Davis v. Hopkins

• Decision Date: 17 January 1893
• Citation: 32 P. 70,18 Colo. 153
• Parties: DAVIS v. HOPKINS.
• Court: Colorado Supreme Court

32 P. 70

18 Colo. 153

DAVIS v. HOPKINS.

Supreme Court of Colorado

January 17, 1893

Appeal from district court, Weld county.

Action by Lewis A. Hopkins against Joel E. Davis to compel defendant to convey him certain land. From a judgment for plaintiff defendant appeals. Affirmed.

The other facts fully appear in the following statement by GODDARD, J.:

The complaint in this action states, in substance, that on or about March 1, 1885, Lewis A. Hopkins, plaintiff below purchased from Annie E. Roberts the E. 1/2 of the W. 1/2 of the S.E. 1/4 of section 34, township 6 N., range 65 W together with a ditch known as 'Sand Creek Lateral,' and all her right, title, and interest to a share of the water derived therefrom, for the consideration of $375; that he borrowed the purchase money from Joel E. Davis, defendant below, with the understanding that it should be repaid in about three years; that to secure the repayment of the money so borrowed, together with the interest thereon, at the rate of 10 per cent. per annum, and upon a verbal agreement with Davis that, on the payment of the same, he would deed the property so purchased to Hopkins, a deed conveying the land together with the lateral and water right, was executed by Mrs. Roberts to Davis on March 4, 1885; that, in pursuance of such purchase and agreement, Hopkins entered into possession of the property so conveyed, and has remained in the exclusive possession ever since, and had paid the taxes thereon and the interest on the money annually; that on April 4, 1888, he paid Davis the money borrowed, and thereupon he executed a quitclaim deed to Hopkins for the land only, and omitted therefrom the ditch and water right derived therefrom, and has and still does refuse to convey the same to appellee; prays, among other things, that Davis be compelled to execute a deed conveying the entire property as conveyed to him by Mrs. Roberts. Davis denies that he loaned the money to Hopkins; denies that the deed of Mrs. Roberts was taken as security; but alleges that it is, as it purports to be, an absolute deed, and executed in pursuance of a purchase of the property by himself. Decree as prayed for. To reverse this decree, Davis brings this appeal.Page 71

McCreery & Bates and A. C. Patton, for appellant.

H. M. Look and J. E. Garrignes, for appellee.

GODDARD J., (after stating the facts.)

From the foregoing statement it will be seen that, to entitle Hopkins to the relief sought, it must appear by proper and sufficient evidence that the verbal agreement alleged was entered into by the parties, and that the deed executed by Mrs. Roberts to Davis was in fact a mortgage. Counsel for appellant contend that the court below erred--First, in admitting certain evidence; and, second, that taken as a whole, the evidence is insufficient to sustain the findings of the court and the decree rendered. The negotiations resulting in the sale of the property in controversy were carried on, in the absence of appellant, by H. C. Watson, acting in behalf of Mrs. Roberts, on the one part, and by the appellee, Hopkins, on the other; the appellant and Mrs. Roberts not appearing personally in the transaction until the execution of the conveyance by her to him. It is insisted that the evidence of Watson detailing these negotiations is inadmissible, because irrelevant to the issue, and not had in the presence of appellant. While the statement by the witness of what Hopkins said as to Davis furnishing the money with which to pay for the property is obnoxious as hearsay, the motion to strike out was too broad, and challenged the entire evidence of this witness, and failed to call the court's attention to this objectionable statement. If the evidence of this witness, aside from this, was pertinent and material, 'a general motion to strike out cannot be granted, nor will the court, upon such general motion, search the whole evidence, with the view to ascertain if any testimony was improperly admitted. The motion should be specifically confined to the objectionable evidence.' Webber v. Emmerson, 3 Colo. 248. The inquiry, therefore, is limited to the relevancy of this witness'...