Εικόνες σελίδας
Ηλεκτρ. έκδοση

manifests, and, when such an attempt is 2. Under Mills' Ann. St. $ 4783, providing made, it should be properly carried out.

that a creditor of a decedent's estate whose Plaintiff should not state his cause of action

claim is secured by a mortgage shall not be al

lowed to foreclose the mortgage within a year in terms so uncertain that defendant can

from decedent's death, unless by permission of only guess which of these three inferences the court, and “in no event” unless his claim it must select as the one upon which plain

has been allowed by the court, the allowance of tiff relies. Especially is the defendant en.

the claim is a prerequisite to the mortgagee's

right to foreclose at any time. titled to have this uncertainty removed when we consider the ground of the demurrer that

Appeal from district court, La Plata counthere is a defect of parties defendant. As

ty. the complaint is now framed, it is impossible Action by Dennis Sullivan against Elizato say whether or not this objection is well beth G. Reid and others to obtain an order taken. If plaintiff relies upon a superior

of sale of real estate under the terms of a right, which the law implies merely from his trust deed securing promissory notes. From prior purchase of stock, then it may be pos- a judgment for plaintiff, defendants appeal. sible that the plaintiff should make the other

Reversed. stockholders parties to the action, or that John Reid in his lifetime executed certain the court, of its own motion, would order promissory notes, securing the same by them to be made defendants, as their rights deeds of trust upon real estate. Afterwards might be directly affected. The allegations Reid died, leaving such notes unpaid, and of negligence and unjust discrimination, and also unsecured debts aggregating a large the allegations in relation to the inequitable amount. Letters of administration upon conduct of the defendant in depriving the Reid's estate were duly issued, but the seplaintiff of the water which he claims, as cured notes were not presented to the counwell as the allegations attempting to set up ty court for allowance prior to the instituplaintiff's priority, are too indefinite to call tion of the present action, or at all. An effor an answer. The facts which constitute fort was, however, made to sell under the the things which are essential to the exist

powers conferred by the deeds of trust, but ence of the rights claimed by plaintiff should the sales were enjoined by the county court be concisely set forth in the complaint. So at the suit of certain of the unsecured credfar as there is an attempt to state them at | itors. Upon final hearing, this injunction all, these essential elements are alleged was made perpetual, and the case was theremerely as conclusions of law. The opinions upon taken by appeal to the court of appeals, of the three justices in the case of Railroad where it was still pending and undetermined Co. v. Southworth, 13 Colo, 111, 21 Pac, 1028, at the time of the trial of the present case upon the questions of pleading determined in the district court. Sullivan, the holder of therein, are authority for holding this com- the secured notes, brought this action in the plaint bad on demurrer. Brevity in plead- district court for the purpose of obtaining ings is highly commendable, and will be en an order of sale subjecting the real estate couraged in every legitimate way by this covered by the deed of trust to the liens of court; but brevity cannot be allowed at the the trust deeds. In the district court judg. sacrifice of a logical, complete statement of ment was entered in his favor, and the adthe ultimate facts, "in ordinary and concise ministrators bring the case here upon aplanguage, without unnecessary repetition." peal. The following statutes of this state When all these facts are properly pleaded,

are relied upon in argument: it will be time to call upon this court for a "All demands against the estate of any construction of the so-called prorating ir- testator or intestate shall be divided into rigating statutes, and for a ruling as to

classes in manner following, to wit: First. whether there is a defect of parties defend- All funeral and other expenses attending the ant. The demurrer to the amended com

last sickness shall compose the first class. plaint was properly sustained, and the judg

Second. All expenses of proving the will ment of court below is aflirmed. Af

and taking out letters testamentary or of firmed.

administration and settlement of the estate,

and the physician's bill in the last illness (0 Colo. 498)

of the deceased, shall compose the second REID et al. v. SULLIVAN.1

class. Third. Where any executor, adminis

trator or guardian has received money, as (Supreme Court of Colorado. Dec. 22, 1895.)

