Taney v. O'Connell

• Decision Date: 03 July 1891
• Citation: 27 P. 888,16 Colo. 353
• Parties: TANEY v. O'CONNELL. [1]
• Court: Colorado Supreme Court

27 P. 888

16 Colo. 353

TANEY v. O'CONNELL. ^[1]

Supreme Court of Colorado

July 3, 1891

Appeal from superior court of Denver; MERRICK A. ROGERS, Judge.

Action by Patrick Taney against Katherine O'Connell, impleaded with John O'Connell, to subject an undivided interest in land to the payment of a judgment. There was judgment for plaintiff, and defendant appeals. Affirmed.

Steele & Malone, for appellant.

L C. Rockwell, for appellee.

HAYT J.

As the amended complaint was filed by leave of court, it superseded the original, and need only be considered. In this pleading Patrick Taney, appellee, as plaintiff, made John O'Connell, Katherine O'Connell, John Sheehan, William C. Graves, and J. F. Conroy defendants. It alleges that on the 30th day of June, 1885, plaintiff recovered a judgment in the superior court of the city of Denver against said defendant John O'Connell for the sum of $2,262.30 and costs of suit; that afterwards a transcript of said judgment was filed in the office of the clerk and recorder of Arapahoe county; that in March, A. D. 1885 execution was duly issued by the clerk of the court rendering said judgment, and delivered to the sheriff of Arapahoe county for execution; that said sheriff returned the same in April, 1886, nulla bona. It is also averred that the said John O'Connell has no property interests, either real or personal, in the state of Colorado, out of which said judgment, or any portion of it, could be made; that the action wherein said judgment was rendered in favor of the plaintiff was based upon a certain appeal-bond signed by said John O'Connell as surety for one Michael Green; under date of June 27, A. D. 1881, and immediately prior to said day and date, said John O'Connell had been working upon the Denver & Rio Grande Railroad in various capacities; while so engaged in said business he had made a large sum of money, to-wit, not less than $8,000; that in October, 1881, he bought certain lots in the city of Denver with the money so earned, but had the deed for said property made to his wife; that in November he bought certain other lots, taking the deed in the same way; that in February, 1882, he purchased certain additional lots, causing these lots to be transferred to his wife. Plaintiff avers that Katherine O'Connell gave no consideration whatsoever for any part or portion of said premises so purchased, but that the whole consideration paid therefor was paid by her husband out of his own money and property. The remaining portion of the complaint is taken up with reference to certain real estate situated in the state of Kansas, for which certain Denver property, not enumerated above, had been traded. There are allegations in this pleading charging the defendants Sheehan, Graves, and Conroy with conspiracy with the O'Connells to cover up the property in Kansas so as to hinder and delay the plaintiff in collecting his judgment; but, as the court below held that it had no jurisdiction over the property in Kansas, it is unnecessary to further consider the allegations in this respect. Plaintiff demands judgment-- First, that the said Katherine O'Connell be declared to be a trustee for said John O'Connell as to the lands described in the complaint; second, that she be required to convey said lands to her said husband, and that the same be sold to pay plaintiff's said judgment. The defendants Katherine O'Connell and John O'Connell filed separate answers to this amended complaint. These answers contained, inter alia, specific denials of each allegation of the complaint. A replication was thereafter filed. The cause was tried to the court on December 10, 1885, without a jury. Upon the conclusion of the trial the case was taken under advisement.

On March 5, 1885, certain findings of fact were made, and a decree entered thereon. By the first of such findings all the equities were determined in favor of plaintiff; also that the judgment was duly entered in favor of plaintiff, as alleged in the complaint. The court further finds that the said defendant John O'Connell was jointly interested with his wife, Katherine O'Connell, in boarding men working on the Rio Grande Railroad, and that they accumulated the sum of $8,000 in the enterprise, which went into the purchase of the property, the deed to which was taken in the name of the wife; that said John O'Connell had a certain interest in said...