Butterfield v. Sullivan

41 Colo. 155

• Court: Supreme Court of Colorado
• Decided: September 15, 1907
• Docket: No. 5439; No. 3100 C. A.
• Status: Published

Opinions

Mr. Justice Caswell

delivered the opinion of the court:

- The defendant in error, who was plaintiff below, brought an action to recover the balance due on a note, with interest thereon, amounting to seven hundred and ninety-eight dollars and seventy cents ($798.70), together with the additional sum of one hundred and nineteen dollars and eighty cents ($119.80) as attorney’s fee, according to the terms of said note. This note was dated April 8th, 1893, was due one year after date, and was executed by the plaintiff in error. The suit was brought in 1903.

One of the defenses plead, and which is sufficient to dispose of this case, was the statute of limitations. We do not consider the other defenses.

The note was secured by a deed of trust. The property described in the deed was sold by the trustee after due advertisement, all in accordance with the terms and conditions of the trust deed, so far as the record shows. The proceeds were credited upon the note in 1897. The judgment below was rendered upon the theory that such partial payment renewed the note, and that the same was a voluntary payment, being directed by the trust deed, the authority having been given to sell the same and apply the proceeds.

The facts involved in this ease are substantially the same as those involved, considered and ruled in Holmquist v. Gilbert at this term of the court (ante, p. 113). The questions presented for determination here upon the defense mentioned, are the same as those presented in that case, and for reasons therein given the judgment herein is reversed.

Decision en banc. Mr. Justice Campbell, Mr. Justice Gabbert and Mr. Justice Maxwell dissent from the conclusion that the application by the trustee of the proceeds of the sale 'of the property, on the note, secured by such trust deed, did not remove the bar of the statute of limitations.