McKinney v. Hewitt

No. 10,687. McKinney v. Hewitt. Decided March 3, 1924. Action to quiet title. Judgment for plaintiff. Affirmed. 1. Appeal and Ebeok — General Finding — Presumption. In an action to quiet title, there being a general finding for the plaintiff, allegations of the replication that a deed to defendant was without consideration, and given pursuant to a conspiracy to defraud, must he taken as true on review. Error to the District Court of El Paso County, Hon. John W. Sheafor, Judge. Mr. Clyde L. Starrett, Mr. W. F. Hynes, for plaintiff in error. Messrs. Orr & Little, for defendant in error. Department Two. [MAJORITY — Mr. Justice Denison] Mr. Justice Denison delivered the opinion of the court. Mary Hewitt, now deceased, was defendant in error and Ruth Little, her successor in title, has been substituted. Mary Hewitt had a decree in an action brought by her against McKinney, plaintiff in error, to quiet title to a house in Colorado Springs. The judgment must be affirmed. The essential facts are that Mary Hewitt got title to the house by a decree of court which gave it to her as permanent alimony in a divorce action against her husband, P. T. Hewitt. McKinney claims under a deed from the husband made pending the divorce suit. The replication in the present case alleges that the deed was without consideration and pursuant to a conspiracy between Hewitt and McKinney to defraud Mary. Since there was a general finding for plaintiff we must take this to be true and if so the decree was right. This makes it unnecessary to consider the able arguments on other questions. Judgment affirmed. Mr. Chief Justice Teller and Mr. Justice Whitford concur.