Roberts v. Dietz, 12696.

• Citation: 88 Colo. 594,298 P. 1062
• Decision Date: 27 April 1931
• Docket Number: 12696.
• Parties: ROBERTS et al. v. DIETZ.
• Court: Supreme Court of Colorado

298 P. 1062

88 Colo. 594

ROBERTS et al. v. DIETZ.

No. 12696.

Supreme Court of Colorado

April 27, 1931

In Department.

Error to District Court, Larimer County; Robert G. Smith, Judge.

Suit by Harry Dietz, by Conrad Dietz, his father and next friend against George Roberts and another. Judgment for plaintiff and defendants bring error.

Affirmed.

Fancher Sarchet, of Ft. Collins, for plaintiffs in error.

Stow & Stover and Herbert A. Alpert, all of Ft Collins, for defendant in error.

BUTLER J.

Harry Dietz recovered a judgment for $3,625 against Esther E Roberts for damages sustained by him in an automobile collision. He thereupon sued to set aside, as fraudulent, a trust deed given by Esther E. Roberts to secure the payment of three promissory notes given by Esther and her husband, Charles: One for $875, payable to the order of the Poudre Valley National Bank and indorsed by it to the Linden Investment Company, an agent or trustee for the bank; one for $1,352, payable to the order of George Roberts; and one for $1,326, payable to the order of Ernest Roberts. The court held that the conveyance was given to hinder, delay, and defraud Dietz, and was void 'as against the execution or enforcement of the judgment' obtained by him. We reversed the judgment and remanded the cause for a new trial as to George Roberts and Ernest Roberts, and directed the trial court to render judgment in favor of the Linden Investment Company. Roberts et al. v. Dietz, 86 Colo. 595, 284 P. 337.

George and Ernest are brothers-in-law of Esther; hence, in the circumstances disclosed by the record, the burden of proving the honesty of the transaction and their good faith rested upon them. This they offered to prove at the first trial, but the court rejected the offer, and decided the case against them because it took the erroneous view that the case was governed by the decision in Hafelfinger v. Perry, 52 Colo. 444, 121 P. 1021, and that the good or bad faith of the defendants was immaterial. Upon the second trial such evidence was admitted, but the court again rendered judgment against George and Ernest, which judgment they seek to reverse.

The first trial was partly upon a stipulation as to facts; the second was a trial de novo upon evidence introduced by both parties, it being agreed that the stipulation as to facts made at the first trial should be disregarded. The trial court found that George and Ernest did not sustain by proof the burden cast upon them by reason of their relationship to Esther. Is the record such that we would be justified in setting aside that finding? We think not.

There was testimony to the effect that in 1910 George and Ernest advanced money to Charles to pay a judgment against him; that they allowed the matter to drift until after Dietz sued Charles for damages for personal injuries sustained in an automobile accident, when, on September 1, 1928, George was given a promissory note for the balance claimed to be owing him by Charles; that as Esther had property standing in her name and Charles had none standing in his name, she signed the note with him. The evidence also shows that thereafter Dietz dismissed his action against Charles, and on October 16, 1928, sued Esther on the same cause of action; and that on January 1, 1929, Ernest was given a promissory note, signed by Charles and Esther, for the balance claimed to be owing him by Charles. The verdict in the Dietz case was rendered on April 30, 1929, and immediately thereafter Esther disposed of some of the property standing in her name and encumbered the rest. On May 1 she executed the trust deed in suit; on May 7 she deeded some land in Larimer county; on May 9 she homesteaded other property; and on May 11 she executed a chattel mortgage on a Graham truck. These transactions rendered her insolvent. On May 13 judgment was rendered in the Dietz case, but neither at that time nor at any time thereafter did Esther have any property standing in her name subject to execution. A tenant in the Roberts house (the property later included in the trust deed in suit) testified that between the last of April and May 7 Esther and Charles stated that they would like to occupy a part of the house in order to homestead it; that a few...