Gerbig v. Spelts

• Decision Date: 08 June 1931
• Docket Number: 12626.
• Citation: 300 P. 606,89 Colo. 201
• Parties: GERBIG v. SPELTS.
• Court: Colorado Supreme Court

300 P. 606

89 Colo. 201

GERBIG v. SPELTS.

No. 12626.

Supreme Court of Colorado

June 8, 1931

In Department.

Error to District Court, Sedgwick County; H. E. Munson, Judge.

Suit by Fred E. Gerbig against Blanche A. Spelts, with a cross-complaint by defendant. To review the judgment plaintiff brings error, and defendant assigns cross-error.

Affirmed.

Claude D. Walrod, of Holyoke, and George E. Hager of Lincoln, Neb., for plaintiff in error.

Rolfson & Hendricks, of Julesburg, for defendant in error.

ADAMS C.J.

Gerbig was plaintiff and Blanche A. Spelts defendant in the trial court. They will be referred to as there aligned.

Defendant owned a tract of land in Sedgwick county, on which there was a growing crop of wheat. Under a written agreement, defendant agreed to sell and plaintiff agreed to buy the land with the growing crop thereon for a stated price, subject to an outstanding mortgage of record. Title to be merchantable. Plaintiff made a first payment, but refused to consummate the transaction, alleging as a reason therefor that the title is defective. He brought this suit, in the nature of a bill for specific performance and for an accounting as to the wheat crop, and avers that he is ready, willing, and able to carry out his part of the contract upon proper conveyance of a merchantable title, according to contract. The prayer of the complaint is, in the alternative, that defendant be required to perfect the title, convey the premises to plaintiff, and to account to plaintiff for the growing wheat thereon, or, if the title cannot be perfected that he have judgment against defendant for the amount of the first payment, with interest.

Issue was joined on the question of merchantability of title, and, by way of cross-complaint, defendant claimed money damages for expenses incurred in another action, a certain replevin suit brought by defendant against a bank after the sale contract was made, to recover possession of certain title papers and documents pertaining to the land in question.

The present cause was tried to the court, judgment was for defendant that the title is merchantable, and the court directed specific performance of the contract as to the land, but found that there was no proof as to the value of the wheat crop, hence no right of recovery in plaintiff. Defendant took nothing on her cross-complaint. Plaintiff brings the cause here for review, and defendant assigns cross-error because she was not allowed damages on her cross-complaint.

Title to the land was registered by one Beadle, a former owner, through whom defendant deraigns ownership. A certificate of title was issued to Beadle, which was later canceled and new certificate issued to defendant after the land was deeded to her. The registration was under the provision of 'An Act Concerning Land Titles,' commonly known as the Torrens system, chapter 103, section 4924 et seq., C. L. 1921. Plaintiff claims that defendant holds only an estate during the life of one Mary S. Davis, another former owner, with remainder to her children.

Defendant answers that these questions were all settled in the registration proceedings, but plaintiff insists that such proceedings are void for want of jurisdiction.

The title, as far as it concerns this case, begins with undisputed ownership in one William Duncan. On June 15, 1910, he and his wife, Elizabeth, executed a warranty deed to Mary S. Davis. The instrument contains the following clauses:

'The above described land is hereby conveyed to the said Mary S. Davis for her use only during her natural life and at her death is to go in equal shares to her then surviving children and if no children survive her, then said property is to go regularly to her then heirs at law.

'This deed is given by the above mentioned William Duncan and accepted by said Mary S. Davis in lieu of all the right, title or interest which the said Mary S. Davis may have in the estate which the said William Duncan may leave at his death.'

The habendum clause of above deed contains the usual words, 'To Have and to Hold * * * unto the said party of the second part (Mary S. Davis), her heirs and assigns forever.'

On March 3, 1911, Duncan and his wife executed a quitclaim deed to Mary S. Davis, which contains the following clause: 'This deed is executed and delivered by the parties of the first part for the purpose of conveying the full title and interest in and to the said land, and to release the said land and party of the second from all and every restriction contained and expressed in a certain warranty deed dated June 15th, 1910, executed by first parties to said second party, conveying said lands to the said party of the second part to her use only during her natural life and at her death to go in equal shares to her then surviving children, and if no children survive her, then said property to go regularly to her then heirs at law. It being the intention of the parties of the first part in executing this deed, to fully and completely convey and vest in said party of the second part the full and absolute title to said land, free and clear of any restrictions or conditions whatsoever, as fully as the same could have been done if the said warranty deed did not contain such restrictions and reservations.'

July 30, 1917, Mary S. Davis and her husband executed a warranty deed to S. M. Beadle. May 28, 1918, Beadle filed application for initial registration of title under the provisions of the act above mentioned. The registration proceeding is entitled and the summons therein is directed as follows: 'S. M. Beadle, Plaintiff, versus Cleo Davis and Victor Davis, minor children of Mary S. Davis, and the persons in being, as well as those not yet in being, if any, who shall constitute the surviving children of Mary S. Davis at the time of her death, and all other persons or parties unknown, claiming any right, title, estate, lien or interest in the real estate described in the application herein, Defendants.' The court appointed a guardian ad litem in that matter, who served under the provisions of section 4947, C. L. 1921.

November 8, 1918, final decree was entered in the registration proceeding, and Beadle's title in fee simple, free of incumbrances was confirmed, registered, and certificate of title issued to him. Thereafter, by conveyances from and through Beadle, the defendant, Blanche A. Spelts, as above indicated, became the owner, the former certificate of title was canceled, and on August 24, 1924, a certificate issued to Spelts, showing her ownership in fee subject to the admitted incumbrance. Such is the title offered by defendant and rejected by plaintiff.

This is not a statutory appeal or writ of error...