except when leave of court is first obtained on good cause shown. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3097; Dec. Dig. § 762.*] En Banc. Appeal from District Court, City and County of Denver; Hubert L. Shattuck, Judge. Action by Mary E. Pursel against Harry Clayton Davis and others. From a judgment for plaintiff, defendant named appeals. Aftirmed. Elliott & Bardwell, Elson H. Whitney, and J. C. Helm, all of Denver, for appellant. Goudy & Twitchell and J. H. Burkhardt, all of Denver, for appellee. terest therein, subject to all incumbrances thereon; that this agreement was thereafter, in writing, assigned by John T. Pursel, for a valuable consideration, to the plaintiff, Mary E. Pursel; that thereafter, on the 3d day of April, 1895, in pursuance of the aforesaid agreement, David K. Wall by a quitclaim deed conveyed his title and interest in and to the premises to John T. Pursel; that on the same day John T. Pursel, in pursuance of the aforesaid assignment, conveyed the premises, by quitclaim deed, to Mary E. Pursel, subject to the hereinbefore designated deed of trust securing the Bouvier note; that Mary E. Pursel on that date entered into possession of the premises, and has at all WHITE, J. This action involves the own- times since remained in the possession and ership of certain real estate consisting of occupancy of the same by her tenants, as the four lots, with buildings thereon, situate on owner thereof, and made, and caused to be Wazee street in the city of Denver. It was made, valuable and permanent improvements brought by Mary E. Pursel, as plaintiff, thereon, and expended large sums of money against Harry C. Davis and others, as defend- in the payment of taxes upon the property ants. Davis' claim of ownership is based up- and interest upon the trust deed and morton a warranty deed dated April 2, 1907, from gage indebtedness; that on the 30th day of Mrs. Georgie A. Everett, who was the grantee November, 1903, the aforementioned deed of of the premises in a trustee's deed upon the trust, securing the payment of the Bouvier foreclosure of a deed of trust thereon, exe- note, was foreclosed, and the property therecuted by David K. Wall and John T. Pursel, in described was bid in or purchased by to secure to Michel C. Bouvier, or order, the Georgie A. Everett in pursuance of an agree payment of their promissory note for the ment between her and the plaintiff that any sum of $6,000. Plaintiff admits the execu- title acquired through and under such sale tion of the deed of trust, the foreclosure "should be held as and for a mortgage sethereof, and the trustee's deed to Mrs. Ever-curity for the payment by the plaintiff of ett, and the execution and delivery by the the indebtedness" to Mrs. Everett for the latter of a warranty deed to Davis. She principal sum of $6,000 secured by the deed claims, however, that subsequent to the exe- of trust aforesaid, together with interest cution of the deed of trust she acquired title thereon; that Mrs. Everett at all times had to the property, went into possession thereof, knowledge of, and recognized plaintiff's ownand made valuable and permanent improve- ership and possession of the premises in ments thereon; and that the foreclosure of question; that the indebtedness, so secured, the deed of trust was at her instance and continued to exist as before, and plaintiff request under an agreement with Mrs. Ever- continued to pay interest thereon to Mrs. ett that any title which the latter acquired Everett to the date of the Davis deed, at an thereby should be held and considered a agreed increased rate per annum; that Mrs. mortgage, securing the payment by plaintiff Everett was never in possession of the premof the indebtedness represented by the Bou- ises, and the title and ownership thereof revier note, together with an increased rate of mained in the plaintiff and was never coninterest thereon; and that Davis, at and veyed to, or acquired by, Mrs. Everett; that prior to the time of his deed from Mrs. Ev- Davis, at and prior to the time he purchased erett, had full notice and knowledge of the the property and premises, and received his rights and title of plaintiff in and to the warranty deed therefor, had notice of the premises. Upon the material, controverted rights and title of plaintiff in and to the questions of fact the court submitted interrog- premises, and was not a bona fide purchaser atories to a jury, and the answers returned thereof without notice. thereto were in favor of the plaintiff. Sub sequently these findings were approved by the court and formed the basis of its decree in favor of plaintiff, from which defendant Davis prosecutes this appeal. The court found, and the decree recites, substantially, that about November 1, 1894, David K. Wall and John T. Pursel owned the premises in question, at which time they signed and entered into a mutual agreement, in writing, that Wall should convey to Pursel, for a designated consideration, his in The aforesaid agreement between Wall and Pursel, together with the assignment thereof to plaintiff, and the quitclaim deed from Wall to Pursel, were offered and received in evidence, but the quitclaim deed from Pursel to plaintiff was not produced at the trial, the plaintiff claiming that it had been lost. None of those instruments were recorded. The principal contention of plaintiff is that the