Barlow v. Hitzler

Mr. Justice Goddard delivered tlie opinion of the court: The procedure herein adopted is a well established English chancery remedy, and has been fully adopted in the courts of this country as an important part of their equity .procedure. — Bates on Equity Procedure, vol. 2, § 635. “A suit in equity which is perfect in its institution may, by some event subsequent to the filing of the original bill, become either (1) defective, or (2) abated, or (3) both defective .and abated.” — Ibid., § 633. Although the statute may provide' a summary method for reviving such suits, the right to resort to this remedy is not thereby taken away. The two remedies are concurrent. — 18 Enc. PI. & Pr. 1100, and cases cited. The action was commenced by filing the original complaint and issuance of summons. The proceedings thereafter at the November term, 1897, were without jurisdiction, and consequently void. They did not affect the pendency of the action, or affect in •any way the rights of the plaintiff, but left the issues presented by the complaint undetermined and open for future consideration. The death of Turbutt temporarily abated the suit, and while, under section .15 of the code, his representative might have been substituted and the action continued by him upon motion, yet, because of the matters occurring subsequent to the commencement of the action necessitat- . ing the bringing in of new parties defendant, the procedure adopted was the better method of reviving the action and of presenting and determining the rights of all concerned. The contention of counsel for plaintiffs in error that the proceedings • had at the 1897 term of the district court, the entering of the pretended decree [117] and the removal of the canse from the docket, terminated the suit, is without merit; even if a final-decree had been formally entered it would have been absolutely void for want of jurisdiction and would neither “affect, impair nor create rights.” It left the plaintiff in exactly the same position that he would have occupied if no proceedings had been taken subsequent to the filing of the complaint. Nor was the action discontinued by the death of Turbutt and the failure to take steps to renew it in the name of his representative for more than a year after his death. The code, section 15, fixes no particular time in which •a motion for substitution shall be made. “After the substitution of the administrator as plaintiff, limitation could not be pleaded on account of time elapsed between the death of plaintiff and the substitution of the administrator.” — Cochrane v. Parker, 12 Colo. App. 169; nor does the case come within the provisions of section 2911, Mills’ Ann. Stats., Murto v. Lemon, 19 Colo. App. 314. The case was brought by Turbutt in his lifetime, and was not abated nor discontinued by his death or for any other reason enumerated in sections 2916 and 2917, Mills’ Ann. Stats., which extend the time for bringing actions in favor of executors and administrators upon the happening of certain contingencies. It is clear, therefore, that these sections are not applicable to the facts in this case. Under the doctrine laid down in several cases in this court and the court of appeals, an attempted release of a trust deed by the trustee without authority from.the holder of the trust deed, or the payment of the debt secured thereby, is invalid. The defendant Barlow had notice of this limitation of the power of Aldrich through the recorded deed of trust held by Turbutt. Therefore, she was not an innocent purchaser, but took whatever title [118] slie acquired through the subsequent trust deed charged with notice of Turbutt’s right, and subject thereto. At most, she became vested with the legal title to the premises, burdened with the- trust imposed by his prior trust deed. She was in possession of the premises from .May 20, 1896, claiming title thereto and receiving the rents and profits. Under these circumstances, it was her duty to pay the taxes, and she could not, by neglecting to pay the same and permitting the land to be sold, acquire directly, or through the agency of another, any title to the property adverse to the legal title that she so held in trust. — Barrett v. Amerein, 36 Cal. 322; Bassett v. Welch, 22 Wis. 175; Lacey v. Davis, 4 Mich. 140; Jacks v. Dyer, 31 Ark. 334; Hunt v. Gaines, 33 Ark. 267; Burns v. Lewis, 86 Ga. 591. The court below properly held that the tax deeds were inadmissible, and defendant Barlow, having received from the rents, issues and profits from the land while in possession thereof an amount in excess of the- money expended by her in payment of taxes and for the care and preservation of the property, was not entitled to receive further reimbursements for the money so expended. It was within the province of the trial court, under section 204 of the code, to order a reference to ascertain the amount that defendant Barlow had expended for these purposes, and the amount she had derived from the rents and profits while in possession. Without noticing in detail further objections urged by counsel for plaintiffs in error, suffice it to say that upon a careful examination of the record we can perceive no reason why the findings and conclusion of the trial court should be disturbed-. Its judgment, therefore, is affirmed. Affirmed. Chibe Justice Steele and Mr. Justice Bailey concur.