Mullen v. McKim

• Decision Date: 18 May 1896
• Citation: 22 Colo. 468,45 P. 416
• Court: Colorado Supreme Court
• Parties: MULLEN v. McKIM et al.

45 P. 416

22 Colo. 468

MULLEN v. McKIM et al.

Supreme Court of Colorado

May 18, 1896

Error to district court, Arapahoe county.

Action by Paris McKim and another against Thomas Mullen. There was a judgment for plaintiffs, and defendant brings error. Affirmed.

The original complaint, filed in June, 1882, in substance alleges that Margaret E. Cody, the mother of plaintiff Paris McKim was the owner of certain lots in the city of Denver, which in 1872 she transferred to the defendant, Mullen, by a quitclaim deed; that said deed, although absolute on its face, was given by her and accepted by the defendant as a mortgage to secure the payment of about $500 then owing to the defendant by Mrs. Cody; that thereafter, in 1873, Mrs. Cody paid to said Mullen the mortgage indebtedness, when, instead of reconveying to her, Mullen, at her request, consented and agreed to keep and hold the legal title to said real estate in trust for the plaintiff Paris McKim (who at that time was Paris Cody, the infant daughter of Mrs. Cody, and of the age of 14 years) until she attained her majority, or until requested by the beneficiary to execute the trust, and upon the happening of either of said contingencies the trustee agreed to convey to his cestui que trust; that from that time to the present Mullen has so held the legal title to said property, and has refused, upon demand of the beneficiary who now has attained her majority, to convey to her the said property. To this original complaint a demurrer by the defendant was interposed, upon which there seems to have been no ruling. The case, in this condition, remained on the docket for about 10 years, when an amendment to the complaint was filed, and thereafter, in June, 1892, by leave of the court, there was filed an amended complaint, being in substance a combination of the original complaint and said amendment. In its allegations the amended differed from the original complaint in this: that the former alleges that the trust upon which defendant, Mullen, held said property, was reduced to writing and signed by him, and left for safe-keeping with one Charles C. Post, but afterwards was mislaid or lost, and cannot now be found; and in this further allegation: that while the legal title was in the defendant Mullen, contrary to his trust he sold and conveyed to innocent purchasers all of said property, and cannot now convey the same to plaintiffs. A different relief is prayed for in the amended complaint, in that, while the prayer for relief in the original complaint was for a conveyance of the property to plaintiffs, in the amended complaint the prayer is for an accounting and for a money judgment; general relief being prayed for in both complaints. To this amended complaint an answer was filed by the defendant, denying substantially all of its allegations, and setting up as a bar to the cause of action the plea of the statute of limitations, to the effect that the cause of action therein set forth did not accrue within the six years next before the commencement of the action. Such affirmative defense was traversed by plaintiffs' replication, and upon the issues thus joined a hearing was had before the court, findings were made, and an interlocutory decree was entered on the 27th day of October, 1892, in which the court found the issues for the plaintiffs, and that the defendant did execute the declaration of trust in favor of said Paris McKim (then Paris Cody) substantially as alleged in the amended complaint, and did there and then agree to hold the legal title to the real estate in question for and on account of said Paris McKim, as her trustee, until she should attain her majority, or until she should make demand for a conveyance. The court further found that the defendant, before this action was begun, had conveyed all of this property to innocent purchasers, and therefore could not now execute a conveyance to the plaintiffs. Thereupon the court ordered a reference to take testimony with respect to the value of the property, to make an accounting between the parties, and to ascertain what was equitably due and owing from the defendant to the plaintiffs. The referee proceeded to take the testimony of the parties and reported his findings to the court. Upon the consideration thereof the report of the referee was confirmed, with slight exceptions, and, as thus modified, his findings were made the findings of the court, upon which findings, and those previously made by the court, a final decree and judgment were rendered in favor of the plaintiffs and against the defendant in the sum of $10,106.06. To this judgment the defendant prosecutes here his writ of error.

L. C. Rockwell and Belford & Marsh, for plaintiff in error.

CAMPBELL J. (after stating the facts).

1. Before the referee, counsel for plaintiff in error offered in evidence the answer of Mrs. Cody, purporting to have been filed in suit theretofore brought in one of the district courts of this state, and relating to this same property wherein Powell & Hollister, creditors of Mrs. Cody, brought suit against her and the defendant Mullen, the object of which was to subject this property to their claim. The answer itself is not contained in the record, but only a summary of it, from which, however, it appears that her statements therein were inconsistent with her evidence upon the previous hearing before the court upon the main issues in the case, as to the nature and character of the trust and this deed of conveyance by her to Mullen, and as to her rights, if any, thereunder at the time of such former suit. As we understand the record, the object of this offer was to impeach the credibility of Mrs. Cody by showing former inconsistent statements relating to an issue tried and determined before the cause was referred to the referee. The referee so understood the object, for he refused to admit the testimony because it was offered 'simply for the purpose of contradicting Mrs. Cody, and as an admission of Mrs. Cody that that transaction was other than a trust.' That was collateral to the issue pending before the referee, and had already been determined by the court. The attempted impeachment by evidence of matters not relevant to the issue which the referee was trying was not permissible. 1 Greenl. Ev. § 462 et seq. For another and sufficient reason this ruling was right, for no foundation for the impeachment had been laid by calling Mrs. Cody's attention to the alleged contradictory statement. Ryan v. People, 21 Colo. 119, 40 P. 775. Thereafter, upon the hearing of the referee's report before the court, counsel for plaintiff in error renewed this offer, which the court refused to entertain, and this ruling is now attacked. Why this offer was not made when the hearing was originally had by the court upon the main issue we are not advised, but must assume that no sufficient reason was presented to the trial court for reopening the case to take further evidence. ...