15 Colo. App. 356 | Colo. Ct. App. | 1900
This proceeding was instituted by the appellant against the appellee to remove a cloud from a title which she claimed in certain real estate situate in the city of Denver, caused by the levy of a writ of attachment upon the property in an action wherein the appellee was plaintiff, and John W. Knox, the husband of the plaintiff, defendant, which attachment had been sustained by the judgment of the court. The defendant admitted the attachment and the judgment, denied ownership in the plaintiff, and averred that the land was attempted to be conveyed to her by her husband for the purpose of cheating and defrauding his creditors, of whom the defendant was one. The prayer of the answer was that the alleged title of the plaintiff be adjudged to be subject to the attachment lien of the defendant. The court rendered a decree according to the prayer of the answer, a.nd the plaintiff appealed.
Two questions are discussed by counsel: First, whether the transaction by which John W. Knox sought to invest his wife with title to the property was fraudulent as to his creditors ; and, second, whether the title had vested in her before the levy of the writ.
1. Knox was indebted to the plaintiff for money which she had loaned him upon his promise of repayment. The money was derived from property which he had given her a number of years before the transaction in question, and while he was free from debt. His business enterprises had been unsuccessful, and he was deeply involved, — in fact, insolvent. Realizing his financial condition, he executed and caused to be recorded two deeds purporting to convey to the plaintiff the real estate afterwards levied upon, in partial discharge of his indebtedness to her. He also executed deeds to others of his
2. The disposition of the second question is more difficult. The facts are these: In 1885, the plaintiff loaned her husband a large sum of money. He gave her no note or other evidence of the debt, until 1890, when the interest was calculated and added to the principal, and a note made to her by him for $48,500, — the sum total. When she received this note she seems to have turned it over to him for safekeeping, and it was never afterwards in her personal possession. Mr. Knox never talked with his wife about his business affairs. His reason was that she was an invalid, and he did not wish to worry her. She had implicit confidence in him, and did not trouble him with inquiries. However, in 1895, for some cause she became uneasy, and asked him to deed property to her sufficient to pay the debt. It does not appear that he agreed to do so. He testified that he intended to make her a conveyance in payment of her claim, but there was no evidence that he ever acquainted her with his intention. On the 1st day of August, 1895, Mr. Knox subscribed and acknowledged a deed to her of certain lots in Denver for an expressed consideration of $30,000; and on the 24th day of December, 1895, he subscribed and acknowledged another deed to her, of other lots in Denver, for an expressed consideration of $9,500; On the day of the signing of the last deed, he sent both deeds by his attorney to the recorder’s office for record. They were recorded and returned to his attorney on the 18th day of February, 1896. The attorney then delivered them to him, and soon afterwards he gave them to the plaintiff. The first time she ever saw them was when she received them from her husband; and until that time she
It is essential to the validity of every deed or conveyance that it be accepted by the grantee. It has been said that where the deed is manifestly for the benefit of the grantee, its acceptance will be presumed; but the presumption obtains only where the facts are unknown. Where those and the attendant circumstances are shown, the question must be determined from them; there is no room for presumption. Where a deed is made and delivered to a stranger for the use of the grantee upon its acceptance by the latter, as between the grantor and him, the acceptance will relate back to the time of the first, delivery. So far as we know, it has been always so held where the question was between the immediate parties. But the relation is a legal fiction, and there is no actual transfer of the title until the acceptance. Until that time, the meeting of minds essential to a contract does not occur. It necessarily follows that if between the date of the deed and its acceptance, rights of third parties attach to the property, those rights will be superior to, and prevail over, the title of the subsequently assenting grantee. The latter takes the title subject to such liens as have been created, or conveyances as
The question, what constitutes an acceptance by the grantee, is not in all cases free from difficulty. It cannot arise where the execution and delivery of the deed is the conclusion of a transaction conducted by the immediate parties. Nor is it involved where the deed is executed in performance of the grantor’s contract with the grantee to convey the land to the latter. In such case, the deed is the consummation of the contract, and the contract contains the assent of the grantee to its execution, so that it is immaterial whether he had personal knowledge of the deed at the time it was made or not. The difficulty arises where one party undertakes to make a conveyance to another without the latter’s knowledge, and without any previous understanding that the act should be done. The filing of the deed by the grantor for record, does not of itself, constitute a delivery. If the recorder is the agent of the grantee to receive the deed, then, of course, his acceptance would be the act of his principal. But where the latter has no knowledge that such an instrument was contemplated, or that it was made, he can have no agent to receive it; and until, after acquiring knowledge of its existence, he in some way signifies his approval of the act, there is no delivery of the deed. There is no particular form or mode by which the assent must be manifested; but it must appear that, in some manner, with knowledge of what has been done, he indicate his purpose to take the benefit of the conveyance.
In this case there was no previous agreement or under
Mr. Knox signed and acknowledged a deed to the plaintiff in August, 1895, and kept it in his possession until the 24th day of the following December. On the latter day he made another deed, in which she was named as grantee, and on the same day gave both deeds to his own attorney, with instruction to have them placed on record. The attorney, accordingly, took the deeds to the proper office, and left them there for record. On the 18th day of February, 1896, long after the attachment was levied, the deeds, duly recorded, were returned to the attorney, and by him delivered to Mr. Knox, who thereupon gave them to the plaintiff. We are unable to find any tangible evidence that before she received them from her husband, she had any knowledge of their existence.
There is one circumstance connected with the transaction, which ought to be noticed. At the trial of this cause, the plaintiff was in possession of a note for 120,866.32, dated December 24, 1895, made by her husband, and payable to her. When she received it, there is nothing in the record to
But, waiving all else, a reversal is asked on the ground that, as the defendant, in his answer, alleged affirmatively that the conveyances were made with the intent to defraud creditors, the grantor, John W. Knox, was a necessary party to the suit; that the question of his fraud could not be litigated without his presence in the case ; and that the failure of the defendant to bring him in, is fatal to the judgment. The point is made now for the first time, but it will be considered.
If the judgment was unwarranted except upon proof that the conveyances were fraudulent, Mr. Knox was an indispensable party, and because he was not brought into the case, we should be compelled to order a reversal. Allen v. Tritch, 5 Colo. 222. But the allegation of fraud was not sustained by the proof. By reason of the want of evidence in its support, it became immaterial; and, from that allegation, no
The answer denied the ownership which the plaintiff averred, and, for the purpose of investigating the character of her alleged title, Mr. Knox was not a necessary party. We have seen that, as against the defendant, she did not own the property at the time of the attachment, and that whatever title she did finally acquire, was subject to the lien of the attachment. Without title in her at the time the writ was levied, she could not maintain her suit; and because of the want of such title, no other judgment than the one rendered, would have been proper.
It is true that the court found that the transfers were fraudulent; but the finding was not warranted by the facts, and is not entitled to consideration. The judgment rests upon the plaintiff’s want of title, and upon nothing else; and as that is enough to sustain it, it will be affirmed.
Affirmed.