Wedman v. Carpenter

• Decision Date: 06 May 1918
• Docket Number: 8817.
• Citation: 173 P. 57,65 Colo. 63
• Parties: WEDMAN et al. v. CARPENTER et al.
• Court: Colorado Supreme Court

173 P. 57

65 Colo. 63

WEDMAN et al. v. CARPENTER et al.

No. 8817.

Supreme Court of Colorado, En Banc.

May 6, 1918

Error to District Court, Alamosa County; Jesse C. Wiley, Judge.

Suit by Louie Wedman against C. Carpenter, Geo. J. Hills, Annie Hills, Winfield Marvel, H. M. Carpenter, W. J. Spelts, the Rio Grande Home Company, a corporation, Arch F. Ayers Charles D. Hayt, Jr., Charles W. Fowler, and Mariah J Marvel. Judgment for defendants Winfield Marvel and Mariah J Marvel as against the plaintiff, and for the plaintiff against Charles D. Hayt, Jr., and plaintiff and Charles D Hayt, Jr., bring error. Charles D. Hayt and Julia Hayt, as his sole heirs, were substituted for Charles D. Hayt, Jr. Affirmed in part, and reversed in part, with instructions.

Charles M. Corlett and George M. Corlett, both of Monte Vista, and Arthur Houston, for plaintiff in error Wedman.

Chas. D. Hayt, Jr., of Denver, pro se.

Albert L. Moses, of Alamosa, for defendant in error Mariah J. Marvel.

SCOTT J.

The plaintiff was the owner of lands described as the south half of section 31, township 38 north, of range 9 east, in Conejos county, subject to an incumbrance of $2,500. On February 11, 1911, plaintiff sold and conveyed the lands by warranty deed to C. Carpenter, subject to the mortgage upon which had then been paid the sum of $1,000. Carpenter, as a part of the purchase price, executed and delivered to plaintiff a deed of trust to the public trustee, to secure a sum represented by three notes payable to plaintiff and due at different times, aggregating the sum of $3,400. It was intended by the parties that the deed of trust was to cover the identical lands purchased, but by error of the scrivener, the deed was made to cover the south half of section 31, township 37 north, of range 9 east, instead of township 38, as was intended. All instruments were properly recorded.

Subsequently Carpenter sold the southwest one-quarter of section 31, township 38 north, of range 9 east to Geo. J. Hills, subject to one-half of the amount secured by the two mortgages, then supposed to cover the entire half section of land. Later the said Hills sold the said southwest quarter section to Winfield Marvel, and conveyed the same by warranty deed without mention in the deed, of the Wedman indebtedness, or the trust deed given to secure it. Subsequently, and before the institution of this suit, Marvel died, and under his will his widow became the legal holder of the tract. On the 21st day of October, 1913, in the district court of Conejos county, Chas. D. Hayt, plaintiff in error, obtained a judgment against Carpenter and another, in the sum of $2,218.33. October 25, 1913, a duly certified transcript of said judgment was filed with the clerk and recorder of Conejos county, and it is claimed that judgment became a lien on the real estate of Carpenter, particularly the south half of section 31, township 38 north, of range 9 east.

This suit was instituted the December, 1913, and is to reform the trust deed, so as to conform to the description of the lands intended by the parties at the time, and to foreclose said trust deed as a mortgage, upon the lands so intended to be described therein. The contention of the plaintiff is that his claim under the trust deed is superior to the claim of Marvel under the deed, and likewise to that of Hayt under his judgment lien. All parties thereto, except Hayt, were nonresidents of the state of Colorado at the time of the several transactions. The court found that Marvel was an innocent purchaser in good faith, and rendered judgment in favor of Mrs. Marvel, from which the plaintiff has sued out his writ of error. The court further found that Hayt had full notice of the claim of plaintiff, and the mistake made in the trust deed, and that therefore his interests were subject to the claim of plaintiff under the trust deed, which he caused to be reformed by the judgment in favor of plaintiff and against Hayt, who sues out his writ of error as relates to this part of the judgment.

The testimony is clear that Marvel had no sort of actual notice of the existence of the trust deed at the time of his purchase and that he acted in entire good faith. There is not a scintilla of testimony to indicate that Hayt had actual notice of the existence of the mortgage at the time of filing his transcript of judgment, so that the court could only have...