McKee v. Elwell

• Decision Date: 08 November 1920
• Docket Number: 9647.
• Citation: McKee v. Elwell, 194 P. 616, 69 Colo. 316 (Colo. 1920)
• Parties: McKEE, Sheriff, et al. v. ELWELL.
• Court: Colorado Supreme Court

194 P. 616

69 Colo. 316

McKEE, Sheriff, et al. v. ELWELL.

No. 9647.

Supreme Court of Colorado

November 8, 1920

Rehearing Denied Jan. 10, 1921.

Department 2.

Error to District Court, Pueblo County; J. Ed. Rizer, Judge.

Suit by Sarah D. Elwell against John M. McKee, Sheriff of Pueblo County, and another.Judgment for plaintiff, and defendants bring error.

Affirmed.

See also, 186 P. 714.

James F. Drake, of Pueblo (William B. Stewart, of Pueblo, of counsel), for plaintiffs in error.

Joseph C. Elwell and John W. Elwell, both of Pueblo, for defendant in error.

DENISON J.

Sarah D. Elwell, defendant in error, obtained a decree restraining McKee, sheriff, and Drake, a judgment creditor of Annie L Elwell, plaintiff's mother, from further proceeding in a levy on certain real estate by virtue of an execution against the mother, and the defendants bring the case here on error.

Annie L. Elwell owned the real estate in question subject to a deed of trust given by her; she quitclaimed the property to her daughter, the plaintiff, subject to the deed of trust; a foreclosure sale was afterwards had under the trust, and a certificate of sale issued; Annie L. Elwell redeemed, and took the certificate of redemption in her own name.The defendant Drake then sued out his execution, and McKee levied.Plaintiff then brought this suit.Drake, by answer and cross-bill, claimed that the quitclaim deed was in fraud of creditors, and that the sale and redemption restored the title to Annie L. Elwell.

Both the mother and daughter testified that the former redeemed with plaintiff's money, as her agent and for her sole benefit, and the court specially found such to be the case.The question whether the sale was fraudulent was left to a jury, who found it was not, and the court adopted the finding.

The plaintiffs in error rely upon two propositions: (1) The quitclaim deed was fraudulent.(2) The title was in Annie L Elwell when the levy was made.

As to the first proposition, the matter has been decided on conflicting evidence by both court and jury, and the decision will not be disturbed.

As to the second, since the court has found that the redemption was in the interest of plaintiff and with her money, it follows that at the time of the levy Annie L. Elwell had no interest in the subject thereof, even if plaintiffs in error are right in their theory that a redemption by her would restore to her the title....