such, his executor or administrator shall CLAIMS AGAINST DECEDENT'S Estate -- FORECLO- pay out of his estate the amount thus reSURE OF MORTGAGE- PRESENTATION OF CLAIM

ceived and not accounted for, which shall -ALLOWANCE BY COURT.

compose the third class. Fourth. All other 1. Under Mills' Ann. St. $ 4780, providing that all “demands” against a decedent's estate,

debts and demands of whatsoever kind, not presented within one year after notice, shall

without regard to quality or dignity, which be barred. the failure to present within such shall be exhibited within one year from the time a claim secured by a mortgage on land

granting of letters, as aforesaid, shall comdoes not bar the mortgagee's right to subject the land to the payment of the claim.

pose the fourth class; * and all de

mands not exhibited within one year, as 1 Rehearing denied February 8, 1895. aforesaid, shall be forever barred, unless such creditor shall find other estate of the last resort in the states of Texas, California, deceased not inventoried or accounted for and Florida. See Graham v. Vining, 1 Tex. by the executor or administrator; in which 639, 2 Tex. 433; Duty V. Graham, 12 Tex. case his claim shall be paid pro rata out of 127; Ellissen v. Halleck, 6 Cal. 386; Ellis v. such subsequently discovered estate, saving, Polhemus, 27 Cal. 330; Sichel v. Carillo, 42 however, to femes covert, persons of un- Cal. 493; Pitte v. Shipley, 46 Cal. 154; Harp sound mind, or imprisoned, or beyond seas, v. Calahan, Id. 222; Verdier v. Roach (Cal.) the term of one year after their respective 31 Pac. 554; Bush v. Adams, 22 Fla. 177. But disabilities be removed, to exhibit their outside of the states mentioned a contrary claim." Mills' Ann. St. $ 4780.

rule prevails. See Allen v. Moer, 16 Iowa, "Creditors of any estate whose debts are 307; Willard v. Van Leeuwen, 56 Mich. 15. secured by mortgage or deed of trust on real 22 N. W. 185; Simms v. Richardson, 32 Ark. estate, shall not be allowed to foreclose such 297; Allen v. Smith, 29 Ark. 74; Smith v. mortgage or deed of trust within one year Gillam, 80 Ala. 296: Scaioinon v. Ward, 1 from the death of the testator or intestate, Wash. St. 179, 23 Pac. 439; Reed v. Miller, unless by the permission of the county court 1 Wash. St. 426, 25 Pac. 334; Edgerton v. having charge of the estate, and not until Schneider, 26 Wis. 383; Miller v. Helm, 2 their debts or claims have been allowed by Smedes & M. 687; Bank v. Doe, 19 Vt. 463; such court." Acts 1885, p. 395, $ 8.

Dodge v. Mack, 22 Ill. 93. See, also, Judy v. “Creditors of any estate whose debts or Kelley, 11 Ill. 211; Mulvey v. Johnson, 90 claims are secured by mortgage or deed of Ill. 457; Woerner, Adm'n, p. 860, 861, $ 409. trust on real estate, or by chattel mortgage or The arguments controlling in those jurisdicother security, on personal property, shall not tions in which it has been held that claims be allowed to foreclose such mortgage, deed secured by mortgage or deed of trust upon of trust, chattel mortgage or other security, real estate are not within the general lanwithin one year from the death of the testa- guage of the statutes of nonclaims are that tor or intestate, unless by the permission of such claims cannot, in any just sense, be the county court having charge of the estate, considered as claims against the estate, but and in no event until their debts or claims that the right to subject specific property to have been first proved and allowed by such the claim arises from the contract of the court; provided, that the lien of any such debtor, whereby he has during life set aside creditor having security upon personal prop- certain property for its payment, and that erty, as aforesaid, shall not be impaired by such property does not belong to the estate, such suspension of his remedy." Mills' Ann. and that the instrument, being of record, is St. $ 4783.

notice to all the world of the contract. In

the states of Texas, California, and Florida, Russell & Ritter, H. N. Hawkins, and

where the exceptional doctrine prevails, and Thomas M. Patterson, for appellants. Wells,

such secured claims are held to be within Taylor & Taylor, for appellee. R. D. Thomp

the general statutes of nonclaims, it has been son, amicus curiae.

