Kilham v. Western Bank & Safe Deposit Co.

• Decision Date: 06 October 1902
• Parties: KILHAM et al. v. WESTERN BANK & SAFE DEPOSIT CO.
• Court: Colorado Supreme Court

70 P. 409

30 Colo. 365

KILHAM et al. v. WESTERN BANK & SAFE DEPOSIT CO.

Supreme Court of Colorado

October 6, 1902

Error to district court, Logan county.

Suit by the Western Bank & Safe Deposit Company against Fred C Kilham and others. From a judgment in favor of plaintiff defendants bring error. Affirmed.

Chas. H. Toll and Wm. R. Barbour, for plaintiffs in error.

R. D Thompson, for defendant in error.

STEELE J.

The Western Bank & Safe Deposit Company, in a suit brought against Fred C. Kilham, attached certain real estate situated in Logan county and standing in the name of L. C Kilham. Judgment was subsequently rendered against Fred C. Kilham, the attachment sustained, and the judgment ordered to be satisfied (the defendant being a nonresident) out of the attached property. Subsequently, and on August 11, 1898, the bank commenced its action in the district court against the plaintiffs in error. In the complaint it is set forth in general terms that judgment was rendered against Fred C. Kilham, and the attachment sustained, as above stated, and that, although the title to a one-half interest in and to the property attached stood at the time of his death in the name of Leonard C. Kilham, the said Leonard C. Kilham did not own the said one-half interest, but that one-half of said one-half interest was held in trust for the benefit and use of the said Fred C. Kilham, the said Fred C. Kilham having paid the purchase price for said one-quarter interest, and that the said Fred C. Kilham was in fact and truth the owner of said one-quarter interest so held in trust, and that such trusteeship and the interest of said Fred C. Kilham does not appear of record in said Logan county; that said L. C. Kilham had no interest in and to said quarter interest in said real estate other than as a mere trustee for said Fred C. Kilham; that L. C. Kilham died testate in April, 1897, leaving as his sole heirs at law Lizzie C. Kilham, his widow, and the said Fred C. Kilham, his son; that by the will of said L. C. Kilham the undivided one-half of his property (except a few small bequests) is devised to Lizzie C. Kilham, and an undivided one-half thereof to Edward H. Ryan, as trustee for the said Fred C. Kilham; that the said Fred C. Kilham has no other property in Colorado; that he is wholly insolvent; that a cloud is cast upon the title of said Fred C. Kilham. And praying that said Fred C. Kilham be declared to be the owner of an undivided one-quarter interest in said property, that the attachment levy be declared to be a lien upon the undivided one-quarter interest of the said Fred C. Kilham, and that the defendants Lizzie C. Kilham and Edward H. Ryan be declared to have no right, title, or interest in and to said one-quarter interest of said Fred C. Kilham. The defendants filed separate answers. The answer of Fred C. Kilham denies knowledge or information concerning the attachment and judgment set forth in the complaint; alleges that he has no interest in the land described in the complaint, and denies that he paid the purchase price, or any part thereof; and alleges that Leonard C. Kilham was at the time of his death the legal and equitable owner of an undivided one-half thereof, that the said property was not held in trust for him by his father, and that he has no interest in the said property except as a devisee. The cause was tried January 26, 1899. At the close of the testimony plaintiff was granted leave, over the objection of the defendants, to amend its complaint. The amendment strikes from the complaint the allegation that an undivided one-quarter interest in the land was held in trust by the said L. C. Kilham for the use and benefit of the said Fred C. Kilham, the said Fred C. Kilham having paid the purchase price thereof; and substitutes paragraphs in substance alleging that on June 29, 1887, the said Leonard C. Kilham, for a good and valuable consideration, declared by an instrument in writing duly signed that he had sold and assigned an equal, undivided one-eighth interest in said land and certain contracts of purchase, and that the said Fred C. Kilham owned a one-eighth interest in said land and land contracts, and that on November 11, 1890, said Leonard C. Kilham gave the said Fred C. Kilham an additional one-eighth interest in and to all of said property, and declared such additional interest by indorsement upon said instrument in writing, and that the same was duly delivered to the said Fred C. Kilham; that the said Leonard C. Kilham, from and after June 29, 1887, up to November 11, 1890, held the title in and to a one-eighth interest in said land and land contracts in trust for said F. C. Kilham, and that from November 11, 1890, until his death, in 1897, the said Leonard C. Kilham held the title in and to a one-quarter interest in the said land and land contracts and land obtained under said contracts in trust for said F. C. Kilham; that from and after November 11, 1890, the said Fred C. Kilham contributed one-fourth of all moneys required for use in paying the texes on said lands and the annual installments payable on said land contracts, and other expenses incurred in maintaining said property, until the year 1895, when, because of lack of necessary funds, he was unable to make further contributions or payments; that at the time of the death of said Leonard C. Kilham the said Fred C. Kilham was in fact and in truth the owner of such undivided one-quarter interest in said land held in trust for him. A motion to strike the amendment was interposed upon the ground, among others, that the amendment changed the cause of action attempted to be stated in the original complaint. The motion having been denied, and the objection to the amendment being overruled, the defendants filed an answer admitting the execution of an instrument in writing such as described in the complaint, but denied that there was any consideration for it, denied that any property was sold or transferred thereby, and denied that said instrument was ever delivered. Upon the trial, defendants objected to any testimony being received upon the ground that the complaint did not state a cause of action, and the objection was overruled. The will of Leonard C. Kilham was admitted in evidence over the objection of the defendants. Plaintiff's witnesses were permitted to testify from the books of the plaintiff, and the books of account were admitted in evidence. The witness Johnson was permitted to testify, over the objection of the defendant, to conversations with Leonard C. Kilham. The judgment was for the plaintiff, the decree adjudging the defendant Fred C. Kilham to be the owner of the land described in the complaint, and declaring that the plaintiff had a valid and subsisting lien upon the premises under and by virtue of the attachment proceeding. The case comes here by writ of error. The assignments of error will be considered in the course of the opinion.

We shall not consider the assignments of error which relate to the reception of testimony, because we are of the opinion that there is sufficient unobjectionable evidence to sustain the judgment. The documentary evidence and the testimony of the defendant will sustain the decree. The objection to any testimony upon the ground that the complaint did not state a cause of action was properly overruled. Both the original and the amended complaint stated a cause of action, and we are of opinion that the court did not err in permitting the complaint to be amended to correspond with the proof, as provided by the Code. The objection that the amendment states another cause of action was properly overruled. No new cause of action is stated. The...