proven and admitted facts are insufficient to support the decree. [1] In this character of cases an appellate For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes tribunal may examine the evidence to ascertain if the trial court had the right conception of the law, if its conclusions are supported by the evidence, or are fair deductions therefrom; and if, upon the whole case, it is reasonably certain that the decree is palpably unwarranted, though it may be slightly supported by the evidence, it should nevertheless be set aside. On the other hand, however, if the decree is supported by the evidence, under a proper conception of the law, it should not be disturbed, though the reviewing tribunal might have, if passing upon the matter in the first instance, reached a different conclusion. Perot v. Cooper, 17 Colo. 80, 28 Pac. 391, 31 Am. St. Rep. 258; Rust v. Strickland, 21 Colo. 177, 179, 40 Pac. 350; Jordan v. Greig, 33 Colo. 360, 380, 80 Pac. 1045; Rankin v. Cardillo, 38 Colo. 216, SS Pac. 170; Heron v. Weston, 44 Colo. 379, 383, 100 Pac. 1130; Baird v. Baird, 48 Colo. 506, 111 Pac. 79; Fetta v. Vandevier, 3 Colo. App. 419, 34 Pac. 168. [2] In equity the judgment is essentially a deduction as to what is just and true from the facts and circumstances proven in each particular case. It is therefore a question for the trial court as to the convincing effect of the evidence. When that tribunal enters a decree, and there is a fair quantum of admissible and proper evidence to support its conclusions, we must presume that it was governed by proper rules of law, unless the contrary appears, and that its findings are correct. This applies as well to those questions in a case which must be established by clear and convincing proof, beyond a reasonable doubt, as to those which may be established by a mere preponderance of the evidence. The principle of testing the weight of the evidence is no different upon one matter than upon another. In most trials presumptions arise at every step which have their effect, and are conclusive, unless overcome by proper evidence sufficient for that purpose. However, in almost every case of this character certain matters depend upon the existence or nonexistence of extrinsic facts and circumstances resting in parol testimony. [3] The establishment of those facts and circumstances to the satisfaction of the trial court depend largely on the character of the witnesses, the consistency of their testimony, and their manner and appearance on the witness stand. It is that court, not this, which must determine the credibility of the witnesses, pass upon the weight of their evidence, and find the facts. We think this is the rule heretofore recognized and applied by this court. Whitsett v. Kershow, 4 Colo. 419; Townsend v. Peterson, 12 Colo. 491, 21 Pac. 619; Armor v. Spalding, 14 Colo. 302, 23 Pac. 789; Perot v. Cooper, supra, 32 Pac. 70; Davis v. Hopkins, 18 Colo. 153; Butsch v. Smith, 40 Colo. 64, 90 Pac. 61; Heron v. Weston, supra; Baird v. Baird, supra; Fetta v. Vandevier, supra. In Perot v. Cooper, supra, we reversed the decree because the trial court had clearly misconceived the law by determining the matter upon the presumption that, notwithstanding there was a substantial conflict in the evidence, a mere preponderance thereof was sufficient to transform a conveyance, absolute in form, into a mortgage security. It was also a misconception of the law that necessitated a reversal in Fetta v. Vandevier, supra, where the only evidence of the nature and character which courts held essential to justify the decree entered came from the mouth of a witness disqualified under the statute to testify in the case. In Butsch v. Smith, supra, while doubt was expressed as to the sufficiency of the evidence, the decree was not set aside for that reason, but rather because it appeared that the trial court misconceived the law of the case by refusing to admit and consider material evidence under the issues made, and which might have caused a different conclusion, had it been received and considered. In Baird v. Baird, supra, the decree was entirely unsupported by the proofs. Upon the material issues there was no substantial conflict in the evidence, and, viewed in its most favorable light and upon the assumption of its truth, the conclusions to support the decree could not be deduced therefrom. In the other cases cited the decree of the trial court was upheld. [4] Guided by these rules, let us now consider the claim here made of the insufficiency of the evidence to support the decree. It is said that it fails to show any title whatever to the premises in plaintiff. We do not so read the evidence. On the contrary, it conclusively shows that on April 3, 1895, the premises were, by quitclaim deed, conveyed to the plaintiff by John T. Pursel for a valuable consideration. Both the grantor and grantee therein testified that the particular deed once existed; that it was drawn by the same lawyer, and acknowledged before the same notary public, at the same time and place as the like deed from Wall to Pursel, and was the same in form, except as to the names of the respective grantors and grantees and the description of the property conveyed; that it was delivered to the grantee, the plaintiff herein, for a valuable consideration, whereupon she went into possession of the premises as the owner thereof, and