thought that the language of the statutes,

whether the word “claims," "debts," or "deHAYT, C. J. (after stating the facts). This mands" is used, is sufficiently comprehensive record presents an important question, viz.: to include every species of charge against Under Colorado statutes may creditors, the estate, whether recorded or unrecorded. whose claims are secured by deeds of trust In those states the question has usually arisupon real estate of the debtor, foreclose, aft- en upon mortgages, and in a number of iner the death of the debtor, before such stances much weight has been given to the claims are allowed against the estate in the fact that in the particular jurisdiction a course of administration? Following the or- mortgage on real estate did not convey the der of argument pursued by counsel, we will legal title to the mortgagee. This reason first consider the general statute of nonclaims does not exist in this state, where the securiof this state. Mills' Ann. St. $ 4780. Appel- ty, as in this case, is by deed of trust, as lants contend that, under the fourth sub- such an instrument conveys the legal title division of the act, appellee's claim is abso- to the trustee. Stephens v. Clay, 17 Colo. lutely barred. The language of the section 489, 30 Pac. 43. Although in the state of is; “All other debts and demands of what- California the statute of nonclaims has been soever kind without regard to quality or dig. held to embrace claims secured upon real esnity, which shall be exhibited within one tate, in the case of Whitmore v. Savings year from the granting of letters, as afore- Union, 50 Cal. 145, the failure to present a said, shall compose the fourth class; * claim secured by deed of trust within the and all demands not exhibited within one time fixed by the statute was held not to year, as aforesaid, shall be forever barred, extinguish the debt, and a majority of the unless such creditor shall find other estate of court expressly refused to compel the creditthe deceased not inventoried," etc.

This or

or to deliver up his securities, Justices Crocksimilar statutes have been repeatedly before ett and McKinstry dissenting. Mr. Justice the courts of other states for construction. Crockett, in his dissenting opinion, claims Able opinions in support of appellants' con- that the conclusion reached by the majority tention have been written by the courts of is inconsistent with the previous decisions of

[ocr errors]

the court, requiring the presentation of all the general assets of his deceased debtor. claims, and we think the decision in the For the reasons stated, we are of the opinWhitmore Case weakens the force of such ion that section 4780 does not apply to previous opinions as precedents. Our stat- claims secured by deed of trust upon real ute is like the statute of the state of Illinois, estate. This brings us to a consideration and was evidently taken from that state, and of the acts of 1885 and 1889. Section 3 of with the statute we took the construction the former relates expressly to mortgages theretofore given it in that state, to the effect and deeds of trust on real estate. It prothat it did not apply to secured claims. Dodge vides that “creditors of any estate whose v. Mack, supra. While counsel are correct debts are secured by mortgage or deed of in the statement that in adopting the statute trust on real estate shall not be allowed to we adopted only the construction that had foreclose

* * within one year, at the time given to it by the Illinois court, unless' by the permission of the county they are in error in assuming that the stat- court,

