Barth v. Deuel

• Decision Date: 01 June 1888
• Citation: 11 Colo. 494,19 P. 471
• Parties: BARTH v. DEUEL.
• Court: Colorado Supreme Court

19 P. 471

11 Colo. 494

BARTH v. DEUEL.

Supreme Court of Colorado

June 1, 1888

Commissioners' decision. Appeal from superior court of Denver.

On the 29th day of April, 1882, the defendant, William Barth conveyed, by special warranty deed, certain premises to the plaintiff, Sarah J. Deuel. In consideration of such conveyance the plaintiff paid to defendant $1,500 cash down and gave him 15 promissory notes for $200 each, with interest at 1 per cent. per month, and made a trust-deed on the premises to secure said notes. Before the commencement of this action plaintiff paid five of said notes and interest amounting to the sum of $1,030. She brings this action to recover back the said sum of $2,530 so paid to defendant, and interest thereon, and prays that said deed from the defendant to her, and the notes from her to the plaintiff remaining unpaid, may be rescinded, set aside, and canceled, and for general relief. It appears from the evidence that in April 1882, plaintiff was occupying a two-story brick building, standing on lots 4 and 5, in block 241, in West Denver, and was paying rent therefor to defendant; that, wishing to buy the premises so occupied by her, the plaintiff went to the defendant to negotiate for the purchase of the same; that in making such negotiations the plaintiff and the defendant each believed, and acted upon such belief, that the building so occupied by the plaintiff stood wholly on the easterly 22 feet of said lots 4 and 5; that with this mutual understanding and belief the plaintiff purchased, and the defendant sold to her, the easterly 22 feet of said lots 4 and 5, except the parts cut off by the piling of Cherry creek and by the widening of Blake street, and defendant conveyed said premises to plaintiff by his special warranty deed April 29, 1882; that a few months after the making of said conveyance the plaintiff ascertained that but a small portion of said building was on the premises so conveyed to her; that she immediately notified defendant of this fact, and requested him to pay back to her the sum of $2,530 which she had paid to him on account of the purchase of said premises, and offered to reconvey said premises to the defendant, which request defendant refused; that at the time plaintiff was negotiating with defendant for the premises so occupied by her, her knowledge of the facts relating to the location of said building was equal to the knowledge that defendant had of the same facts, and that her means of obtaining information in relation thereto were fully equal to the facilities of the defendant for gaining such information. On the 26th day of February, 1883, James J. Connelly, as the attorney in fact of the plaintiff, made, executed, and tendered to the defendant a quitclaim deed to the premises conveyed by the defendant to the plaintiff on the 29th day of April, 1882. Proof of said deed and the tender thereof to defendant was rejected by the court, because the power of attorney to Connelly had not been recorded and was not produced in court. After the evidence was in, and at the close of the argument of counsel for defendant, the plaintiff offered, and the court received in evidence, an instrument in writing, executed by the plaintiff, by which she duly and fully ratified and confirmed the acts of the said Connelly in executing said deed to defendant, and declared said deed to be her voluntary act and deed for the uses and purposes therein set forth, which instrument was duly acknowledged and was attached to the deed to defendant which it ratified, which deed was then received in evidence. The defendant by his pleadings and proof tendered to the plaintiff a deed to an additional 22 feet of said lot 4. The effect of this deed, as a conveyance of the land upon which the building stood, as well as the effect of the first deed for the same purpose, is shown by an agreed statement of facts which was adopted by the parties as an amendment to their pleadings, which statement is as follows: 'The deed from defendant to plaintiff of April 29th, 1882, conveying to her the easterly twenty-two feet of lots 4 and 5, in block 241, west division of the city of Denver, conveyed to her only a strip of land six feet wide in lot 4, the residue being cut off by the piling of Cherry creek, and only four feet wide of lot 5, the residue of said strip being cut off by the piling of Cherry creek, as mentioned in said deed. The building spoken of in the pleadings, which plaintiff occupied at the time of her purchase, is a two-story brick, and stands--one wall of it--about three feet upon the easterly twenty-two feet of said lots 4 and 5, as conveyed by defendant to her, and the remaining portion of said building on the second strip of twenty-two feet of said lots 4 and 5 of said block, and the building extends back on said lot 5 twelve feet six inches. That the deed now tendered by defendant of a second strip of twenty-two feet of said lot 4, adjoining the easterly strip of twenty-two feet described in his first deed, conveys to plaintiff the whole of the front part of said building, but leaves a portion of said brick building, twelve feet six inches of the rear part thereof, standing upon lot 5, of which she has no title. By the original purchase plaintiff got a portion of said brick building three feet in width only, on the twenty-two feet described in her deed, so far as the same stood on said lot 4. By the new deed now tendered by defendant she gets the whole front of the building; but twelve feet and a half of the rear end of said two-story brick building stands on lot 5, which is not conveyed to her by the deed tendered; said brick building is twenty-one feet five inches wide.' The decree of the court denied the prayer of the plaintiff for the rescission of the contract of sale and conveyance of April 29, 1882, and for the recovery against defendant of the money by plaintiff paid to defendant in pursuance of said sale and conveyance; perpetually enjoined defendant from collecting, by suit or otherwise, the said promissory notes of the plaintiff to defendant, or either of them, then remaining unpaid, and, the said notes having been produced in court by the defendant, the court ordered them to be canceled, and the plaintiff to be discharged from any liability thereon. The court further ordered and adjudged that the trust-deed made to secure said notes be released and discharged, and the plaintiff be fully reinvested with the title to the premises in said trust-deed described. The court further ordered and adjudged that plaintiff might accept the deed tendered by defendant, in which he conveys to the plaintiff an additional portion of lot 4. The defendant appealed.

Harmon & Cover, for appellant.

J. P. Brockway, for appellee.

RISING C., ( after stating the facts as above.)

The defendant demurred to the complaint on the grounds-- First, that it did not state facts sufficient to constitute a cause of action; second, for defect of parties defendant; and third, that it was ambiguous unintelligible, and uncertain. Upon the overruling of the demurrer defendant filed his answer and went to trial on the merits. By filing an answer and going to trial upon the merits defendant waived the second and third grounds of demurrer, and the first ground is not relied upon in the argument of consel. All the other assignments of error may be considered under the general assignment that the judgment or decree of the court is contrary to law and the evidence. The question presented for determination is whether the mutual mistake of the parties with reference to the location of the building occupied by the plaintiff at the time of the making of the deed by defendant to her is, under the circumstances of this case, a ground for relief in equity. One of the circumstances to be considered is that the mistake related to a material fact, which constituted the only basis for the payment by plaintiff to defendant of the money sought to be recovered back. The premises conveyed to plaintiff by defendant were materially different from the premises the plaintiff intended to purchase and from the premises defendant supposed he was selling to her. In Daniel v. Mitchell, 1 Story, 172-190: 'Nothing is more clear in equity than the doctrine that a bargain founded in a mutual mistake of the facts, constituting the very basis or essence of the contract, or founded upon the representations of the sellers, material to the bargain, and constituting the essence thereof, although made by innocent mistake, will avoid it.' In Marvin v. Bennett, 8 Paige, 312-321, it is held that equity will give relief in cases of mutual mistake, 'where the subject-matter of the sale and purchase is so materially variant from what the parties supposed it to be that the substantial object of the sale and purchase entirely fails.' By reason of the failure of the defendant to convey, not only almost the entire building intended to be conveyed, but also a failure...