Burton v. Huma

• Decision Date: 19 February 1889
• Citation: 37 F. 738
• Parties: BURTON v. HUMA et al.
• Court: U.S. District Court — District of Colorado

37 F. 738

BURTON v. HUMA et al.

United States Circuit Court, D. Colorado.

February 19, 1889

Teller & Orahood, for complainant.

Wolcott & Vaile and E. Miles, for defendants.

BREWER J.

This case stands on a plea and exceptions to the answer. The facts, as developed, are these: In 1884 one Rufus Clark was the owner of the real estate in question. He sold and conveyed it to Henry and Loveland for the sum of $70,000, of which $10,000 was paid in cash, and a trust deed given for the balance to two trustees. A few hundred dollars only having been paid upon this balance, the trustees, at the request of Clark, advertised the property for sale, and sold the entire tract to Clark for $76,800. In pursuance of that sale a deed was made to Clark, who subsequently conveyed it to the South Denver Real Estate Company. While the advertisement of the sale was in the names of both trustees only one attended the sale, and only one executed the deed. Prior to the original conveyance by Clark to Henry and Loveland certain portions of this land had been subdivided into lots and blocks, and the plat thereof recorded in the office of the recorder of deeds, but neither the conveyance from Clark, nor the trust deed, nor the advertisement of sale took any notice of this platting, but described the lands simply by quarter sections and parts thereof. At the time of the sale in pursuance of the direction of Clark by his attorney, the trustee made this announcement:

'I desire to sell this property for the highest possible price it will bring in cash. In order to ascertain the best price obtainable for the whole property I will first offer it in parcels, the subdivided parts in lots and blocks separately and the rest in tracts of about twenty-two to forty acres each. After the whole property is thus offered, and the aggregate of the highest bids computed, then the whole tract will be offered in one body. If the aggregate of the highest bids obtained when offered in lots, blocks, and parcels equals or exceeds the highest bid when offered as a whole the property will be struck off according to such bids in parcels; otherwise it will be sold as a whole.'

In pursuance of this announcement it was so offered in lots, blocks, and parcels, and, on computing the aggregate of the various bids, the amount was $76,798.87. Then it was offered as a whole, and $76,800 offered, and the property struck off to the bidder. Prior to the sale, one McIntosh, who is a party to this bill, and one of the principal stock-holders in the real estate company, being desirous of obtaining the land, entered into a written contract with Clark, by which the latter agreed to have the property sold under the trust deed, and if he obtained title thereto at such sale, to convey to the former at a named price. It was also stipulated in this contract that Clark should attend the sale, and make bids in pursuance of instructions from McIntosh. The sale and the deed to Clark were on the 3d of August, 1886. Thereafter, and on the 12th of April, 1887, Henry and Loveland filed a bill in the state court, alleging that the sale and deed were void on the ground that they were made and executed by one trustee, and not by both, and also on the ground of some defects in the advertisement, etc., praying that that deed and all subsequent conveyances be canceled and held for naught, and that upon the payment of the balance due on the original purchase price a conveyance should be made to them. To that complaint the various defendants answered, and also filed a cross-complaint, in which they set out the original sale from Clark, the trust deed, the advertisement, sale, and deed, and subsequent conveyances, and alleged that the proceedings of the complainants were casting a cloud upon their title, and prayed that it might be quieted, and the defendants in the cross-complaint decreed to have no right or claim or interest in or to the property.

The pleadings having all been perfected, the case went to trial, and a decree was entered in which it was found that none of the material allegations of the original bill of complaint were sustained, and adjudged that the original bill be dismissed for want of equity, and that the title of the cross-complainants be quieted, and forever set at rest as against all claims whatsoever of the complainants, or either of them. This decree was taken to the supreme court of the state for review, and by that tribunal affirmed. ^[1] Thereafter, on July 16, 1888, this bill was filed, which is called a 'bill to redeem,' and sets up the facts heretofore stated, except the proceedings in the state court; tenders the balance due on the original purchase price, with interest; and prays a decree for redemption. It sets up a title in complainant, derived from sundry mesne conveyances from Henry and Loveland. It also sets up a title derived by conveyances from the parties who bid for the several lots and parcels at the trustees' sale

Now, the plea sets up the proceedings in the state court as a bar to all claims which complainant may have derived through his conveyances from Henry and Loveland; and the answer, besides being in support of the plea, sets up defenses to the title obtained by the conveyances from the bidders for the lots and parcels. This, I think, presents all the substantial facts in the case. Some technical questions have been argued, but I think it useless to notice them, and proceed to the substantial matters. I have not mentioned all of the conveyances by which titles have been transferred, or the various parties who have interests, but have treated the complainant on the one side and the real estate company on the other as the real parties in interest, for, their rights being settled, all other questions and rights are disposed of. Now, are the proceedings in the state court a bar to this action? It is said by counsel for complainant that the state case proceeded on the theory that the sale and deed were absolutely void, while this accepts the sale as apparently valid, but goes upon the theory that it is voidable, and seeks simply redemption, and that the wrongful and fraudulent contract between Clark and McIntosh was not set forth in the bill of complaint in the state court, or made the basis of relief. Inasmuch as complainant holds under Henry and Loveland, by conveyances since the former case, this action must stand as between the same parties in reference to the same property, and I think it would be difficult, even if no cross-complaint had been filed in the original case, to draw any substantial distinction between the two actions, or avoid holding that the former was a bar to this. The fact that new matter is added in the complaint makes no difference. In the case of Cromwell v. County of Sac, 94 U.S. 352, the supreme court lays down in very clear language the rule controlling as follows:

'In considering the operation of this judgment, it should be borne in mind, as stated by counsel, that there is a difference between the effect of a judgment as a bar or estoppel against the prosecution of a second action upon the same claim or demand, and

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