Thuringer v. Trafton

• Decision Date: 07 December 1914
• Docket Number: 7798.
• Citation: 58 Colo. 250,144 P. 866
• Court: Colorado Supreme Court
• Parties: THURINGER v. TRAFTON et al.

144 P. 866

58 Colo. 250

THURINGER v. TRAFTON et al.

No. 7798.

Supreme Court of Colorado

December 7, 1914

Error to District Court, Arapahoe County; Charles McCall, Judge.

Action to quiet title by Minnie E. Trafton against Charles W Thuringer, administrator of John Thuringer, deceased, in which Edwin B. Trafton was made a party as defendant to a cross-complaint. Decree for the plaintiff, and defendant brings error. Reversed and remanded, with directions to enter a decree for the defendant.

Melville, Sackett & Calvert, of Denver, for plaintiff in error.

Crump &amp Allen, of Denver, for defendant in error.

Statement of the Case.

GARRIGUES J.

September 8, 1908, defendant in error, Edwin B. Trafton, sold a tract of land in Idaho, upon which he and his wife had resided 15 years, for $4,500 cash, and on the same day he and his wife left for Denver, where they arrived on the 12th. On the 14th of September, 1908, he deposited to his credit in the Denver National Bank an Idaho bank draft for $4,275, which he had purchased with the proceeds of the sale, which was the only deposit he made in that bank. Soon after his arrival in Denver he purchased two tracts of real estate, one in Denver the other in Arapahoe county, paying for the latter with a check drawn against the account in the Denver bank; both deeds being taken in his name and recorded.

November 23, 1908, John Thuringer was seriously injured by an automobile driven by Edwin B. Trafton, and a few days later his son visited the Trafton home at Littleton for the purpose of adjusting the damages to his father caused by the injuries, but, finding no one at home, returned to Denver, and on the way met Trafton's wife. The conversation with her which followed being unsatisfactory to him, he told her that an action for damages would be instituted. December 4, 1908, Trafton deeded both tracts of land to his wife, gave a bill of sale of his automobile to his mother, withdrew his balance, amounting to $1,760, from the Denver bank, and opened an account in the Englewood bank in his wife's name, which he checked against as her agent--thus disposing of all his property.

December 24, 1908, suit was commenced by John Thuringer against Edwin B. Trafton, who told the officer serving the summons that he would not defend the suit; that if they thought they could get anything out of him, to 'go to it,' they were welcome to all they could get; that he was pretty smart, and could take care of himself. Mrs. Trafton heard this conversation. Thuringer obtained judgment against Trafton for $2,500, and thereafter such proceedings were had that the lands deeded by Trafton to his wife were sold upon execution to satisfy this judgment; Thuringer being the purchaser and in due time receiving and recording sheriff's deeds to the property. Trafton told the officer who made the levy he was only wasting his time; that the property had already been taken care of.

This action was brought July 23, 1910, by Minnie E. Trafton to remove the cloud caused by the sheriff's deeds from her recorded warranty deed title, and, on motion of Thuringer, Edwin B. Trafton was made a party, who Thuringer alleged in his cross-complaint to be the real owner of the lands in controversy, further alleging that he had voluntarily, without consideration, and with a view of concealing the title and to hinder, delay, and defraud creditors, conveyed the property to his wife, which conveyances were sham and fictitious, all of which she well knew. He asked that the deeds made by Trafton be declared fraudulent and void; that he be declared to be the real owner of the property; and that a decree be entered for its conveyance to Thuringer. The trial was to the court without a jury, and on March 15, 1912, it found plaintiff, Minnie E. Trafton, to be the owner in fee simple of the land in controversy; that defendant's cross-bill was without merit; that the sheriff's deeds to Thuringer were void and a cloud upon plaintiff's title; that defendant had wholly failed to sustain the allegations of fraud; it canceled the sheriff's deeds, and decreed plaintiff to be the owner of the premises. To review this judgment, Thuringer's representative brings the case here on error.

The Law.

1. The simple fact that plaintiff in error had not reduced his cause of action to judgment before Trafton made the transfers to his wife is immaterial. At that time he was a creditor within the meaning of section 2671, R. S., which provides, in substance, that every conveyance of any interest in land made with intent to hinder, delay, or defraud creditors shall be void. The object of this statute is to protect creditors, and it makes no difference whether their claims have been reduced to judgment or not at the time of the conveyance. Gregory v. Filbeck, 12 Colo. 379, 21 P. 489; Mulock v. Wilson, 19 Colo. 296, 35 P. 532; Fahey v. Fahey, 43 Colo. 354, 96 P. 251, 18 L.R.A. (N. S.) 1147, 127 Am.St.Rep. 118; House v. Johnson, 19 Colo.App. 524, 76 P. 743; Lowentrout v. Campbell, 130 Ill. 503, 22 N.E. 744.

2. In our state husband and wife may each own property just as separate and distinct from the other as they could if not married, may conduct business transactions concerning it, and make conveyances, one to the other, the same as if dealing with third persons. But the relationship between them is so intimate and confidential that when a debtor conveys property to his wife when he is insolvent, or if the transfer will render him insolvent, or prevent creditors from collecting their claims, and the conveyance is impeached or attacked by creditors, then the husband and wife are obliged to establish on the trial, by clear and satisfactory evidence, the honesty of the transaction; that it was made in good faith, for a valuable consideration, and without intent to hinder, delay, or defraud creditors. If they fail to do this, the conveyance will be set aside. Helm v. Brewster, 42 Colo. 25, 93 P. 1101; Tibbetts v. Terrill, 44 Colo. 94, 96 P. 978, 104 P. 605; First Nat. Bank v. Kavanagh, 7 Colo.App. 160, 43 P. 217.

3. The finding of a trial court is not necessarily binding on a court of review when it clearly appears from the whole record that such finding is wrong. The power of a court of review ought not to be left paralyzed so as to prevent a miscarriage of justice, merely by the erroneous findings of a trial court or the verdict of a jury. We have never refused to set aside such a verdict or finding when it is manifestly against the weight of the evidence and would result in a miscarriage of justice. Petite v. People, 8 Colo. 518, 9 P. 622; Caldwell v Willey, 16 Colo. 169, 26 P. 161; Nix v. First Nat. Bank, 23 Colo. 511, 48 P. 522; Rhode v. Steinmetz, 25 Colo. 308, 55 P. 814; D. & R. G. Co. v. Peterson, 30 Colo. 77, 69 P. 578, 97 Am.St.Rep. 76; D. & R. G. Co. v. Vitello, 34 Colo. 50, 81 P. 766; Shulze v. Shea, 37 Colo. 337, 86 P. 117; Rankin v. Cardillo, 38 Colo. 216, 88 P. 170; Wachsmuth v. Heil, 1 Colo.App. 196, 28 P. 17; Abbott v. Smith, 3 Colo.App. 264, 32 P. 843; Lamar Co. v. Craddock, 5 Colo.App. 203, 37 P. 950; Smith v....