7 Colo. App. 474 | Colo. Ct. App. | 1896
delivered the opinion of the court.
The first point to which our attention is directed by counsel for the appellant is put thus : “ The court erred in finding the material issues joined in favor of the plaintiff.” Unless we consent to build on this foundation, we are without the material with which to construct the building according to the appellant’s plan. Appellate courts are sometimes somewhat chary of expressing their conclusions respecting testimony, and are wont to shield themselves behind the tolerably well established rule that the findings of a trial court, like the verdict of a jury, must be taken as conclusive on all questions of fact. Courts sometimes conceive it to be their duty to see that justice is done, and, when occasion requires, to go behind the finding of the verdict to enforce their conclusions. We are called on by counsel to perform that duty in the present case, and an attempt is made to furnish a basis for the departure by the suggestion that the trial of the cause was partly by oral testimony and partly by deposition, thus argumentatively bringing the case within the rule declared by the supreme court that wherever a cause is tried on depositions, it is the duty of the appellate tribunal to sift and weigh the evidence and determine where the truth lies. We do not pass on this suggestion, but if we should accede to the request, it would not vary the result. We are in entire accord with the trial court in its conclusions. The note and the trust deed were undoubtedly made by George Harrington and the deed filed for record without the knowledge of his sister, Mrs. Hall, and to forestall any ultimate decree for alimony which the court might render. Pie made altogether too close connections between the commencement of the divorce suit and the preparation and record of the deed.
The suit was started on the 9th of July, and within less than three days, and before the time for answering expired, he attempted to incumber the record with a deed which should take away the entire value of the- property as against
As we have had occasion to say in the succeeding case of Harrington v. Johnson, which is a counterpart to this, it is pretty well settled that a wife who has/a claim for alimony and a suit pending to secure a divorce and compel its payment is a creditor within the purview of the statute of frauds, and where a deed has been made for the purpose of defrauding her, although she may be technically what is called a “subsequent creditor,” yet, if the deed is made directly and distinctly for that purpose, she may maintain a bill to attack ■ the transfer. According to our views, this deed comes with
The decree of the county court which adjudged alimony to Mrs. Harrington attempted to make the sum a lien on the property involved in the present suit. The present suit is contended to be unmaintainable because there was no specific description of the property either in the bill or in the decree. It is insisted county courts have no jurisdiction except as to property within the limits of the county, and are powerless to render decrees which shall be liens on property without their territorial limit. It is quite possible this may be true. We express no opinion respecting it. It may likewise be conceded there is grave doubt whether the decree was operative to establish a lien on the property so as to defeat the claims of bona fide creditors or purchasers for value or any other person who might be brought within either class. It is a very general rule there must be some specific description of the property to be affected by the judgment either in the bill or at least in the decree, if the lien depends on the terms of the decree for its existence. While this is true, there, seems to be no trouble to regard the decree of the county court as a lien on this property as against Mrs. Hall, without doing violence to any well recog
We do not regard Mrs. Hall as in a position to raise this question, because she is neither a bona fide purchaser nor a creditor, nor an incumbrancer for value, and, as between George Harrington and Mrs. Harrington, the decree of the county court was effectual, for it stands unreversed and was unappealed from by him. When these facts are coupled with the proof respecting the property, the insolvency of Harrington, and the record of the judgment, we think the plaintiff was abundantly entitled to maintain the bill which she filed and the decree may be upheld.
The decree of divorce is attacked because it is assumed to be for more than the sum of $2,000, which is the limit of the jurisdiction of the county court. We do not accept counsel’s contention respecting it. The decree directed alimony to the extent of $1,000 to be paid to Mrs. Harrington in two installments, $200 to be paid to counsel for their services in the case, and further provided for the payment of $30.00 a month thereafter for the maintenance and education of the
There is but one remaining proposition to which we need pay any attention in order to dispose of all the practical questions involved. The rule that he who seeks equity must do equity, is invoked in favor of Mrs. Hall because of her ownership of the two notes of $800 and $200, which are assumed to be still unpaid. It is insisted since Mrs. Harrington signed those notes and owes the debt with her husband, it would be inequitable to permit her to enforce her decree for alimony as against this property to the destruction of the trust deed which Mrs. Hall holds. The features of the case-are not such as to permit the application of the doctrine. According to the findings of the court, the deed was not a.
There seems to be presented in the arguments no other proposition which calls for discussion. As to some of the questions suggested, the opinion of the court about them has been very fully covered by the opinion in the other case, and so far as we can see the court has expressed itself on every proposition presented by the appeal.
We are unable to perceive any errors in the record which require us to reverse the judgment, which will accordingly be affirmed.
Affirme k