Buena Vista Bank & Trust Co. v. Lee

• Decision Date: 27 September 1976
• Docket Number: No. C--771,C--771
• Citation: 554 P.2d 1109,191 Colo. 551
• Parties: BUENA VISTA BANK AND TRUST COMPANY, Petitioners, v. Percy LEE, Respondent.
• Court: Colorado Supreme Court

Page 1109

554 P.2d 1109

191 Colo. 551

BUENA VISTA BANK AND TRUST COMPANY, Petitioners, v. Percy LEE, Respondent.

No. C--771.

Supreme Court of Colorado, En Banc.

Sept. 27, 1976.

Feldhamer, Plotz & Eskwith, P.C., Kenneth M. Plotz, Leadville, for petitioners.

Paul Barber, Colorado Springs, for respondent.

HODGES, Justice.

We granted certiorari to review the court of appeals decision which reversed the judgment of the trial court in this quiet title action. The court of appeals in Lee v. Buena Vista Bank and Trust Co., 36 Colo.App. 183, 539 P.2d 1331 (1975), ruled that the evidence established that title in the subject property was in Lee rather than petitioner bank, contrary to the trial court's findings. It also held that the bank's purported defense of estoppel to the quiet title action commenced by Lee was not properly raised in the trial court and therefore could not be considered on appeal. We affirm the court of appeals decision, insofar as the issues determined there have been raised in this court by the bank.

The court of appeals held that Lee acquired title to the property by reason of quitclaim deeds and that the subsequent chain of deeds leading up to the bank's asserted title could not have been effective to convey the property. In so holding, the court of appeals did not discuss the effect of the recording statute, section 38--35--109, C.R.S.1973. Petitioner bank, however, does not contest this aspect of the case and we therefore do not consider it.

The bank does dispute the ruling of the court of appeals that it could not address the issue of estoppel because the bank did not properly raise it in the trial court. The bank had contended that Lee should be estopped from asserting his claim of title to the land because as president of Colorado Springs Leasing Company he signed an instrument purportedly conveying title to one Jones, and because he allegedly represented to the bank that he would convey his interest in the land in order to secure a loan that he and Jones would use for their joint business purposes. There is a dispute in the evidence as to the foregoing allegations of the bank.

The court of appeals correctly held that the issue of estoppel could not be considered on appeal. C.R.S.P. 8(c) requires that affirmative defenses, such as estoppel, be set forth in a defendant's pleadings. See also Dreiling Motor Co. v. Shultz, 168 Colo. 59, 450 P.2d 70 (1969). The bank failed to plead this defense and it also failed to request...