39 Colo. 398 | Colo. | 1907
delivered tbe opinion of tbe court:
.Tbe plaintiff brought his action in the district court of El Paso county to quiet title to certain real estate situated in the city of Colorado Springs. In response to the complaint, the defendants answered by general denial, and, by further answer and cross-bill, the defendant Foster alleged that she purchased the property for a valuable consideration, having procured an assignment from the defendant Ellen Berrier of all her right, title and interest in and to a certain bond conditioned to convey the property; and, further, that the owners thereof executed to her, under said assignment, a warranty deed for the premises. The replication alleges that no consideration whatever was paid by said Alice Foster to said Ellen Berrier, and that he, the plaintiff, purchased said property from the owners thereof and caused them to make, execute and deliver to him a bond for a deed, and that the said Ellen Berrier’s name was, by his procurement, inserted in said bond as the purchaser, and that said Ellen Berrier held the legal title thus created for the plaintiff, and not otherwise; all of which facts the said defendant Alice
The court found that the plaintiff had paid all the money toward the purchase of said property under the bond for deed, and that he was the owner of the property, subject to certain mortgages and to a loan placed thereon by Alice Foster; that the said Alice Foster paid no money whatsoever to Ellen Berrier, and that, if she did pay any money to Ellen Berrier, she paid it with full knowledge and notice of the rights of the plaintiff and of his being in the undisputed possession at the time such money was paid.
Upon the trial the plaintiff testified: “We bought the property from Mr. Fortsen. We have had two conversations in regard to buying it, and I told Mr. Fortsen to go ahead, I would pay for- it. Annie Stockbridge and William Clark owned the property. I got a bond for a deed. Payments were to be made ten dollars a month. I was to have a deed when the lot was paid for. The bond was in Ellen Berrier’s name; this was done because I always wanted her to feel that she would have a home if I should drop off or anything of that kind— that she would have a home. We paid the bank ten dollars a month and interest on the ten dollars. I made four payments myself, and Mrs. Berrier made some. I furnished all the money for these payments. The money was furnished by me from my labors. I don’t know Mrs. Foster. Mrs. Berrier does not live at home now; don’t know where she is. She left home on the second of June last. I made the last payment on the second of June.”
Upon cross-examination he said: “The purchase was made April 1,1901. I told Mr. Fortsen to go ahead and sell the property, that I would pay for it; to sell to Mrs. Berrier, and I would pay for it.
Upon re-direct examination he said: “I and Mrs. Berrier were living on the lot at the time she left. I am still living there.”.
It does not appear in the pleadings that the plaintiff, S. B. Berrier, and the defendant, Ellen Berrier, were husband and wife, but from the plaintiff’s testimony it does so appear. The rule with respect to trusts resulting from the payment of the purchase price is not the same when such relationship exists as when the transaction is between strangers. In the case Rowe v. Johnson, 33 Colo. 469, this court, quoting with approval the language used by the court of appeals in Doll v. Gifford, 13 Colo. App. 67, said: “Ordinarily, all that is necessary to establish a prima facie resulting trust, is to show that the party seeking to enforce the trust paid the purchase money, and the law presumes that he intended to reap the benefits, although the title was taken in another’s name. But when title is taken in the name of a wife or child, or some other person for whom the one furnishing the money is under some natural, moral or legal obligation to provide, the presumption is that it was intended as a gift or advancement, and not as a trust. In the latter case, one seeking to establish a resulting trust must-show, not only that he paid the purchase money, but he must also show that he did not intend it as a gift or advancement. ’ ’
In this case, plaintiff’s own testimohy is that he
It is not contended by the plaintiff that there was any agreement between him and his wife that he should have any interest in the property, or that it should be occupied by them jointly. His statement is that, when he paid for the property and caused it to be conveyed to her, it was intended by him that it should be her home. This cannot be regarded as creating a trust, and we must hold that, when Berrier caused the property to be conveyed to his wife, it was intended by him as .a gift to her, and that she had absolute control and dominion over it.
The brief of counsel for appellee is devoted ' almost entirely to a discussion of the testimony relating to the transaction between Mrs. Berrier and the defendant Foster. The transaction between these two defendants bears evidence Of bad faith, and appears to be tainted with suspicious circumstances' and to bear many of the indicia of fraud, which' would result, probably, in setting the conveyance aside at the instance of the creditors of Mrs. Berrier, or at the instance of the plaintiff if he had any legal or equitable interest in the property; but as creditors
The judgment will be reversed. Reversed.
Mr. Justice Caswell and Mr. Justice Maxwell concur.