Rowe v. Mulvane

Citation25 Colo.App. 502, 139 P. 1041
Case DateFebruary 11, 1914
CourtCourt of Appeals of Colorado

139 P. 1041

25 Colo.App. 502

ROWE
v.
MULVANE.

Court of Appeals of Colorado

February 11, 1914


Rehearing Denied April 13, 1914

Error to District Court, Prowers County; Henry Hunter, Judge.

Suit by John R. Mulvane against Jennie D. Rowe. Decree in favor of plaintiff, and defendant brings error. Reversed and remanded, with instructions. [139 P. 1042]

[25 Colo.App. 503] Merrill & McCarty, of Lamar, for plaintiff in error.

H.L. Lubers, of Denver, for defendant in error.

KING, J.

March 2, 1910, defendant in error, as plaintiff, filed his complaint, in the nature of a bill in equity, in which the relief prayed for was that an accounting be had to find the amount due upon a certain promissory note, and that the court appoint a substitute trustee with power to perform the duties imposed and exercise the powers and authority conferred by a certain deed of trust, to the end that the said substituted trustee proceed under the terms and provisions of said deed of trust to make sale of the property described therein, in order to make collection in full of the principal and interest of said note, with costs of foreclosure.

The relief prayed for was predicated upon allegations in substance as follows: That some years prior to his death, defendant's husband, her grantor, had executed a promissory note for the principal sum of $425, payable November 1, 1893, with interest, and, to secure the payment of said indebtedness, executed a certain deed of trust, covering certain lands in Bent county, in which deed the Colorado Loan & Trust Company (a Colorado [25 Colo.App. 504] corporation), was trustee, and the acting sheriff of Arapahoe county, Colo., was successor in trust, and the place of sale, in case of foreclosure, was the Tremont street door of the courthouse in said county of Arapahoe; that the principal of said note had not been paid, nor any interest since the maturity of said note; that the corporate life of the primary trustee had expired by limitation, whereby it was unable to execute the powers conferred upon it by said deed of trust; and that by an amendment to the Constitution of Colorado, whereby the county of Arapahoe was abolished and the city and county of Denver established, the successor in trust named therein was disqualified, and unable to exercise the powers conferred by said deed of trust; that there is no longer a place designated as "the Tremont street door of the courthouse in the county of Arapahoe, state of Colorado."

As a defense to the foregoing complaint, defendant pleaded: First, that the cause of action mentioned in the complaint did not accrue within six years; and, second, that said cause of action did not accrue within five years, before the commencement of this action. Upon motion of the plaintiff, the court rendered judgment on the pleadings in his favor, by which it was ordered and decreed: "That Hamilton Armstrong, present acting sheriff of the city and county of Denver, Colorado, is hereby appointed substitute trustee for the purpose of carrying out all of the objects and purposes of said trust, by advertising for sale the property according to the tenor and effect of the authority of said deed of trust conferred on said trustee; and that the sale shall be noticed to take place at the Tremont street door of the courthouse in the city and county of Denver, Colorado."

[25 Colo.App. 505] I. The question presented for determination is whether the action brought by plaintiff was barred by the provisions of the two statutes of limitation pleaded, or either of them; it being conceded by the motion for judgment on the pleadings that the action was brought more than six years after the cause of action accrued.

It is settled law in this state that the six-year statute of limitations does not operate as a bar to proceedings for the foreclosure of a deed of trust, when foreclosure is made by advertisement and sale by the trustee named in the deed of trust, without the aid or intervention of a court proceeding; that such proceedings are not an "action" within the provisions of our statute, which reads: "The following actions shall be commenced within six years, next after the cause of action shall accrue, and not afterwards." Section 4061, Rev.Stats.1908; section 4627, Mills' Ann.Stats.1912; Holmquist v. Gilbert, 41 Colo. 113, 92 P. 232, 14 L.R.A. (N.S.) 479; Foot v. Burr, 41 Colo. 192, 92 P. 236, 13 L.R.A. (N.S.) 1210.