thereafter exercised exclusive ownership over the same. This testimony was in no wise contradicted, and was, of itself, sufficient to warrant the finding of the court. [5] The fact that certain alleged conversations of these two witnesses with another witness, relative to this deed, were denied by the latter, did not destroy the evidence of the former or necessarily render it unworthy of belief. Its credibility and weight, under all the facts and circumstances of the case, were for the jury and trial court to determine. Moreover, numerous facts and circumstanc es in evidence strongly corroborate the testimony of these witnesses, that the deed actually existed as claimed by plaintiff. Conversations taking place in the fall of 1895, between Mrs. Everett and the Pursels, relative to the former taking over the loan represented by the Bouvier note, were detailed in evidence; and the letters of Mrs. Everett to the Pursels, early in 1896, show that the transaction was consummated. In these letters Mrs. Everett suggests that, as the property stands in Mrs. Pursel's name, it might be necessary to have her also sign the papers, but leaves the matter entirely to the judgment of Mr. Pursel. Furthermore, at the date of plaintiff's deed the Deering Harvester Company was occupying the premises as tenant, and, according to the manager thereof, was notified that Mrs. Pursel had acquired title thereto, and thereafter recognized her as such owner, paying her the rent reserved, until October 1, 1895, when it vacated the premises. Thereupon the Pursel Carriage Company, a corporation, took possession, reciting in its minutes that it had leased the premises from Mary E. Pursel: and it thereafter retained the open, notorious possession of the same as her tenant, and at all times recognized her as the owner of the property. Besides, another disinterested witness testified that she had seen a quitclaim deed, among other papers, from John T. Pursel to Mary E. Pursel in the very box wherein the Pursels testified that the deed in question was kept. While it does not appear that this witness identified the deed she saw as the deed in question, or knew its contents, her testimony is certainly corroborative of the other evidence on the subject. [6] Furthermore, we think the assignment to plaintiff of the Wall contract, to convey to John T. Pursel the premises, constituted the latter, who was the grantee in Wall's deed subsequently made, a trustee for plaintiff. Therefore, with or without a deed from John T. Pursel, the plaintiff's equitable rights in the premises were complete. Surely, under such circumstances, the testimony of the party who had in writing agreed, in effect, to convey, coupled with the testimony of the party to whom the conveyance was to be made, that such conveyance was made, is sufficient to establish that fact when the same is in no wise contradicted. We are satisfied from the whole record that the plaintiff discharged the burden resting upon her to establish, by clear and satisfactory proof, that the deed in question once existed; what its contents were in all substantial parts; that it had been lost, and, though diligent search had been made, it could not be found. This was all that was necessary upon this feature of the case. McDonald v. Thompson, 16 Colo. 13, 26 Pac. 146. [7] It is further claimed that there is not sufficient evidence to establish the fact that the trustee's deed conveying the premises to Mrs. Everett is, in fact, a mortgage. That deed is absolute in form, and must therefore stand as the ascertained intention of the parties, and be so enforced, unless it is shown by clear, positive, and convincing evidence that the mutual intention of the parties thereto was other than as therein expressed. Nevertheless, admissible evidence of any kind, whether documentary, circumstantial, or from the mouths of credible witnesses, may be sufficient for that purpose. Section 280, Code Civil Procedure 1908; Butsch v. Smith, supra. [8] Applying this rule, we think the finding that the deed in question is, in fact, a mortgage, was not improperly made, and must therefore be sustained. Defendant concedes that both Mary E. and John T. Pursel testified, substantially, that it was agreed between themselves and Mrs. Everett that any title to the premises, subsequently acquired by the latter, upon the foreclosure of the deed of trust, which was by their mutual agreement presently to be made, should be held as security for the indebtedness of $6,000 represented by the Bouvier note, together with interest thereon, payable monthly, until such time as Mrs. Pursel could pay the debt. Moreover, the testimony of these witnesses is corroborated, in its essential parts, by the letters of Mrs. Everett, the testimony of other witnesses, and facts and circumstances in the case, and legitimate inferences drawn therefrom. Furthermore, on October 20, 1902, Mrs. Everett was a party to a written agreement with John T. Pursel and the plaintiff herein, in which these lots were described and referred to as belonging to the plaintiff, and in which Mrs. Everett obligated herself to hold the $6,000 indebtedness, secured by such real estate, until Mrs. Pursel could make payment thereof. Besides, in numerous letters she acknowledged the receipt of monthly remittances in response to letters transmitting the same, wherein the payments were