Galligan v. Schapiro

• Decision Date: 17 October 1927
• Docket Number: 11804.
• Citation: Galligan v. Schapiro, 82 Colo. 423, 260 P. 519 (Colo. 1927)
• Parties: GALLIGAN v. SCHAPIRO.
• Court: Colorado Supreme Court

260 P. 519

82 Colo. 423

GALLIGAN v. SCHAPIRO.

No. 11804.

Supreme Court of Colorado

October 17, 1927

Department 1.

Error to District Court, City and County of Denver; Francis E Bouck, Judge.

Action by Louis Schapiro against T. F. Galligan.Judgment for plaintiff, and defendant brings error.

Affirmed.

Rebert H. Kane, of Denver, for plaintiff in error.

Philip Hornbein and Quiat, Ginsberg & Quiat, all of Denver, for defendant in error.

SHEAFOR J.

The defendant in error will be referred to here as plaintiff, and the plaintiff in error as defendant, the position they occupied in the trial court.

This action was brought to quiet title to certain real estate.By the evidence and the admission of the parties, there appears to have been established the following facts:

On October 30, 1908, one Samuel Bland executed his promissory note of that date for the sum of $2,000, payable in 3 years thereafter to Frank L. Bishop, at his office in Denver, and to secure payment of the same executed to the public trustee of the city and county of Denver, for the use of Bishop, a trust deed upon certain real estate, including that involved in this proceeding.

In the year 1909, plaintiff purchased, of the real estate described in the trust deed, that portion involved in this action.At that time, Bland paid $500 on the note, and plaintiff assumed and agreed to pay the remaining $1,500.When the note became due in 1911, it appears to have been extended either to 1914 or to 1917, but the evidence is not clear as to the period of extension.Bishop transferred the note to the Home Savings &amp Trust Company in 1910.From the time plaintiff purchased the property, until in August, 1923, he continued to pay the interest on the note quarterly to Bishop and the bank, at Bishop's office in the bank.

On August 7, 1923, Bishop, for the bank, made a new loan to plaintiff for $3,500, the plaintiff paying $35 as a commission therefor.Of this new loan, $1,500 was applied to the payment of the note in controversy, and $2,000 placed on deposit to the credit of plaintiff.The note thus paid was in the bank at that time, but was retained by Bishop for the purpose, as he stated, of taking it to the public trustee to procure a release of the trust deed.

Bishop however, failed to procure the release and failed to return the note to plaintiff.The bank failed in September, 1925, and the note was still in the bank at that time.

The defendant, Galligan, claims to have purchased the note and trust deed in October, 1912, from the Home Savings & Trust Company, and has since claimed to be the owner and holder thereof.The defendant received no interest on the note after the year 1914.In the year 1913, defendant sent the note to Bishop at the bank, and never saw it again until after the bank had failed in 1925.After the year 1914, defendant made no effort to collect interest on the note, nor to collect the principal, although it had been overdue since 1914 or 1917.

If defendant was the owner and holder of the note during all of these years, plaintiff, Schapiro, had no notice or knowledge thereof and was never so informed by defendant, plaintiff believing all that time that the bank was the owner.

Defendant claims that when he sent the note to the bank, it was borrowed from him, and he explained that he did nothing to collect on the note during the years mentioned, for the reason that his record book had become lost and was not found until after the failure of the bank.During this time defendant claims to have had the abstract of title and the trust deed, and that he recovered the note from the bank, through one Cronin, after the bank's failure.

There was evidence tending to show that defendant frequently, from 1912 to 1923, purchased notes from the bank, and, when he had money, would give it to the bank to invest for him; that when the bank collected the principal, it would reinvest it for him when he told it to do so; that if the bank at any time collected the principal, it was all right if he got it; that the bank sometimes collected the...