Botkin v. Pyle

• Decision Date: 05 July 1932
• Docket Number: 12538.
• Citation: 91 Colo. 221,14 P.2d 187
• Parties: BOTKIN v. PYLE.
• Court: Colorado Supreme Court

14 P.2d 187

91 Colo. 221

BOTKIN v. PYLE.

No. 12538.

Supreme Court of Colorado

July 5, 1932

Rehearing Denied Sept. 12, 1932.

In Department.

Error to District Court, Yuma County; H. E. Munson, Judge.

Action by William Pyle against Lillie O. Botkin. To review an adverse judgment, defendant brings error, and plaintiff assigns cross-error.

Reversed and remanded, with instructions.

Louis Henke, of Wray, and John F. Mail, of Denver for plaintiff in error.

Leonard E. Anderson, William B. Paynter, and George A. Epperson, all of Brush, for defendant in error.

ALTER, J.

The parties hereto will hereinafter be referred to as they appeared in the trial court where William Pyle was plaintiff and Lillie O. Botkin was defendant. John M. Botkin, who was a party defendant in the trial court, will hereinafter be referred to as Botkin. Botkin and Lillie O. Botkin were husband and wife, and resided together, as such, on the ranch hereinafter referred to, upon which they farmed, and from which, so far as revealed from the record herein, their only source of income was derived. Plaintiff recovered a judgment for a part of the relief to which he believed himself entitled, to review which judgment defendant prosecutes this writ, assigning errors to which reference will hereinafter be made, and plaintiff assigns cross-errors as will hereinafter specifically appear.

The allegations of the complaint, in their chronological order may be thus summarized: During the fall of 1917, Botkin entered into an agreement to purchase certain farm lands in Yuma county for the total sum of $32,000; one of the deeds was dated November 12, 1917, and Botkin and the defendant were therein named as grantees; the other deed was dated February 28, 1918, and Botkin and the defendant were therein named as grantees; both deeds were thereafter, on March 2 1918, duly recorded in the office of the county clerk and recorder of Yuma county. At the time of the delivery of the deeds, $12,000 of the total purchase price was paid by checks, signed by Botkin, and the balance thereof was evidenced by a promissory note in the sum of $20,000, signed by Botkin and defendant, and secured by a deed of trust, signed by Botkin and defendant, upon all the lands described in the two deeds hereinBefore mentioned. Prior to April 2, 1923, the indebtedness secured by the deed of trust was reduced to the sum of $10,000, all of the payments being made by checks signed by Botkin; on March 1, 1923, the balance of the indebtedness, secured by the deed of trust, was paid by borrowing $9,500 from the Federal Land Bank of Wichita, Kan., augmented by other funds, and, in turn, this $9,500 was secured by a certain amortization mortgage upon the lands mentioned in the two deeds, which amortization mortgage was executed by Botkin and defendant. The principal and interest on the $20,000 note, and the payments made on the amortization mortgage, to and including September, 1926, and all the taxes upon the lands, due and payable prior to 1928, were paid by checks signed by Botkin. Prior to August, 1923, Botkin became indebted to plaintiff, which indebtedness was evidenced by Botkin's promissory note, upon which plaintiff secured judgment, on August 27, 1923, for approximately $5,000, and immediately filed a transcript of the judgment in the office of the county clerk and recorder of Yuma county. On September 12, 1923, Botkin executed and delivered to plaintiff his promissory note in an amount due on the judgment aforesaid, and secured the payment thereof, on September 12, 1924, by executing and delivering to plaintiff a deed of trust on all of the lands theretofore conveyed to Botkin and defendant, which deed of trust was immediately recorded in the office of the county clerk and recorder. Plaintiff thereupon satisfied his judgment and filed a release of the lien thereof.

The deed of trust which Botkin delivered to plaintiff was made expressly subject to the amortization mortgage to the Federal Land Bank of Wichita, Kan., and among other covenants and agreements on Botkin's part, we find that '* * * the said party of the first part, * * * at the time of the ensealing of and delivery of these presents he is well seized of the said lands and tenements in fee simple. * * *' The note, secured by the deed of trust just mentioned, became due on September 12, 1924, and remained unpaid until May 12, 1928, when Botkin executed and delivered to plaintiff his warranty deed, purporting to convey all the lands conveyed to himself and defendant in the two deeds hereinBefore mentioned; and, in this warranty deed, covenanted and agreed that he was the owner of said lands in fee simple, subject to the amortization mortgage only.

