforcement of the claims of existing creditors. Fox was alleged to be a creditor when Lipe gave his wife the money, and when she bought the property and took the title. In the view we take of the case made by the pleadings and the proof, it is wholly unnecessary to recite in detail either the substance of the bill, or the evidence which the plaintiffs offered to support it. Enough only need be stated to make the controversy plain, and to emphasize the propositions on which the decision is made to rest. According to the bill,--though, otherwise than the proof of the judgment, there was no evidence about it,--Fox and Lipe had been in partnership in the '70's, and this claim is alleged to have grown out of the partnership relation. When the partnership terminated, when the debt accrued, or when suit was begun for an accounting, is not competently established. There is no proof about it, except the statement of a lawyer who appears to have had something to do with the litigation at its outset, and perhaps to have been connected with it from its inception to its end. This is not competent evidence of the time when the suit was begun, because that is a matter of record. Sherman v. Smith, 20 Ill. 250. Even if it be assumed that the litigation was begun in the '80's, it seems to have been interminably dragged along; and, for some reason which does not appear, judgment was not entered until 1890, when a decree was had for something between four and five thousand dollars. An execution was issued, and in April, 1891, returned unsatisfied. Clark Lipe was then living in Denver, and did not die until the following fall. It appears the plaintiff or his representatives in the Fox suit delayed the trial and the procurement of judgment for more than 10 years from the time suit was begun, and took no steps to enforce this judgment as against the property held by Mrs. Lipe, until after Lipe's decease. After Lipe died, the judgment was filed as a claim against the estate, and there was an attempt to make the allowance (which partakes of the nature of a judgment, for some purposes) a lien on the property, by filing a record of that allowance in the county clerk's office. Whether this created a lien, within the scope of the decisions which require that a judgment shall be made a lien before a creditors' bill may be filed, we shall not attempt to decide, because the case will be made to turn on some other points.

The bill nowhere alleged that Lipe was insolvent when he gave the money to his wife, nor that the gift rendered him insolvent and unable to pay; nor was there any adequate allegation respecting the discovery of the alleged fraud. The only thing on the subject is a general statement "that three years had not elapsed since the discovery of the fraud and the said conveyances to Elizabeth Lipe." There is an indefinite allegation that the plaintiffs were not in position to inquire about the facts or obtain relief, and they were not advised until the inventory was filed that the property would not be included in the estate. The plaintiffs produced the testimony which Lipe gave on the hearing in the main suit in Chicago, either in the form of a deposition, or as testimony taken on the hearing. Therefrom it appears that at the time he gave his wife the money, in 1883 or 1884, he was a man of large means, and had over $100,000 left in cash, besides a large amount of unincumbered personal property. Whether the claim which he had against the Rio Grande Company, which amounted to $80,000, was included in what he had left, is not quite apparent; nor are we at all certain the amount of his fortune subsequent to the gift did not exceed $200,000 over and above any possible claims or debts. According to the evidence,--by which the plaintiffs are concluded, since they offered it,--he owed no debts, unless it be conceded he owed this claim, which was ultimately established by the decree for the accounting. It therefore very plainly appears that when Lipe made the gift he was a man of fortune, and put but a portion of his funds in the hands of Mrs. Lipe for her benefit and the benefit of the children.

There are several questions suggested by the defendants, and very fully argued in the briefs of both counsel, which, to our minds, dispose of the contention that the judgment is erroneous. In the first place, it is well settled in this state, as well as in most others, that, in a bill which attempts to charge a judgment on realty because of the constructive trust which arises where the husband furnishes the money and the wife acquires title, there must be an allegation, sustained by competent...