Irvine v. Minshull

• Decision Date: 06 July 1915
• Docket Number: 7890.
• Parties: IRVINE v. MINSHULL.
• Court: Colorado Supreme Court

152 P. 1150

60 Colo. 112

IRVINE v. MINSHULL.

No. 7890.

Supreme Court of Colorado, En Banc.

July 6, 1915

Error to District Court, City and County of Denver; James H Teller, Judge.

Action by Thora E. Minshull against Mary L. H. Irvine. Decree for plaintiff, and defendant brings error. Judgment reversed, and cause remanded, with directions.

Hill and White, JJ., dissenting.

Spurgeon & Cassidy, of Colorado Springs, and Emerson J. Short, Goudy, Twitchell & Burkhardt, and H. R Kaus, all of Denver, for plaintiff in error.

Hughes & Dorsey, E. I. Thayer, and John Q. Dier, all of Denver, for defendant in error.

GARRIGUES, J.

This action is brought by Thora E. Minshull, as plaintiff, against Mary L. Irvine, spoken of as defendant, to recover an undivided one-third interest in the Shell Block in Denver Colo. The findings and decree were in favor of plaintiff, and defendant brings the case here on error. It is not difficult to understand the theory and nature of plaintiff's claim and the purpose of the action. She alleges that in January, 1903, Joseph E. Hunter, his sister Mary, and his father jointly purchased the property from the Northwestern Mutual Life Insurance Company of Milwaukee, for $49,000, all of which Joseph paid out of his own money and separate funds, and thereafter his sister and father reimbursed him to the extent of one-third, so that each contributed one-third the amount and each owned an undivided one-third interest; that for their own convenience and accommodation they caused the deed to be made to Elizabeth B. Hunter; that she contributed nothing and acquired no interest in the property, but took and held the naked legal title in trust for the use and benefit alike of the three owners; that April 6, 1909, in violation of the trust and confidence reposed in her, she, without consideration, conveyed the whole legal title to her daughter Mary Hunter, who, meantime, had married Dr. Irvine; that March 22, 1904, plaintiff married Joseph; that March 24, 1908, still owning such undivided one-third interest, held in trust by his mother, he died leaving plaintiff, his widow, as his sole heir at law; that by reason thereof plaintiff at his death became the owner in fee simple of his undivided one-third interest; that until his death Joseph had the active control and management of the property and, after paying all costs and expenses, distributed one-third the net income to his father, one-third to defendant, and kept one-third as his own; that after Joseph's death the Hunter family recognized plaintiff's claim of ownership to such one-third interest in the income from the property and remitted her $100 per month from March, 1908, until June, 1910; that plaintiff remarried in May, 1909; that Mother Hunter died in November, 1909; that since June, 1910, defendant has converted all the income to her own use and refused to account therefor and repudiates the trust and claims to own the property and all the income.

The answer admits the deed to Elizabeth B. Hunter and her conveyance to defendant, but denies that the funds of Joseph Hunter were used in the purchase. It alleges that defendant's separate funds went into and paid for the property derived from cashing nine certificates of deposit owned by and standing in her name; that defendant lived with her parents, and the title was taken in the name of her mother to the end that she might, during her lifetime, manage the property and use the income as she desired; that the mother during her lifetime had exclusive possession of and exercised absolute control and ownership over the property, receiving to her own use the income to the exclusion of Joseph Hunter, and executed the trust by deeding the property to defendant; that Joseph Hunter was without means and dependent upon his mother for support, and whatever moneys were given by her to him were a voluntary allowance.

The decree finds that Joseph Hunter at the time of his death, March 24, 1908, owned an undivided one-third interest in and to the property and to the income, and that plaintiff as his widow and sole heir became, at his death, the owner in fee and entitled to the exclusive possession of such interest; that from April 6, 1909, defendant had held such interest in trust for the use and benefit of plaintiff, and defendant is commanded to make, execute, and deliver to her a good and sufficient deed of such interest. Plaintiff is given a money judgment in the sum of $3,863.38 against defendant, that being one-third the net income from April 6, 1910, to June 1, 1912.

