Enos v. Anderson

• Decision Date: 01 July 1907
• Citation: 40 Colo. 395,93 P. 475
• Parties: ENOS et al. v. ANDERSON et al.
• Court: Colorado Supreme Court

93 P. 475

40 Colo. 395

ENOS et al. v. ANDERSON et al.

Supreme Court of Colorado

July 1, 1907

Appeal from District Court, City and County of Denver; F. T Johnson, Judge.

Action by Isabel L. E. Anderson and another against Charles W. Enos and another. From a judgment for plaintiffs, defendants appeal. Reversed.

Benedict & Phelps, for appellants.

W. T Rogers and John F. Mail, for appellees.

STEELE C.J.

On May 3, 1893, the plaintiffs (appellees here) executed and delivered to the defendants a warranty deed for the premises known as lots 23 and 24, block 3, Kettle's addition to the city of Denver. The consideration named in the deed is $12,000. This deed contains a covenant that the property is free and clear of all liens and incumbrances 'except a certain deed of trust recorded in Book 888, March 7th, 1893 given to secure six thousand dollars at seven and one-half per cent. per annum.' On September 25, 1894, the property was sold under the deed of trust for the sum of $2,600, and this amount, less the costs and expenses of the sale, was credited upon the notes secured by the deed of trust. Thereafter suit was brought against the plaintiffs (appellees here) to recover judgment against them for the balance due upon the notes, approximately $4,000. While the suit was pending, plaintiffs settled with the holders of the notes, and in December, 1897, or in 1898, paid $1,000 in full settlement of the demand against them. On May 27, 1902, this suit was brought; the plaintiffs alleging in their complaint that the defendants orally assumed the notes given by the plaintiffs and agreed to pay them; that the property conveyed to the defendants by the plaintiffs was of the value of $12,000; that the consideration for the conveyance of the property was the assumption of the $6,000 incumbrance and the conveyance by the defendants to the plaintiffs of property valued at $6,000; and they asked judgment against the defendants for the sum of $1,000 and interest, being the amount the plaintiffs paid to compromise the suit mentioned herein. The defendants deny that they assumed and agreed to pay the notes mentioned, and deny that the consideration for the conveyance to them was, in part, the assumption and agreement to pay the said notes. In other defenses they plead the statute of frauds and the statute of limitations, and in still others they allege, by way of cross-demand, damages sustained by reason of an alleged breach of the covenant of warranty. The court found in favor of the plaintiffs, and rendered judgment against the defendants in the sum of $1,326.65. From this judgment the defendants appealed to the court of appeals.

It is contended that the alleged contract is within that section of the statute of frauds which declares that every special promise to answer for the debt, default, or miscarriage of another shall be void unless such agreement or some note or memorandum thereof be in writing and subscribed by the party charged therewith. The agreement set out in the pleadings, and testified to by the plaintiffs, was not an agreement to answer for the debt of another person. The plaintiffs testified that the defendants agreed to assume and pay certain notes given by the plaintiffs, and secured by a deed of trust upon the property conveyed by them to the defendants. 'The statute applies to promises to pay the debt of another; and this is construed by the courts of both countries to mean the debt of some person other than the immediate parties to the contract of guaranty and owed to one of those parties.' Browne on the Statute of Frauds, § 188.

It is also claimed that the agreement was not to be performed within a year, and therefore came within the provisions of the statute of frauds. The case of Curtis v. Sage, 35 Ill 22, holds, under a state of facts very similar to those shown in this case, that such a contract is not within the statute of frauds. Nor was the action barred by the statute of limitations. The alleged agreement was to pay the notes of the plaintiffs. The cause of action did not accrue to the plaintiffs until they were required to pay the notes. Within six years after they were required to make payment they brought this action, therefore it was not barred. 'The rule applicable to all contracts that prior stipulations are merged in the final and formal contract executed by the parties applies, of course, to a deed based upon a contract to convey. When a deed is delivered and accepted as performance of a contract to convey, the contract is merged in the deed. Though the terms of the deed may vary from those contained in the contract, still the deed must be looked to alone to determine the rights of the parties.' 2 Devlin on Deeds, § 850a. The courts have recognized various kinds of...