Brown v. Wilson

OPINION UPON REHEARING.

Per Curiam.

Although the argument of senior counsel in this case in support of the petition for rehearing is not characterized by that courtesy which always should, and to the credit of the bar of this state be it said has, with rare exceptions, characterized the conduct and arguments of members of this bar, the prayer of the petitioner was granted in order that the court might review the record for the purpose of ascertaining if any injustice had been done plaintiff in error by the former opinion of this court.

The controversy over this property has been waged for a period of more than ten years, and has been reviewed by this court upon several occasions. To restate the facts would be a work of supererogation. Every fact bearing upon the rights of the parties appearing from the pleadings, or which the evidence tends to establish, will be found stated in some one or more of the opinions or statements of fact preceding the various opinions which have been heretofore announced, and we shall not do more than refer to the cases with the volumes and pages where the same may be found. G. W. M. Co. v. W. of A. M. Co. et al., 12 Colo. 46; 12 Colo. 55; 14 Colo. 90; 14 Colo. 98.

*319Ifc is claimed for the first time upon this rehearing that the Wilsons had implied notice at the time of their purchase of the true character of the sendee in the Purmort case and appearance by an unauthorized attorney in the Moynahan case. The argument in this behalf is based upon notice to Bates from Gwynne, communicated, as it is said, to Bates in his professional capacity as attorney, ifc having been adjudicated in another action that the transaction between Bates and the Wilsons constituted them mining partners with reference to this property. This claim cannot be sustained, as Bates was acting as attorney for Gwynne at the time he received notice of the character of the judgments and sales, and before he was engaged by the Wilsons. If it be conceded that Bates had information as claimed, there is no evidence that he ever communicated such information to the Wilsons, and ifc would have been of doubtful professional propriety on his part to have done so. Under these circumstances, notice cannot be imputed to the, Wilsons. Moreover, there is nothing before this court in this case to establish a partnership relation between Bates and the Wilsons. Wade on Notice, sec. 692; McCormick v. Wheeler et al., 36 Ill. 114.

Counsel contend that there is an irreconcilable conflict between the following statements, the first appearing in the opinion of Mr. Justice Gerry, at page 49 of 12 Colorado, and the other in the opinion recently filed by this court, to wit:

“ The mining property described in the compliant, and the subject-matter of this suit, has been worked by the appellees, and a large amount of ore extracted therefrom, and they have derived in profits an amount largely in excess of the amount of the judgments in question.”
“ The purchasers made the property valuable as the result of their hazard and enterprise, and as soon as the value had been established, their title was contested to an extent that is seldom paralleled.”

The two statements are entirely consistent, and both are supported by the record. It is undisputed, and indisputable by the record, that the mines were being worked at a loss at *320the time of the attachment levies. It is equally certain that afterwards they were made valuable. If this change was not brought about by the expenditure and hazard of plaintiffs and their grantors, who did put the properties upon a paying basis ?

It is said that the suit instituted by the men employed at the mine was a friendly suit, set on foot at the instance of the company; that this suit was afterwards turned into a hostile suit, and that the court has never alluded to this fact. In this statement counsel is in error as to the court. See page 93 of the opinion in 14 Colorado. In addition to what is there said as to the effect of that judgment, the suit never was other than a hostile suit, the suggestion made by Kellogg being for the purpose of giving the men an opportunity to place a first lien upon the property before Moynahan could institute suit. The men did commence suit and caused an attachment to be levied upon the property prior to the lien of the trust deed, and the title secured under the attachment sales antedates that obtained by the proceedings and sales under the trust deed. The suit was instituted’ as a hostile suit against the companj'-, and was maintained and prosecuted to final judgment as such.

It is claimed-that under the decision in Raynolds v. Ray et al., 12 Colo. 108, no attachment lien was ever perfected, for the reason that no service was had upon the defendant company in either the Perkins or Moynahan suits. The record shows personal service in one case and appearance in the other; aud it lias been decided, as the result of protracted litigation, that The Great West Mining Company by its negligence and laches lost its right to impeach the validity of the judgments by extraneous evidence. Plaintiff in error claims under the Great West title, and is estopped by that judgment. Bigelow on Estoppel, 587; Wood v. Seely et al., 32 N. Y. 105; Parker v. Crittenden et al., 37 Conn. 148; The International Bank v. Bowen et al., 80 Ill. 541.

The Purmort and Moynahan suits were instituted nearly a month before the Strickier trust deed was executed. Strick*321ler knew at the time ,he accepted the trust deed that there were prior liens by attachment upon this property, and, if he had information that the service was incomplete in one or both of the cases, he knew that under the law the service might be perfected or ail appearance entered by the defendants, and that the same could be followed by a valid judgment, which would relate back to the levy of attachment, and convert the same into a valid lien. Raynolds v. Ray et al., supra.

Aside from this, it is shown that the present suit is being prosecuted in the interest of Whitaker, Washburn, Griffith, Pomeroy and others, who were active in the prosecution of the suits instituted for the same purpose by The Great West Mining Company. It is further shown that the bonds secured by the trust deed to Strickier were sold, in part at least, for the purpose of procuring money for the purpose of prosecuting that suit. This is shown by the evidence of the witness Whitaker, who,, upon being interrogated as to the reason why ten thousand dollars of these bonds were’sold for the sum of three thousand dollars, said: Q. “Par?” A. “Oh, no! They’got bonds 51 to 90 "inclusive, for three thousand dollars ; as this money was to go into the litigation, of course, we could not sell them at par.”

The evidence leaves no doubt that Whitaker, Purmort, Washburn and Griffith caused the Great West suit to be instituted, and that the bondholders who purchased after that time purchased at a heavy discount for the purpose of providing funds for carrying on that litigation, and- are for this reason bound by that judgment. Hurd et al. v. McClellan et al., 1 Colo. App. 327; affirmed ante, p. 197; 1 Herman on Estoppel and Res Judicata, secs. 156 and 186.

As we have said, the title of defendants in error relates back and takes effect- from the time of the levy of the writs of attachment. It antedates the trust deed; hence the decisions that have been cited- to show that the record of the trust deed is notice to subsequent purchasers and incumbrancers are not applicable. And cases in reference to forged instru*322ments, like Meley v. Collins, 41 Cal. 663, are not in point, for tlie manifest reason that tbe title set up by tbe Great West Company to the properties has been conclusively adjudged against that company in favor of the Wilsons and The Woodmas of Alston Mining Company. - ‘

For these reasons, in addition to those given upon tbe former opinion, the judgment of affirmance must be adhered to.

Affirmed.