Gepford v. Burge

• Decision Date: 16 May 1925
• Docket Number: No. 7775.,7775.
• Citation: 5 F.2d 829
• Parties: GEPFORD et al. v. BURGE.
• Court: U.S. District Court — District of Colorado

5 F.2d 829 (1925)

GEPFORD et al. v. BURGE.

No. 7775.

District Court, D. Colorado.

May 16, 1925.

Frank B. Goudy and Frank L. Ross, both of Denver, Colo., for plaintiffs.

T. E. Munson, of Sterling, Colo., for defendant.

SYMES, District Judge.

This is an action brought by the plaintiffs to recover the balance of the purchase price due on a contract for the sale of certain real estate, consisting of 320 acres in Phillips county, Colo., or to recover the possession thereof. J. L. Magill and Frank Nelson, the predecessors in title of the plaintiffs, made the contract, dated March 5, 1920, by which they agreed to sell the land in controversy to the defendant, in consideration of certain payments to be made by the defendant. The said Magill and Nelson agreed to sell and convey by "a warranty deed and a good and merchantable title," for $27,200, $11,000 as a down payment, $10,200 on March 1, 1921, and $6,000 to be represented by a mortgage on the premises. The defendant went into possession and failed to make the payment due March 1, 1921, and the time of payment was extended to September 1, 1921.

On March 21, 1921, defendant paid $612 interest in full on the contract to that date. On September 1, 1921, by agreement among the parties, the time for final payment was extended from September 1, 1921, to September 1, 1922. Magill conveyed his interest to one Nelson and one Severns, subject to the contract of purchase outstanding.

On the 27th of March, 1922, defendant wrote to Nelson that he could not see his way clear to pay the balance of the $10,200 on the contract; that the land was not worth it, and, unless he could get enough discount for cash, he would have to let Nelson take the land on September 1, 1922. Again, on April 1, 1922, defendant wrote Nelson, advising him that he would rather lose the amount already paid than to put any more money in the land.

On August 22, 1922, defendant and Nelson and Gepford, who had now acquired the interest of Severns in the property, entered into an agreement in writing extending the time of payment of $7,200 to September 1, 1923. Thereupon the defendant paid $3,000 on principal and $1,200 on interest. On August 17, 1923, defendant wrote to Nelson, asking for further time to pay the final payment due on September 1, 1923, and again on February 7, 1924, defendant requested further time to pay the balance due.

On February 23, 1924, defendant wrote Nelson that, because he had failed to tender deed and abstract for a period of three years, defendant had become suspicious of the title, and that he had obtained an abstract himself, had it examined, and secured an attorney's opinion that the title was no good; that he had elected to rescind, and would return the land upon the payment to him of the $14,000 he had paid and interest, less the rents and profits of the land while he was in possession.

The plaintiff thereupon brought this action to require the defendant to accept a deed to the property, and to pay the balance due, or to deliver up possession of the property. The trial was to the court without a jury, and the plaintiff and defendant agreed that title is as shown by the abstracts put in evidence, but disagree as to the legal effect of the entries. Formal proof of original instruments was waived by the defendant, and the plaintiff admits that the alleged defects are correctly set forth by the abstracts of title. There is no question but that the defendant breached his contract, and that the plaintiff is entitled to the relief sought for, were it not for the defects which it is claimed make the title tendered doubtful in its character, and "not good and merchantable."

Counsel for the defendant has pointed out at great length many technical flaws that appeared in the abstracts, but most of them are without merit, and the only ones that require consideration are as follows:

To the northwest quarter of section 15, township 7, range 45: At entry No. 7 of the abstract there appears a warranty deed from J. C. Miller; Joel C. Miller took title by patent. At entry No. 41 on the abstract, John Werner took title. At entry No. 42 John F. Werner conveyed.

To the southwest quarter of section 15, township 7, range 45, Luman D. Sergeant obtained title by patent. At entry No. 4 on the abstract L. D. Sergeant conveyed. At entry No. 24 on the abstract John Werner obtained title. At entry No. 25 John F. Werner conveyed.

The real issue, therefore, is whether the abstracts show "a good and merchantable title." A marketable title has been defined as being:

"A title not subject to such reasonable doubt as would create a just apprehension of its validity in the mind of a reasonable, prudent and intelligent person; one that persons of reasonable prudence and intelligence, guided by competent legal advice, would be willing to take and pay the fair value of the land for." Eggers v. Busch, 154 Ill. 604, 39 N. E. 619.

"The well-established rule that a vendee contracting for a good title is entitled to demand...