14 Colo. App. 258 | Colo. Ct. App. | 1900
Herein a bill was filed by Mrs. Fox and her children on behalf of themselves and other creditors who might come in against Mrs. Lipe and sundry other persons as administrator and heirs at law of Clark Lipe, to enforce the collection of a judgment which had been obtained in Illinois against Lipe, and charge it on some real estate in Denver which had been bought by Mrs. Lipe, as alleged, with money furnished her or given to her by her husband about the time of the purchase in 1883. The theory of the bill was that a constructive trust arose because the consideration was furnished by the husband, and the title taken in the name of the wife. It was averred she purchased it with these funds to prevent the
The bill nowhere alleged that Lipe was insolvent when he gave the money to his wife, nor that the gift rendered him insolvent and unable to pay, nor was there any adequate allegation respecting the discovery of the alleged fraud. The only thing on the subject is a general statement “ that three years had not elapsed since the discovery of the fraud and the said conveyances to Elizabeth Lipe.” There is an indefinite allegation that the plaintiffs were not in position to inquire about the facts or obtain relief and they were not advised until the inventory was filed that the property would not be included in the estate. The plaintiffs produced the testimony which Lipe gave on the hearing in the main suit in Chicago, either in the form of a deposition or as testimony taken on the hearing. Therefrom it appears that at the time he gave his wife the money in 1883 or 1884 he was a man of large means and had over $100,000 left in cash besides a large amount of unincumbered personal property. Whether the claim which he had against the Rio Grande Company which amounted to $80,000 was included in what he had left is not quite apparent, nor are we at all certain the amount of his fortune subsequent to the gift did not exceed $200,000 over and above any possible claims or debts. According to the evidence by which the plaintiffs are concluded since they offered it, he owed no debts unless it be conceded he owed this claim which was ultimately established by the decree for the accounting. It therefore very plainly appears when Lipe made the gift he was a man of fortune and put but a portion of his funds in the hands of Mrs. Lipe for her benefit and the benefit of the children.
There are several questions suggested by the defendants and very fully argued in the briefs of both counsel, which to our minds dispose of the contention that the judgment is erroneous. In the first place it is well settled in this state
It is equally clear there was no adequate averment about .the discovery of the alleged fraud. Bills for relief on the ground of fraud must be filed within three years from the date of discovery. Parties who rely on such fraud and upon the failure to discover it in order to remove what would otherwise be an absolute bar under our statute, General Statutes, section 2174, must allege not only the time when the fraud was discovered, but the facts constituting the fraud and the circumstances under which it was ascertained. The cases are very precise and directly hold there must be an allegation of ignorance and also of the facts and circumstances showing when and how it was discovered. If this be not true the bill is demurrable. because the bar of the statute appears on its face. Since there is a necessity for a full and specific averment, the averment must be supported by sufficient and competent proof. It is inexpedient to elaborately discuss the question, construe the statute, or recite the reasons on which the doctrine rests. The question has been discussed in many cases and the rule is entirely settled and it would be folly to reiterate what has been antecedently so fully stated. Pipe v. Smith, 5 Colo. 146; Arnett v. Coffey, 1 Colo. App. 34; Rose et al. v. Dunklee, 12 Colo. App. 403.
Whether an argument could be built up which would shake the position we have assumed is unimportant as there is another fundamental proposition on which the case must turn and which concludes the plaintiffs.
Voluntary conveyances by the husband to the wife or the acquisition of title to real property by the wife where the husband furnishes the money, being at the time indebted and insolvent, may be attacked and the creditor having obtained a judgment and made it a lien on the property, may file a bill similar to the present and thereon, if his proof be otherwise adequate, obtain relief. The cases to which we have referred concede this, even where on other propositions the bills have been held insufficient. Yet all of them agree that the husband may convey to his wife, or may furnish her money with which she obtains title, and the -property thus conveyed, or the title thus acquired, is not subject to the claims of ereditoi’s, even though then existing, providing the husband is then substantially free from debt or in such circumstances that he has abundant property within his own control to meet promptly all just demands. This right has been emphatically established by two decisions of the supreme court. The right of the husband to yield obedience to the dictates of humanity has been fully and completely recognized, and we regard the decisions of that court on this question as wholly conclusive of the present controversy. Thomas et al. v. Mackey, supra; Gwynn v. Butler, 17 Colo. 114.
The plaintiffs’ proof shows that when Lipe furnished his wife the $30,000 with which she bought this property and gave her other funds with which she bought Chicago property, he then had left within his own control, subject to his own disposition and the demands of creditors, what ought to be regarded as a fortune, anywhere from $100,000 to $250,000. The evidence which Lipe gave was nowhere contradicted. Lipe remained solvent for years, and though ulti
There are sundry other points which have been urged, but since we regard this as entirely determinative of the rights of the parties, and the judgment of the court below accords with our conclusion, it must necessarily be affirmed, which is accordingly done.
Affirmed.