Colorado § 38-10-120 - Intent, question of fact - want of consideration.

§ 38-10-120. Intent, question of fact - want of consideration.

The question of fraudulent intent, in all cases arising under the provisions of this article, shall be deemed a question of fact and not of law; nor shall any conveyance or charge be adjudged fraudulent against creditors or purchasers solely on the ground that it was not founded on a valuable consideration.

Source: R.S. p. 340, § 20. G.L. § 1270. G.S. § 1529. R.S. 08: § 2674. C.L. § 5119. CSA: C. 71, § 20. CRS 53: § 59-1-20. C.R.S. 1963: § 59-1-20.

ANNOTATION

Section 38-10-114 unmodified by this section. This section unquestionably refers to other provisions of this article which pronounce certain transactions made with a fraudulent intent void, but it does not in any manner affect or modify the conclusive presumption of law declared by § 38-10-114. Ray v. Raymond, 8 Colo. 467, 9 P. 15 (1885).

Intention concluded from disclosed facts. The question of intention is only a conclusion or deduction from the facts as disclosed and, if the result of the transaction is fraud, the law supplies the intention or proceeds regardless of the intention. Knapp v. Day, 4 Colo. App. 21, 34 P. 1008 (1893); Wells v. Schuster-Hax Nat'l Bank, 23 Colo. 534, 48 P. 809 (1897).

Jury determines question of fraud. If there is any question of fraud, it is a question of fraud in fact to be determined by the jury, and not by the court. Sickman v. Abernathy, 14 Colo. 174, 23 P. 447 (1890).

Courts empowered to pronounce judgment of law. The courts are not deprived of the power to pronounce the judgment of the law in any case which the facts justify. Burr v. Clement, 9 Colo. 1, 9 P. 633 (1885); People ex rel. Wilson v. Court of Appeals, 28 Colo. 442, 65 P. 42 (1901).

One who alleges fraud must prove fraud he alleges. Sickman v. Abernathy, 14 Colo. 174, 23 P. 447 (1890).

In an action by a creditor of the grantor to set aside a conveyance on the ground that it was voluntary and that it was made with the intention to hinder, delay, and defraud existing creditors, it is incumbent upon the plaintiff to prove that the conveyance was purely voluntary, or that it was made with the intention to delay and defraud creditors. Homestead Mining Co. v. Reynolds, 30 Colo. 330, 70 P. 422 (1902).

Whether husband and wife met their burden of proving that they lacked the intent to delay, hinder, or defraud is a question of fact which the trial court is obligated to resolve by consideration of the facts and circumstances of each case. Erjavec v. Herrick, 827 P.2d 615 (Colo. App. 1992).

Applied in Thomas v. Mackey, 3 Colo. 390 (1870); Wilcoxen v. Morgan, 2 Colo. 473 (1875); Burshall v. Waggoner, 4 Colo. 256 (1878); Knox v. McFarran, 4 Colo. 586 (1879); Curran v. Rothschild, 14 Colo. App. 497, 60 P. 1111 (1900); Homestead Mining Co. v. Reynolds, 30 Colo. 330, 70 P. 422 (1902); Eppich v. Blanchard, 58 Colo. 139, 143 P. 1035 (1914); Love v. Olson, 645 P.2d 861 (Colo. App. 1982).