referred to as interest. These remittances were made both before and after the foreclosure of the deed of trust, the checks or drafts therefor drawn, and sometimes transmitted by the bookkeeper of the Purse Carriage Company, and were always the exact amount of the total of the monthly interest on this loan and another held by Mrs. Everett against Mrs. Pursel. While the receipts for taxes upon the property were in the name of Mrs. Everett, the evidence conclusively shows that, before and after the foreclosure of the deed of trust, it was Mrs. Pursel's money with which the taxes were paid. For years prior to the negotiations of defendant for this property, the closest friendship, social and business relations existed between the Pursels and Mrs. Everett. Mr. Pursel had acted as guardian of Mrs. Everett's son, and assisted in closing up her husband's estate, for which she was the administratrix. During all these years, as disclosed by Mrs. Everett's many letters, she that approximately a year after his conkept the Pursels advised of the slightest de-versation with Mr. Purse relative to the tails in her business affairs and transactions, paving of the street, and while on a visit in of the property she thought of purchasing California, on March 4, 1907, he concluded or selling, and of the loans she contemplated he would interest Mrs. Everett in the paving making. Notwithstanding these intimate re- proposition; that thereupon he called upon lations, and her prior custom, she in no wise her, but was unable to secure her consent apprised the Pursels as to the transaction to the paving of the street but was importunwith defendant, though she wrote them after ed by her to purchase the property, and, aftthe date of the option to defendant, ander some negotiations, reached an agreement prior to the execution of the deed conveying whereby, on March 6th, for a consideration the premises to him. of $10, he received from her an option for a [9] There is nothing in the record to in-period of two months, to purchase the premdicate that the trial court had any erroneous ises for $8,000, one-half cash and the balance view of the law or of the character and on or before three years thereafter; that quantum of evidence necessary to prove the subsequently he returned to Denver, and, fact in question, and, there being substantial prior to taking up the option and receiving and competent evidence from which such his deed, called upon the P'ursel Carriage conclusions might reasonably be drawn, we Company in possession of the property, and must presume that the evidence measured up told Mr. Pursel that he had purchased the to the required standard and convinced the premises from Mrs. Everett and had called court on this matter beyond a reasonable to see about the rents. The further subdoubt. stance of the conversation, then taking place, Could Mrs. Everett deed away my wife's [10] Neither are we impressed with the is in dispute. Mr. Pursel, however, testiclaim that the evidence is insufficient to sup-fied that he thereupon exclaimed: "How port the court's finding that the defendant, at and prior to the time he purchased the property and received his deed therefor, had actual and constructive notice of plaintiff's rights and title in and to said premises, and was not a bona fide purchaser thereof. The evidence is that defendant had been for years familiar with the particular block in which these lots were situate; that the lots were worth approximately $25,000; that defendant owned premises immediately across the street therefrom; that he was in the habit of making frequent visits thereto during several years prior to the date of his alleged purchase; that he knew that the Pursel Carriage Company was continuously occupying and carrying on its business, in the premises in controversy, and maintained a conspicuous sign across the front and side of the building bearing its name, and the nature of its business. It further appears that in the year 1906 defendant sought to induce the property owners in the block where this property was situate to pave Wazee street, and for that purpose visited the Pursel Carriage Company, then occupying these premises as the tenant of Mrs. Pursel, and had a conversation relative thereto with its manager, John T. Pursel. According to the testimony of a Mr. Killen, who was in no wise interested in the case, and also that of John T. Pursel, the latter then and there told the defendant that Mrs. Purse was not at that time financially able to bear her proportionate cost of the expense of paving. Defendant concedes that, at this time, he was not acquainted with Mrs. | Everett, and had no knowledge that she held the recorded title to the premises or claimed any interest therein; that subsequently he heard that the recorded title was in Mrs. Everett and that she resided in California; [11] The rule announced in Yates v. Hurd, 8 Colo. 343, 8 Pac. 575, relied upon by defendant, is not in point in his favor under the facts of this case. Neither the actual occupant of the premises, the owner thereof, nor her agent, in any sense deceived or misled the would-be purchaser. On the contrary, the language of Mr. Pursel, when informed by defendant that he had purchased the property, was a declaration of ownership of the premises in Mrs. Pursel. Under these facts and circumstances the general rule applies, as stated in