Ross v. Brown

• Decision Date: 05 February 1923
• Docket Number: 10478.
• Citation: 212 P. 835,72 Colo. 560
• Parties: ROSS v. BROWN, Sheriff, et al.
• Court: Colorado Supreme Court

212 P. 835

72 Colo. 560

ROSS v. BROWN, Sheriff, et al.

No. 10478.

Supreme Court of Colorado

February 5, 1923

Department 3.

Error to District Court, Elbert County; Arthur Cornforth, Judge.

Action by Elizabeth Ross, executrix of the estate of Matthias M Ross, against G. R. Brown, Sheriff, in which R. G. Catlin intervened. Judgment for intervener, and plaintiff brings error, and applies for supersedeas.

Supersedeas denied, and judgment affirmed.

H. O. Neville and Albert S. Frost, both of Denver for plaintiff in error.

Snavely & Snavely, for Denver, for defendants in error.

CAMPBELL J.

Matthias M. Ross was the owner of two contiguous quarter sections of land in Elbert county, Colo. He borrowed the sum of $600 giving his promissory note therefor, and secured payment of the same by a trust deed to the public trustee of Elbert county upon this land. After the trust deed had been filed with the county clerk and recorder, Ross entered into a contract with R. G. Catlin for the conveyance of one of these quarter sections, which adjoined Catlin's farm, and, upon its execution, Catlin entered into possession of the land fenced the same, and from time to time made valuable improvements upon it. The contract was at once filed with the county clerk and recorded, and thereafter, under our statute, was constructive notice ot third parties of Catlin's rights thereunder. As part of the consideration of sale, Catlin agreed to pay $400 of the indebtedness secured by the trust deed, and Ross was to pay the remainder. The trust note was not due, and Ross could not then comply with his agreement to convey the same free of all incumbrances, but agreed to perform as soon as he could pay the note and secure a release of the trust deed. In order to complete the contract of sale, so far as it could be done at that time, Ross executed his warranty deed for the quarter section included in the contract, and deposited the same in escrow with a bank, and at the same time Catlin deposited with the escrow holder $400 in money, which he was to pay on the trustee note. The secrow instructions were that, when the trustee's note was paid and the proper evidences of a clear title were exhibited to the escrow holder, the $400 deposited by Catlin were to be delivered to Ross, or payee of the note, and the warranty deed to Catlin.

In due course the note became due and payable, and, although demand, from time to time, was made by Catlin upon Ross to pay the same, and thus enable the latter to perform, Ross refused to pay it. Thus the status continued for nearly four years. In order to protect himself, and acting under the advice of counsel, Catlin made an offer to the holder to buy the note, and to pay the same and all interest and charges thereon. For some reason Ross had sufficient influence with the holder of the note--and exercised it--to prevent a sale to Catlin. At all events, the note holder refused to sell the note, but demanded of the trustee that the latter should advertise and sell the property under the trust deed for a failure on the part of Ross, the maker, to pay the same. At the time fixed for the trustee's sale Catlin appeared, and made a request of the trustee to offer for sale the quarter sections separately, and first to offer the one not included in his contract of purchase, and further stated that, if the trustee would release his tract from the lien of the trust deed, and offer for sale the other, he would bid for the latter a sufficient sum to pay the full amount of the debt secured by the trust deed, and all costs and expenses. Through the influence of Ross, which was exercised, the trustee refused Catlin's offer, and proceeded, doubtless under the instruction of the note holder, to make sale of both quarter sections of land on the one bid. Although Catlin's contract of sale had been recorded, and was constructive notice, Catlin was not at that time the legal owner of the land he had agreed to buy. If at the trustee's sale the property was bid off to a third person, Catlin, if his interest in the land gave him a right of redemption, could not make a partial redemption of the same, but, if he redeemed at all, must redeem as to all the property. He was so advised by his attorney, and that it was doubtful if he could make any redemption whatever, since he was not as yet the legal holder; and so Catlin bid at the trustee's sale, and the property was stricken off and a certificate of sale was given to him. Thereafter one Clover, who was the attorney of Ross, and apparently had been advising his client throughout these transactions, long after Catlin's contract of sale was on record, brought a suit against Ross for attorney's fees, and Ross confessed judgment in the sum of $500, and thereafter Clover, as such judgment creditor, redeemed from the trustee's sale.

As to the foregoing facts, there is no substantial controversy and, as to the following facts, there was evidence which strongly tended to show, and the court must have found, that the judgment against Ross was secured by Clover with the understanding that it was to be used, as it was, in the interest of Ross and for the purpose of defrauding Catlin. Clover at once sued out a writ of execution under his judgment, and proceeded thereunder to advertise and sell both quarter sections of land to satisfy his judgment. Prior to this time Ross had brought...