68 Colo. 343 | Colo. | 1920
delivered the opinion of the court.
Eliza (Skelton) Swift was. the administratrix of the estáte of her mother, Catherine W. Skelton, deceased, against which estate plaintiff in error held a claim of $901.46, based upon a judgment against deceased. The property of the estate consisted of lands and water rights. These had been sold at sheriff’s sale, under a mortgage foreclosure, to satisfy a debt of approximately $34,000. Boyington Skelton was the brother and confidential adviser of the administratrix. Other heirs. employed a real estate broker to find a purchaser for the property, in order that the debts might thereby be paid, and something saved for the heirs,. This broker obtained an option on the sheriff’s certificate of purchase, and in the further discharge of his duties under that employment opened negotiations with defendant in error; who was on intimate terms with Boyington Skelton, and was a creditor of the administratrix to the extent of some $2,500, secured by a mortgage on her home. Defendant was fully cognizant of the relation existing between the administratrix and Boyington Skelton. A sheriff’s deed was due under the certificate of sale on August 25, 1914. August 7, 1914, defendant in error entered into a contract with Boyington Skelton by which he agreed to pay Skelton $4,000, in consideration whereof Skelton agreed inter alia, to convey to defendant the property in question, and procure a similar conveyance thereto from the administratrix ; to assign a claim which he held against the estate; to protect defendant against the redemption of the property by his own creditors or those of the estate; to assist de
Burke, J., after stating the case as above.
The parties plaintiff and defendant here were plaintiff and defendant in the court below and will be hereinafter so designated.
If, as defendant contends, plaintiff has no standing here, this writ should be dismissed and the judgment affirmed, irrespective of the facts set up in the complaint. Hence we will first consider the principal reasons urged why such action should be taken. They are: That the complaint sets up no equities in plaintiff: That the exhibition of plaintiff’s claim in the County Court was not accompanied by “an exemplification of a record whereon such claim was founded” as provided by statute: That the order of the court setting aside its former order allowing the claim was not a final judgment, hence not appealable: That the judgment of the District Court re-instating the claim was not brought to the attention of the County Court: The bar of the twenty-year statute of limitations requiring the issuance of execution on a judgment within twenty years from the entry thereof: The bar of the non-claims statute requiring the filing of such a claim within one year from the granting of letters of - administration: And laches.
1. The plea of the contract between Boyington Skelton and defendant, the relation of the administratrix thereto, and the fulfillment of the terms thereof, was, for the reasons hereinafter set forth, a sufficient allegation of equities in the plaintiff.
2. The order of the County Court dated April 15, 1911, allowing the Scholtz claim recites that said claim was “a certified copy of a judgment heretofore entered against said deceased.” That finding must be taken as true arid
3. The order of the County Court, by which its judgment allowing plaintiff’s claim was set aside and held for naught, was a final judgment as to that claim, and so far as the County Court was concerned plaintiff had no further recourse. It was hence appealable. Balfe v. Rumsey et al, 55 Colo. 97, 104, 133 Pac. 417, Ann. Cas. 1914C, 692.
4. The hearing in the District Court was on written stipulation. The papers and files were returned to the County Court five days before the estate was declared insolvent and closed under the Hazard contract, hence defendant is in no position to claim lack of notice of that judgment.
5. Plaintiff’s original judgment was obtanied in 1894, and his claim based thereon was allowed in 1911. It thereupon became a new judgment against the estate and the plea of the 20-year statute is not good. R. S. 1908, Sec. 7211.
6. Plaintiff’s claim was filed against the estate eight months after the granting of letters of administration, hence within the time limited by the non-claims statute.
7. This is an action against defendant, not against the Skelton heirs. The question here is not when the cause of action arose as against the deceased, but when it arose as against defendant. That date was approximately • six months prior to the filing of the complaint. Under the circumstances of this case such a delay does not constitute laches.
There remains to be considered the principal contention of plaintiff: That the administratrix, at the instigation of defendant, put herself in a position so inconsistent as to be intolerable in equity, and that defendant can retain no advantage he may have secured thereby.
An administrator is a trustee of whom the utmost good faith is required. James et al v. Kelley et al, 107 Ga. 446, 33 S. E. 425, 73 Am. St. Rep. 135. He is particularly the representative of the creditors, holding the estate as a trust fund for the payment of debts. 11 R. C. L., p. 25. The law esteems it a fraud in such a trustee to take, for his own
The judgment is accordingly reversed with directions to the trial court to enter judgment herein for plaintiff decreeing his claim to be a lien on the premises in question as of the date of the sheriff’s deed, subject to the amount of the certificate of purchase. No interest will be figured on the certificate of purchase subsequent to the date of the deed; the presumption being that that amount is offset by defendant’s possession of the premises, which presumption defendant, by reason of his own wrongful acts, cannot be heard to deny.
Garrigues, C. J., and Teller, J., concur.