Toll v. Casey

• Decision Date: 14 November 1932
• Docket Number: 12884.
• Parties: TOLL v. CASEY et al.
• Court: Colorado Supreme Court

18 P.2d 310

92 Colo. 12

TOLL v. CASEY et al.

No. 12884.

Supreme Court of Colorado, En Banc.

November 14, 1932

Rehearing Denied Dec. 12, 1932.

Error to District Court, City and County of Denver; Samuel W Johnson, Judge.

Action by Oilver W. Toll against George W. Casey and another. Following the receipt of remittitur after a former appeal plaintiff's petition seeking to broaden the issues and introduce a new party defendant was denied, and plaintiff brings error.

Affirmed.

Oilver W. Toll, of Denver, pro se.

Ewing &amp Arnold, of Denver, for defendants in error.

HILLIARD J.

This review grows out of the refusal of the trial court, on receipt of remittitur from this court in Toll v. Peck Trustee, et al., 88 Colo. 582, 299 P. 14, to allow Toll to broaden the issues and introduce a Mrs. McKenzie as a party defendant. The facts are stated in the opinion on the former examination, but to make this opinion complete it is necessary to retell the story, at least in part. It appears that one Charles D. McKenzie purchased real property in Denver to which he received warranty deed; that the purchase price, $8,200, with the exception of $200, or $8,000, McKenzie borrowed from Casey, the only defendant in error materially interested in this litigation, to secure which McKenzie made Casey beneficiary in a deed of trust on the property, running to defendant in error Peck, as public trustee; that the trust deed was recorded timely, but for some unexplained reason McKenzie's title deed was never recorded; that some three years after the original transaction McKenzie, who had reduced his debt to Casey to $5,000, departed this life, leaving surviving his widow and two minor children; that, after the death of McKenzie, Casey went to the assistance of Mrs. McKenzie in an endeavor to ascertain the condition of her husband's affairs, and for the first time they became advised that the deed to McKenzie had not been recorded. The circumstances thus appearing, and the grantor to McKenzie continuing in being, Casey, a layman, not in bad faith, as we perceive, but in mistaken judgment, conceived that, if the grantor to McKenzie were willing, a friendly service would be to procure from her a deed to Mrs. McKenzie in exchange for the surrender and destruction of the earlier unrecorded deed. Such grantor acquiesced, received back the deed which she had given to McKenzie, and executed a new one to Mrs. McKenzie; that Casey then released the original trust deed given by McKenzie, and took from Mrs. McKenzie her note in the sum of the balance mentioned, to secure which she executed a trust deed on the property involved. Subsequently Toll bought the property from Mrs. McKenzie, received her warranty deed, subject to the Casey incumbrance, and paid Mrs. McKenzie the difference between the incumbrance and the purchase price. Soon after Toll became the owner he paid $1,000 on the Casey loan, and, while he and Casey were talking, the latter related how he had effected a simple and inexpensive solution of the disposition of the McKenzie estate, confiding to Toll the facts we have narrated. Toll was concerned and lost no time in explaining to Casey, and Mrs. McKenzie as well, that what had been done was potentially inimical to him, as well as in violation of the rights of the McKenzie minor children, and demanded that at their own expense they proceed to...