Haffner v. Van Blarcom

• Decision Date: 26 November 1928
• Docket Number: 12004.
• Citation: Haffner v. Van Blarcom, 84 Colo. 565, 272 P. 621 (Colo. 1928)
• Parties: HAFFNER v. VAN BLARCOM et al.
• Court: Colorado Supreme Court

272 P. 621

84 Colo. 565

HAFFNER v. VAN BLARCOM et al.

No. 12004.

Supreme Court of Colorado

November 26, 1928

Error to District Court, City and County of Denver.

Action by F. Philip Haffner against Andrew Van Blarcom and another as trustees under the last will and testament of Mary L Haffner, deceased, and another. Judgment for defendants, and plaintiff brings error.

Affirmed in part, and in part reversed and remanded.

Benjamin Griffith, of Denver, for plaintiff in error.

John M Boyle, of Fairplay, and Twitchell, Clark, Burkhardt & King, of Denver, for defendants in error.

Plaintiff in error Haffer brought this action against Van Blarcom and Marsh as trustees under the last will of Mary L. Haffner, deceased, and Henry Gianella. The allegations of the complaint may be summarized as follows: That on February 17, 1917, plaintiff and defendant Gianella made a written contract, by the terms of which it was agreed that the plaintiff should contribute his services, and Gianella should make the necessary advances, to acquire certain mining property in Park county, Colo., upon a basis of equal interest and of equal division of profits; that plaintiff had performed said contract on his part; and that on the 25th day of August, 1917, plaintiff became the owner of the said mining property, and on October 24, 1917, he made a deed for a one-half interest therein, to the defendant Gianella; that the plaintiff, in acquiring the ownership and control of the said property, made advances in various sums upon which Gianella had made certain payments to plaintiff, with a balance due to plaintiff on account thereof of $1,541.70; that the plaintiff is the owner of an undivided one-half interest in such property; that, when the plaintiff acquired the property there were certain tax sale certificates outstanding against it, and that the plaintiff, in order to fortify the title which he so acquired purchased the certificates with his own money, but caused the assignments thereof to be made to one Marian Patton Scott, afterwards plaintiff's wife, but merely as the agent and representative of the plaintiff, and for the benefit and use of the plaintiff, and for no other purpose whatever; that he said Marian Patton Scott died March 4, 1922, being at the time of her death the wife of plaintiff; that she left a last will and testament, by which she gave her property in trust to the defendants Van Blarcom and Marsh; that all of the defendants were conspiring together to cheat and defraud the plaintiff out of his interest in the property, by claiming that such interest was extinguished by the tax deeds and plaintiff had no interest in the said property, and that, in order to defeat plaintiff's rights, the defendants were intending to have the property conveyed by the trustees to innocent purchasers for value.

The prayer of the complaint was for an accounting as between the plaintiff and Gianella, and that any sums found to be due to plaintiff from Gianella be declared a lien in favor of the plaintiff against the interest of Gianella in said property and that the lien be foreclosed, that it be decreed that the plaintiff is the owner of an undivided one-half interest, and that it be decreed that the defendant trustees hold the property under said tax deeds for the benefit and use of the plaintiff, and that they be required to make a conveyance thereof to the plaintiff, and that the defendants be restrained from making any conveyance that would affect the title of the plaintiff in and to an undivided one-half interest in the property.

To this complaint the defendant trustees filed their joint answer, in which they admitted the recording of the deed from plaintiff to Gianella, for an undivided one-half interest in the property, admitted that plaintiff was in possession of the property on August 25, 1917, and put in issue all the other material allegations of the complaint.

Affirmative defenses were also interposed by the defendant trustees. In one of such defenses it was averred that on December 27, 1917, Marian L. P. Haffner gave a power of attorney to the plaintiff, in pursuance of which plaintiff acquired whatever title he obtained to the property described in the complaint, and that the plaintiff became a trustee 'of any title which he individually obtained' in pursuance of such power of attorney, and that any title now outstanding in the plaintiff is held in trust for the defendant trustees. The answer contained no general allegation of title in the defendant trustees, and the prayer was that their title be quieted as against the claims of the plaintiff, and that the plaintiff be decreed to hold any title he might have in trust for the defendant trustees.

Gianella also filed his separate answer, by which he admitted that the plaintiff, on August 25, 1917, held such title to the claims as was conveyed under the deed from plaintiff's grantor, admitted the execution of the contract, and the performance of certain services by the plaintiff in connection therewith, admitted the delivery of the deed from plaintiff to defendant Gianella, but denied, for lack of knowledge or information, the allegations of the complaint respecting the trust character of the tax titles taken by plaintiff's wife. Gianella also averred that he had made certain advances to the plaintiff, for which the plaintiff had not accounted, and he also prayed an accounting by the plaintiff.

To these answers the plaintiff filed appropriate replications.

The cause came on for trial before the court. Plaintiff offered himself as a witness in his own behalf, whereupon the defendants jointly made an objection to his competency to testify, under the provisions of section 6556,...