Doyle v. Miles

• Decision Date: 05 November 1923
• Docket Number: 10550.
• Citation: 219 P. 1068,74 Colo. 182
• Parties: DOYLE v. MILES.
• Court: Colorado Supreme Court

219 P. 1068

74 Colo. 182

DOYLE v. MILES.

No. 10550.

Supreme Court of Colorado

November 5, 1923

Department 2.

Error to District Court, Bent County; A. F. Hollenbeck, Judge.

Suit by Obed Doyle against Claire J. Miles. Judgment for defendant and plaintiff brings error.

Reversed and remanded, with directions.

Sabin Haskins & Sabin, of La Junta, for plaintiff in error.

Granby Hillyer, of Denver, for defendant in error.

DENISON J.

Doyle was plaintiff below, and was defeated in a suit to enforce specific performance of a contract of purchase by Miles from him of certain land and water rights.

The contract acknowledged the receipt by Doyle of $500, and provided the Miles should pay the balance, $12,500----

'upon receipt of warranty deed with a clear abstract of title to said property, free from all liens and incumbrances. Such deed and abstract of title to be furnished on or before July 1, 1921. If such title is not furnished by July 1, 1921, it is agreed that Claire J. Miles shall have all crops grown or growing on land covered by this contract, and shall be permitted to remove improvements and be released from all obligations.'

On July 1st, Doyle tendered abstracts and a warranty deed, which contained the clause '1920 taxes are to be paid by second party.' This clause is the only reason assigned in this court by Miles for his failure to keep his agreement. The attorneys for Doyle answer that no such objection was made to the deed when it was tendered, but only objections to the title, and that objections of that sort must be made at once to which the attorney for Miles replies that that rule applies only to objections to the form of the deed and not to substance, and that the existence of a lien for taxes is a substantial matter.

We agree that the matter is of substance, but think that the rule covers not only objections to the form of the deed tendered, but to any matter which, upon attention being called to it, might be corrected. Indeed, we think that the possibility and likelihood of correction constitute the principal basis of the rule. 39 Cyc. 1528, 1549. Ashbaugh v. Murphy, 90 Ill. 182; Schwartz v. Woodruff, 132 Mich. 513, 93 N.W. 1067; Moak v. Bryant, 51 Miss. 560; Gregg v. Von Phul, 1 Wall. 274, 17 L.Ed. 536; Clarkin v. Lewis, 20 Cal. 634; Baker v. Hall, 158 Mass. 361, 33 N.E. 612; McWhorter v. McMahan, 10 Paige, 386, 387.

In the present case, upon a suggestion that the clause was not according to the contract, the plaintiff would doubtless have corrected the deed and paid the taxes, if...