Gottlieb v. Thatcher

• Decision Date: 05 July 1892
• Citation: 51 F. 373
• Parties: GOTTLIEB v. THATCHER.
• Court: U.S. Court of Appeals — Eighth Circuit

51 F. 373

GOTTLIEB v. THATCHER.

United States Court of Appeals, Eighth Circuit.

July 5, 1892

E. T Wells, R. T. McNeal, and John G. Taylor, for plaintiff in error.

J Warner Mills, V. D. Markham, and H. C. Dillon, for defendant in error.

Before CALDWELL and SANBORN, Circuit Judges, and SHIRAS, District judge.

SHIRASDistrict Judge.

The defendant in error, Lewis C. Thatcher, brought this action in the district court of Arapahoe county, Colo., for the purpose of determining the title and right of possession to 20 acres of unoccupied land situated in said county and state; and the defendant in the action, Joseph Gottlieb, being a citizen of the state of California, removed the same into the circuit court of the United States for the district of Colorado where the cause was tried before the court, a jury being waived.Among other defenses, the defendant pleaded that under color of title by him held in good faith he had paid all taxes assessed upon the land for a period in excess of five years before the institution of this suit, and therefore, under the statutes of the state of Colorado, he had become the owner thereof.The court found the facts to be as follows:

'(1) That the title to the property in question was, at and before the 1st day of January, 1874, in Annie C. McCormick.(2) That on January 1, 1874, said Annie C. McCormick and Isaac L McCormick conveyed the said property to David H. Moffatt Jr., in trust to secure to Samuel H. Thatcher the payment of a promissory note of said Annie C. McCormick for thirteen hundred and fifty dollars, ($1,350,) payable two years after date, with interest at twenty per cent. per annum, which said instrument was in the usual form of deeds used in Colorado for the security of money.(3) That said note was indorsed in blank by said Samuel H. Thatcher, and by him pledged to and left with Gray and Eicholtz some time prior to September, 1877, to secure a loan by them made to him for the sum of one thousand dollars, ($1,000.)(4) That November 25, 1876, the defendant herein began an action in the district court of Arapahoe county, Colo., against Samuel H. Thatcher, to recover on a promissory note for twenty-seven hundred dollars, ($2,700.) dated November 18, 1875, payable one year after date to the order of Joseph Gottlieb, with interest at the rate of five per cent. per month from date until paid, interest due and payable monthly, and signed by Zella Glenmore and Samuel H. Thatcher; that on the said November 25, 1876, an attachment issued in said action, and garnishee process was thereupon served upon the said Gray and Eicholtz and upon the said Annie C. McCormick, requesting them and each of them to appear at the April term of said court; that no judgment was ever entered against them or any of them as garnishees in the said action in the said district court.(5) That while said note was so in the possession of said Gray and Eicholtz, and long after the maturity thereof, the defendant paid them a balance claimed to be due upon the loan secured thereby of twenty dollars, ($20,) and obtained the possession of the said note from them, and thereupon had the same taken in execution on a judgment in the district court of Arapahoe county in his favor against the said Samuel H. Thatcher, and the same was by the sheriff thereupon advertised for sale in the manner and for the time prescribed by statute for advertising and selling personal property under execution, and was afterwards sold under said execution on the 19th day of September, 1877, and the same was bid in by the defendant for the sum of eighty dollars, ($80,)he being the highest and best bidder therefor.(6) That, before having his execution levied on said note, the defendant took advice of his counsel as to whether the same was subject to levy and sale under execution, and was advised that it was so subject.(7) That after so bidding in said note, and before requesting the said trustee to sell the premises in question to satisfy the same, he presented said note to the maker, Mrs. McCormick, for payment, and payment was not made; and he thereupon advised her that the property in question would be sold by the trustee to satisfy the same, and she assented thereto.(8) That on the 5th day of February, 1878, the premises in question were conveyed by said Annie C. McCormick, by the name of Annie C. Ladd, and Isaac L. McCormick to the plaintiff, Lewis C. Thatcher, for the consideration of thirteen hundred and fifty dollars, ($1,350,) which was the amount of the promissory note of the grantor to said Samuel H. Thatcher; that said Samuel H. Thatcher was a brother of this plaintiff, and he died on or about the...