First National Bank v. Roper, 238 P. 63

First National Bank v. Roper

238 P. 63 | Colo. | 1925

THIS is an action by a judgment creditor against A. L. Roper, the judgment debtor, Ida M. Roper, and Ella M. Browning, to set aside a deed given by A. L. Roper to defendant Browning, conveying a quarter section of land. It is alleged in the complaint that the deed was made for the purpose of hindering and delaying plaintiff in the collection of his judgment debt, and without any consideration.

The amended answer denied fraud and pleaded consideration for the deed. Upon trial to the court, without a jury, the issues were found in favor of defendants and judgment was entered accordingly. Plaintiff sued out this writ, and applies for a supersedeas.

It is contended that it was error to render judgment for defendants upon the evidence. A. L. Roper's grantee was his sister-in-law. This circumstance cast upon defendants the burden to establish clearly that the transaction was honest and that there was no intent to hinder and defraud the creditor. Chalupa v. Preston, 65 Colo. 400, 407,177 P. 965. The deed recites that the consideration is $6,500, and that it is subject to a mortgage of $2,500. It was executed on May 9, 1924. The evidence shows that on September 1, 1919, Roper gave Ella M. Browning a note and mortgage in the sum of $4,000; that on August 11, 1919, Roper received from some source the sum of $4,000, and that at that time defendant Browning was contemplating loaning, and may have loaned, him the sum of $4,000. While this evidence was admissible on the issue of consideration, it was not sufficient because it was *3 not connected with the consideration expressed in the conveyance involved in this suit. 27 C. J. 813. Neither Roper nor Browning testified at the trial. No one testified what was the consideration for the deed. For defendants' failure to offer sufficient proof to explain the transaction, the judgment is reversed and the cause remanded for new trial.

MR. JUSTICE DENISON and MR. JUSTICE WHITFORD concur.