Upon the delivery of the warranty deed last mentioned, plaintiff canceled and surrendered Botkin's promissory note, and requested the release of the trust deed securing the same and also delivered to Botkin a certain contract in which plaintiff agreed to reconvey to Botkin all of the lands mentioned in the warranty deed from Botkin to plaintiff, provided Botkin should, on or Before March 1, 1929, pay to plaintiff an amount equal to the indebtedness on the promissory note, if the same had not been surrendered and canceled. Botkin agreed that, upon his failure to pay the amount due plaintiff, as specified in his certain contract, Before March 1, 1929, he would deliver possession of the land described in his warranty deed to plaintiff. The payment of the specified amount was not made on March 1, 1929, and plaintiff demanded and was refused possession by defendant, who, on March 1, 1929, filed a partition suit in which she claimed that she was the owner of an undivided one-half interest in the lands and tenements described in Botkin's warranty deed to plaintiff; but defendant, upon receipt of notice to take her deposition, dismissed her partition suit without prejudice. Plaintiff alleges that Botkin, during the entire period of their transactions, represented himself to be the owner, in fee simple, of all the lands and tenements herein involved, and that he was ignorant of the fact that defendant appeared as a joint owner with Botkin; and, upon information and belief, alleges that defendant, during all the time when Botkin was holding himself out to plaintiff as the owner of the lands, knew of his false representations, and of all the transactions between plaintiff and Botkin, and ratified, assented to, and acquiesced therein; and that plaintiff, in waiving his rights to enforce the judgment which he obtained against Botkin, on August 27, 1923, and in satisfying and releasing the same, upon Botkin's giving plaintiff a promissory note, secured by a deed of trust upon all of the property described in the two deeds to Botkin and defendant, in payment of the same, and plaintiff's failure to properly foreclose his deed of trust, and in canceling and surrendering Botkin's note, and releasing the deed of trust securing the same, and accepting the warranty deed to the premises deeded to Botkin and defendant, and in executing and delivering the option contract whereby plaintiff, upon the payment, by Botkin, of that certain sum hereinBefore mentioned, would reconvey the premises to Botkin, did all and sundry the acts herein mentioned '* * * solely in reliance upon the representations of said John M. Botkin that he was the sole owner in fee simple of said real estate, and in entire ignorance of any claim on the part of Lillie O. Botkin of ownership of any interest in or to said real estate.' Plaintiff alleges, upon information and belief, that defendant '* * * at all times knew that her said husband John M. Botkin, was holding himself out as the sole owner in fee simple of said real estate; that she at all times well knew of the obtaining of said judgment by this plaintiff against said John M. Botkin; of the execution of said trust deed by said John M. Botkin as the sole owner of said real estate; and of the execution of said warranty deed of May 12th, 1928, as the sole owner of said real estate; and of the execution by this plaintiff of said option of said date; and that she did furthermore ratify, assent to and acquiesce in each and all of said transactions; and did furthermore participate with said defendant John M. Botkin, in attempting to exercise said option contract,' and thereby she '* * * is barred and estopped from asserting any right, title, interest, estate or claim in and to the undivided one-half (1/2) interest in said real estate now claimed by her, and that such interest, if any, she ever had therein, passed to and became the property of this plaintiff under and by virtue of said warranty deed of said defendant John M. Botkin, to this plaintiff, dated May 12th, 1928. * * *' Plaintiff further alleges that both defendant and Botkin are insolvent; and, further, that, if defendant ever had any right, title, or interest in and to the real estate which was described in the two original deeds, in which she and Botkin, her husband, were mentioned as grantees, then plaintiff is subrogated to a lien against the interest of defendant therein, to an amount equivalent to one-half the total sums which Botkin paid as taxes, interest, and improvements, and outstanding incumbrances against said property. The prayer of the complaint is that defendant be 'estopped to claim any right, title or interest in or to said real estate,' and that she be required 'to make such conveyance or conveyances as may be necessary to perfect the legal title thereto in the plaintiff,' and enjoining both defendant and Botkin from interfering with plaintiff's possession; and, in the alternative, if it shall be adjudged that defendant has some title or interest in said real estate, that plaintiff be fully subrogated, and the...