Learned v. Tritch

• Decision Date: 01 December 1882
• Citation: 6 Colo. 432
• Parties: LEARNED v. TRITCH ET AL.
• Court: Colorado Supreme Court

6 Colo. 432

LEARNED v. TRITCH ET AL.

Supreme Court of Colorado

December, 1882

Error to County Court of Arapahoe County.

THE case is stated in the opinion.

Messrs STALLCUP and LUTHE and Mr. T. E. BARNUM, for plaintiff in error.

Messrs FRANCE and ROGERS, for defendants in error.

STONE J.

This is an action for equitable relief.

The amended bill avers that on the 25th day of December, 1876, A C. Hunt being indebted to Tritch and the other defendants in error severally, executed a warranty deed conveying to his brother, H. R. Hunt, certain lands, including block 7 of Hunt's Addition to Denver, which deed was duly acknowledged and recorded; that said deed, 'while it purported on its face to be an absolute conveyance in fee of the lands, was in fact executed and delivered by the said A C. Hunt to H. R. Hunt in trust merely for the purpose of paying and satisfying certain of the creditors of the said A. C. Hunt, and especially the plaintiffs' named.

The bill further avers that the deed was made without any consideration from the said grantee, or from any other source; that said grantee held the said land in trust for said purpose, until April 1, 1878, when he died, without having in any manner executed the said trust, leaving a widow, to whom shortly before his death he devised by will all the real estate of which he died possessed; that the fee of said block 7 appearing by record to have been in the testator at the time of his death, the widow, as sole heir and devisee, claimed the same as her own, notwithstanding she had notice of the said trust. That in September, 1877, Tritch recovered a judgment against the said A. C. Hunt for $1,026.45; that execution was issued thereon, which was in February, 1878, returned nulla bona; that in November, 1878, an alias execution was issued and levied upon said block 7, and the levy recorded in the office of the county recorder; that on the 18th of April, 1879, the said widow, Melissa Hunt, conveyed the said block 7 to Learned, the plaintiff in error. The bill avers that Learned received the said conveyance 'with notice of the claims of plaintiffs and of the levy aforesaid, and with notice that the said Melissa Hunt was without lawful authority to make such conveyance, and with notice that the said block of land had been held by the said H. R. Hunt in trust for the purposes hereinbefore set forth; that the said land does not exceed in value $1,000.'

The complainants thereupon pray that the said deed of the property from A. C. Hunt to H. R. Hunt be declared a conveyance in trust for the purpose of satisfying the claims of the said creditors; that the deed from Melissa Hunt to Learned be surrendered up to be canceled and held for naught, and that the court appoint a trustee to execute the said trust.

The answer of Learned denies the trust, and denies any notice thereof, but avers, on the contrary, that at the time he received the said deed from Melissa Hunt he had no knowledge, notice or suspicion of the trust, or that the deed from A. C. Hunt to H. R. Hunt was not in fact an absolute conveyance in fee, as the same purported to be, and that he, Learned, was a purchaser in good faith for a valuable consideration, which consideration is set out in detail to consist of $1,500, seven hundred of which was in cash, and eight hundred was the value of a parcel of land conveyed by him to Mrs. Hunt, which land is particularly described. The answer further avers that the deed from A. C. Hunt to H. R. Hunt conveyed altogether six blocks of land in Hunt's Addition to Denver, including block 7 in controversy.

All the evidence in the case was taken before a referee, and by deposition, and is fully set out in the record. Upon hearing, the court rendered a decree in accordance with the prayer of the bill, that the deed from A. C. Hunt of the land in controversy to H. R. Hunt be declared a conveyance in trust for the purpose of satisfying the complainants and other creditors of A. C. Hunt; that Learned, the plaintiff in error, was a purchaser with notice of said trust; that the deed from Melissa Hunt to Learned of block 7 be declared null and void, and be surrendered for cancellation, and that a trustee be appointed to execute the trust, etc.

That for more reasons than one the evidence does not warrant this decree is quite clear. In the original briefs filed, the arguments of counsel were chiefly confined to the question of notice of the trust, with which it was alleged in the bill that Learned was charged as a purchaser, and hence, upon examination of the case at the preceding term, we requested counsel to file additional briefs upon the question of whether such a trust as the bill averred could be established by parol, which request has been complied with. Counsel for defendants in error insist that this question should not be considered by this court, for the reason that it is not fairly presented by specific assignments based upon exceptions in the court below, and for the further reason, that, if the statute of frauds is relied upon, it should have been pleaded.

As to this last objection, it is only necessary to observe that since the bill did not disclose whether the trust was created by writing or parol, nor by what character of evidence the trust was proposed to be established (nor, as the authorities hold, was such averment necessary), there was no ground for demurrer to the bill upon this point, and the defendant was without the requisite knowledge to enable him to plead the statute in his answer. The fact that the alleged trust rested in parol was first brought to the knowledge of defendant below by the plaintiffs in introducing their evidence.

As to the question of notice, when we come to investigate it, we are brought face to face with the question as to the validity of the trust, and the consideration of the latter question becomes unavoidable in the determination of the former. The evidence fails to show that Learned had either actual or constructive notice of the alleged trust. He had knowledge of the judgment of Tritch against A. C. Hunt, and of the levy upon the property in controversy, but this was no notice of the trust. If the property had been charged with such a trust as is claimed, Tritch would have been entitled to have had the trust executed for the benefit of his claim and those of the other alleged beneficiaries of the trust, but not to appropriate the property to the satisfaction of his individual judgment regardless of the rights of the other cestuis que trust, so that a knowledge of this judgment and levy was in itself very far from leading to an inference or suspicion of the existence of such a trust. On the contrary, a knowledge of the that of the levy would very naturally lead to the inference that Tritch based his right of levy upon a supposition that there had been no valid conveyance of the property by A. C. Hunt, his judgment debtor, against the rights of Tritch as judgment creditor.

The witness Kellogg testified that he was the executor of the estate of H. R. Hunt; that Learned, previous to his purchase, inquired of witness as to the title, first, with reference to the settlement of the estate, and second, as to the title of the widow to the property he was about to purchase; that as the first point witness gave Learned 'no information beyond the statement that the estate was not yet settled, and if this property was necessary to such settlement, it would certainly be used.'

This information was certainly opposed to the theory of a trust upon the property. Witness further states that, replying to the second point, he asked Learned if he was aware of certain judgments standing against A. C. Hunt; that he mentioned the judgment of Tritch, and the probability that he would levy on this block 7, and that if Learned made the purchase he did so at his own risk.

Witness further testified, that during H. R. Hunt's last illness, about March 1, 1878, he was informed by A. C. Hunt, who, the witness testified, was his brother-in-law, that H. R. Hunt 'received this property in trust for the purpose of paying certain debts of A. C. Hunt.'

Upon cross-examination the witness was asked if, in a conversation with Learned in the presence of Mr. Barnum, he, the witness, said anything in regard to the property in question being held in trust by H. R. Hunt for the creditors of A. C. Hunt; and in reply witness says: 'I cannot say positively, but I think I explained the circumstances under which that deed was given.'

The conversation referred to was one in which Learned and his attorney, Barnum, pending the negotiations with Melissa Hunt for the purchase of block 7, were inquiring of Kellogg, the executor of H. R. Hunt, respecting the title to the...