Harrison v. Cole

• Decision Date: 01 February 1909
• Citation: 50 Colo. 470,116 P. 1123
• Parties: HARRISON v. COLE et al.
• Court: Colorado Supreme Court

116 P. 1123

50 Colo. 470

HARRISON v. COLE et al.

Supreme Court of Colorado, En Banc.

February 1, 1909

Rehearing Denied May 1, 1911.

Appeal from District Court, City and County of Denver; S. L Carpenter, Judge.

Action by George W. Harrison against Mary B. Cole and others. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

The facts presenting the question involved in this appeal are substantially as follows:

In December, 1890, one Adams instituted an action against the surviving heirs of John W. Iliff, deceased, to establish a trust in certain real estate the title to which was in the name of the deceased, upon the ground that the purchase price therefor was paid by Adams. While this action was pending, a contract and deed were executed by Adams, conveying to the law firm of which Stuart & Murray were members an undivided one-fourth interest in the land in controversy as compensation for their services as Adams' attorneys in that case. In July, 1892, a decree was rendered in the action in favor of the plaintiff, Adams. The defendants appealed to this court, where the decree was affirmed, with the proviso that it should not take effect as a conveyance of the land to Adams until the Iliff heirs were reimbursed for the taxes which they and their ancestor had paid upon the land in question, and the cause was remanded with directions to the trial court to take an accounting of such taxes between the parties as a condition precedent to the enforcement of the decree. Warren v. Adams, 19 Colo. 515, 36 P. 604. This decision of the Supreme Court was rendered at the January term, 1894. In July, 1894, George W. Harrison, the appellant loaned Adams about $8,000, and, as security therefor, took a mortgage upon an undivided interest of Adams' remaining interest in the land. The accounting directed by this court was had, and from the judgment thereon the defendants brought the case to this court for review on error. The judgment was reversed for reasons which it is not necessary to state, and the cause remanded, with directions to take another accounting of the taxes paid by the defendants and their ancestor, Iliff, and enter a decree that on failure to pay the Iliff heirs the amount of taxes so ascertained within some reasonable time to be fixed by the trial court, that the decree establishing the trust be set aside and the action of plaintiff dismissed. Adams v. Warren, 27 Colo. 293, 61 P 609. This judgment was rendered at the January term, 1900.

In December, 1900, the appellant, Harrison, in satisfaction of his mortgage from Adams, took an absolute conveyance for the land mortgaged to him from the Adams heirs, Adams having died in the meantime. In November, 1900, the Iliff heirs filed in the original action their motion for an accounting of the taxes which had been paid upon the lands in controversy either by their ancestor or by themselves, and for a substitution of parties plaintiff because of the death of Adams, and for an order requiring the amount of such taxes found to have been paid, to be repaid to them; and, in default thereof, that the Adams interest in the premises be forfeited. Appellant Harrison was not a party to the original action, but he was notified of this proceeding. No order was entered making him a party thereto; neither was he required to plead. He took no part in the proceeding. The district court found the amount due the Iliff heirs to be $3,797.42 and ordered it to be paid within 90 days, or, in default thereof, that the original decree establishing the trust be set aside and the action dismissed. This judgment or decree was entered on the 27th day of December, 1900.

Subsequent to the order last referred to, and before the time for the payment of the sum therein specified had expired, Stuart & Murray notified appellant Harrison that it was necessary for him to take steps, in connection with others interested in the premises, to comply with such order. None of the parties interested made any offer to comply with the order except appellant, who offered to put up his share, but he could not agree with Stuart & Murray what that should be. They wanted him to advance all the money and take all the risk, which he refused to do. He finally offered to pay one-half, but this was not accepted. Thereafter such proceedings were had in the original action that on March 25th, 1901, Stuart & Murray paid into court for the use of the Iliff heirs the sum found to be due them for taxes in the accounting proceedings, and an order of the district court was entered subrogating Stuart & Murray to the rights of the Iliff heirs. Appellant had no notice of these proceedings, and did not appear therein.

The mortgage given to the plaintiff Harrison required the mortgagor to pay the taxes assessed against the lands mortgaged. Since he became interested in such lands, plaintiff has paid the taxes against the premises which he claims under his deed, and on interests in the land in controversy which he does not claim, to an amount aggregating about $2,000. The taxes decreed to be paid the Iliff heirs accrued prior to the date when the title to the premises was established in Adams. Plaintiff has never expressly refused to pay what might be regarded as his just proportion of such taxes since the order of subrogation. The money realized on the mortgage given him was probably expended to some extent by Adams in carrying on the litigation against the Iliff heirs. Stuart & Murray, while not acting for plaintiff when he took the mortgage from Adams, advised him that in their opinion the title to the mortgaged premises was good. It does not appear that since the subrogation proceedings any material change in the value of the property has taken place, or that Stuart & Murray have been damaged by the failure of plaintiff to pay his proportion of the taxes found to be due the Iliff heirs in the accounting proceeding.

Subsequent to the affirmance of the judgment of the district court establishing Adams' title, the Iliff heirs commenced an action by bill of review, to set aside that judgment. Appellant was made a party to this action, and at the request of Stuart & Murray, released three or four acres of the premises mortgaged to him by Adams, so as to permit of a conveyance of the land so released for the purpose of paying counsel to assist in defending that action. In March, 1903, appellant instituted proceedings in the district court to partition the premises. The appellees were made defendants in this action. To the petition so filed, Stuart & Murray answered, denying that plaintiff had any interest in the premises sought to be partitioned, and by way of cross-complaint set up the record of the judgments, decrees, and orders referred to by virtue of which they claimed to be absolute owners of such premises. Plaintiff answered this cross-complaint, stating the acquisition of his title through Adams as above narrated, admitted the judgments and records pleaded, denied that he was personally obligated to pay any part of the taxes decreed to be paid to the Iliff heirs, and made other averments which we do not think it is necessary to notice in detail, and upon this answer based his title to the premises in controversy. To this answer Stuart & Murray replied, putting in issue its affirmative averments. On the issues thus formulated a trial was had. The testimony established the facts substantially as above stated.

The trial court concluded that plaintiff had no interest in the premises which he sought to have partitioned, and that the defendants, Stuart & Murray, were the absolute owners of such premises as against him. This judgment appears to have been based upon the grounds that plaintiff, Harrison, was a party to, and bound by, the accounting proceedings had, and was also a party to the proceedings under which Stuart & Murray were subrogated to the rights of the Iliff heirs, and bound thereby, and that by such proceedings Stuart & Murray acquired the entire title to the premises in controversy, subject to the right of the plaintiff to redeem whatever interest he had in such lands by offering to pay them within a reasonable time his proportionate share of the taxes found to be due the Iliff heirs, which Stuart & Murray had paid into court, and as he had not offered to pay them such share within a reasonable time, his right to do so, as well as all his interest in the premises, had terminated. Plaintiff brings the case here for review on appeal.

Daniel Prescott, for appellant.

A. M. Stevenson and Stuart, Murray & Work, for appellees.

GABBERT, J. (after stating the facts as above).

On behalf of the appellees it is asserted that by the subrogation...