2 Colo. App. 271 | Colo. Ct. App. | 1892
after stating the case, delivered the opinion of the court.
The whole controversy is as to the priority of the lien obtained by the writ of attachment over the unrecorded deed
The conveyances from Johnson to Peter Campbell, from Peter back to Johnson, and from Johnson to William Campbell are shown by William’s testimony and found by the court to have been voltintary conveyances without any consideration, and made with the knowledge and consent of William Campbell.
The court finds that at the time of the levy of the writ the bank, which is the appellant, had no notice whatever of the existence or the execution of the deed from Johnson to William Campbell; it further finds that the bank had notice
To establish William Campbell’s interest in the claim it was necessary for him to prove the payment of the money to Johnson for the location and development of the property. An agreement between William Campbell and Johnson with reference to the location of the Sierra Nevada mine was never proven. There was no evidence as to the exact terms of any contract between Johnson and Campbell made before the location of the mine. Campbell states Johnson was his agent, going about from one camp to another; but the provisions of the agency are not given, nor is it settled by Campbell’s testimony what it was. To establish his title to the interest levied on, he gives evidence that he advanced all the money which Johnson used from 1878 tip to 1880, and that he substantially paid all the expenses of working the Sierra Nevada. Johnson does not appear to have been exclusively occupied as Campbell’s agent. He was interested with and for other parties, and at various times was shown to have been in possession of considerable money. According to Johnson’s own statements which were proven by the intervenor, the interest in the Sierra Nevada mine which he had located was not the sole property of Campbell, but was jointly owned by both those parties. The payments which were made prior to 1882 are not clearly established. It was undoubtedly proven by
The court below held that the deed by Johnson to Campbell was a valid conveyance, and that when the bank levied its writ it might have learned from the intervenor the situation of the title and that therefore it was chargeable with notice of the unrecorded deed and took nothing by the levy. The attachment was dissolved and judgment was entered in favor of the intervenor.
This somewhat complex history clearly outlines the three propositions which must be considered and determined.
First: What title was acquired by Albert Johnson when he located the “ Sierra Nevada ” lode, and was his title affected by any trust or equitable right in favor of the intervenor Campbell.
Second: If it be demonstrated or conceded, ex gratia, that Johnson held the interest charged with an equitable obligation in favor of Campbell, was it discharged of the relation as to the attaching creditor by the subsequent acts of transfer between Johnson, Peter Campbell and William, his brother.
Third: Was the bank legally chargeable with notice of the unrecorded deed from Johnson to William Campbell, or, if without notice, was it possessed of information which would have led to knowledge if due credit had been given it.
The Sierra Nevada mine was located in September, 1879, by Obey, Tipton and Johnson. The location certificate appears to have been filed on the 10th of September, and to have been followed by sundry conveyances between the various locators whereby Johnson’s ultimate interest in the property according to the record was one fourth. These are the only facts concerning the title which can be said to be free
The equitable interest which the intervenor relies on to support his title against the attachment cannot be upheld. In whatever aspect the case is viewed it lacks some of the essential elements which must always be present to support such a claim.
The averments of the bill respecting the agency are wholly unsupported by the proofs, and the evidence will not uphold the theory of a resulting trust. The intervenor is necessarily thrown back upon his rights under the unrecorded deed from Johnson. His claim under that deed is wholly dependent on the law of notice, and on what the testimony discloses to that point. A very slight reference to the allegations of the pleading filed by Campbell and to the proofs he offered will serve to show the complete departure in the supporting testimony from the case as laid. It was charged that whatever Johnson did was under the express agreement between Johnson and Campbell that the interest “ in the mining claim should be located in the name of Albert J. Johnson, but was and should be the property of and belonging to your petitioner,” No other significance can be given to this averment than what must always attach to an allegation of an express contract. It is indifferent whether the agreement rest in parol, or is preserved in apt writings which
If a complete departure from such a well settled rule ought to be permitted when a judgment has been entered which is in complete and evident harmony with the rights and equities of the parties, the present case furnishes no foundation which warrants the deviation. There was no express contract between Johnson and Campbell out of which a trust could spring, and by which it was competently proved. None can be said to result from the relation which Johnson and Campbell held to each other, and from what was done by both or either.
The notion of an express trust which our statute requires to be evidenced and proved by a writing can be discarded. What comes under the well recognized and established idea of a resulting trust is alone to be considered. The statute has been so often evaded by judicial construction that this doctrine must be taken as incorporated into the enactment. Nothing is left save to require that what may be called the judicial requisites be present in all their exactness and to their full decided extent.
