Eriksen v. Whitescarver
| Decision Date | 04 May 1914 |
| Docket Number | 7993. |
| Citation | 57 Colo. 409,142 P. 413 |
| Parties | ERIKSEN v. WHITESCARVER. |
| Court | Colorado Supreme Court |
Rehearing Denied July 8, 1914.
Error to District Court, Denver County; Greenley W. Whitford Judge.
Action by Rosa B. Whitescarver against Sina M. Eriksen. Judgment for plaintiff, and defendant brings error. Reversed and remanded with directions.
The parties to this proceeding entered into a written contract for the exchange of real estate, consisting of building lots in the city of Denver. The contract, after reciting that the property of Mrs. Eriksen was incumbered, and that Mrs Whitescarver was to assume this incumbrance, and also stating what taxes each should assume, provided that Mrs Whitescarver should convey her lots (17 in number) by good and sufficient warranty deed, and that each should furnish an abstract of title to the property conveyed and a marketable and merchantable title, and, except as specified, each was to convey free and clear of all incumbrances. Mrs. Whitescarver furnished an abstract of title to the property she was to convey, which Mrs. Eriksen submitted to her attorneys, who advised her that it exhibited several substantial defects of title. In addition they advised her that a right of way for an irrigation ditch crossed the premises, although not shown on the abstract, was probably an incumbrance. Shortly after at a conference between the parties, Mrs. Eriksen refused to convey her property, or accept a conveyance from Mrs. Whitescarver, because of defects in the title of the property to be conveyed by her, and for the further reason that it was incumbered by a right of way for an irrigation ditch. Mrs. Whitescarver, without attempting to correct the alleged defects in her title or to adjust the ditch right of way, then brought an action for specific performance of the contract. By answer Mrs. Eriksen set up defects in the title of the property of Mrs. Whitescarver, and also the existence of the right of way for the irrigation ditch across them, and for these reasons prayed that she be not required to comply with the contract, and have judgment to the effect that her property be unaffected thereby.
The court found generally in favor of plaintiff, and also that defendant visited the premises to be conveyed by plaintiff prior to the time the contract for exchange was entered into between the parties, and knew that the ditch and right of way of which defendant complained and on account of which she refused to carry out the contract was located on these premises. A decree was then entered requiring the defendant to comply with her contract, and she brings the case here for review on error.
The testimony bearing on the ditch is to the effect that a right of way for this purpose existed over and across seven of the lots, some of which it intersected near the center; that the ditch in places was as much as 4 feet in depth, and many feet in width at the top; that its capacity was 350 inches per second; that it was detrimental, not only on account of the ground it occupied, but because, through seepage therefrom water would accumulate in cellars of buildings constructed on the lots; and that it would cost a very considerable sum, variously estimated from $150 to several hundred dollars, to...
To continue reading
Request your trial
-
Navajo Development Co., Inc. v. Sanderson
...the title may be warranted much like with real property. Ackerman v. Walsenburg, 171 Colo. 304, 467 P.2d 267 (1970); Eriksen v. Whitescarver, 57 Colo. 409, 142 P. 413 (1914); Seyfried v. Knoblauch, 44 Colo. 86, 96 P. 993 (1908); Bailey v. Murphy, 19 Colo.App. 310, 74 P. 798 (1903). The conv......
-
Loveland Essential Group Llc v. Grommon Farms Inc.
...breach of a covenant against encumbrances. Moddelmog v. Cook, 138 Colo. 152, 156, 330 P.2d 1113, 1115 (1958); Eriksen v. Whitescarver, 57 Colo. 409, 411–12, 142 P. 413, 414 (1914); Downtown Parking, 524 P.2d at 631; see also Reinhardt v. Meyer, 153 Colo. 296, 301, 385 P.2d 597, 600 (1963) (......
-
O'Hara Group Denver, Ltd. v. Marcor Housing Systems, Inc.
...the buyer of his obligation to purchase the property and destroys the seller's right to recover liquidated damages, Eriksen v. Whiteskarver, 57 Colo. 409, 142 P. 413 (1914), absent some countervailing legal or equitable principle. Platte Land Co. v. Hubbard, 12 Colo.App. 465, 56 P. 64 There......
-
Feldhut v. Brummitt
... ... Perhaps in the West, also, unless the question is affected by ... statute, the weight of authority is to the same effect. ( ... Eriksen v. Whitescarver, [Colo. 1914] 57 Colo. 409, ... 142 P. 413; Wingard v. Copeland, 64 Wash. 214, 116 ... P. 670.) Where, however, the local ... ...