27 Colo. App. 279 | Colo. Ct. App. | 1915
Lead Opinion
delivered the opinion of the court.
Action by Mary Smith to have cancelled, as fraudulent and void, a certain deed of real property standing in the name of The Fulton Investment Company, plaintiff in error,
On the 11th day of April, 1912, plaintiff- Smith obtained a judgment in the sum of $3,000 against said Trogler on a cause of action for tort, said to have béen committed on or about August 9, 1910, upon which an execution, directed to the sheriff of Jefferson County, was issued and levied upon 800 acres of land, with water rights, situate in said county, as the property of the judgment debtor Trogler. March 10, 1910,. or more than two years before the rendition of this judgment, and about five months before the tort upon which it was predicated was committed, the said real estate, alleged in the complaint herein to have been worth $50,000 or more, together with other property, was conveyed by Trogler to The Fulton Investment Company, and at all times since the record title thereto has been in said company. This action to have the deed from Trogler to the investment company cancelled is predicated on the allegation'that the conveyance in question was purely voluntary, without consideration, and made with the intention to injure, delay and defraud the grantor’s creditors existing and subsequent, especially one A. J. Ward, alleged to have been an existing creditor at the time of the conveyance; and upon the further allegation that the conveyance was made in trust for the grantor. By the decree of the court the deed was set aside, and Trogler was, ad judged to be the owner of the property levied on.
There is not a scintilla of evidence, direct or circumstantial, nor anything from which a legitimate inference can be drawn, except the mere fact of the coveyance, that the deed was made for the purpose of hindering, delaying or defrauding the plaintiff herein, nor any other person who might subsequently become a creditor of the grantor, nor that any creditor of or other person having claims, debts or damages against the said grantor, plaintiff included, was in fact hindered, delayed or defrauded by reason of such conveyance. So far as disclosed by the record, Trogler was not, at the time of said conveyance, indebted to any person, with the exception of certain encumbrances on the said property which could not be affected by the conveyance. Nor were there any suits or claims against him, except the
We have said that the record contains no competent evidence, direct or circumstantial, that the deed was made with actual intent to defraud creditors, existing or subsequent, except the mere fact that the conveyance was made, and that at the time it was made two suits were pending, in neither of which plaintiff herein was a party. There is no testimony of statements by Trogler that he would make, or admissions that he had made, the deed to defeat such suits or claims. On the contrary, there is the testimony of the Troglers, father and son, that the deed was not made with such intent or purpose; that the Ward claims were not discussed at the time of the transaction or while it was under consideration. The grantor testified that the corporation was formed, and the property conveyed to it by him for its capital stock, under advice of counsel, because of his advanced age, and his desire to retire from the active control of business, and to avoid the necessity of a will and its probate, and the administration of the estate, in the event of his death. These statements, both as to the purpose of the incorporation and deed to it, and that the Ward suits and claims did not induce it or enter into the discussion of it, were fully corroborated by two lawyers who had so advised Trogler, one of whom prepared the articles of incorporation. So far as disclosed by the evidence, the acts
The judgment is reversed and the cause remanded, with directions to vacate and annul the levy of execution made on the real estate of defendant, and any sale thereunder, and for further proceedings in conformity with the views herein expressed.
Reversed and remanded.
Rehearing
On Petition for Rehearing:
The statements made by counsel for defendant in error in their petition for rehearing, and in their printed brief, as well as oral argument in support thereof, indicate a conception of the views of this court so different from those expressed in the opinion or entertained by the court, and an understanding of the evidence so completely at variance with the record, that we feel constrained to take some notice thereof in denying the petition, proceeding on the assumption that counsel did not wilfully distort the plain meaning of the opinion, nor intentionally misstate the evidence.
Perceiving no reason for reopening the case, the petition for rehearing is denied.