Van Wagenen v. Carpenter

Mr. Justice Goddard delivered the opinion of the court. 1. The first error relied on is the action of the court granting the appellee a new trial. At the time of the commencement of the action on February 28,1890, there was of record in Lake county a deed of Mrs. Van Wagenen dated October 11, 1887, conveying the four eighteenths interest in question to Lewis M. Gregory; and the complaint averred that the title to this interest was vested in him. This was not denied in the answer; and on the trial, which occurred on February 4, 1896, the court and counsel, supposing that Gregory still held the title, tried the case upon that theory. It appears from the showing made upon the motion for a new trial, that on October 21,1887, Gregory reconveyed this' — 450 — title to Mrs. Van Wagenen. This deed was not placed on record until 1892, during the pendency of the action. The appellee first learned of the existence and record of this deed in April, 1896. Upon these facts being brought to the attention of the judge who tried the cause, he sustained the motion and granted a new trial, as he expressly states, upon the principal ground that he supposed at the time the case was decided that Gregory still held title to said interest in said mine, which had been theretofore conveyed to him by the defendant Anna R. Van Wagenen. The case was therefore tried under a misapprehension as to the actual status of the title to the interest in question. That this mistake seriously embarrassed plaintiff in establishing his claim, and imposed upon him a burden that he ought not to have been obliged to assume, is obvious. It made it incumbent upon him to show that Gregory obtained the title with notice or knowledge of the trust contended for; and failing in this, he could not recover, no matter how clearly he may have been able to establish his right to relief against Mrs. Van Wagenen, had the true condition of the title been known. Upon this assumption, testimony was offered and witnesses cross-examined, and special objections were interposed to certain testimony clearly admissible as against Mrs. Van Wagenen, upon the ground that it was inadmissible to affect Gregory’s title. It is apparent, from the statement of its reason for granting the new trial, that the conclusion of the court was largely influenced, if not entirely controlled, by the supposition that Gregory held the title, and was presumably a purchaser without notice. It is therefore manifest that the cause was tried and determined upon a false issue, and that the appellee was thereby prevented from having his right to the property in question fairly considered and determined. Nor do we think that his failure to discover the true state of the title, under the circumstances, constitutes such a want of diligence as should deprive him of the right to have such issue fairly tried. He had a right to rely, upon the title as recorded at the commencement of — 451 — the action; especially as he was in no way advised by the answer that an unrecorded reconveyance was in existence; and was led to believe, by the conduct of defendants, that no change of title had taken place. We think the court below properly exercised its discretion in granting the motion for a new trial; and we can see no good reason for interfering with its action. 2. The next objection is that the judgment rendered in the case of Carpenter v. Gill, and all proceedings had thereunder, were null and void for the reason that it does not affirmatively appear on the return of the sheriff that the writ of attachment was levied as required by subdivision 2, sec. 98, Code of Civil Procedure of 1877, which was then in force, and which reads as follows: “ Second. Real property, or any interest therein, belonging to the defendant, and held by any other person, or standing upon the records of the county in the name of any other person (but belonging to the defendant), shall be attached by leaving such person or his agent a copy of the writ and a notice that such real property (giving a description thereof), and any interest therein belonging to the defendant, are attached, pursuant to such writ, and filing a copy of such writ and notice with the recorder of the county.” It will be observed that the return of the sheriff as above set forth does not state that he left with Mrs. Van Wagenen, in whose name the legal title to the Pyrenees then stood, a copy of such writ and notice, or that he filed the same with the recorder of Lake county. It is insisted that, as the action was against a nonresident, and the only service of summons had was by publication, and the levy of the writ of attachment being an essential prerequisite to the acquirement of jurisdiction, that it must be made in strict conformity with the requirements of the statute; and the return of the sheriff must show affirmatively that this was done. On the other hand, it is not denied that to initiate jurisdiction against a nonresident a seizure of property belonging to him within the state must be made, and to constitute a valid seizure the — 452 — levy of the writ of attachment must be made in conformity with all the requirements of the statute, but it is contended that when a judgment rendered by a court of general jurisdiction is collaterally attacked, as in this case, it will be conclusively presumed that all the acts necessary to constitute a valid levy were done, unless