Townsend v. Petersen

• Citation: 21 P. 619,12 Colo. 491
• Parties: TOWNSEND v. PETERSEN.
• Decision Date: 19 April 1889
• Court: Colorado Supreme Court

21 P. 619

12 Colo. 491

TOWNSEND v. PETERSEN.

Supreme Court of Colorado

April 19, 1889

Appeal from district court, Montrose county.

The appellee, as plaintiff below, commenced this action against the appellant, as defendant, alleging in his complaint that the plaintiff and defendant had been, and still were copartners in the mercantile business in the town of Montrose, Colo., and praying that certain real estate of which defendant held the legal title might be declared to be partnership property, for a dissolution fo the copartnership for an accounting, and for other relief. It appears that plaintiff had been the sole owner of said mercantile business, but that in January, 1883, he sold a half interest therein to defendant, and also conveyed to defendant a half interest in certain real estate in said town of Montrose; and thereupon the partnership was established, as alleged in the complaint. In May, 1883, plaintiff, being financially embarrassed, conveyed by deed his remaining half interest in said real estate, and by bill of sale all his interest in said partnership business and property, to defendant, and received therefor the sum of $975. Plaintiff contends that said sum was a loan; and that said deed and bill of sale were, and were intended to be, mortgages, as security for said loan; and that defendant executed an obligation in writing, agreeing to reconvey said property to plaintiff upon payment of said loan and interest. Defendant's amended answer contains several matters of defense, which, so far as they are essential to an understanding of the opinion, are to the following effect: (1) That the deed and bill of sale of May, 1883, were not intended as mortgages, but as absolute conveyances of both the real and the personal property; and that there was then and there a dissolution of the copartnership. (2) That the deed and bill of sale of May 1883, were absolute conveyances, in form and in fact; but that there was an agreement whereby plaintiff was entitled to repurchase at any time on or before six months, but not after wards, and that by the terms of said agreement time was, and was intended to be, of the essence of the contract, and that plaintiff failed to repurchase within the specified time. (3) That said deed and bill of sale were executed with intent on the part of plaintiff to cheat, hinder, delay, and defraud his creditors; and therefore plaintiff is estopped and precluded from asserting any claim to said property, or any part thereof. Plaintiff took issue upon the new matters alleged in the answer, and the cause was referred, 'to ascertain whether there had been any dissolution of partnership, any settlement of their affairs, and whether the conveyance in question was to be construed as a mortgage, or as an absolute conveyance of the property.' The findings by the referee were favorable to plaintiff. There was no finding upon the defense setting up the statute of frauds though evidence was taken thereon and reported by the referee. On exceptions to the report, the court held that the defendant could not take advantage of the statute of frauds as a defense to plaintiff's action, overruled the exceptions, and confirmed the report, subject to certain modifications on final hearing. The defendant appeals.

Act Colo. April 23, 1885, § 1, provides that 'the supreme court has appellate jurisdiction over all, and decisions of all, other courts of record, as well as in case of civil actions as in proceedings of a special or independent character. * * *' Section 2 declares that 'an appeal may also be taken to the supreme court from the following orders: * * * (1) An order made affecting a substantial right, in an action where such order in effect determines the action and prevents a judgment from which an appeal might be taken. * * *' By Code Civil Proc. Colo. § 263, 'a mortgage shall not be deemed a conveyance, whatever its terms, so as to enable the owner of the mortgage to recover possession of the real property without foreclosure and sale, and the fact of a deed being a mortgage in effect may be proved by oral testimony. * * *'

T. J. Black, S. H. Baker, and Brown & Putnam, for appellant.

N. G. Clark, for appellee.

ELLIOTT J., ( after stating the facts.)

This is an appeal from an interlocutory judgment or order overruling the exceptions to the report of the referee and confirming such report as to certain matters. The order of confirmation was in effect a final adjudication as to all those matters at issue wherein the findings of the referee were sustained by the court, to-wit: That the quitclaim deed and bill of sale of May, 1883, by plaintiff to defendant were given as mortgages to secure a debt of $975, with interest at 15 per cent. per annum; that there has been no dissolution of copartnership between plaintiff and defendant, and no settlement or accounting concerning the partnership property. Under the act of April 23, 1885, this was undoubtedly an appealable order, notwithstanding the interlocutory decision of the trial court, to the effect that certain findings of the referee were 'not conclusive,' but would be 'subject to review and revision upon the final hearing of the case.' The trial court also held that the defense of the statute of frauds was not of itself available in behalf of the defendant in a case of this kind. The assignments of error relate principally to the sufficiency of the evidence to support the findings of the referee, and to the ruling of the court as to the sufficiency of the defense of the...