Scallen, Thomas K.

English

University of Denver

Denver Law Review Volume 26 Issue 11 Article 6 June 2021 How the Statute of Uses Became Operative in Colorado with a Telling Effect Thomas K. Scallen Follow this and additional works at: https://digitalcommons.du.edu/dlr Recommended Citation Thomas K. Scallen, How the Statute of Uses Became Operative in Colorado with a Telling Effect, 26 Dicta 310 (1949). This Article is brought to you for free and open access by the Denver Law Review at Digital Commons @ DU. It has been accepted for inclusion in Denver Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact jennifer.cox@du.edu,dig-commons@du.edu. How The Statute of Uses Became Operative inColorado With a "Telling" EffectTHOMAS K. SCALLEN*Henry Moore Teller, a young member of the Illinois Bar arrived inColorado Territory in April of 1861, settling at Central City in Gilpincounty which was then affectionately referred to as the "Little Kingdom ofGilpin." Mining was the leading industry and a gold-mine stock boom in thewinter of 1863 and spring of 1864 made Central City a center of commerce.Willard Teller soon joined his older brother and the two erected theTeller House at Central City, where the celebrated "Face on the BarroomFloor" may still be seen. Henry Teller was elected to the Senate of the UnitedStates in 1876 and was later Secretary of the Interior under President Arthur,while Willard Teller developed the extensive practice of the Teller law firm.In 1897, Willard Teller was retained by Samuel B. Morgan to prosecuteand argue an appeal from an action of ejectment brought in the Federalcircuit court for the district of Colorado by the City of Denver and PlattRogers, as mayor. The defendant, Morgan, traced his title to, and relied upon,a patent from the United States granting t6 Joseph E. Bates, former mayorof the City of Denver, and to his successors and assigns forever, lands de-cribed, including the land in controversy, in trust for the City of Denver.The circuit court had sustained a demurrer to the defendant Morgan's answersetting up such chain of title.Morgan v. Rogers et al.,' came on before the Circuit Court of Appealsof the Eighth Circuit. Willard Teller, appearing for the plaintiff in error,argued that the Statute of Uses (27 Hen. VIII, c. 10) was part of the commonlaw of Colorado, that the use was executed on the delivery of the patent, andthat thus both the legal and equitable title to the property passed at once to,and vested in, the City of Denver, as the cestui que use. Teller's argumentwas successful and the judgment was reversed. This was the first case onappeal to invoke the Statute of Uses in Colorado. If any lawyer in Coloradoshould have good reason to remember the Statute of Uses, Willard Teller wasthat lawyer, and thereby hangs a tale.Somewhat earlier, in 1887, Ellen R. Seymour and W. G. Pell, owners ofcertain mining property conveyed the same to the Slide and Spur Gold MinesCompany (Limited). In 1889, the company having defaulted in the pay-ment of the purchase price of the property, the vendors, Seymour and Pell,sued in the United States circuit court for the district of Colorado to havedecreed a vendor's lien upon the property sold, and in July, 1890, obtaineda decree establishing their lien. In September, 1894, the master in chancerysold the property under the decree. On May 11, 1895 he gave a deed which* Student at the University of Denver College of Law.Morgan v. Rogers et al.. 79 Fed. 577, Circuit Court of Appeals, Eighth Circuit,(1897); error dismissed, 173 U. S. 702, 19 S. Ct. 879, 43 L. Ed. 1185, (1899).310 DiCTADICTArecited that the complainants were allowed in and by the terms of the decreeto bid for the property at the sale up to the amount of the decree withoutpaying cash except sufficient to pay costs, and that thereupon Willard Tellerbid for the said complainants, in his name for the use of the complainants,, andthat being the highest bidder, the property was sold to him. The deed thenrecited:"Now therefore I, Adolphus Capron, master in chancery afore-said, do by these presents grant, bargain, sell and convey unto said Wil-lard Teller, trustee, and to his heirs and assigns forever the said realestate * * * to have and to hold to the said Willard Teller, trustee,for his heirs and assigns forever."Why title was taken by Willard Teller as trustee for Seymour and Pellwas soon apparent when three days after the deed was recorded, May 13,1895, David Hill recovered a judgment against Seymour and Pell et al., anda transcript thereof was filed in the office of the clerk of the county of Boulderwherein the property was situate. In April, 1895, Hill sued to subject themining property held by Teller, trustee, to the judgment of Hill and to havehis judgment declared a prior lien to any claim of Teller. Hill received ajudgment awarding the relief prayed for and Teller appealed. Willard Tellerwas represented in his appeal by his elder brother, Senator Henry M. Teller(who had also been his partner when Morgan v. Rogers, supra, was decided)and by the youngest brother, James H. Teller.Hill's position was that the Statute of Uses executed the legal estate con-veyed to Teller and united both the legal and equitable estate in Seymour andPell. The estate thus created, Hill contended, was subject by operation of lawto a lien in Hill and such lien was superior to any secret lien between Tellerand the benficiaries under the master's deed.Teller denied that the Statute of Uses was in force in Colorado! He alsocontended that if it was, the statute did not operate, as the trust was anactive one, and further that the firm of Teller & Orahood had an attorney'slien upon the estate created by the master, superior to the lien created by.Hill's transcript of judgment.The Colorado Supreme Court held, Teller v. Hill,2 that the trust was apassive one, upon which the Statute of Uses would operate and that a judg-ment lien was superior to an attorney's lien in favor of the trustee of whichthe judgment creditor had no notice. As to the crucial issue of whether theStatute of Uses was in force in Colorado, the court simply said:"That the Statute of Uses was one of the statutes so adopted bythis commonwealth, was ruled in Morgan v. Rogers (Cir. Ct. App.,8 Cir.), 79 Fed. 577. No authority is cited to the contrary."t Teller v. Hill, 18 Colo. App. 509, 72 Pac. 811 (1903). The rule of law laid downin this case is now subject to the qualification imposed by statute (C.S.A., 1935, c. 40,sec. 9) requiring (1) a designation of the beneficiary and (2) that the trust either bedefined or that there be a reference to some instrument of record which recites the termsof the trust.

How the Statute of Uses Became Operative in Colorado with a Telling Effect

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How the Statute of Uses Became Operative in Colorado with a Telling Effect

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