Shapleigh v. Hull

21 Colo. 419 | Colo. | 1895

Chief Justice Hayt

delivered the opinion of the court.

It was claimed in the district. court that the complaint fails to state facts sufficient to constitute a cause of action.

The insufficiency of the complaint in this respect was raised first by demurrer, and afterwards by objection to the introduction of evidence; and the objection is now renewed in this court. It will be noticed that the complaint alleges that a deed from Hull to Leimbach was acknowledged, but the complaint does not allege that the appellee, Hull, did not acknowledge such deed. The argument of counsel upon this pleading is, that Hull having alleged the acknowledgment of the deed should be required, in order to make out a case against the defendants, to attack the acknowledgment as well as the deed by proper and sufficient allegations of fraud.

The complaint, however, does allege that the deed was “ fraudulent, forged, and without plaintiff’s consent, and in fraud of plaintiff’s rights.” And again, “ that said warranty deed, purporting to have been executed and delivered by plaintiff to said Leimbach on December 2, 1889, is false and .fictitious, and was never executed by the plaintiff; that plaintiff has not sold or conveyed any of his interest in said property, except in the contract hereinbefore referred to.” Those allegations must be taken as a sufficient statement^ not only that the deed was a forgery, but that the entire instrument is false and fraudulent, and that plaintiff has never conveyed any interest in the property by this or any other deed.

The proof of forgery in this case'is strong and convincing. Plaintiff not only swears that he never executed or acknowledged any deed to the premises in' controversy, but also that no part of the consideration has been paid to him by Leimbach or any one for him. It is also shown that soon after the alleged deed was placed upon record, Leimbach succeeded in securing quite a sum of money upon the Austin trust deed. This money was raised upon a chain of title in which the forged deed, purporting to have been executed by Hull, constitutes an essential link. The defendant left the state as soon as he secured this money, leaving his contractors in the main unpaid. He could not be induced to return; and neither party was able to secure his evidence to be used at the trial, or to obtain the deed in question.

Leimbach, however, filed an answer, sworn to without the state, in which the allegations of the bill are denied; and counsel now contend for the application of the rule in equity, that where the answer is responsive to the bill, the plaintiff, to prevail, must overcome it by the evidence of two witnesses, or of one witness and strong corroborating circumstances.

The correctness of this rule in jurisdictions where the equity practice prevails as formerly will be conceded. The rule, however, has no application under the Civil Code. Under the former practice, the plaintiff could bring the defendant before the chancellor and compel him to answer upon his conscience, thereby making his adversary his own witness; and it was not unreasonable, under such circumstances, to hold that he was bound by this answer under oath, unless he could disprove it in the manner indicated; but under the code, all parties are allowed to testify, and a bill of discovery is practically obsolete. The pleadings, under our system, are for the purpose of making the issues, leaving the same to be decided upon the weight of evidence introduced at the trial. Conger v. Cotton, 37 Ark. 286.

The certificate of acknowledgment upon the deed was made by one Percy Austin, a notary public. Austin was allowed to testify at the trial against the objection of the defendants. He was offered as a witness for the plaintiff to impeach the certificate, and his evidence should have been excluded, when so offered. This error we regard as entirely harmless, however, as the evidence of the witness tends as much to sustain his certificate as to overthrow the same.

The district court by its decree limited the operation of the liens of the mechanics and material men to the structure itself, and refused to extend the same to the lots. This would be proper if Hull had merely sold the lots, leaving it with Leimbach to improve them or not, as he might elect, as the rule is well settled that the lien in such case attaches only to the interest of the one who causes the improvement to be made; but in this case, by the contract of sale, Leimbach was not only authorized to construct the houses, which he afterwards did construct, but he was required so to do. In. other words, the building of the houses was not only authorized, but enjoined, by Hull, the owner of the land, by the very terms of the written contract.

Under these circumstances, the interest of the vendor in the real estate, as well as that of the vendee, became subject to the liens of those furnishing the labor and materials for the construction of the houses under the contract of sale. This rule is not only supported by sound reason, but it is now well settled by authority. Henderson et al. v. Connelly, 123 Ill. 98; Davis v. Humphrey, 112 Mass. 309; Bohn Manufacturing Co. et al. v. Kountze et al., 30 Neb. 719; Hill et al. v. Gill et al., 40 Minn. 441; Hickey v. Collom et al., 47 Minn. 565; Phillips on Mechanics’ Liens (3d. ed.), sec. 69.

The district court correctly decided that no lien was created by the Austin trust deed, executed by Leimbach, the deed from Hull to Leimbach being a forgery. For the reasons given, the judgment of the district court will be reversed, and the cause remanded with directions to enter a decree in accordance with this opinion.

."Reversed.