and not until their devts ute had not been construed previous to the , or claims have been allowed by such court." time at which it was transplanted to this In the year 1889 this statute was amended jurisdiction. The decision in the Dodge- and extended to claims secured by chattel Mack Case, supra, was rendered in the year mortgage, and the words "and not until" 1839. In that case it is expressly held that were changed so that the statute reads "in if an execution is delivered to the sheriff no event until," and a proviso was also during the life of the execution debtor, ard added to the effect that the lien of such such debtor dies before a levy has been creditor upon personal property shall not be made, the officers may proceed to levy and impaired by such suspension of the remedy. sell, notwithstanding the statute. After It is contended that the language, “and in quoting the section under consideration, the no event until their debts or claims have court says: “Thus it will be seen that, wheth- been first proved and allowed by such er a debt be due by judgment, bond, or sim- court," is referable only to the preceding ple contract, if resort is had to the mode clause, which provides for the foreclosure. prescribed by this statute for its payment within one year, by permission, etc. The no preference is given. Yet that there are intent, it is said, is to permit the foreclosure cases where the debt may be collected with- within the year, in the discretion of the out filing the claim, and sharing in the dis- court, provided the claim is first allowed, tribution of the assets, is undoubtedly true; no allowance being necessary to foreclosure as where the creditor holds a mortgage on after the year. But this construction does property of deceased; or where property has violence to the language of the act, which been pledged to secure the payment of the reads that creditors shall not be allowed to debt, or where there has been a recovery and foreclose within one year, etc., and (not) in an execution issued and levied in the life- no event until their debts or claims have time of the deceased, in each of these cases been allowed. We know of no reason why the property thus bound may be sold after presentation and allowance should be rethe debtor's decease, in satisfaction of the quired, as a condition precedent to foredebt. In each of these cases the creditor has closure within one year, that does not apply arquired a lien, and the specific property bas with greater force to foreclosures after that been appropriated either by the debtor, or time. The statute would be unavailing as by the law, for its satisfaction, and the a protection to the estate, if foreclosures death of the debtor can in no wise affect the could be taken after one year without prov. rights of the creditor."

ing the claim, as with the lapse of time the Although the precise question has not opportunities for fraud would be increased, heretofore been passed upon by this court, rather than diminished. It is the foreclothe statute under consideration was adopt- Eure, in the absence of proof and allowance ed early in the 60's, and the decisions of the of the claim, that is prohibited. The reason Illinois court thereon have been accepted for this is obvious. Experience has shown and acted upon without question for many that foreclosure proceedings are sometimes years. Title to property worth many mil- attempted when the claim had been fully or lions of dollars has been passed upon the in part paid, and the courts in the states of supposition that the statute did not affect Texas, California, and Florida have in vigorsecured claims. We would not, therefore, ous language pointed out the necessity for be justified in setting aside, for any but the protecting estates from summary proceed. most cogent reasons, a construction that has ings by foreclosure, without requiring the so long been followed and so generally ac- claimant to first establish his claim to the quiesced in. Moreover, while there is some satisfaction of the court charged with the conflict in the cases, as we have shown, administration of the estate, and without giv. the decided weight of authority is in favor ing the representatives of the deceased an of the conclusion that the general statute opportunity for a judicial investigation in ad does not apply to claims secured by mort- vance. Two conditions are imposed by the gages or deeds of trust, where the creditor act, viz.: (1) The time at which a foreclorelies solely upon the property covered by sure may be had is postponed for one year his lien, and relinquishes all claim against from the death of the testator or intestate, unless permission to foreclose at an earlier Charles W. Everett, for the State. date be obtained from the county court. (2) As a condition precedent to foreclosure, the CAMPBELL, J. This is an action against debt or claim secured must be first proved the defendant, Dominic Raims, charging him and allowed by such court. Whatever doubt with the violation of an ordinance of the might otherwise exist with reference to the town of Elyria regulating the sale of liquor. law upon the question is set at rest by the In the police magistrate's court, where this plain language of the acts. The statute is action was originally brought, a fine was decisive of this appeal, as it is admitted by assessed against the defendant. From that the pleadings that the notes which form the judgment the defendant appealed to the basis of the suit were never allowed or pre- county court, where a trial was had by the sented to the county court. It is not neces- court without a jury, and the defendant was sary in this case to determine the time with- discharged. The plaintiff brings the case in wbich such claims inust be presented. It here upon writ of error. has been argued that the presentation pro- There being no appearance for the defendvided for must be made within a year after ant in error, we must look to the record, the death of the testator or intestate, and and to the argument of plaintiff in error, to also that it may be made at any time before ascertain the grounds upon which the court the estate has been finally administered; but, based its judgment of dismissal. There are as the claims relied upon in this case have no disputed questions of fact. The evidence never at any time been presented to the is in the form of an agreed statement of county court for allowance, it is unnecessary facts, the ordinance book and the record to determine this question in this case, and book of the town, the supplemental record of we think it would be improper to do so, par- the board of trustees as to certain correcticularly as other cases are pending in which tions and amendments of the record of the the question of time of presentation is neces- proceedings of the board when the ordinance sary to a decision. If we at this time should was passed, setting forth what took place at go beyond the case presented by the record, that time, and oral testimony by the mayor our conclusion upon other matters ought not and clerk of the town as to the manner of to control in a subsequent case, and we do the passage of the ordinance. From this not feel at liberty to undertake the decision .evidence it appears that the place of busiof a question of such vast importance, affect- ness of the defendant is within the limits of ing, as it does, large property rights and Arapahoe county, and not within any incormany claimants, until a case is reached di- porated city or town. It is within one mile rectly involving the precise point. In this of the outer boundaries of the town of Elycase the decree of the district court is errone- ria, and, as to location, sustains the same ous, for the reason that the claim had not relation to the town of Argo. Both of these been allowed by the county court. The towns are inccrporated under the general injudgment will accordingly be reversed, and corporation laws of the state,-Elyria, on the the cause remanded. Reversed.