Yates v. Hurd, supra, that possession of real estate, open and exclusive, is sufficient to put a would-be purchaser upon inquiry, and constitutes notice of the interest the one in possession has in the fee, whether legal or equitable in its nature. It is well established "that actual notice embraces all degrees and grades of evidence, from the most direct and positive proof, to the slightest [ not pass title to the property as against atcircumstances from which a jury would be taching or execution creditors of Pursel, and warranted in inferring notice, while construc- under the express terms of the statute, supra, tive notice is a legal inference from estab- the title to this property passed to the trustee lished facts, and, like other legal presump- in bankruptcy, subject only to the equities tions, does not admit of dispute." Simmons or claims of record against it. The fact that C. C. Co. v. Doran, 142 U. S. 417, 438, 12 he did not disclose therein that Mrs. Pursel Sup. Ct. 239, 35 L. Ed. 1063. And in Thomas held title to the property by an unrecorded v. Burnett, 128 Ill. 37, 43, 21 N. E. 352, 353 deed, or that Mrs. Pursel did not intervene (4 L. R. A. 222), it is said: "It is well set- in the proceedings in bankruptcy and set tled that actual possession of land by a party forth her own title, is of slight consequence. under an unrecorded deed is constructive With or without such acts the rights of all notice of the legal and equitable right of the parties concerned remained the same. party in possession. The possession by a tenant is the same, in all respects, as if by the party himself. The tenant's possession of land is that of his landlord. * Actual residence is not essential to continuous possession. If the party is in actual possession of the land, and there are continuous acts of ownership, it is sufficient." * * * Defendant seeks to apply what he claims is the well-known principle, that possession retained by the mortgagor, his agent or lessee, after foreclosure sale and issue of an absolute deed, does not constitute notice of an adverse interest contrary to the latter deed. In seeking to apply the alleged rule, he assumes a false premise. Mrs. Pursel was neither the mortgagor, nor a party to the foreclosure proceedings, nor is defendant claiming title through a conveyance made by her. Moreover, while her title was originally derived from one of the grantors in the mortgage deed subsequently foreclosed, it might be said she acquired and held an equitable interest in the premises arising by virtue of the agreement with the purchaser at such sale, constituting the latter a trustee for the former. But be that as it may, the evidence was sufficient to support the finding of the jury, and the conclusions arrived at by the trial court, that defendant, at and prior to the time he made his purchase of and received his deed for the premises, had actual notice of plaintiff's rights and equities therein and was not a bona fide purchaser thereof. [12] As the question of actual notice to defendant of the rights of plaintiff in and to the premises depend largely upon the testimony of John T. Pursel, it is claimed that his testimony is unworthy of belief. This claim is based upon the fact that, subsequent to the conveyance of the premises by him to Mrs. Pursel, he was adjudged a bankrupt and included the property in question in his schedule in the bankruptcy proceedings. It was the duty of the bankrupt to include in his schedule all of the property "which prior to the filing of the petition he could by any means have transferred or which might have been levied upon and sold under judicial process against him." Act July 1, 1898, c. 541, § 70, 30 Stat. 565 (U. S. Comp. St. 1901, p. 3451). The unrecorded deed to Mrs. Pursel did [13] Moreover, if the claim of ownership in the schedule was inconsistent with witness' testimony in this case, it only affected his credibility and the weight to be given his testimony, and its consideration here in that respect was necessarily foreclosed by the findings and decree entered by the trial court. [14] Many matters discussed we deem unnecessary to consider. Some were never presented to the trial court, and are first mentioned here in plaintiff's reply brief. An appellate court will not consider a question raised for the first time in the reply brief, except leave of the court is first had and obtained and upon good cause shown. Isabella G. M. Co. v. Glenn, 37 Colo. 165, 86 Pac. 349. Adhering to the rule that the trial judge must act upon the convictions of his own judgment and conscience, and that it is his province ultimately, in cases of this kind, to pass upon the weight of the evidence, the credibility of the witnesses, and to find the facts, we would not be warranted in disturbing the decree entered. The judgment is therefore affirmed. DUBOIS et al. v. BOWLES et al. (Supreme Court of Colorado. March 3, 1913.) Where the appellate court reversing a judgment and remanding the case does not make any specific direction as to the allowance of amendments to the pleadings, the power to allow amendments must be exercised by the trial court in the same way and under the same rules as governs the allowance of amendments at any other time. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4673, 4677-4683; Dec. Dig. § 1201.*] *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |