75 Colo. 414 | Colo. | 1924
delivered the opinion of the court.
The plaintiff Luisita Chavez is the daughter of Louis F. Romero and his wife. When the child was about nine months of age her parents “gave” her to Fructuoso M. Chavez and Refugio C. Chavez, his wife, but she has not been legally adopted. She is in law still the daughter of Mr. and Mrs. Romero. Ever since the gift she has lived with, and been supported by, Mr. and Mrs. Chavez, making occasional visits to her own father and mother. The relation, however, is that of parent and child and has been so considered by her own parents and the Chavez family. Apparently there was some indefinite understanding that Chavez and his wife would at sometime transfer to the child property, but the value was not agreed upon and just what was the arrangement is not clear. However, in the year 1918, there is testimony that there was an epidemic in the county where the Chavez family lived, and fearing that one or both might become victims, and because of the understanding about transferring property, Chavez and his wife made a gift to her of an automobile, a piano and various other articles of property, which was evidenced by what is called a bill of sale. It is doubtful if the written instrument was delivered to the child, but that is not of much importance. .There was no actual or a symbolical
Section 5113, C. LV 1921, of our statute of frauds makes it imperative that every sale by a vendor of goods and chattels in his possession be accompanied by an immediate delivery and be followed by an actual and continued change of possession of the things sold, otherwise it will be presumed fraudulent and void as against the creditors of the vendor or subsequent purchasers in good faith, and this presumption shall be conclusive. The statute applies to a gift as well as to a sale. In a series of cases in this court, beginning with Wilcoxen v. Morgan, 2 Colo. 473, followed
In the Bassinger Case we said that statutes substantially like ours are found in California, Nevada, Montana, Vermont and Connecticut. The decisions of those courts are the same as our own. We are unable to determine from the cases from Georgia, and the other states referred to, whether the statutes are like ours, but the presumption is that they are different. But whatever the rule in other jurisdictions, this court is committed to the doctrine, which we deem applicable to the case in hand, which forbids explanation or inquiry into the good faith of the transaction, and which brings within the general rule a case where the vendor or donor is the parent and the vendee or donee is his minor child living with him. Indeed, in 1 Freeman on Executions, (3d Ed.), § 155, p. 748, the learned author quotes with approval the following: “The fact that a vendor and vendee are husband and wife or father and child is no reason why the provisions of the statute should receive a more liberal construction. These conditions give the statute no additional elasticity. The rule of construction is the same in all cases, and the relation between the
The trial court apparently rested its decision solely upon the proposition that there was no immediate delivery of this gift and no continued or any change of possession. There is'enough evidence in the record to justify the finding of the trial court, even though there may have been some conflict, that the donor was insolvent at the time of the gift and that the plaintiff bank was then a creditor. The defendant further contends that there was present a deliberate intent to defraud creditors, or fraud in fact. It is doubtful if that issue is raised by the pleadings, although the evidence responsive to the issues properly in the case, tends to show fraud in fact. We shall not, however, enter upon the investigation of this contention or definitely pass upon it, since our conclusion is that the gift is void under our statute. It is not inappropriate to say that there are some suspicious circumstances disclosed in the record which indicate an attempt of the donor to defraud existing, as well as subsequent, creditors, and if the issue as to fraud had been definitely raised below, we can not say that the judgment of the trial court might not have been also sustained because of an intent to defraud creditors.
The application for supersedeas is denied and the judgment of the court is affirmed.