1st day of August, 1890; Argo, at an earlier date. The boundaries of these towns are not

contiguous, though evidently it was contend(20 Colo. 489)

ed in the court below that, inasmuch as dePEOPLE v. RAIMS.

fendant's place of business was within one (Supreme Court of Colorado. Jan. 21, 1895.) mile of the limits of each town, the boundSALE OF LIQUOR-REGULATION BY Towy-EXCLU- aries of the two towns “adjoined,” in the SION OF COUNTY JURISDICTION-EVIDENCE

sense of the word as employed in the stat- PROCEEDINGS OF Town BOARD.

ute. Prior to the incorporation of the town 1. Mills' Ann. St. § 4403, subd. 18, gives to an incorporated town the exclusive right to li

of Elyria, the defendant was engaged in sellcense or prohibit the sale of liquor within one ing liquor at his place of business in quan. mile beyond its boundaries. Mills' Ann. St. c. tities less than one quart; and on the 4th 76, gives a general authority to the boards of county commissioners to grant licenses for the

day of August, 1890, he applied to the board sale of liquor. Held, that the fact that a coun

of commissioners of Arapahoe county for a ty license was issued to one selling liquor with- liquor license, paid the fee exacted, and therein a mile of an incorporated town did not ex- after received such license from the county, empt him from the operation of an ordinance of the town thereafter passed, requiring a li

granting him permission to sell for a period cense to be paid by those selling liquor within of one year.

On the 17th day of February, that distance of the town.

1891, the board of trustees of the town of 2. One who acquired no rights between the

Elyria passed an ordinance, section 2 of time of the making up of the original record of proceedings of the town board and the making which prohibited the sale of liquor within up of a supplemental record is not injured by the limits of the town, and within one mile the introduction of the latter in evidence.

beyond the outer boundaries thereof, unless Error to county court, Arapahoe county. the dealer secured from the town a license

Dominic Raims, convicted in a police court therefor. Other sections of this ordinance of violation of a city ordinance, appealed provide a penalty for the violation of section to the county court, and from a judgment 2, and there are other sections for carrying therein, discharging defendant, the state into effect the provisions of the ordinance. brings error. Reversed.

