Mulock v. Wilson

• Decision Date: 04 December 1893
• Citation: 19 Colo. 296,35 P. 532
• Parties: MULOCK v. WILSON. [1]
• Court: Colorado Supreme Court

35 P. 532

19 Colo. 296

MULOCK v. WILSON. ^[1]

Supreme Court of Colorado

December 4, 1893

Appeal from district court, Fremont county.

Action by John Wilson against Peter Mulock to remove cloud from title of real estate by cancellation of a fraudulent deed. There was judgment for plaintiff, and defendant appeals. Affirmed.

The other facts fully appear in the following statement by ELLIOTT, J.:

Among other things, the complaint contains the following: 'The plaintiff, John Wilson, complains of the defendant, Peter Mulock, and for cause of complaint shows: That on, to wit the ___ day of February, A. D. 1888, the firm of Mulock Bros & Co., a partnership composed of Ira and Joshua Mulock and A R. Gumaer, was indebted to him in the sum of six thousand dollars, ($6,000,) which sum was then due. That on failure of said firm, and every member thereof, to pay him his said demand, he commenced an action at law in this honorable court on the 24th day of February, A. D. 1888, against the said firm of Mulock Bros. & Co., and on the same day caused a writ of attachment to be issued out of said court against the property of the said partnership, and each member thereof, to secure said demand; and, there being no partnership property to be found on which to levy said writ of attachment, the same was levied, on the 24th day of February, 1888, upon lot 14, in block 9, in Canon City, Fremont county, Colorado, as the property of the said Ira Mulock, and the same was then and there the sole property of said Ira Mulock. That afterwards, and on the 12th day of April, 1888, plaintiff recovered judgment against the said firm of Mulock Bros & Co. for the sum of six thousand dollars, ($6,000,) and costs of suit, in this honorable court, amounting to six thousand and thirty-two dollars and twenty cents, ($6,032.20.) Plaintiff further shows that by virtue of the levy of his said writ of attachment on said lot 14, in block 9, as aforesaid, he acquired a lien thereon prior and superior to that acquired by any other person or persons; that, when said writ was levied, the said premises were the sole and exclusive property of the said Ira Mulock, and no other person or persons had any equitable right therein. Complainant further shows: That on the 1st day of May, 1888, he sued out of this honorable court a writ of execution upon his said judgment and caused the same to be levied on said lot 14, in block 9. That under such levy the sheriff of Fremont county made due advertisement of the notice of the sale of the said property to wit, by advertisement in the Fremont County News, a weekly newspaper published in said Canon City, the first publication thereof being on the 10th day of May, 1888, and the last thereof being on the 31st of said month, 1888; and on the 4th day of June, 1888, in pursuance of the commands of said writ of execution and the said notice of such sale, the said sheriff offered said premises for sale at the front door of the courthouse in said Fremont county, between the hours of 10 o'clock A. M. and 5 o'clock P. M., and then and there sold said premises to said plaintiff, he being the highest and best bidder therefor, having bid the sum of six thousand dollars ($6,000) for said premises, which said sum was greater than that bid by any other person for said property at said sale. That thereby the said judgment theretofore obtained by plaintiff against the said Mulock Bros. & Co. was satisfied and credited to the extent of six thousand dollars, ($6,000.) Plaintiff further shows: That since the said 4th day of June, 1888, when said sale of said premises was made by said sheriff, and bought by complainant as aforesaid, there has been no payment of said judgment, or any part thereof, made by Ira Mulock, or by any person for him, nor by any one claiming any interest in said premises, nor has there been any redemption of said premises from said sale; and that on the 4th day of March, A. D. 1889, plaintiff, by force of law, became and was entitled, in law and equity, to demand and have, of and from said sheriff, a deed converying to him all the right, title, and interest of the said Ira Mulock in and to the said land and premises; and on the 7th day of March instant the said sheriff, in pursuance of law, did execute and deliver unto plaintiff a deed by which, as sheriff, he conveyed all the right, title, and interest, in law and equity, of the said Ira Mulock in and to said lot 14, in block 9, in the town of Canon City, all of which will more fully and at large appear, reference being had thereto. That by force and virtue of the premises plaintiff became, was, and is now the owner of the whole of said premises in fee simple absolute. And, for a further cause of complaint in this behalf, plaintiff shows that for two years and more last past the said Ira Mulock has been largely indebted and in failing circumstances, unwilling and unable to pay his debts; that, intending and contriving how to cheat and defraud his creditors, and to so dispose of and secrete his property, and all thereof, that his said creditors would be unable to subject the same to the payment of their claims and demands, on or about the 20th day of December, 1887, secretly and fraudulently conveyed the said lot 14, in block 9, in Canon City, unto said defendant, Peter Mulock; that said Peter is the son of said Ira; that said Peter then was, and always before that time was, and still is, a young man, unmarried, of no means or estate of any kind or value, and wholly dependent upon said Ira, his father, for support; that the nominal consideration for said conveyance was twelve thousand dollars, ($12,000,) and payable in _____ years, at the rate of _____ per cent. per annum; that no money in hand was paid on said conveyance by said Peter, nor has any part of said pretended price ever been paid by him to said Ira Mulock, or to any other person representing him; and plaintiff charges the fact to be that said defendant, Peter, took said conveyance of said premises with notice of the fraudulent intent and purpose of the said Ira Mulock, then and there designing and intending to aid and assist the said Ira in his fraudulent purpose aforesaid, or that the said conveyance to the said Peter by the said Ira was then and there intended by the latter to be a gift to the said Peter, well knowing, then and there, his inability to pay his just debts, and was so accepted by the said Peter, and it was then and there understood by, and agreed by and between the said parties thereto, that no consideration was to be expected of, or paid by, the said Peter. * * * In consideration of the premises, plaintiff prays, first, that the said pretended deed of conveyance from the said Ira Mulock to the said defendant, Peter, be decreed fraudulent and void, and for naught held against the plaintiff, and that the same be canceled and set aside.'

Syllabus by the Court

1. An objection made for the first time in the appellate court is viewed with judicial disfavor, even though the objection be one which may be raised at any time. In such case the rule that the allegations of a pleading are to be construed most strongly against the pleader does not apply.

2. In an action brought by a purchaser of land at sheriff's sale to cancel a former deed on the ground that the deed is fraudulent and void as to creditors, the complaint need not allege the issuance of execution in the original suit, and a return nulla bona, nor that plaintiff is in possession of the land.3. Where the appellant has not, by bill of exceptions, preserved the evidence, nor any objection or exception to the proceedings in the trial court, it must be presumed that the proceedings were regular, and that the evidence fully sustained the material allegations of the complaint.

4. Where a conveyance of land was made by an insolvent debtor without...