Welch v. Brown

• Decision Date: 06 July 1909
• Citation: 46 Colo. 129,103 P. 296
• Parties: WELCH v. BROWN.
• Court: Colorado Supreme Court

103 P. 296

46 Colo. 129

WELCH v. BROWN.

Supreme Court of Colorado

July 6, 1909

Appeal from District Court, City and County of Denver; Booth M Malone, Judge.

Action by Minerva C. Welch against William G. Brown. Judgment for defendant, and plaintiff appeals. Affirmed.

Bonynge & Ritter, for appellant.

Waldron & Thompson, for appellee.

HILL J.

Appellant brought this action to recover $2,250, which was the sum received by the appellee from the sale of an interest in lands situate in Los Angeles county, Cal., owned by appellant, by her deeded to the appellee, which he sold for the above amount, and for which she claims to have received nothing. Trial was to the court without a jury, which made a finding of facts in substance that the property mentioned was deeded to appellee by appellant and A L. Welch, and was accepted under the following conditions: At the time of the making of said deed A. L. Welch (the husband of appellant) was indebted to the Western Bank (of which the appellee was president), and desired to obtain further credit from the said bank, and for the purpose of getting security for said indebtedness, as well as any indebtedness that might thereafter be incurred by him to the bank, the bank demanded of said A. L. Welch that he should give security for the purposes aforesaid. In compliance with said demand the said A. L. Welch caused the appellant to join with him in the execution of said deed to appellee as trustee for the said bank, with authority to appellee to sell the same, and use and apply the proceeds to moneys then owing, and which might thereafter become owing by said A. L. Welch to said bank. At the time of the making of said deed by appellant to appellee the appellee had no communication or understanding with the appellant and never at any time agreed with her, or on her behalf, or her account, to purchase said real estate from her or to pay her the proceeds or any part from any sale he might make of the property. Appellee never dealt with, or intended to deal with, the appellant in connection with said transaction, nor did he ever contract with her that she should receive any money whatsoever in the sale and disposal of said property, nor did he have any knowledge or belief that she had any other interest in said property than the mere legal title. The court further found that appellant was advised at the time of making said deed as to the purpose for which it had been demanded, and consented. She knew at the time the property was sold that it had been sold and for $2,250, and made no demand for the proceeds; knew it was being used for the purposes aforesaid, and made no objection to her husband using the proceeds of said property that in August, 1901, after she was advised the money had all been used by her husband for the benefit of himself, her, and her children, she gave no notice to said bank or said Brown that the said A. L. Welch had used it without her authority, in fact, she never made any demand upon the bank for said money, and never made any claim thereto until about the month of November, 1902. The court further found that by her silence and acquiescence in the use of said money by her husband she fully ratified and confirmed his acts, both in delivering said deed and in using the proceeds derived therefrom, upon which findings judgment was rendered in favor of the appellee from which the appellant appeals. The errors assigned, in substance, are that the judgment is contrary to both the law and the evidence, and that certain evidence was admitted which should have been rejected.

The uncontradicted evidence is that the property originally belonged to A. L. Welch (the former husband of the appellant), who executed a deed to her for it, without her knowledge and without any money consideration. The appellee was the president of the Western Bank, in which bank Mr. Welch had overdrawn his account some $1,500, which amount was unsecured. He was also owing the bank other sums, for which it held as collateral a deed to an interest in this same property. The appellee insisted upon protection to the bank for the overdrafts. Mr. Welch consented, and a few days thereafter returned with a quitclaim deed executed by appellant and himself to the appellee for this undivided interest in the property. The understanding between Brown and Welch was that he (Brown) was to sell it, together with the other interests held by the bank, and, when sold, the proceeds for this interest were to go to pay the overdrafts, and the balance to be placed to Mr. Welch's credit in the bank. Brown had been led to believe it was Welch's property, although the legal title stood in the name of Mrs. Welch. After making the sale, March 1, 1901, he paid the overdrafts from the proceeds and placed the remainder to Mr. Welch's credit, against which he (Welch) gave checks until it was finally checked out, September 12, 1901. At no time during this period had he (Brown) seen Mrs. Welch, and he never made any effort to ascertain her position concerning the transaction. A. L. Welch was the agent for the appellant, and the deed to Brown was given December 18, 1900; but the appellant never saw the appellee in reference to the property or porceeds until November, 1902, although she knew the property had been sold in the fall of 1901. The appellant and her husband had trouble in 1902, and were divorced in 1903. There was a conflict of evidence as to the other findings.

The first contention urged is that, as the deed of conveyance from A. L. Welch to Minerva C. Welch was absolute and contained no trust clause, the appellee could not show that the appellant held the property in trust for her husband, and the appellee, as a third person, could not attack the conveyance collaterally, as he attempted to do. Several Colorado cases are cited in support of the rule 'that, in the absence of fraud, an express trust cannot be established by parol testimony.' With this law we have no contention but the findings of the trial court were not that the property was that of the husband. The evidence was competent for the purpose for which it was introduced, namely, as to whether the appellant was advised at the time she signed the deed concerning the purposes for which...