The familiar illustration of the purchase of property for
Tested by these rules the case now under consideration cannot be brought within the doctrines of resulting trusts, and on that theory the intervenor must fail. No part of the proofs essential to the creation of such an equitable right comes up to the standard fixed by all the authorities. If the agency contended for be conceded, the recovery may not be upheld. There was no evidence that the agent put his principal’s money into the location at the time the mining title accrued, nor that any of it went into the work which preceded the location and formed the basis of the title. This is a sine qua non — -the trust must arise at the time the title is transferred. It is not enough that long before, and for a definite named period, the agent had no funds save what the intervenor furnished. An agreement afterwards to locate, and hold for the loaner, will not do. The money which gets the title must then have come from the claimant. It must be traced into the property and its identity be certain in the changed form. There was no evidence which even tended to prove that what located the claim, provided for the discovery work and antedated the title, was the money of the intervenor. That all subsequent expenses were traceable to him is not of any moment. It neither aids nor retards his recovery. Proof of it was inadmissible unless in some way it was so connected with the prerequisite payments as to tend to substantiate that branch of the case. .General evidence that the claimant furnished the purchase money; that the purchaser was impecunious; that so far as the claimant knows the purchaser had no funds save what lie was furnished by the cestui que trust does not fulfill the requirements as
The subsequent transactions between the various parties prevent the application of the law of trusts to support the decree. Johnson held the title to one fourth of the Sierra Nevada lode from the time of its location, September 8, 1879, to the date of his transfer to Peter Campbell, August 6, 1883. Whatever may be the entire history of this transfer, or the motives on Johnson’s part which led him to execute the deed, it is sufficient for the purposes of the present inquiry to state the intervenor’s story and contention concerning it. It was executed at his request. He is thus bound by whatever legal consequences may attach to it, if he then had an equitable right to the property. The deed was a voluntary conveyance. At its date there was a litigation in prospect with the Iron Mining Company, an owner of the adjacent property. The deed was made solely with reference to the probable suits with that company. The transfer was to avoid the possible jurisdiction of the federal courts which would attach under the law if the title were either in Johnson, or the eestui que trust, William L. Campbell. Peter was a resident of the District of Columbia, and any suit between the Iron Mining Company and the thus ostensible owner of the Sierra Nevada could not be brought within the federal jurisdiction. The effect of the transfer was to ren
An equally insuperable difficulty springs from the later deed from Peter back to Johnson. The title remained in Peter to September 13, 1884. He then became embarrassed. To prevent his creditors from reaching the title which was in him, the property was re-deeded by William, under a power of attorney which he held from Peter, back to Johnson. If Peter took the property discharged of the trust with which it was burdened in Johnson’s hands, Johnson retook the title unincumbered by the obligation. He took it unembarrassed by the equity, whether or not this be true, and no trust arose at the time of the conveyance. No money of the intervenors then passed, for it was a voluntary conveyance. By William’s consent it was conveyed to Peter, who took it discharged of its obligation, and when it passed to Johnson it was equally free. Besides, since William presumably permitted Peter to claim credit on the faith of his ownership the property might be subject to Peter’s debts, and to transfer it to Johnson to avoid the rights of Peter’s creditors, which was the declared purpose of that particular transfer, would, under all the cases, relieve the title of any trust which William could enforce in a court of equity. No trust can ever result to a grantor when his conveyance is made for a colorable, illegal or fraudulent purpose. Perry on Trusts, vol. 1, § 165; Miller v. Davis, 50 Mo. 572; Tipton v. Powell, 2 Caldwell, 19; Ownes v. Ownes, 23 N. J. Eq. 60.
This disposes of all the questions needful to be considered, save what arises on a consideration of the rights of William L. Campbell as the holder of his unrecorded deed from Johnson, dated December' 7,1885, and recorded some ten days later than the levy of the writ under which the bank claims.
There has for many years been a great deal of diversity among the courts in determining the effect of notice to an agent, and deciding when the principal will be bound by the knowledge acquired or possessed by his representative. There ought to be a marked difference in the adequacy of the information to put a purchaser on inquiry, and the sufficiency of that which will charge an attaching creditor with notice and be held to bind him. Investigation always preceded the purchase, and none the levy. The situation of the present controversy does not require us to put the case on this ground. It is less liable to criticism, and beyond dispute in this state if it is rested on this ground; the only notice or knowledge proven is that communicated to the plaintiff’s agent, or officer, and it was not shown to be present to the agent’s mind at the time of the levy, and the circumstances were not such as to bring it presumptively within his recollection at the time of the transaction. The broader cases which hold that the information must come to the agent at the time of the particular transaction, as in Houseman v. Girard, M. B. & L. Association, 81 Pa. St. 256, have much in reason and principle to commend them. But the rule first indicated is comprehensive enough to be decisive of this case, and has received the sanction of our own supreme court. Armstrong v. Abbott, 11 Colo. 220; The Distilled Spirits, 11 Wall. 356.
The deed of Johnson to Campbell was dated December 1, 1885. The levy was in September, 1886. The notice which it is contended was possessed by the bank was obtained by D. H. Moffat, its president, from sundry conversations with William L. and Peter, his brother. The accuracy of their recollection maybe conceded and still the case is not brought within the principle. The first statement about the matter was made at the time of the sale of the “ Louisville ” to Moffat in December, 1888; the next was about the same time and seems, as narrated, to have been a detailed notice by
There are other errors assigned and argued which would require consideration if the case had not been reversed on these principal grounds. It was clearly error to permit the intervenor to introduce his books of account relating to transactions long subsequent to the time when the trust was claimed to have been created, and which in no manner tended to support the intervenor’s contention respecting the title. The declarations of Johnson concerning the title after the mine had been located, though they strongly tended to support the theory that he had an interest which, if shown, would cast on the intervenor the burden of proving what aliquot part he had paid for, were clearly inadmissible as testimony for the claimant. Further expression of the basis of these conclusions is wholly unnecessary, since the errors are not likely to re-occur on the succeeding trial.
For the reasons expressed, this cause is reversed and remanded for a new trial in conformity with this opinion.
Reversed.