Fern v. Crandell

• Decision Date: 03 May 1926
• Docket Number: 11239.
• Citation: 79 Colo. 403,246 P. 270
• Parties: FERN v. CRANDELL.
• Court: Colorado Supreme Court

246 P. 270

79 Colo. 403

FERN v. CRANDELL.

No. 11239.

Supreme Court of Colorado, En Banc.

May 3, 1926

Rehearing Denied May 24, 1926.

Allen C.J., and Campbell, JJ., dissenting.

Error to District Court, Alamosa County; Jesse C. Wiley, Judge.

Suit by H. B. Crandell against Peter Fern. From the judgment defendant brings error.

Modified and affirmed.

Wilbur F. Denious and Hudson Moore, both of Denver, for plaintiff in error.

W. W Platt, of Alamosa, for defendant in error.

DENISON J.

Crandell brought suit against Fern to cancel a lease given by Fern to one Smith and assigned to plaintiff and to recover $500 paid thereon, on the ground of failure of title. The findings were general for the plaintiff, who had judgment for the $500, but the lease was not expressly canceled. Fern brings error. The recovery of the $500 should be affirmed, and probably that in effect cancels the lease, but we think it should have been expressly canceled.

Assuming, as we must, that all material matters in dispute, which were few and unimportant, were found for the plaintiff, the facts are as follows: December 31, 1919, Fern gave one Smith an option for a lease, although he had previously given a like option for lease covering the same land and time to one Kirkpatrick Smith assigned to Crandell. April 1, 1920, Crandell paid Fern the $500 required by the option. The lease was already in his hands. He admits that as early as July, 1920, he knew of the outstanding option to Kirkpatrick. Nevertheless, after that, as late as September, 1920, he insisted that Fern perfect the title. In December, 1920, Fern obtained a surrender of the Kirkpatrick option, but the latter had assigned a portion to one Withrow. No release was obtained from Withrow until December, 1921, and Crandell did not know of the Withrow release until he began this suit.

Having discovered the existence of the Kirkpatrick lease, Crandell had a right to rescind, or to stand on his contract and sue for damages, or insist upon the removal of the defect in the title. He chose the last. If that defect was not removed within a reasonable time he still might rescind. Heaton v. Nelson, 69 Colo. 320, 194 P. 614. The court by its general finding has found that the time within which it was removed, which was some 15 months after last demand, was not reasonable, and we think the finding is right, and a rescission was therefore proper and the cancellation consequently inevitable. The recovery of the money paid necessarily followed (Heaton v. Nelson, 69 Colo. 320, 194 P. 614); but the lease under which Crandell claimed had been recorded in Lincoln county, Okl., where the land lay, and the decree should have canceled the lease to clear the record.

The argument of the plaintiff in error assumed that this action is based on deceit. He is not without excuse for that assumption, because the complaint contains immaterial and unnecessary matter which tends to show that the action is such. If it were for deceit and to cancel the lease on that ground, the argument that the payment by Crandell of $500 after he had notice of the existence of the lease to Kirkpatrick was a waiver of the deceit, and that his failure to rescind promptly upon knowledge of the defective title was a like waiver, would have been conclusive in Fern's favor; but it has no bearing on the case made by the pleading and evidence. We are aware of the decision in Brown v Gordon-Tiger Co., 44 Colo. 311, 323, 97 P. 1042, and perhaps that case cannot be distinguished; if so it is to that extent overruled. By electing to go on with his contract and demanding correction of the title after notice of failure of title, a purchaser does not thereby elect to take and pay for a nullity or a questionable title and so release the vendor from his obligation to furnish a good title. He is to be regarded as electing to go on with...