Wilcoxen v. Morgan

• Decision Date: 01 February 1875
• Citation: 2 Colo. 473
• Parties: WILCOXEN v. MORGAN.
• Court: Colorado Supreme Court

2 Colo. 473

WILCOXEN v. MORGAN.

Supreme Court of Colorado

February, 1875

Error to District Court, Gilpin County.

THIS was an action of unlawful detainer in the district court of Gilpin county. The plaintiff alleged that Belle Cable, on the 18th of October, 1870, recovered in a justice's court a judgment against James R. Grant for the sum of $170 and costs. That execution was issued and returned, no property found. That transcript of the judgment was filed in the clerk's office of the district court December 9, 1870 and that execution was issued out of the district court thereon, December 14, 1870. That the execution was levied on the property described, on the 19th of January, 1871, and that the same was sold to the plaintiff under said execution February 11, 1871; that plaintiff obtained a sheriff's deed for the property, November 22, 1871. That plaintiff demanded the possession of the property on the 19th of March 1872, and that since the execution of the sheriff's deed and the service of notice, he, the plaintiff, had been entitled to the possession of the premises. The defendant answered and the cause was brought to trial before the court without a jury.

At the trial, the plaintiff gave evidence of the judgment, the execution and the sale of the property and the conveyance by sheriff's deed to him as mentioned in the complaint. He also proved the demand for possession, and the occupancy by defendant of the premises. The defendant put in evidence a warranty deed for the property in dispute, from James R. Grant to Daniel Grant, dated November 6, 1869, which, it will be observed, was nearly a year prior to the recovery of the Cable judgment. The defendant also produced a deed from Daniel Grant to himself, dated February 7, 1871, for the same property. The defendant testified in his own behalf that he obtained possession of the premises at the date of the purchase from Daniel Grant, and that he knew nothing of the deed from James to Daniel Grant being fraudulent. That he agreed to pay $500 for the property, of which $250 was to be applied in satisfaction of James Grant's debts to third parties. In rebuttal, the plaintiff called a witness, who stated that he drew the deed from James R. to Daniel Grant, at the request of James. Plaintiff's counsel then asked, 'what was said at the time,' and defendant objected to the question. The objection was overruled, and the witness answered:

'The deed was made in the evening; during the day James Grant asked me to make out a warranty deed for him; I asked him if he had been making a sale; he said no; said he had got in debt and was afraid they would take his property; he said he wanted to put his property in his brother's name; he wanted all his property embraced in the deed, including the blacksmith tools; all was put in; I drew up the deed and took the acknowledgment; he also wanted a power of attorney from his brother to him, so he could use and dispose of the property as if no conveyance had been made; he did not want anybody to know of the sale unless they went to the record; I drew up the power of attorney, and gave directions about the acknowledgment of it; it was a general power, giving James right to lease or sell or do what he pleased with it; I gave the deed and power of attorney to James Grant, and he got the deed recorded; James said he made the deed for the purpose of putting his property out of the reach of his creditors; he mentioned Sarah J. Malloy as one; she had commenced suit when the deed was made; I know Robert Wilson had his note for about $400; it was due; think he mentioned other creditors; don't remember their names; Dan. Grant was not present when the deed from James was made; he had never been in the Territory; he lived at Providence, R. I.; no one was present to represent Daniel Grant; no money was paid.'

Plaintiff also called another witness, who testified that he had a conversation with the defendant about the Cable judgment the day before the defendant purchased of Daniel Grant; that in the conversation the defendant stated that he did not fear that judgment, for they could not sell the property under that. This witness also stated, that James R. Grant was in possession of the property from the fall of 1866, until, and at the time of the sale by Daniel to defendant; that the defendant occupied the property, with one Gilbert, and paid the rent therefor to James Grant; that James always claimed to own the property, until the sale to defendant. Plaintiff called another witness, who testified as follows: 'That he was present at the sale, from Daniel Grant to defendant, and that he drew the papers to effect the transfer; mortgage given for part of the purchase-money; made the papers and did the business; I heard a conversation between defendant and Dan. Grant about the time to be given for paying the mortgage; it occurred when the note was being drawn; Morgan asked of Dan. more time for payment; Dan. objected to this, saying, if the business was for himself he would give more time, but it was for another person, and therefore he could not do so; this is as near the language as I now remember; in addition to the declaration of Dan. that he was selling the property for another person, I had reasons for believing he was acting for James R. Grant, who had owned the property; James had left Colorado at the time of the sale; I believed, from circumstances with which I was then familiar, that a conveyance had been made by James to Dan. Grant for the purpose of avoiding payment of debts.'

The plaintiff, himself, testified in rebuttal:

'About February 1st, 1871, John Liss and Dan. Grant came to my office; Dan was trying to sell the property described in the deed to him; he was...