Austin v. Stephen, 12508.

• Decision Date: 01 June 1931
• Docket Number: 12508.
• Citation: 89 Colo. 177,300 P. 364
• Parties: AUSTIN v. STEPHEN et al.
• Court: Colorado Supreme Court

300 P. 364

89 Colo. 177

AUSTIN v. STEPHEN et al.

No. 12508.

Supreme Court of Colorado

June 1, 1931

In Department.

Error to District Court, City and County of Denver; Henley A Calvert, Judge.

Action by Malissa Austin against Sadie E. Stephen and another. Judgment for defendants, and plaintiff brings error.

Affirmed.

Bartels & Blood and Arthur H. Laws, all of Denver for plaintiff in error.

Max P Zall, of Denver, for defendants in error.

BURKE J.

These parties appear here in the same order as in the trial court. Plaintiff in error is hereinafter referred to as Austin, and defendant in error Sadie E. Stephen as Stephen. The interest if any, of the other defendant in error does not appear, hence he is not further noticed.

Austin had title to, and possession of, certain lots in Denver. She and Stephen entered into a contract, hereinafter denominated 'A', which the latter placed of record. Austin brought this action to quiet her title against the claims of Stephen under that contract. The cause was tried to the court on an agreed statement of facts, and to review a judgment against Austin for costs she brings error.

Under section 8, chap. 150, p. 590, Laws 1927, every instrument 'affecting the title to real property' may be recorded. Hence the only question presented by this record is, Did 'A' affect the title in question? If so, the judgment must be affirmed; if not, it must be reversed. Under certain stipulations made at the time of the trial, and certain amendments of the pleadings, the title, if any, of Stephen was not submitted for determination.

'A' is either a mere personal contract, which granted nothing, or it is a contract of joint adventure which gives Stephen some interest in the property which is the subject thereof. No abridgment can do it justice, hence we quote it in full:

'Agreement.

'This agreement made in duplicate this the 7th day of May, A. D. 1928, by and between Melissa Austin of the City and County of Denver, State of Colorado, of the first part, and Sadie E. Stephen, of the same place, of the second part; witnesseth:

'Whereas, first party is the owner in fee simple of the North One-half (N 1/2) of Lot Forty-three (43) and all of Lots Forty-four (44), Forty-five (45) and Forty-six (46), Block Four (4), Colfax Avenue Park Subdivision, in the City and County of Denver and State of Colorado; and,

'Whereas, said first party is about to begin the erection of a two-story apartment house thereon, hereafter referred to as the improvements;

'Now, therefore, in consideration of the premises and of the agreements herein, and for other good and valuable considerations, the receipt whereof is hereby confessed and acknowledged, it is agreed by and between said parties as follows:

'1. Second party is to furnish all plans and specifications and pay all charges for the superintendency necessary in the erection of said improvements.

'2. On the completion of said improvements by first party said building is to be offered for sale at the best price obtainable, and when sold the parties hereto are to participate equally in the sale price, after first party has deducted the cost of the lots and the net cost of said improvements.

'3. In the event said improvements are not sold forthwith after completion, then the said premises are to be rented and the net income of said improvements and rentals is to be applied to a sinking fund controlled by both parties to this agreement, and is to be applied from time to time as the same mature on taxes, expenses, debts and claims of every kind and nature against the said premises until the same is completely paid out and the property stands free and clear of all taxes, liens, encumbrances, debts or claims of any kind or nature whatsoever. And it is agreed that there shall be no division of any moneys received from such income and rentals until the same is completely paid for, as herein in this paragraph provided, except upon the written consent, signed by both of the parties hereto, and said agreement of division must be signed in duplicate and attached to the duplicate copies of this agreement.

'4. It is understood and agreed that the term 'net income' referred to in paragraph three hereof means and is defined as that income or rentals from said improvements which will remain after deductions are made for general taxes, interest charged on loans outstanding against said improvements, insurance, water rent, and cost of upkeep of said improvements.

'5. It is further understood that the parties hereto will necessarily expend various and sundry items of moneys for legal services, payment of special taxes and incidentals, and it is agreed that each party is to keep a strict

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