Wilson v. Giem, 12944.

• Decision Date: 23 November 1931
• Docket Number: 12944.
• Citation: 5 P.2d 880,90 Colo. 27
• Parties: WILSON et al. v. GIEM.
• Court: Colorado Supreme Court

5 P.2d 880

90 Colo. 27

WILSON et al. v. GIEM.

No. 12944.

Supreme Court of Colorado

November 23, 1931

In Department.

Error to District Court, El Paso County; John C. Young, Judge.

Action by Maud Grace Giem against J. P. Wilson and another. From a judgment against named defendant, he brings error and asks for a supersedeas.

Affirmed.

Thomas Purcell, of Colorado Springs, for plaintiff in error.

H. T McGarry, of Colorado Springs, for defendant in error.

ADAMS, C.J.

Maud Grace Giem sued J. P. Wilson and C. C. Lane to have a deed to certain lands, absolute on its face, with an option to purchase the property, declared to be a mortgage. The cause was tried to the court; judgment was for plaintiff against Wilson on all issues; the case was dismissed as to Lane. Wilson assigns error and asks for a supersedeas. We refer to Giem as plaintiff and to Wilson as defendant, as in the trial court.

Bills in equity for the purpose of having deeds absolute on their face declared to be mortgages in effect are common. They are sanctioned by our Code of Civil Procedure, and have been upheld by numerous decisions. Section 281, Code 1921; Ver Straten v. Worth, 79 Colo. 30, 243 P. 1104; Hawkins v. Elston, 58 Colo. 400, 412, 146 P. 254; Reitze v Humphreys, 53 Colo. 117, 182, 125 P. 518; Blackstock v. Robertson, 42 Colo. 472, 474, 94 P. 336. 'Equity has to do with the substance and reality of a transaction--not the form and appearance which it may be made to assume.' Reitze v. Humphreys, supra, 53 Colo at page 182, 125 P. 518, 520.

No error is assigned on the admission or rejection of any evidence, and we confine the discussion to the errors alleged. Defendant avers that the findings, judgment, and decree are contrary to the evidence, but all essential allegations of the complaint as amended were sustained by ample proof. It would serve no useful purpose to recite the affirmative and negative testimony; it would tend only to show its conflicting character, with the preponderance in plaintiff's favor. A rule that we have occasion to employ perhaps more frequently than any other is that findings of the trial court supported by competent evidence will not be disturbed on review. It was used in Ver Straten v. Worth supra, where a quitclaim deed to land, absolute on its face, was held to be in fact a mortgage.

It is assigned as error that the record shows the findings judgment, and decree to be the result of passion and prejudice, but the carefully prepared instrument signed by the learned trial judge indicates the opposite. It gives plaintiff only that to which she is entitled; it calls for the payment to defendant Wilson of all that is due him; it denies damages to either party; it is prefaced by sufficient pleadings and...