Lee v. Buena Vista Bank & Trust Co., 74--467

• Decision Date: 17 June 1975
• Docket Number: No. 74--467,74--467
• Citation: 539 P.2d 1331,36 Colo.App. 183
• Parties: Percy LEE, Plaintiff-Appellant, v. BUENA VISTA BANK AND TRUST COMPANY et al., Defendants-Appellees. . II
• Court: Colorado Court of Appeals

Page 1331

539 P.2d 1331

36 Colo.App. 183

Percy LEE, Plaintiff-Appellant, v. BUENA VISTA BANK AND TRUST COMPANY et al., Defendants-Appellees.

No. 74--467.

Colorado Court of Appeals, Div. II.

June 17, 1975.

Rehearing Denied July 8, 1975.

Certiorari Granted Sept. 29, 1975.

Cosgrief, Dunn, French & Seavy, V. G. Seavy, Jr., Eagle, for plaintiff-appellant.

Kaiser, Feldhamer & Plotz, P.C., Kenneth M. Plotz, Leadville, for defendants-appellees.

RULAND, Judge.

Plaintiff, Percy F. Lee, appeals from a judgment entered after a trial to the court dismissing his complaint to quiet title to four subdivision lots located in Lake County, Colorado. We reverse.

Defendant Buena Vista Bank and Trust Company held a deed of trust on the subject property dated September 7, 1971, to secure a loan made to defendant W. C. Jones in the amount of $7,500. After foreclosure proceedings were instituted through the public trustee, Lee initiated the present action to quiet title in him and have the deed of trust and certificate of purchase issued by the public trustee declared void. The Bank answered the complaint denying that Lee held title and requested that the complaint be dismissed. A pre-trial order was entered specifying as the only issue in the case whether Lee held title or whether the Bank acquired title through foreclosure of its deed of trust.

Insofar as pertinent to this appeal, Lee introduced into evidence the following deeds and other documents in support of his claim: Quitclaim deed from one Eagan to Percy Lee Auto Sales, Inc., executed in 1964; a certificate of name change from the Colorado Secretary of State issued in 1966 authorizing a name change from Percy Lee Auto Sales, Inc., to Colorado Springs Leasing, Inc.; warranty deed from Colorado Springs Leasing, Inc., to Gerald O. Essendrop, executed in 1968; and, two quitclaim deeds from Gerald O. Essendrop, each conveying two of the lots, dated in May of 1969, conveying the subject property to Lee.

Lee also introduced the following deeds, which were all executed After the above conveyances, to show that the Bank did not hold title by foreclosure against Jones: A deed from Essendrop purporting to convey the property to his wife; a deed from the wife back to Essendrop; then a deed from Essendrop to Colorado Springs Leasing; and a special warranty deed from Colorado Springs Leasing to Jones dated August 30, 1971, which was executed by Percy Lee as president. All documents were duly recorded. Finally, the Bank's deed of trust from Jones was introduced.

Testimony relative to the deed to Jones and the loan transaction was in conflict. Lee testified that the deed from Colorado Springs Leasing to Jones was not supported by consideration inasmuch as Jones was to pay for the lots and had not paid. He also testified that he signed this deed under protest. He stated, in effect, that he refused to convey his title to the lots until he was paid for them.

In contrast, Jones testified that Lee was engaged...