
    No. 10,298.
    Whitescarver v. Interstate Trust Company, et al.
    Decided May 1, 1922.
    Rehearing denied June 5, 1922.
    Action to cancel an alleged fraudulent deed. Judgment for plaintiffs.
    
      Affirmed.
    
    
      On Application for Supersedeas.
    
    1. Evidence — Estoppel. Evidence competent and relevant under the issues was properly admitted, and the fact that it might also have been admissible upon the theory of estoppel which was not pleaded, is immaterial.
    2. - Appeal and Eerop — Fact Findings. Findings of the trial court on conflicting evidence will not be disturbed on, review.
    
      Error to the District Court of the City and County of Denver, Hon. Charles C. Butler, Judge.
    
    Mr. John T. Bottom, for plaintiff in error.
    Messrs. Dines, Dines & Holme, Mr. Robert E. More, Mr. Paul P. Prosser, Messrs. Symes & Wingren, for defendants in error.
    
      Department Two.
    
   Mr. Justice Denison

delivered the opinion of the court.

The Interstate Trust Company and others were plaintiffs below and had a decree cancelling a certain deed from Charles A. Whitescarver to his wife, Rosa B. Whitescarver, as fraudulent. She brings error and moves for supersedeas.

The matters relied on for reversal amount to two: 1. That evidence of estoppel was received although estoppel was not pleaded; and 2. That the evidence does not support the decree.

1. Upon the first point: The evidence was of representations made by the husband, for the purpose of obtaining credit, that he was the owner of the property conveyed. This was competent and relevant to the allegation of the complaint that he and his wife, plaintiff in error, had conspired to defraud, of which there was some evidence ; his statements in pursuance of the conspiracy were competent against her, therefore, regardless of the question of estoppel.

2. As to the second point the evidence was conflicting.

Supersedeas denied, and judgment affirmed.

Mr. Justice Teller, sitting for Mr. Chief Justice Scott, and Mr. Justice Whitford concur.  