14 Colo. 297 | Colo. | 1890
Lead Opinion
delivered the opinion of the court.
The present appeal was taken under the act of 1885. No evidence is embraced in the abstract, and therefore a review upon the evidence could not be had. The findings of fact, however, of the court below are properly before us, and, since they are not in any way questioned, will be accepted as conclusive.
By the record as presented, we are advised of the following facts: That McClure Bros., being indebted to Scherrer to a large amount, executed an absolute deed conveying the realty in question to him; that in connection with the giving of this deed, and as a part of the same transaction, Scherrer executed in writing, and delivered to McClure Bros., a defeasance; that the two instruments were designed by the parties to constitute a mortgage of the premises as security for the indebtedness to Scherrer; that the whole transaction, so far as Scherrer was concerned, was characterized by entire good faith in fact; that, immediately upon the execution of these instruments, Scherrer took and has since retained
Notwithstanding the foregoing conclusions of fact, however, the court found that as to Smith and Clough, the attaching creditors of McClure Bros., the transaction constituted a constructive fraud, and the deed to Scherrer was void in law. On this finding, the decree in favor of the attaching creditors was based, and upon its correctness or incorrectness the affirmance or reversal thereof must rest.
It is obvious that the court below adopted the view that a deed absolute in form, but in reality designed to operate as a mortgage only, is constructively fraudulent, and consequently void in law, as to other existing creditors of the mortgagor, even though the transaction contained no element of fraud in fact. This position of the trial judge is supported by well-considered decisions. Friedley v. Hamilton, 17 Serg. & R. 70; Manufacturers’, etc. Bank v. Bank of Pennsylvania, 7 Watts & S. 335; Smyth v. Carlisle, 16 N. H. 464; Bryant v. Young, 21 Ala. 264; North v. Belden, 13 Conn. 376.
But in our judgment the weight of authority favors the view heretofore announced by this court. It was held in Ross v. Duggan, 5 Colo. 85, that, while this method of creating an incumbrance is a conspicuous badge of fraud as to existing creditors, it is not conclusive, and that the bona fides of the transaction may be shown by collateral proofs. It is true that when the mortgagee consents to take an absolute deed, even though, as in the case at bar, he delivers back a defeasance, he makes it possible for the mortgagor to deceive his other creditors. For this reason, such a proceeding is regarded with disfavor, and upheld with reluctance.
The view that fraud per se should not be imputed to such transactions as the one under consideration receives countenance from section 1529 of the General Statutes. This section declares that the question of fraudulent intent, in all cases relating to the conveyance or assignment of any estate or interest in lands, shall be a question of fact, and not of law. Ross v. Duggan, supra; Bump, Fraud. Conv. 40; Gaffney’s Assignee v. Signaigo, 1 Dill. 158; Harrison v. Trustees, 12 Mass. 455; Gibson v. Sey
Since neither the case of Ross v. Duggan, in 5 Colo., nor the other cases supra, are mentioned by the briefs filed in this court, we are justified in assuming that the attention of the presiding judge was not directed thereto. Had he been advised of these authorities, especially of Boss v. Duggan, his decree would, doubtless, have been different.
In view of a retrial of the cause, we deem it important to notice briefly the remaining question argued on the present appeal. The return of the officer who levied the writ of attachment was slightly defective in its description of the realty attached. There is nothing, however, in the record before us to show that the attachment notice filed with the clei’k and recorder partook of the saíne infirmity. The court, prior to the trial, upon application supported by affidavits, notice having been given to opposing counsel, and upon careful consideration, permitted the sheriff to amend his return by correcting therein the misdescription in question. This was not error. Amendments of the officer’s return upon process to correspond with the fact are in the interest of justice; and, unless it be shown that the party complaining has been deceived or misled to his prejudice, great liberality in allowing them is always exercised. Anderson v. Sloan, 1 Colo. 33; Loveland v. Sears, id. 433; Paper Co. v. Clark, 3 Colo. 321; Crock. Sher. § 43; Corby v. Burns, 36 Mo. 194.
The judgment is reversed and the cause remanded for a new trial.
Beversed.
Concurrence Opinion
(who presided below). I concur in the foregoing opinion. The chief justice is quite right in supposing that the case of Ross v. Duggan was not cited at nisi prius. I did not have the opinion in that