the contrary appears from the record. There exists an irreconcilable conflict in the authorities upon this question. This conflict arises from the view the different courts entertain as to the nature of the jurisdiction that the courts exercise in enforcing remedies provided by the attachment acts ; some holding that the power to take cognizance of attachment proceedings is a special jurisdiction conferred by the statute, which was not within the general jurisdiction of the courts; and that everything necessary to show that such jurisdiction has been rightfully exercised must appear upon the face of the record; while by others it is held that attachment proceedings are within the general jurisdiction conferred by the constitution, and that the statute has only prescribed a new mode or process for bringing the persons or property within their control; and that the same presumption in favor of jurisdiction of such actions will be indulged as in other cases. Among the cases announcing the latter view are Harvey v. Tyler, 2 Wall. 328, Galpin v. Page, 18 Wall. 350, Voorhees v. Bank, 10 Peters, 449, Willis v. Mooring, 63 Texas, 340, Thompson v. Eastburn, 16 N. J. Law, 100, Diehl v. Page, 3 N. J. Eq. 143, Stewart v. Anderson, 70 Texas, 588, Works, on Juris, of Courts, p. 547, and Bank of Colfax v. Richardson, 54 Pac. Rep. 359. In Voorhees v. Bank, Justice Baldwin, speaking to this point, said: “ The several courts of common pleas of Ohio, at the time of these proceedings, were courts of general civil jurisdiction; to which was added, by the act of 1805, power to issue writs of attachments, and order a sale of the property attached on certain conditions; no objection therefore can be made to their jurisdiction over the case, the cause of action, or the property attached.” — 453 — In Willis v. Mooring, it is said: “ The generally accepted doctrine now seems to be that the jurisdiction over attachment proceedings is part of the general jurisdiction conferred upon the courts in which they are cognizable; and the same presumption in favor of that jurisdiction must be indulged as in other cases, and the same intendments in favor of the officer executing process.” In Stewart v. Anderson, Stayton, C. J., uses the following language: “ There has been much difference of opinion in courts for whose decisions we have the highest respect, as to whether the same presumptions will be indulged in favor of jurisdiction when reliance is placed on citation by publication and seizure of property, as will be when personal service made within the territory over which the court has jurisdiction is relied upon. * * * Whether the jurisdiction of a court be general or special, it cannot be made to depend upon the character of the process through which it acquires power over the person or thing to be affected by its final adjudication. The constitution confers jurisdiction, but the legislature prescribes the process through which persons and things maybe brought within its reach and made subject to its exercise.” We think the rule announced in these cases is supported by the better reason; and that when action of a court of general jurisdiction is invoked in attachment proceedings, although its power to so act is conferred by a special statute, it' nevertheless, in exercising such special powers, acts judicially and is none the less a court of general jurisdiction because it proceeds according to rules and practice prescribed by the statute. The same considerations of public policy and reasons exist why the record, if silent, should be aided by the same presumptions which obtain in cases of personal service. Whether a writ of attachment is issued as an auxiliary to the main action, or to initiate jurisdiction against a nonresident, to constitute a valid levy of the writ the acts required by the statute must be done, which are the same in both instances, and the purpose to be accomplished the same, — 454 — to wit, to bring the property under the dominion of the court for the purpose of subjecting it to the satisfaction of any judgment that may be obtained. The rule requiring the seizure of property within the state belonging to a nonresident defendant, as a condition precedent to the exercise of jurisdiction, is a judicial, and not a statutory requirement. Bank of Colfax v. Richardson, supra. As Bean, J., who delivered the opinion in that case, in speaking of this rule, says, “ Its requirements are satisfied, and the court acquires sufficient jurisdiction of the rem to protect its proceeding from collateral attack, when the property of the defendant has been actually brought within the power and control of the court by a seizure under a lawful writ of attachment issued in the action, although there may be irregularities, even , errors, in the attachment proceedings.” Our conclusion upon this question does not militate against the rule announced in Thompson v. White, 25 Colo. 226, and other decisions of this court in regard to the strictness with which the requirements of the attachment act must be observed ; but only recognizes, as applicable to judgments in this class of cases, the same presumption of jurisdiction upon collateral attack that obtains in other cases, to wit, that everything necessary to be done was done, unless the contrary appears from the record. The plaintiff introduced in evidence, among other things, a certified copy of the final judgment rendered by the county court of Arapahoe county, in the case of Carpenter v. Gill, which recited that the defendant, Grill, having been regularly served with process, and having failed to appear and answer the complaint, his default was entered according to law; a special execution issued thereon, and a sheriff’s deed, conveying to him, as purchaser at a sale duly made thereunder, all the right, title and interest of Grill in and to the Paris and Pyrenees mining claims. This was sufficient to establish his ownership of the Gill interest, and to entitle him to maintain his right thereto against appellant. 