LINDSAY v. LINDSAY.

27 P. 877

1 Colo.App. 108

LINDSAY
v.
LINDSAY.

Court of Appeals of Colorado

October 12, 1891

Appeal
from district court, Arapahoe county; OLIVER B. LIDDELL,
Judge.

Catherine
Lindsay filed a bill against James Lindsay, her son, to have
a deed absolute made by plaintiff to defendant declared a
mortgage. Decree for plaintiff. Defendant appeals. Affirmed.

Cranston
& Pitkin, for appellant.

John
Hipp, S.C. Hinsdale, and I.E. Barnum, for appellee.

BISSELL,
J.

This is
one of that very numerous class of actions which have their
inception in the unguarded transactions between persons who
sustain to each other some confidential relation. In
September, 1884, by a deed of absolute conveyance, Mrs.
Lindsay transferred to her son, the appellant, sundry
property situate in the city of Denver. There [1 Colo.App.
109] were no limitations in the conveyance, nor was there any
instrument executed between the parties at the time of the
transfer which would serve to determine its purpose or
character. Some years after, the son asserted ownership in
the property, and denied his mother's interest in it. On
this assertion of title, the mother filed the present bill to
set aside the conveyance, and to declare it to have been
executed by way of a mortgage to secure the son for certain
advances which he had made; and she also alleged that he had
been instrumental in securing the transfer by divers
misrepresentations, which the law would declare fraudulent.
The case was tried by the court without the intervention of a
jury, on oral testimony, and resulted in a decree for the
mother. There was little evidence save that given by the
respective parties, though there was some proof made of
circumstances which tended, as the respective sides maintain,
to support their different contentions. There are divers
errors assigned and argued by counsel in support of their
claim that the case ought to be reversed, but that based upon
the alleged insufficiency of the evidence to support the
judgment is the only one which it is essential to consider,
and which, under any circumstances, would be sufficient to
justify setting the decree aside. As a
[27 P. 878.]
basis upon which to rest the discussion of the insufficiency
of the proof, counsel accurately state the rule to be that,
in order to overcome the effect of any absolute deed, and to
change its legal significance from that of a conveyance to
that of a mortgage, the testimony upon which the decree must
rest should be precise, clear, and unequivocal. That this is
the law has been so often decided that a repetition of the
rule will, of itself, serve to recall the numerous
adjudications in which it has been declared. Without
conceding that the evidence offered in support of the bill,
together with the circumstances which surrounded the
transaction and illustrated its history, did not, as a whole,
furnish that unequivocal and clear proof which is essential
to the maintenance of such a decree, it must be stated that
the rule is not absolutely uniform in its application, nor is
the [1 Colo.App. 110] same identical proof required in all
cases. Wherever the transaction is between parties whose
relations are of a close fiduciary character, the complainant
is not held to the same exactitude and strictness of proof,
nor is the testimony offered in support of the bill to be
viewed with the same scrutiny, as in those cases where the
parties deal with each other at arms-length. Bohm v. Bohm, 9
Colo. 100, 10 P. 790. Viewed in the light of these two
principles, it cannot be said, with such emphasis as to
necessitate a reversal of this case, that the testimony does
not reach that level of certainty essential to support the
judgment. It is contended with great vigor that, even though
this be true, the weight of the testimony is against the
finding, and for this reason the decree should be canceled.
It is impossible not to concede that upon the record, as it
is presented to this court, there is considerable basis for
this contention; and, if this court had to decide the
question as an original proposition upon the printed case,
there might be grave doubt as to the decree which should be
directed. But the cause is not brought within the rules which
have always been laid down in this state as governing
appellate courts in passing upon such an error. The record
suggests nothing to indicate that the court was influenced by
any other considerations than those which ought to control
judicial tribunals in the rendition of their judgments. The
decree is supported by the evidence offered by the appellee,
by the circumstances of the transaction, and by the
subsequent conduct of the parties. It is not, therefore, one
of those cases where the judgment is so manifestly against
the evidence as to justify an appellate court in reversing
it. Kinney v. Wood, 10 Colo. 270, 15 P. 402; Green v. Taney,
7 Colo. 278, 3 P. 423; Ziegler v. Cole, 15 Colo. 295, 25 P.
300.

The
judgment is affirmed.