Miller v. Williams

• Decision Date: 19 December 1899
• Citation: 59 P. 740,27 Colo. 34
• Parties: MILLER v. WILLIAMS et al.
• Court: Colorado Supreme Court

59 P. 740

27 Colo. 34

MILLER v. WILLIAMS et al.

Supreme Court of Colorado

December 19, 1899

Appeal from district court, Arapahoe county.

Suit by Mamie E. Miller against Frederick A. Williams and another. From a decree for defendants, plaintiff appeals. Affirmed.

Arthur S. Miller, for appellant.

Frederick A. Williams, pro se.

CAMPBELL C.J.

Action to quiet title to real estate. Arthur S. Miller is the common source of title. The defendants claim as purchasers at a foreclosure sale of a trust deed given by him in 1890; the plaintiff, as the grantee in a quitclaim deed executed by him in 1895. From a judgment in favor of the defendants the case comes here on appeal; and, of the numerous errors assigned and argued, some are not properly preserved in the record and we cannot notice them. Those which the appellant is in a position to urge are considered, and in their appropriate place the material facts are stated, in the opinion.

1. The trust deed, as well as the notes thereby secured, bears date June 11, 1890. The acknowledgment of the grantor was taken on the following day. Thereafter, and on the 14th of June, the date of the notary's certificate appears to have been changed from the 12th to the 14th. It is upon this apparent change of date that the appellant makes the point that the instrument, bearing evidence of alteration was improperly admitted in evidence. It is sufficient to say that there was testimony before the court to the effect that the notes and the trust deed were not delivered until the 14th day of June, and that the change in date was made with the consent of the parties to these instruments. Though there was evidence to the contrary, we are not disposed to interfere with the finding below in defendants' favor.

2. The trust deed provided, inter alia, that in case F. M. Hamilton the trustee, and Charles C. Culp, the successor in trust, should die or be absent, or be unable or refuse to act, then the legal holder of the notes might, in writing, appoint some attorney of record residing in the state of Colorado as the successor in trust, with the same powers originally granted to and possessed by his predecessors. Against the protest of the plaintiff, the defendants introduced in evidence certain writings, purporting to be the resignation and refusal to act of the trustee and successor in trust, and a further writing by which F. A. Williams was appointed by the holder of the note as successor. The objection was that there was no proof of delivery. At the trial they were in possession of the party claiming under them. Prima facie, they were delivered at the time they bear date; and, if that is so, they were admissible in evidence. As there is an absence of a contrary showing, this presumption was not overcome. It was further objected that the paper denominated the resignation of F. M. Hamilton as trustee, and also that of Charles C. Culp as successor, are void for uncertainty. There is no merit in the objection. These instruments sufficiently identify and make plain that the persons named intended to and did resign the respective offices of trustee and successor in trust under the trust deed in question. But it is also said that prior to the time when, under a deed of trust, a trustee may be called upon by the beneficiary to act in the matter of foreclosing the same, he may not resign his office, if he has once accepted it. To this point is cited Barstow v. Stone, 10 Colo.App. 396, 405, 52 P. 48. That case goes to the point that a trustee must strictly conform to the provisions of the instrument appointing him; that he can act only on request of the beneficiary, and in no event till default; and that a successor in trust may act only upon the happening of some contingency therein provided. There is not a word in, or an inference from, the opinion to the effect that a trustee may not resign before the time when he may be called upon by the beneficiary to act in the foreclosure of the trust deed. As well might it be contended that a trustee may not die or permanently remove his residence, so as to permit the appointment of a successor, until the beneficiary requests him to act. The act which the trustee is powerless to do without the request of the beneficiary pertains to the foreclosure for a default of the trustor. He may resign or permanently remove without the consent or request of any one, and before or after default; and, if he does, his successor steps into the vacancy.

3. The trust deed provides that upon default, and the application of the legal holder of the notes, the trustee or successor in trust shall advertise and sell. The point is made that neither the holder of the notes, nor his legal agent thereunto authorized by writing, directed a sale. We think the record sufficiently shows a valid request by the duly-constituted agent of the holder of the notes, and that his action in doing so was ratified by his principal.

4. The principal objection urged is that the payee of the note and the beneficiary in the trust deed, the Hamilton Investment Company, is a foreign corporation, and, when the transaction occurred, had not filed in the proper offices certain certificates and a copy of its charter, etc., required by sections 499-501, 1868, Mills' Ann. St. (Gen. St. 1883 §§ 251, 261, 265; Sess. Laws 1887, p. 406), and that the Massachusetts Mutual Life Insurance Company, assignee of the notes, was likewise derelict in duty before it acquired title. What the consequences of such failure are, under the constitution and laws of this state, has been the subject of inquiry by our courts, and by other courts under similar provisions, in these, among other, cases: Utley v. Mining Co., 4 Colo. 369; Kindel v. Lithographing Co., 19 Colo. 310, 35 P. 538, 24 L.R.A. 311; Tabor v. Manufacturing Co., 11 Colo. 419, 18 P. 537; Manufacturing Co. v. Ferguson, 113 U.S. 727, 732, 5 S.Ct. 739, 28 L.Ed. 1137; Fritts v. Palmer, 132 U.S. 282, 10 S.Ct. 93, 33 L.Ed. 317; Insurance Co. v. Rogers, 9 Colo.App. 121, 47 P. 848; Helvetia Swiss Fire Ins. Co. v. Edward P. Allis Co., 11 Colo.App. 264, 53 P. 242; In re Comstock, 3 Sawy. 218, 227, Fed. Cas. No. 3,077; Insurance Co. v. Thomas, 46 Ind. 44; Thorne v. Insurance Co., 80 Pa. St. 15; Insurance Co. v. Stoy, 41 Mich. 385, 1 N.W. 877; Farrior v. Security Co., 88 Ala. 275, 7 So. 200; Dudley v. Collier, 87 Ala. 431, 6 So. 431; Lumber Co. v. Thomas, 92 Tenn. 587, 22 S.W. 743. Our attention, however, is called to the case of Jones v. Hardware Co., 21 Colo. 263, 40 P. 457, 29 L.R.A. 143, which is claimed to be decisive of this case in favor of the appellant. We do not find it necessary to determine the proposition argued, for the facts of the case do not call for an interpretation or construction of the constitution and statutes in question. ...