8. This brings us to the vital question in the case, and that is whether the appellant acquired and holds title to the four — 455 — eighteenths interest in controversy, in her own right, or burdened with the alleged trust. The solution of this question is not embarrassed by any controversy touching the facts, but depends upon the effect to be given to the facts as established by undisputed testimony, which appear in the foregoing statement, and in brief are, that Gill in 1878 owned the Paris lode claim, and from time to time during that year and the year following he conveyed away all of his title except six eighteenths, two eighteenths of which Theo. P. Van Wagenen, acting as his attorney in fact, conveyed to the Energetic Mining & Prospecting Company, in pursuance of the contract entered into with that company. There is nothing to show that he ever parted with, and was not still the owner of, the remaining four eighteenths on February 1,1881, when the ground included in the Paris claim was relocated and named the Pyrenees. This relocation was made at the suggestion of Theo. F. Van Wagenen, by Gilbert L. Havens, the then owner of one third of the Paris, and one Millspaugh, acting for Van Wagenen. At this time the Paris was not subject to forfeiture, but was relocated and renamed for the purpose of getting rid of some adverse claim made to a portion of the ground, and to procure patent, and with the understanding that all parties interested in the Paris claim should retain the same interest in the Pyrenees. At this time Gill was a nonresident of Colorado, and it does not appear whether he had knowledge of this relocation or in any way consented thereto, except through Van Wagenen, who was his attorney in fact, and had charge and management of this proceeding. While appellant attempts, in her answer, to deny that the location of the Pyrenees was made with the knowledge, or for the benefit of Gill, or for the purpose of removing any apparent cloud upon the title of the Paris claim, she admits that such relocation was made for the benefit of all the other owners. After such relocation, and on February 12, 1881, the locators conveyed the Pyrenees lode to Theo. F. Van Wagenen, who thereupon conveyed to Gilbert L. Havens an undivided one third of said claim. On — 456 — February 19, 1881, Van Wagenen and Havens conveyed the legal title to the Pyrenees lode to appellee for the purpose of procuring patent. A patent was procured in his name, and lie, by direction of Van Wagenan, conveyed seven eighteenths to Havens and eleven eighteenths to appellant, who afterwards conveyed to Oppenheim, Stead and Allen two eighteenths respectively, being the same amount they owned in the Paris lode, retaining in her name the remaining five eighteenths, which represented the one eighteenth owned by Theo. F. Van Wagenen, and the four eighteenths owned b}^ Gill in the Paris claim. There is no pretense that she paid any consideration for the conveyance to her by appellee of the five eighteenths interest which she retains, but avers that she acquired it from her husband, and that the same was conveyed to her by his direction. It seems to us too clear to admit of dispute that a relocation of a mining claim by one tenant in common, under the circumstances attending the relocation of the Paris, would inure to the benefit of his cotenants, whether the relocation was made with their knowledge and consent or not; that such a result would necessarily follow from the fiduciary relation that exists between tenants in common, which prevents one of them from acquiring title to the common property, in violation of the trust and confidence that such relation imposes. Hunt v. Patchin, 35 Fed. Rep. 816 ; Franklin Mining Co. v. O'Brien, 22 Colo. 129; Turner v. Sawyer, 150 U. S.578; Mills v. Hart, 24 Colo. 505; Freeman on Cotenancy, §§151-4; Lockhart v. Rollins, 2 Idaho, 503 ; Lindley on Mines, § 407; Brundy v. Mayfield, 15 Mont. 201. As was said in Turner v. Sawyer, supra : “ It is well settled that cotenants stand in a certain relation to each other of mutual trust and confidence; that neither will be permitted to act in hostility to the other in reference to the joint estate; and that a distinct title acquired by one will inure to the benefit of all.” Whether such result would follow if it was true, as assumed by counsel for appellant, that the Paris was subject to relo — 457 — cation at the time, and was relocated with the intention and for the purpose of excluding some of the original owners of the Paris, it is unnecessary to determine, since it is clear that those conditions did not exist. It sufficiently appears that the Paris was not at that time open to relocation, most of the work by the Energetic Mining & Prospecting Company having been done in the year 1880, and that the relocation