Frost v. Fisher

• Decision Date: 13 November 1899
• Citation: 58 P. 872,13 Colo.App. 322
• Parties: FROST et al. v. FISHER et ux.
• Court: Colorado Court of Appeals

58 P. 872

13 Colo.App. 322

FROST et al. v. FISHER et ux.

Court of Appeals of Colorado

November 13, 1899

Appeal from district court, Las Animas county.

Action by David Fisher and Martha Fisher against Walter C. Frost and James F. Chaney to quiet title. Judgment for plaintiffs, and defendants appeal. Affirmed.

Bo Sweeney and Henry A. Dubbs, for appellants.

John A Gordon and A.P. Anderson, for appellees.

THOMSON J.

This is a suit to quiet title. The complaint alleges that on the 15th day of October, 1889, the plaintiffs, David Fisher and Martha Fisher, made and delivered to the Globe Investment Company of Boston, Mass., their promissory note for $1,500, due October 1, 1894, but payable, at the option of the makers, after three years from date, at the maturity of any interest coupon; that the payment of the note was secured by a deed of trust, executed by the plaintiffs, which conveyed to the defendant Frost, as trustee, certain land of the plaintiffs that afterwards, about December, 1887, the Globe Investment Company assigned the note, by guaranty, to the defendant Chaney; that the plaintiffs had no notice or knowledge of the transfer, but continued to deal with the Globe Investment Company as the owner and holder of the note; that this company, as the agent of Chaney, collected from the plaintiffs the interest notes as they fell due, and, at different times, the entire amount of the principal note; and that, notwithstanding the payment of the note, Chaney refused to deliver it up to them, or to release the property from the deed of trust, but was proceeding to sell their land under and by virtue of the trust deed. The prayer was that the cloud upon the plaintiffs' title be removed, the title quieted, the defendants decreed to surrender up the note and release the land from the trust deed, and that they be enjoined from selling the land. Chaney answered, alleging that on December 13, 1889, the note was sold to him by the Globe Investment Company, and was transferred to him by indorsement, averring that no part of the principal sum had ever been paid to him, and denying that the Globe Investment Company was ever his agent for any purpose.

The following is a copy of the note in question:

"No. 25, 5,700. $1,500.00. "First Mortgage Note, Globe Investment Company. Colorado Springs, Colo., October 15th, 1889. On the first day of October, A.D. eighteen hundred and ninety-four, without grace, for value received, we promise to pay to the order of the Globe Investment Company, at its office in Boston, Massachusetts, the sum of fifteen hundred 00/100 dollars, in gold or its equivalent in United States money, with interest until maturity at the rate of seven per cent. per annum, payable semiannually, according to the terms of ten coupons hereto attached. If said sum is not paid at maturity, the amount unpaid shall bear interest thereafter at the rate of twelve per cent. per annum, payable semiannually; and, if any interest remains unpaid after it becomes due, the principal shall at once become due, at the option of the holder, without notice.

his

"David X Fisher.

mark

"Martha Fisher.

"Attest witness to mark: F.A.A. Williams."

Across the face of the note, in red ink, are these words: "Payable after three years, at the maturity of any interest coupon." The note was folded inward twice. On the back of one fold are the words, "Pay to the order of ____," below which is this signature: "Globe Investment Company, by J. Lowell Moore, Treasurer." On the other fold, at the opposite end of the note, appears the following: "In consideration of value received, the Globe Investment Company hereby guaranties the payment of each coupon hereto attached at maturity, and the payment of this principal note within two years after maturity, with interest after maturity at the rate of seven per cent. per annum, payable semiannually, provided said company shall have the right to purchase this note at any time by paying the holder hereof its face value and accrued interest at the date of payment; and the neglect or refusal of said holder to accept such payment, and assign and deliver to said company this note and the mortgage given to secure it, shall release said company from all further liability hereon. In witness whereof the said Globe Investment Company has caused its corporate seal to be hereto affixed, and this guaranty to be signed in its name and behalf by its treasurer, this thirteenth day of December, 1889. Globe Investment Company, by J. Lowell Moore, Treasurer. [ [Seal.]"

