233 P. 835 | Colo. | 1925
THE bank was plaintiff below and had a decree of foreclosure of certain land against C. Blaine Scott, Lincoln R. Scott and Minnie K. Scott. The last two bring error.
The notes were made to the bank by C. Blaine Scott, and a trust deed to the public trustee was executed by him to secure them. A quitclaim deed from him to Minnie K. Scott, his mother, which purported to convey an undivided one-half of the land, was on record when the trust deed was given. She afterward conveyed to Lincoln, her husband. The plaintiff's claim was that the deed to her was voluntary and fraudulent and that Lincoln and Minnie had misled the bank into giving Blaine credit and accepting the trust deed. On the first point the court found the conveyance to be in good faith. On the second that Lincoln and Minnie were estopped by their statements to say that C. Blaine Scott did not own the land when he got credit from the bank. The court expressly found that the notes represented loans made at various times by the plaintiff to C. Blaine Scott, at the solicitation of Lincoln R. Scott, and that Lincoln withheld from record the deed to Minnie while he made those solicitations and called the plaintiff's attention to C. Blaine Scott's ownership of the land as a reason for giving and for the purpose of getting him credit.
The claim is made that the public trustee, who was not *584 made a party, was indispensable as such, but no error is assigned on that point. The assignment that the findings or decree is against the law is not enough, as this court has many times held. If it were, that alone would cover all errors.
It is immaterial that the prayer includes the foreclosure of the mortgage. There are facts enough to make the action — say a creditor's bill; what we call it is immaterial. The foreclosure of the mortgage, under the circumstances, enables the court to dispense with execution and sale thereunder, and is simply a method of subjecting the property in dispute to the claims of the creditor.
The court ordered foreclosure of the trust deed by sale by the public trustee. It is objected that, since this trust deed was foreclosed as a mortgage in court, it was necessary for the court to issue execution and direct the sheriff to make the sale. The decision in Blitz v. Moran,
Whether he might refuse to act under the order of the court, since he was not a party, is immaterial, because he has acted and because that is true of any person appointed as a commissioner by the court.
Plaintiffs in error claim that because the quitclaim deed to Mrs. Scott was on record when the trust deed was given the bank must be held to have had notice of it, but Scott was the real owner of the title held by his wife, who held in trust for him, and, having obtained credit for his son by representing the property to be the son's, while he held a deed for it himself, it is a fraud on the creditor to record *585 his deed and so destroy the basis of the credit. He was the owner of land while he was saying it was another's and while he knew his statement was to be acted on. It is not the whole story to say that the bank had notice of Lincoln's title at the time the trust deed was given. The critical time is when the credit was given. At that time the quitclaim deed to Mrs. Scott was unrecorded and Lincoln is estopped to enforce his interest through that deed to the injury of the credit which his son gained by his apparent title.
In Whitescarver v. Interstate Co.,
The claim is made that the bank did not rely on the statements of Lincoln R. Scott, but looked up the records. That is true, but he withheld from the records the evidence of his title and thus deceived the bank into giving credit. Gwillimv. Asher,
The judgment is affirmed.
MR. JUSTICE WHITFORD and MR. JUSTICE ADAMS not participating. *586