was made for the benefit of all owning interests in the Paris. But counsel for appellant also contend that, notwithstanding the fact that Gill’s title to the four eighteenths interest still remained of record, by reason of his silence and failure to assert his right to the interest, it is to be presumed that he had abandoned or disposed of it prior to the relocation of the Paris. We do not think there is any merit in this claim. It certainly is not to be presumed, in the face of the fact that his title to this interest then stood of record in his name, that he had transferred it to any one else; nor is abandonment to be presumed from mere silence. A title to realty is not lost by failure of the owner to assert his claim to it. Other eircumstancs must concur that would in equity estop him from asserting it, to the prejudice of one who had been misled by his silence. No such conditions are present in this case. In the circumstances of this case it is clear that the title acquired by the locators of the Pyrenees was impressed with a trust in favor of the owners in the Paris, to the extent of their respective interests in that claim ; and that Gill, as the owner of four eighteenths interest remained the equitable owner of that interest in the new location, only the naked legal title thereto vesting in the locators, in trust for him; and nothing occurred in the subsequent proceedings that in any way affected his right to that interest. The conveyance of this title by Van Wagenen and Havens to appellee was concededly for the purpose of enabling him to procure a patent to the Pyrenees in his name, for the joint benefit of all interested; and it goes without saying that the patent he obtained inured to their benefit, and vested him with the legal title solely as their trustee. While his deed to appellant recites a consider — 458 — ation of 111,000, it appears by undisputed testimony that, as a matter of fact, it was a voluntary conveyance, and without any consideration whatever; hence it transferred to her only the legal title to the eleven eighteenths interest, impressed with the trust that existed in favor of the original beneficiaries. Pomeroy, in his work on Equity Juris. § 1048, states the rule upon this subject as follows : “ Wherever property, real or personal, which is already impressed with or subject to a trust of any kind, express or by operation of law, is conveyed or transferred by the trustee, not in the course of executing and carrying into effect the terms of an express trust, or devolves from a trustee to a third person, who is a mere volunteer, or who is a purchaser with actual or constructive notice of the trust, then the rule is universal that such heir, devisee, successor, or other voluntary transferee, or such purchaser with notice, acquires and holds the property subject to the same trust which before existed, and becomes himself a trustee for the original beneficiary. * * * It is not necessary that such transferee or purchaser should be guilty of positive fraud, or should actually intend a violation of the trust obligation; it is sufficient that he acquires property upon which a trust is in fact impressed, and that he is not a bona fide purchaser for a valuable considerar tion and without notice.” Counsel for appellant, however, contend that appellee is estopped, by this deed, from asserting the interest that he subsequently acquired by virtue of sec. 430, Mills’ Ann. Stats, which provides, inter alia, that: “If any person shall * * * convey * * * land * * * not being possessed of the legal estate or interest therein at the time * * * and after such sale * * * shall become possessed of, and confirmed in, the legal estate of the land or real estate so sold and conveyed, it shall be taken and held to be in trust, for the use of the * * * vendee; ” etc. We do not think that the conveyance given by appellee comes either within the letter or the spirit of this statute. Its obvious purpose is to confirm in the grantee any legal es — 459 — tate or interest subsequently acquired by the grantor which was intended to be conveyed. As we have seen, appellee was trustee of the naked legal title. He had no beneficial interest or estate in the land, nor did he attempt to convey such an interest. Neither, therefore, by this statute nor by any principle of equity, is he estopped from subsequently acquiring a beneficial interes tin the property, and of availing himself of such remedies to enforce his right thereto as his predecessor in interest might have invoked. The final contention of counsel is that the evidence introduced was not of the character and probative force requisite to establish a trust of this character. Aside from the parol testimony, which we think was admissible to show the intent and purpose with which certain acts were done, to aid the presumption which the law implied from the acts themselves, the record evidence was sufficient in itself to clearly and conclusively establish the trust as alleged : and the finding of the court below upon this issue, as well as its finding that the appellee was the owner of the Gill interest and entitled to the relief demanded, was supported by adequate testimony. Upon a careful consideration of all the questions presented, and the able arguments of counsel, we are satisfied that the trial court committed no error that will justify a reversal. Its judgment is therefore affirmed. Affirmed.