Miller v. Davis' Estate

• Citation: 122 P. 793,52 Colo. 485
• Court: Colorado Supreme Court
• Decision Date: 01 April 1912
• Parties: MILLER v. DAVIS' ESTATE.

122 P. 793

52 Colo. 485

MILLER v. DAVIS' ESTATE.

Supreme Court of Colorado

April 1, 1912

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

Action by Mary Miller against the estate of E. W. Davis, May Benham administratrix. From judgment for defendant, plaintiff brings error. Affirmed.

Plaintiff in error, as claimant, filed a claim, consisting of two separate causes of action, in the county court of Pueblo county against the estate of E. W. Davis, as follows: (1) To amount realized by deceased from an undivided one-fourth interest in certain placer claims (naming them) in the Cripple Creek mining district, $2,500, and interest on same from April 1, 1901, at the rate of 12 per cent. per annum and (2) to amount realized by the deceased for an undivided one-fourth interest in certain lode mining claims (naming them) in the Cripple Creek mining district, in the sum of $650, with interest on the same from January 1, 1903, at the rate of 12 per cent. per annum. The county court allowed her claim, from which the administratrix appealed to the district court, where a trial before a jury resulted in a verdict in favor of claimant. On motion of the administratrix the verdict was set aside, and a new trial granted. At a second trial before a jury the court sustained a motion for nonsuit and dismissed the action. Claimant brings the case here for review on error. Her right to the items of her account is based upon the ground that the sums thereby claimed were obtained from her by the deceased under duress. To substantiate her claim against the estate upon this ground her version, from the testimony upon which the nonsuit was granted, is substantially as follows: The title to the lode claims was in the Cambria Mining Company. A judgment was obtained against this company by one Everett in the sum of $1,500. Mrs. Miller claimed she owned a one-half interest in this judgment. Execution issued thereon and the property was sold, the certificate being issued to Everett. Mrs. Miller had agreed to purchase Everett's interest in the certificate, and thus, if a sheriff's deed issued, obtain full title to the lode claims. The certificate, however, was assigned by Everett to a Mrs. Brooke. Mrs. Miller claims to have obtained an agreement from Mrs. Brooke to assign the certificate for $750. She was without funds, and through her husband Davis was solicited to advance money and take an interest in the lode claims, with the view of organizing a corporation to take them over. Davis was told about this time that Mrs. Miller needed the sum of $2,000 within a few days with which to arrange for the sheriff's deed, and discharge other indebtedness then due. After examining the claims, Davis told her that he did not think he could form a corporation within the time necessary; but that he might loan her money to the amount of $2,000 or $2,500, but did not think the lode claims were sufficient security for either of these amounts. About this time negotiations were opened between the parties for the placer claims. The title to these properties was in the name of one Swanquist, but, in fact belonged to Mrs. Miller. They were incumbered by a deed of trust, to secure something over $200, which was then past due. The holder of this obligation was demanding payment. Davis purchased the note and deed of trust, and later took an assignment of the sheriff's certificate on the lode claims from Mrs. Brooke, for which he paid the sum of $760, and directed the husband of plaintiff to secure a deed from Swanquist to the placer property. Mrs. Miller was present when the arrangement was made for the purchase of the sheriff's certificate from Mrs. Brooke, and represented by counsel. At this stage of the negotiations, claimant contends (and there is some testimony to the effect) that Davis had agreed orally to loan her on the lode and placer claims the sum of $2,500; that subsequently he refused to carry out this arrangement, saying that he now held the sheriff's certificate and an overdue note secured by deed of trust on the placer property, and that, instead of loaning the money, he had concluded to have an agreement entered into between himself and Swanquist; and that, if it was not accepted, he would handle the property to suit himself. This contract provided, in substance, so far as material to consider, that Davis was to pay Swanquist $2,500, divided into a first payment of $2,000, and a final payment of $500. It further provided that Davis was to be an owner of a one-fourth interest in the placer and lode claims. It also provided that, if either group of claims was sold within eighteen months, Davis was to receive $2,500, paid under the terms of the contract, and any moneys he might advance in perfecting and defending the title to the properties; but in case such a sale was not made within that period, and Davis had not been repaid the $2,500 mentioned, that then he would transfer an undivided three-fourths interest in the properties to Swanquist, and would take a trust deed thereon to secure the payment of the $2,500 and other moneys he might have advanced under the terms of the contract, to be evidenced by a note to run for three years. Mrs. Miller claims to have objected to this arrangement. In answer to this objection, Davis stated that, having title to the lode claims, and an overdue note secured by deed of trust on the placers, if the contract was not accepted, he would handle the property to suit himself. Mrs. Miller's husband then endeavored to secure money with which to pay off Davis, but was not successful.

The contract was signed by Davis in Pueblo, on June 26, 1899, and was taken to Cripple Creek by claimant's husband, and there signed by Swanquist two days later. On April 25, 1900 the contract was assigned by Swanquist to Mrs. Miller. The property was not disposed of within the 18 months mentioned in the contract. It remained in full force and effect without any objection on the part of either Mrs. Miller or her husband, until June, 1901, when Mr. Miller met Davis at Cripple Creek, and offered to repay him the money he had advanced, and demanded that he return Mrs. Miller her property. This was refused. Later, in the same month, a similar offer and demand was made, which Davis again refused, saying that the only thing he would do would be to deed back a three-fourths interest in the property and take a deed of trust thereon for $2,775, drawing interest at the rate of 12 per cent. per annum for three years. The next day Mrs. Miller personally made a similar offer and demand, which was refused, Upon this date, June 22, 1901, Davis, in accordance with the terms and conditions of the contract, deeded to Mrs. Miller a three-fourths interest in the property, and she executed a deed of trust as in the contract provided,...