44 Colo. 459 | Colo. | 1908
delivered tlie opinion of the court:
The plaintiffs, who are appellees here, as children and heirs of Benjamin A. Jerome, deceased, brought this action against the defendant Lewis, who is the appellant, to recover of him three thousand dollars as damages, which they claim to have sustained by reason of his wrongful act in selling and conveying to Kitty'M. Jerome a certain forty-acre -tract of land, to a conveyance of which their father in his lifetime had secured the right by a contract entered into between him and defendant.
■ At the risk of some repetition, but in order fully to elucidate the merits of the controversy, we deem it fitting to state the situation of the parties as set forth in the pleadings, and the facts which the evidence tends to prove, without indicating the weight of that evidence or that it establishes all or any of the ultimate facts which will be recited. This precautionary statement is made since we are compelled to reverse the judgment and do not wish our comments upon the evidence unnecessarily to embarrass the lower court in its findings of fact at another trial.
Benjamin A. Jerome was a married man living with his wife and three children in the state of Missouri. These three children are the plaintiffs -in this action. In 1880 Jerome came to Colorado. A few years afterwards his wife procured a divorce from him in the courts of Missouri, and about that time he was again married in Pueblo, Colorado, and shortly thereafter his divorced wife in Missouri remarried. J eróme and his second wife removed from Pueblo to Boulder county in the year 1894, and in December of that year a contract of purchase and sale was entered into- between him and defendant Lewis, whereby, for an agreed consideration, evidenced by a small cash payment, and Jerome’s note for the balance of the purchase price, Lewis agreed to convey a forty-acre tract of land. Jerome and his wife at once entered into possession .and occupied the premises as their home until his death in June, 1899. In July of that year Mrs. Jerome, the wife, was appointed and entered upon her duties as ad
In the spring or summer of the year 1900, while Benjamin A. Jerome’s estate was in process of administration, and several months before it was closed, and several, months after the conveyance by defendant to Mrs. Jerome, two of the plaintiffs in this case came to Boulder county, Colorado, to make an investigation as to the condition of the estate of their deceased father, consulting at that time with an attorney. If it does not appear directly, it is a fair inference from facts and circumstances in evidence, that they knew of this contract of purchase, and that it was listed as one of the assets of the estate, and that defendant Lewis had already conveyed the property to the administratrix. They did not then make known their presence, or their claim to an interest in the estate, either to defendant of the administratrix, and neither of the latter was apprised of such claim until after the estate was closed and the administratrix discharged, and not until this action was begun several months thereafter. Neither in their complaint, nor at the trial, did defendants offer to pay their portion, or any portion, of the purchase price under the contract of sale, but, as already stated, they based their rights to recover upon the asserted fact that the evidence discloses that the entire purchase price under this contract was paid by the administratrix out of. the assets of the estate,
While it does not directly appear what the court’s findings were upon the issues of fact not submitted to the jury,-but reserved for the determination of the court itself, we conclude, in view of the oral opinion which the court gave in pronouncing judgment, and which has been brought up in the record, that the court found against defendant, generally, including that defense of the answer which sets up that the contract of purchase was made for the use and benefit, not of Benjamin A. Jerome, but of his wife. In its opinion the court states that up to the time of the conveyance by defendant to Mrs. Jerome, neither of them knew of the existence of plaintiffs, but both supposed that she was the sole heir at law of Benjamin A. Jerome. It is altogether clear from that opinion that judgment went in favor of plaintiffs; because, in the settlement of the estate, admitted debts, which unquestionably the administratrix paid,’ had not been formally allowed, and because the widow’s award had not been formally approved by the court and set off to her, as the statute requires; and for the additional reason that plaintiffs ’ conduct in concealing their heirship, as heretofore recited, does not operate as an estoppel. It is equally clear that if these formal orders had been made, as they properly should have been, the assets of the estate would have been insufficient to pay the just debts and the widow’s allowance, and there would have been, instead of property to be distributed to the heirs, an insolvent estate. If, therefore, it had not been for this irregularity or noncompli
We think it already sufficiently appears to- any reasonable mind that the judgment of the trial court resulted in a hardship to defendant to which he should not be subjected if a proper remedy can be afforded him in accordance with sound equitable principles. We apprehend that there is no legal difficulty in awarding the proper relief. It may be that the complaint itself tenders no equitable issue; but the answer certainly does, particularly that defense which defendant sought to present by way of amendment after the trial. That issue is that plaintiffs’ inequitable conduct prevented the administratrix, who was defendant’s grantee, from procuring the necessary orders which she would have obtained had plaintiffs seasonably -advised her of the nature of
We think that upon these facts, assuming that there was-evidence tending to prove them, plaintiffs would not, as against the administratrix, be entitled to assert the claim which they here make. That is to say, they would have no standing as against her to say that they were entitled to any assets of the estate, assuming that she could, if the opportunity was still open, secure an order for her widow’s award and a formal order of allowance of the claims against the estate, which she has paid in large part out of her own money. As against defendant they ought not to be heard, if. their election to postpone announcement of their heirship deprived him of the opportunity to protect himself, regardle'ss of the assets of the estate. If either plaintiffs or defendant are to lose, plaintiffs, who are at fault, should bear the loss rather than defendant, whose good faith is apparent. If the administratrix could make such showing, and there certainly is evidence tending to substantiate her claim in that particular, the estate would be insolvent; and if so, it necessarily follows that no
In conclusion we observe that there does not seen to have been any request by either party to have the administratrix brought into court. We think this request might well have been made, and that, in its absence, the court, in order to settle the entire controversy of all the parties affected, might, of its own motion, order her to be brought in. We do not reverse this case because she was not made a party, but suggest that in the event of a new trial, either party, or the 'court of its own motion, may make her a party. The court should also permit the respective parties to amend their pleadings as they may be advised, to correspond with the views stated in this opinion. In case Mrs. Jerome should be made a party, that portion of the answer which was stricken out, alleging that the administratrix had
The judgment is reversed and the cause remanded with instructions that if further proceedings be had they be in accordance with the views herein expressed. Reversed and remanded.
■ Chief Justice Steele and Mr. Justice GUbbert concur.