1. Plaintiff has no interest in the property other than the law cast upon her by the death of her husband, intestate. The interest decreed her is based upon her claim that Joseph Hunter was the cestui of a one-third interest, because he contributed one-third the purchase price paid for the Shell Block; therefore, to recover, the burden of proof is upon her to clearly show that he furnished such proportional part. The court, under the claim of a resulting trust, awarded plaintiff an undivided one-third interest in the property the trustee had conveyed to, and which was standing in the name of defendant. Such decree can only be sustained upon clear and convincing proof that one-third the consideration paid for the property was furnished by plaintiff's husband, which in this case means that he owned an undivided one-third interest in certain certificates of deposit, the proceeds of which were used in paying $49,000 for the property. Unless the evidence clearly and decisively demonstrates that this was the case, there is nothing upon which to base a decree, and it cannot stand.

The $49,000 that paid for the property was obtained from cashing nine renewal certificates of deposit issued in 1902 to Mary Hunter, and standing in her name at the time of the purchase, in which plaintiff claimed, and the court found, that Joseph owned an undivided one-third interest. Plaintiff did not claim, nor did the court find that Joseph ever, at any time, owned these certificates. The court found that, on account of a commingling of funds, he owned a one-third interest. Counsel for plaintiff take their stand, when they say in their brief:

'The most natural one (explanation), and the one which we have constantly asserted, is that, although these certificates were registered in the name of Mary L. Hunter, a one-third interest in them at all times belonged to Joseph E. Hunter.'

And again:

'It is the contention of plaintiff that, while the certificates of deposit had been issued in the name of Mary L. Hunter, one-third interest therein at all times had belonged to Joseph E. Hunter.'

Plaintiff's counsel by these statements recognize and admit the issue, and any attempt to interject or weave into the case the legal principle that Joseph owned the certificates, merely because he had the temporary possession of and delivered them indorsed by Mary to Mr. Hughes to be used in paying $49,000 for the Shell Block, only tends to befog the issue and leads to confusion.

The trial court found that Mary, Joseph, and Father Hunter commingled their funds into these certificates subsequent to the dissolution of the copartnership March 10, 1900; that at all times thereafter Joseph had an undivided one-third interest in the certificates, and this counsel say they have constantly asserted. Therefore we must ascertain the source of the fund entering into these certificates, and follow its identity and ownership through the various renewals, until we trace the money derived from cashing them, ultimately, into this property.

The evidence is without conflict regarding the ownership and use made of these certificates. The history of the transaction shows that four members of the Hunter family, consisting of T. S. Hunter the father, Elizabeth Hunter the mother, Mary Hunter the daughter, and Joseph Hunter the son, came from Indiana and engaged as copartners in mining in Cripple Creek. The family lived in Colorado Springs, where they conducted a rooming and boarding house and 'grubstaked' Joseph furnishing him with money for a number of years to carry on the mining business in which they each owned a one-fourth interest. As a result of his operations, the interest they acquired in the Orphan Bell mine was sold in 1898 for $100,000 on which the final payment was made in 1899. They invested $26,500 of this money in the Hunter Block in Denver, taking the title in the name of Elizabeth Hunter, and they lost $11,935 in mining ventures. The father held $58,565 of the money in cash and certificates of deposit, and Joseph had $3,000 of it on deposit in the First National Bank. March 10, 1900, they made a final settlement and dissolution of the copartnership and a division of all the property and money, by which each received one-fourth the company assets. In this settlement it was ascertained and agreed that $22,015 was the sum which each was entitled to receive, and the division was not only made, but the amount was given to each partner. Mother Hunter retained the Hunter Block at the valuation paid for it, $26,500, and reduced her holdings to $22,015 by paying Mary $4,485; the father paid Mary $17,530, which with the $4,485 made up her share; Joseph retained the $3,000 he had in the bank, and his father paid him $19,015 which he accepted and for which he gave his receipt. The copartnership was thus dissolved and final settlement and payment made in full to each member. The funds of Mary and her father were immediately invested in certificates of deposit, which were renewed from year to year and ultimately used in paying for the Shell Block. The record is barren of any evidence that Joseph at any time commingled any of his funds with the money used to purchase these certificates, or that...