Collins v. Whitehead

• Decision Date: 05 March 1888
• Citation: 34 F. 121
• Parties: COLLINS v. WHITEHEAD et al.
• Court: U.S. District Court — District of Colorado

34 F. 121

COLLINS v. WHITEHEAD et al.

United States Circuit Court, D. Colorado.

March 5, 1888

R. D Thompson, for plaintiff.

B. F Montgomery, for defendant.

HALLETT J.

Defendants are real-estate brokers in Denver. Plaintiff resides at Kansas City, in the state of Missouri, and owns a tract of land near Denver. In the early part of last year defendants applied to plaintiff to purchase the land, and negotiations followed which resulted in a proposition by the plaintiff to sell the land for $15,000. To complete the transaction, plaintiff sent to the Union Bank of Denver a deed to be delivered to defendants on payment of the $15,000, provided such payment should be made on the 5th day of March, 1887. Defendants claimed to have discovered some defect in the title, and did not take the deed on that day, but applied to plaintiff for further time in which to examine the title, and this request was refused. On the 7th day of March, 1887, defendants filed in the office of the recorder of deeds a paper which was duly recorded, as follows:

'Know all men by these presents, that whereas, on or about the 28th day of February, A.D. 1886, Andrew W. Whitehead and Edwin K. Whitehead, constituting the firm of Whitehead Brothers, of Arapahoe county, Colorado, bargained for and bought of Sewell G. Collins the undivided half of the east half of the north-east quarter, and the undivided half of the north-west quarter of the north-east quarter, all of section 23, township 4 south, of range 68 west, Arapahoe county, Colorado, for the sum and price of $15,000, which sum and price said Sewell G. Collins agreed to accept in payment in full for said above-described land, and to convey the same by good and sufficient warranty deed to said Whitehead Brothers, or assigns, and whereas said Whitehead Brothers are ready and willing to comply with their part of said contract, and accept warranty deed to said land upon the terms agreed upon, and have made tender thereof to said Sewell T. Collins, and demanded conveyance of said lands as aforesaid: Now, therefore, this will give notice that said Whitehead Brothers claim the right to enforce said contract to convey said lands as aforesaid, and for damages for failure of said Collins to carry out said contract; and this statement of claim is filed for record in the office of the county clerk and recorder of said county to the end that a claim and lien may be created, and exist upon and against said lands hereinbefore described for the enforcement of said contract, or for damages, or for both.

ANDREW WHITEHEAD. (Seal.) 'EDWIN K. WHITEHEAD. (Seal.) 'WHITEHEAD BROTHERS.

'State of Colorado, County of Arapahoe-- ss.: Personally appeared before me this 7th day of March, A.D. 1887, Andrew Whitehead and Edwin K. Whitehead, and acknowledge that they executed the foregoing instrument as their free act and deed, and as the free act and deed of said firm of Whitehead Brothers.

'Given under my hand and notarial seal this 7th day of March, A.D. 1887. (Notarial Seal.)

'ELMER W. MERRITT, Notary Public.'

Upon demand by plaintiff afterwards made, defendants refused to revoke or cancel the paper, and plaintiff brought suit in the district court of Arapahoe county for such relief. He also brought this suit in the nature of an action for defamation of title, to recover damages for putting the paper on record. The theory of the case is that the paper marks a cloud on plaintiff's title which, until it was removed by the district court of ...