The defendant never had a license from either Elyria or Argo to sell liquor at his vide that not only the territory included within place of business, and he admits that he the limits of the towns, but also territory withwas selling liquor thereat on the 7th day of in certain designated distances beyond the May, 1891, as charged in the complaint filed outer boundaries thereof, shall come under the iu the office of the police magistrate. The operation of such granted power. Chicago regularity of the proceedings before the po- Packing, etc., Co. v. City of Chicago, 88 III. lice magistrate's court is conceded, but the 221. In chapter 76, Mills' Ann. St., is found validity of the ordinance is attacked on the the general authority of the board of county ground that the yeas and nays were not commissioners to grant licenses for the sale called when the ordinance was on its pas- of liquor. The defendant admits that he was sage, and that the vote thereon was not re- selling liquor at his place of business in May, corded as our statute requires. The oral tes- 1891, but says that his license from the countimony and the supplemental record of July ty of Arapahoe, granted in the month of Au18, 1891, if they are to be considered at all, | gust, 1890, to sell for one year thereafter, is a show conclusively that strict compliance was good defense to this action of the town of Elyhad with the statute. The questions involv- | ria. The argument is that the county of Araped here are: First. Has the town of Elyria ahoe is given the authority by the statute to authority, under the statute enumerating the regulate the sale of liquor within the county. powers of municipal corporations, to enact After Elyria was incorporated as a town, and an ordinance regulating the sale of liquor be- before it exercised its power to pass an oryond the outer boundaries of the town, and dinance assuming to regulate the sale of within one mile of its limits? Second. Was | liquor within the disputed territory, the dethe county license issued to the defendant a fendant obtained a license from Arapahoe protection to him against the proceedings in-county to sell for the period of one year. stituted against him by the town authorities During such period this license was all the of Elyria ? Third. Is the record of the pro- authority that defendant required for conceedings of the board of trustees of the ducting his business, because the statutes of town of Elyria at the date of the passage of the state having given Arapahoe county con. such ordinance sufficient to establish its va- trol over the liquor traffic within its territory, lidity? If not, is oral evidence permissible and like authority to the town of Elyria, the to show compliance on the part of the board county having first exercised such control, of trustees with section 4445, Mills' Ann. St. and granted to defendant the right to sell, (Gen, St. § 3324), · which requires that the the authority of the town was suspended yeas and nays shall be called and recorded during the life of the license. The reply to on the passage or adoption of every ordi- this argument is that the very words of the nance?

statute give to the town exclusive authority The first two questions may be considered to license all places wherein liquors are sold together. The statutes under which this or- within this disputed territory. This court dinance was passed, in so far as the same has repeatedly held, in effect, that the statare pertinent here, are as follows: "The ute means what it says, and that the jurisboard of trustees of every incorporated town diction of the town is exclusive of that asshall have exclusive authority to license sa- sumed by the county. Huffsmith v. People, loons, groceries, and all places wherein spir- | 8 Colo. 175, 6 Pac. 157; Rogers v. People, 9 ituous, vinous, malt or other intoxicating Colo. 150, 12 Pac. 813. “But, if this conclusion liquors are sold.” Section 2833 Mills' Ann. were wrong, another and satisfactory reply St. (Gen. St. $ 2106). Section 4403, subd. 18, is that, even though the authority of the town Mills' Ann. St. (Gen. St. $ 3312), among other is not exclusive, still, as defendant's counsel things, gives to an incorporated town "the would concede, the legislature has given both exclusive right to license, regulate or pro- to the county and to the town authority to hibit the selling or giving a way of any in- regulate such traffic at the place in controtoxicating, malt, vinous, mixed or fermented versy. The license is not a contract. As liquor within the limits of the town, or this court and other courts have often held, within one mile beyond the outer boundaries "A license confers the right to do that which, thereof, except where the boundaries of two without the license, would be unlawful." towns adjoin." No authorny need be cited The legislature, having the right absolutely to the effect that the regulation of the liquor to prohibit such sales as defendant was maktraffic is purely a legislative power, and that ing, has also the right to confer, and did it is also clearly within the power of the leg. confer, upon the county and upon the town, islature to delegate to the municipal au- the same power of prohibition. When, howthorities the power to regulate, license, or ever, it provided for a license of this class prohibit the sale of liquors within their own of traffic, it had the power to require that de limits. We are aware of no rule that re- fendant should procure such license both quires the legislature, in its grant to towns from the county and from the town. So, of the authority to regulate this traffic, to whether we hold that the authority of Elyria confine the exercise of such power to the is exclusive of Arapahoe county, or that they limits of the towns themselves. On the con- had concurrent jurisdiction, the same contrary, it is within the power of the legisla-clusion will be reached. If the jurisdiction ture, in delegation of such authority, to pro- of the town is exclusive, the defendant's 11

« ΠροηγούμενηΣυνέχεια »