Hall v. Harrington

• Decision Date: 09 March 1896
• Citation: 44 P. 365,7 Colo.App. 474
• Parties: HALL v. HARRINGTON.
• Court: Colorado Court of Appeals

44 P. 365

7 Colo.App. 474

HALL v. HARRINGTON.

Court of Appeals of Colorado

March 9, 1896

Appeal fro district court, Arapahoe county.

Action brought by Lucy L. Harrington against Sarah A. Hall to set aside a trust deed made by plaintiff's husband, pending a suit for divorce, as fraudulently made to defeat plaintiff's claim for alimony. Judgment for plaintiff and defendant appealed. Affirmed.

This suit, and the one following, of Harrington v. Johnson, 44 P 368, were tried together, and both appeals were argued and submitted at the same time, though upon different briefs. This comes from the circumstance that they are the outgrowth of another litigation, but were necessarily brought against two people, because they concerned different lots of property, which had been transferred to them by trust deeds operating as a security for alleged debts of George Harrington. One general statement will suffice for both. The differentiating facts will be stated in each case. Lucy Harrington and George intermarried in 1882 and had issue, two children. A disagreement sprung up between them, and she brought a suit for divorce in July, 1892. It was commenced by a personal service of the summons and complaint, and afterwards proceeded to judgment and decree in the following January. According to the terms of this decree the defendant was bound to pay $1,000 alimony, in two equal installments of $500, $200 attorney's fees, and the sum of $30 a month from the 1st day of January, 1893, for the maintenance and education of the two children. The judgment was filed in the county clerk's office, according to the requirements of the statute to make it a lien on realty, on the 18th of that month. The decree in the county court, which divorced the parties and provided for the payment of the alimony, specified that the several sums should be a lien on all the real estate belonging to George Harrington in the state of Colorado, and empowered the plaintiff, in case of his failure to pay, to sell the real estate, or so much of it as might be necessary, to enforce the judgment. We observe the property was not specifically described either in the complaint or in the decree. After the divorce suit was begun, and with the evident purpose to defeat any possible judgment for alimony which the plaintiff might obtain, George Harrington attempted to incumber all his property in favor of his two sisters, to whom he owed divers sums of money. He was indebted to Sarah A. Hall, the appellant, in the sum of $950. The original debt was evidenced by two promissory notes,--one of $800, and one of $200. These were signed by both George and Lucy, and only $100 had been paid on them. George owned two lots of property,--one in Cottage Hill addition to the city of Denver, and the other in what is known as "De Lappe Place." In the present suit we are only concerned with the Cottage Hill lots. His interest was an undivided half in six lots, 13 to 18, inclusive, in block 16 in the addition. The divorce suit was begun July 9th. On the 12th he made out a note for $950, and signed and acknowledged a trust deed on these lots to secure the new note of $950, for the apparent benefit of his sister. He contends the note and mortgage were sent immediately to Mrs. Hall, whereby she became entitled to both the note and the security afforded by the deed. The court found that the note and deed were simply executed to defeat any possible decree for alimony, and were not delivered to Mrs. Hall until after the decree was entered in January, and after its record in the office of the clerk and recorder. George himself testifies he made out the note and deed without any knowledge on the part of his sister, though he claims he sent it directly to her. The trustee, Clinton, started a foreclosure by advertisement, and Mrs. Harrington brought this action. The plaintiff sought to restrain the enforcement of the trust deed because the note and mortgage were fraudulent as against her. This claim was based on the nondelivery of the deed, the priority of the lien for the alimony, the insolvency of the principal judgment debtor, Harrington, and the knowledge and concurrence of Mrs. Hall in the fraud. The allegations of the complaint need not be further stated, and the opinion will be based entirely on the findings of the court. The court concluded the note and deed were made to prevent the enforcement of the decree for alimony, that they were not delivered until after the filing of the transcript of judgment, and that Mrs. Hall had no knowledge whatever of the execution of the note and the deed. He finds they were not given as security, and were not given in payment. He found the only property which Harrington owned at the time the decree was entered was what he conveyed to Mrs. Hall and Mrs. Johnson, and that the decree was a valid lien on the property which was situate in Arapahoe county.

A.B. Seaman, for appellant.

Felker & Dayton, for appellee.

BISSELL, J. (after stating the facts).

The first point to which our attention is directed by counsel for the appellant is put thus: "The court erred in finding the material issues joined in favor of the plaintiff." Unless we consent to build on this foundation, we are without the material with which to construct the building according to the appellant's plan. Appellate courts are sometimes somewhat chary of expressing their conclusions respecting testimony, and are wont to shield themselves behind the tolerably well-established rule that the findings of a trial court, like the verdict of a jury, must be taken as conclusive on all questions of fact. Courts sometimes conceive it to be their duty to see that justice is done and, when occasion requires, to go behind the finding or the verdict to enforce their conclusions. We are called on by counsel to perform that duty in the present case, and an attempt is made to furnish a basis for the departure by the suggestion that the trial of the cause was partly by oral testimony and partly by deposition, thus argumentatively bringing the case within the rule, declared by the supreme court, that, wherever a cause is tried on depositions, it is the duty of the appellate tribunal to sift and weigh the evidence, and determine where the truth lies. We do not pass on this suggestion, but, if we should accede to the request it would not vary the result. We are in entire accord with the trial court in its conclusions. The note and the trust deed were undoubtedly made by George Harrington, and the deed filed for record without the knowledge of his sister, Mrs. Hall, and to forestall any ultimate decree for alimony which the court might render. He made altogether too close connections between the commencement of the divorce suit and the preparation and record of the deed. The suit was started on the 9th of July, and within less than three days, and before the time for answering expired, he attempted to incumber the record with a deed which should take away the entire value of the property as against any judgment which might be rendered. The trust deed was not given to secure the outstanding notes which had been executed by himself and his wife to Mrs. Hall, but to secure a new note, given by him alone, and for a sum presumably equal to the amount represented by the paper which his wife had signed. It is an open question when the note and the trust deed were delivered. We are not inclined to accept the statements made by the appellant's witnesses. The notes are not traced, nor is the time nor are the circumstances of the delivery so perfectly stated as to convince us the parties are telling the entire truth respecting it. It was a matter very susceptible of exact ascertainment, and it was for Mrs. Hall, it being within her power, to produce...