Jerome v. Bohm

• Decision Date: 08 February 1895
• Citation: 21 Colo. 322,40 P. 570
• Court: Colorado Supreme Court
• Parties: JEROME v. BOHM.

40 P. 570

21 Colo. 322

JEROME v. BOHM.

Supreme Court of Colorado

February 8, 1895

Appeal from district court, Arapahoe county.

Suit by Magdelena Bohm against John L. Jerome, executor, impleaded with another, to enforce a trust. From a judgment for plaintiff, defendant Jerome appeals. Affirmed.

This is a suit brought by Magdelena Bohm against John L. Jerome executor of the last will of Mary Bohm, deceased, and others to enforce a trust. For cause of action plaintiff alleges inter alia: That on the 4th day of January, 1878, she was the owner in fee of the following described premises, situate in Arapahoe county, Colo., to wit, the N. 1/2 of the S.E. 1/4 of section 14, township 4 S., of range 68 W. That this land was incumbered by certain deeds. 'That at the date aforesaid to wit, January 4, 1878, the plaintiff entered into a parol agreement with Charles Bohm, her son, now deceased, whereby the said Charles Bohm, in consideration of the conveyance to him of the premises aforesaid, agreed to take said property and sell and dispose of such portions thereof as might be necessary to pay off said incumbrances, from time to time, as might be necessary for the protection of said property from sacrifice, and, when said indebtedness was fully paid off, to execute and deliver to the plaintiff a good and sufficient deed for the undivided one-third of such portions of said premises as might then remain undisposed of, and it was at the same time agreed between plaintiff and the said Charles Bohm that the said agreement should be reduced to writing and signed by said Charles Bohm, and delivered to the plaintiff, to evidence the trust of said Charles Bohm in the premises in favor of the plaintiff, but that no particular time was specified at which the same should be done, and the execution thereof was from time to time postponed until the time of his death, as hereinafter stated, and was never done. That, under and by virtue of the agreement aforesaid, the plaintiff did, on the 4th day of January, 1878, execute and deliver to the said Charles Bohm, a warranty deed to the said premises. That, as plaintiff is informed and believes, said incumbrances have now been fully paid off and discharged, and she is of right entitled to a conveyance of the undivided one-third of the remaining portion of said premises, as hereinafter more particularly described.' That Charles Bohm caused said premises to be platted into blocks, and on the 15th day of December, 1883, he conveyed to Mary Bohm, his wife, certain blocks. That Mary Bohm had full knowledge of the agreement between the plaintiff and Charles Bohm at the time of said conveyance, and the same were conveyed to her without any valuable consideration. That on the 17th day of April, 1885, Charles Bohm died. That on the 7th day of March, 1887, the said Mary Bohm died, leaving all her rights and interest in the property by will to her stepdaughter, Mary M. Bohm, the minor child of Charles Bohm. That the defendant, J. L. Jerome, is the executor of the will, and as said executor he sold and conveyed to Richard Cline certain of the blocks, and sold certain other blocks, for the sum of $8,000, which amount is still in his hands. Defendant answered by general denial, and pleaded res judicata and the statute of limitations. Upon the trial of the cause, October 20, 1891, the court found the issues joined in favor of plaintiff, and against the defendant Jerome, as executor, etc., to the extent of one-third of the interest in the net proceeds derived from the sale of the property in controversy, and directed an accounting between said parties; to which finding of the court said defendant Jerome duly excepted. Afterwards, and on November 30, 1891, final decree was entered upon an accounting had by the court, wherein it was decreed that the plaintiff recover against the defendant Jerome, as executor of the estate of Mary Bohm, deceased, the sum of $5,208.90, etc. The evidence produced by the parties upon the accounting is not preserved by a bill of exceptions, nor was any exception taken to the final decree. The defendant Jerome brings the case here on appeal.

Rogers & Stair and John L. Jerome, for appellant.

Keller & Sales and Felker & Dayton, for appellee.

GODDARD, J. (after stating the facts).

Many of the numerous errors assigned involve a review of the judgment upon the evidence. Under the well-established practice of this court, no exception having been saved to the final judgment, we are precluded from considering the testimony either as to its probative force to support the alleged trust, or its sufficiency to sustain the defense of res judicata or the statute of limitations. Patton v. Manufacturing Co., 3 Colo. 265; Bank v. McCaskill, 16 Colo. 408, 26 P. 821; Law v. Brinker, 6 Colo. 555; Hochmark v. Richler, 16 Colo. 263, 26 P. 818; Wray v. Carpenter, 16 Colo. 271, 27 P. 248; Burnell v. Wachtel (Colo. App.) 36 P. 887. The contention of counsel for appellant, that this rule is not applicable to equity cases, is answered by several decisions of this court. Among others, see Mining Co. v. Kirtley, 8 Colo. 108, 5 P. 649; Blatchley v. Coles, 6 Colo. 82; Bank v. McCaskill, supra.

It remains only to consider those assignments predicated upon exceptions, duly reserved upon the trial, to the admission of evidence, and we are enabled to do this only by indulging in perhaps the unwarrantable assumption that the evidence introduced upon the accounting, and not preserved by the bill of exceptions, could not, in its very nature, qualify or affect the evidence so admitted upon the trial of the main issues. These assignments of error challenge, first, the admissibility of any proof under the complaint, because the alleged trust was void under the statute of frauds. Over the objection of defendant, the deed of plaintiff to ...