McDermith v. Voorhees

• Decision Date: 17 April 1891
• Citation: 16 Colo. 402,27 P. 250
• Parties: McDERMITH et al. v. VOORHEES et al.
• Court: Colorado Supreme Court

27 P. 250

16 Colo. 402

McDERMITH et al. v. VOORHEES et al.

Supreme Court of Colorado

April 17, 1891

Commissioners' decision. Appeal from district court, Arapahoe county WESTBROOK S. DECKER, Judge.

A. S. Weston, for appellants.

A B. McKinley, for appellees.

REED C.

This was a suit brought by appellees to remove a cloud from the title to quite a large number of lots in an addition to South Denver, and praying that claimants be declared the legal owners. The property originally belonged to one Sullivan D Breece, who in the year 1876, being insolvent or embarrassed financially, conveyed the property by quitclaim deed to one William J. McDermith. The part of the deed necessary to be considered is as follows: 'This deed, made this 19th day of August, in the year of our Lord one thousand eight hundred and seventy-six, between Sullivan D. Breece, of the county of Lake and state of Colorado, of the first part, and William J McDermith, assignee of said Breece, of the county of Lake and state of Colorado, of the second part, witnesseth, that the said party of the first part, for and in consideration of the conditions of the assignment made this day for the benefit of the creditors of said Breece, and the further consideration of one dollar to the said party of the first part in hand paid by the said party of the second part, the receipt whereof is hereby confessed and acknowledged, has remised, released, sold, conveyed, and quitclaimed, and by these presents does remise, sell, convey, and quitclaim, unto the said party of the second part, his heirs and assigns forever, all the right, title, interest, claim, and demand which the said party of the first part has in and to the following described real estate, lying and being in the county of Arapahoe and state of Colorado, to-wit: [Followed by a description of the property.]' It is alleged that Breece died intestate in November, 1877; that Margaret A. Breece, Edward P. Breece, and Jennie V. Zane were his surviving heirs; that McDermith died intestate in 1880, leaving as surviving heirs Anna McDermith, one of appellants, and two children, Oro and William J., infants; also, 'that said deed was made by said Breece in trust for the benefit of certain creditors of said Breece, with the intention of providing by a contemporaneous instrument for the payment of their debts out of said property; that no such instrument was executed by McDermith; that said indebtedness was shortly afterwards satisfied by or on behalf of said Breece without resort being had to the property mentioned in said deed; * * * that no reconveyance of said lands was ever made by McDermith to Breece or his heirs; that Margaret A. Breece, Edward P. Breece, and Jennie V. Zane, the surviving heirs of Sullivan D. Breece, conveyed all of their right, etc., in said lands to plaintiff Voorhees on the 30th day of April, 1884, and afterwards said Voorhees conveyed one-half thereof to the plaintiff Samuel W. Shepard.' Plaintiffs also claimed title to the property by treasurer's deeds on sales for taxes from the year 1876 to 1883, some of the deeds being for the entire property, others for a part; all of which tax-titles had by various conveyances been conveyed to plaintiffs. The portions of the answers necessary to an understanding of the issues, and for a determination of the case in this court, are as follows: 'Admits that said Breece was, at the time of making said deed, the owner of said lands; denies that it was the intention of said Breece to provide by a contemporaneous instrument for the payment of any such creditors out of the proceeds of the sale of said land, but alleges that said deed was an absolute conveyance of said land to said William J. McDermith in consideration of the release executed by him and other creditors releasing said Breece from all claims against him held by said creditors, and that said release was executed at the time of the execution of said deed of conveyance from said Breece to said McDermith; but denies that said indebtedness, or any part thereof, was shortly, or at any time thereafter, settled or satisfied by or on behalf of said Breece without recourse to said property, or otherwise; admits that said Breece died in 1877; admits that no reconveyance was ever made by said McDermith to said Breece or his heirs; alleges that said McDermith was under no obligation, in law or equity, so to do; and alleges that the pretended conveyance of the supposed heirs of said Breece conveyed no right or title to plaintiffs; alleges, on information and belief, that the pretended title or claim of plaintiffs, by virtue of said tax-deeds and the intermediate conveyance, is wholly void and without effect; and alleges, on information and belief, that said supposed taxes were not assessed and levied in pursuance of the statutes, and that said supposed sales were not made in the manner provided by law.' The case was tried to the court, who found generally for the plaintiffs, decreeing the relief asked. The court found specially, with other findings, that the conveyance to McDermith was in trust for the benefit of creditors, and did not vest any title in McDermith save a trust for the benefit of creditors; that, in due course of administration, all the debts of Breece were paid and discharged by the administrator without recourse being had to the property in controversy; that thereupon the title vested in the heirs of Breece, and by their conveyance passed to appellees; that prior to and at the time of the bringing of the suit appellees were in the actual...