Brownlee v. Williams

• Decision Date: 06 June 1904
• Citation: 32 Colo. 502,77 P. 250
• Parties: BROWNLEE v. WILLIAMS et al.
• Court: Colorado Supreme Court

77 P. 250

32 Colo. 502

BROWNLEE v. WILLIAMS et al.

Supreme Court of Colorado

June 6, 1904

Appeal from District Court, Morgan County; Christian A. Bennett Judge.

Action by Edward B. Williams and others against George F. Brownlee. From a judgment for plaintiffs, defendant appeals. Affirmed.

Talbot Denison & Wadley, for appellant.

W. A Hill and L. C. Stephenson, for appellees.

STEELE J.

In the year 1886 Solon D. Martin was seised in fee of the southwest quarter of section 7, township 4 north, range 58 west, and executed to George F. Brownlee a bond for a deed therefor. In the year 1888 Brownlee entered the southeast quarter of the same section as a homestead. From that time until July, 1896, he was in possession of both quarters, and used them together as a farm. On December 20, 1895, suit was brought by Martin against Brownlee for the purpose, among other things, of foreclosing his bond and of quieting his title to the southwest quarter of the section. That suit was disposed of by stipulation, and it was agreed by and between the parties that the defendant, Brownlee, should move the house theretofore moved from the southwest quarter back upon said premises, and that he should quitclaim the said southwest, quarter to Martin; that Martin should deliver up certain notes given him by Brownlee, and that he should assume a certain note given for water rights. It was further agreed that the action should be dismissed, and that these things, when done, should settle and discharge all claims of either party against the other. The agreements were performed upon both sides, and the suit was dismissed. Brownlee surrendered possession of the southwest quarter to Martin excepting about 28 1/2 acres, which he (Brownlee) had fenced with, and as a part of, the southeast quarter in 1895. Martin died in 1897, and the appellees succeeded to his title. On July 18, 1900, they brought suit in ejectment to recover the possession of the 28 1/2 acres of land in dispute. The suit resulted in a judgment for the plaintiffs, and the defendant has appealed to this court.

Upon the trial there was some testimony given by the defendant tending to show an agreement between the defendant and Martin as to the division line. An issue was made as to whether there was such an agreement, and the jury found against the defendant, under proper instructions. It is at least doubtful whether the defendant's testimony, if uncontradicted would have sustained a verdict in his favor upon this point. On cross-examination he said: 'Q. YOU HAVE STATED IN YOUR DIRECT EXAMinaTION That mr. martin saw this fence there. When did you make any agreement with Mr. Martin as to where this line should be? A. In about '89. Q. What was the consideration for the agreement? A. There wasn't any consideration. Q. Did he agree to any line? A. He did. Q. How? A. Why, by consenting to my putting the fence up. Q. You remember your testimony six months ago, do you? Did you state at that time of his agreeing to a line? A. He agreed to the line by not objecting to my cutting hay. Q. Mr. Brownlee, did you have a conversation with--in March or April, 1900--with Ed. Williams, when he went to see you on the place, in which you went down with him and his fath...