The following are the portions of the trust deed to which reference will be necessary in this discussion: "This indenture, made this 15th day of October, in the year of our Lord one thousand eight hundred and eighty-nine, between David Fisher and Martha Fisher his wife, Las Animas, and state of Colorado, parties of the first part, and Walter C Frost, trustee, of the county of El Paso and state of Colorado, party of the second part, witnesseth that whereas, the said David Fisher and his wife, Martha Fisher, have executed one promissory note, dated the fifteenth day of October, A.D.1889, for the principal sum of fifteen hundred dollars, payable to the order of the Globe Investment Company of Boston, Massachusetts, on the first day of October, A.D.1894, with interest thereon at the rate of seven per cent. per annum payable semiannually on the first days of April and October, as evidenced by ten interest notes of even date with said principal note, said principal note and said interest notes to bear interest from maturity until paid at the rate of twelve per cent. per annum; and whereas, the said parties of the first part are desirous of securing, not only the prompt payment of said promissory note and of said interest notes, in whose hands soever the same may be, but also of effectually securing and indemnifying the said Globe Investment Company, its successors or assigns: Now, therefore, the said parties of the first part, in consideration of the premises and for the purpose aforesaid, and in the further consideration of one dollar to them in hand paid by the said party of the second part, the receipt whereof is hereby confessed, have granted, bargained, sold, and conveyed, and by these presents do grant, bargain, sell, and convey, unto the said party of the second part, in trust forever, all the lands and premises situated in the county of Las Animas and state of Colorado, known and described as follows, to wit: ***. In trust, nevertheless, that, in case of default in the payment of said note, or any part thereof, or any interest thereon, according to the tenor and effect of said note and interest notes attached, or in case of nonpayment of taxes, or neglect to procure or renew insurance, or in case of the breach of any of the covenants or agreements herein contained, then, on the application of the legal holder of said note, to enter upon, possess, hold, and enjoy the above-granted premises, and, either with or without such entry, to sell the said premises, or any part thereof, as may be specified in the notice of such sale. *** And it shall be the duty of said trustee, after making such sale, to make, execute, and deliver to the purchaser or purchasers thereat good and sufficient deed or deeds of conveyance for the said property so sold, and to apply the proceeds of such sale to the payment of the expenses of such advertisement, sale, and conveyance, including one hundred dollars attorney's fees, and such commission for said trustee as may be at the time of such sale allowed by the laws of Colorado to sheriffs on sales of real estate on execution in the county where said premises are situate; then to the payment of all money and sums of money which said trustee or his successor in trust may, at any time before such sale, have paid or expended, either to effect any insurance upon said premises, or to redeem said premises from any sale or sales for taxes or assessments, *** with interest on all money so expended at the rate of twelve per cent. per annum from the time of paying the same up to the time of such sale; then to the payment of the principal of said note and the accrued interest thereon at the time of such sale remaining unpaid, and to pay the surplus, if there be any, unto the said parties of the first part, their heirs or assigns, on reasonable request. *** And the said parties of the first part, for their heirs, executors, and administrators, do covenant and agree, with the said trustee and his successor in trust, *** that they will, in due season, pay all taxes and assessments on said premises, and, at the request of the party of the second part, will keep all buildings, that may at any time be on said premises during the continuance of said indebtedness, insured in such company or companies as the holders of said note may from time to time direct, for such sum or sums as such company or companies will insure for, not to exceed the amount of said indebtedness, except at the option of said parties of the first part, and will assign, with proper consent of the insurers, the policy or policies of insurance to said party of the second part, as further security for the indebtedness aforesaid. And in case of the refusal or neglect of said parties of the first part, or either of them, thus to insure, or assign the policies of insurance, or to pay such taxes or assessments, said party of the second part, or his successor in trust, or the holder of said note, or either of them, may procure such insurance, or pay such taxes or assessments; and all moneys thus paid, with interest thereon at twelve per cent. per annum, shall become so much additional indebtedness secured by this deed of trust, and to be paid out of the proceeds of sale of the lands and...