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6 practice notes
  • People v. Bondsteel, Court of Appeals No. 11CA1784
    • United States
    • Colorado Court of Appeals of Colorado
    • November 19, 2015
    ....2. Application ¶ 16 First, we agree with the Attorney General that Gross creates "a distinction without difference." Rowe v. Mulvane, 25 Colo.App. 502, 508, 139 P. 1041, 1043 (1914). To illustrate this point, the Attorney General describes three similar procedural settings, but with differ......
  • National Tailoring Co. v. Scott, 2392
    • United States
    • United States State Supreme Court of Wyoming
    • August 3, 1948
    ...N.W. 329; Williams v. Armistead, 41 Tex. Civ. App. 35, 90 S.W. 925; Roberts v. True, 7 Cal.App. 379, 381, 94 P. 392; Rowe v. Mulvane, 25 Colo.App. 502, 139 P. 1041. "Hill and Claytor have brought no action. Therefore there is no action for the statute to operate against. They are simply see......
  • Talbott v. Hill, 3243.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • November 3, 1919
    ...128 N.W. 329; Williams v. Armistead, 41 Tex.Civ.App. 35, 90 S.W. 925; Roberts v. True, 7 Cal.App. 379, 381, 94 P. 392; Rowe v. Mulvane, 25 Colo.App. 502, 139 P. 1041. Hill and Claytor have brought no action. Therefore there is no action for the statute to operate against. They are simply se......
  • Jewell v. Trilby Mines Co., 4470
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • November 16, 1915
    ...Colo. 553, 124 P. 187; Munson v. Keim, 53 Colo. 576, 127 P. 1026; Empire R. & C. Co. v. Zehr, 54 Colo. 185, 129 P. 828; Rowe v. Mulvane, 25 Colo.App. 502, 139 P. 1041-1044. Nevertheless it is conceded that in the application of the doctrine of laches the settled rule is that federal courts ......
  • Request a trial to view additional results
6 cases
  • People v. Bondsteel, Court of Appeals No. 11CA1784
    • United States
    • Colorado Court of Appeals of Colorado
    • November 19, 2015
    ....2. Application ¶ 16 First, we agree with the Attorney General that Gross creates "a distinction without difference." Rowe v. Mulvane, 25 Colo.App. 502, 508, 139 P. 1041, 1043 (1914). To illustrate this point, the Attorney General describes three similar procedural settings, but with differ......
  • National Tailoring Co. v. Scott, 2392
    • United States
    • United States State Supreme Court of Wyoming
    • August 3, 1948
    ...N.W. 329; Williams v. Armistead, 41 Tex. Civ. App. 35, 90 S.W. 925; Roberts v. True, 7 Cal.App. 379, 381, 94 P. 392; Rowe v. Mulvane, 25 Colo.App. 502, 139 P. 1041. "Hill and Claytor have brought no action. Therefore there is no action for the statute to operate against. They are simply see......
  • Talbott v. Hill, 3243.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • November 3, 1919
    ...128 N.W. 329; Williams v. Armistead, 41 Tex.Civ.App. 35, 90 S.W. 925; Roberts v. True, 7 Cal.App. 379, 381, 94 P. 392; Rowe v. Mulvane, 25 Colo.App. 502, 139 P. 1041. Hill and Claytor have brought no action. Therefore there is no action for the statute to operate against. They are simply se......
  • Jewell v. Trilby Mines Co., 4470
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • November 16, 1915
    ...Colo. 553, 124 P. 187; Munson v. Keim, 53 Colo. 576, 127 P. 1026; Empire R. & C. Co. v. Zehr, 54 Colo. 185, 129 P. 828; Rowe v. Mulvane, 25 Colo.App. 502, 139 P. 1041-1044. Nevertheless it is conceded that in the application of the doctrine of laches the settled rule is that federal courts ......
  • Request a trial to view additional results

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