Godding v. Decker

• Decision Date: 27 March 1893
• Citation: 3 Colo.App. 198,32 P. 832
• Parties: GODDING v. DECKER et al.
• Court: Colorado Court of Appeals

32 P. 832

3 Colo.App. 198

GODDING v. DECKER et al.

Court of Appeals of Colorado

March 27, 1893

Error to district court, Prowers county.

Action by John E. Godding against James W. Decker and Frank C Descent to recover on notes given for the balance of the purchase price of land. Decker filed a cross complaint alleging failure of title, and seeking rescission of the contract, and recovery of the purchase money paid by him. There was judgment in his favor, and plaintiff brings error. Reversed.

The other facts fully appear in the following statement by BISSELL, J.:

In January, 1888, John E. Godding, plaintiff in error, brought suit against James W. Decker on two promissory notes. The first was dated June 28, 1887, for $700, due 60 days after date, at the Bank of Lamar, and signed by Decker, Descent, and Godding. According to the pleadings and proof, this note was substituted for one dated March 8, 1887, due three months after date, for the same sum signed by Decker and Descent. This latter note was not paid at maturity, and the one sued on was given to take up and protect the unpaid paper. These facts are of little consequence, save to make the transaction intelligible. The second note bore date March 8th, was for the same sum, and due six months after date. Neither note having been paid at maturity, and the renewal promise of June 28th likewise remaining unpaid, the present suit was brought on both notes against Decker alone. On his motion Descent was made a party defendant, but failed to answer. Decker answered, admitted the execution of the notes, and set up that these notes were given in performance of a contract entered into between Godding, of the one part, and Decker and Descent, of the other, whereby Godding sold, and Decker and Descent bought blocks 40, 41, and 42 in an addition to the town of Lamar the defendant then averred that he was induced to enter into the contract by the fraudulent representations of Godding concerning his title to the property. At the date of the contract,--March 8th,-- Decker and Descent paid Godding $700 in cash, and executed these two notes for the balance of the consideration. Decker averred that Godding was without a valid and marketable title, and that the title was in the government. Decker admitted his refusal to pay the notes, and based his refusal upon the failure of title. In the prayer with which his answer concluded, he asked that the contract be adjudged null and void, and that it be rescinded as to him, and offered to reconvey his undivided one half of the premises. The answer contained no statement that the possession of the premises had been surrendered, or any offer to surrender or reconvey, other than what is contained in the prayer as stated. The defendant Decker then undertook to set up a counterclaim on his own behalf, and in it substantially averred that, on the 8th of March, he, with Frank Descent, made a contract with Godding whereby, in consideration of $700 cash paid, and $1,400 more to be paid in two installments, three and six months from the date of the contract, Godding agreed to sell to them the described property. Decker then averred that, for the purpose of defrauding him, Godding fraudulently represented that he had a good title, and would convey. These averments were followed by an allegation that Godding had no valid and marketable title, but that it was at the time of the contract, and afterwards, in the government of the United States. He averred damage in the sum of $350, which was one half of the sum paid on the original contract, and prayed that the contract be adjudged null and void and rescinded and offered to reconvey, and asked judgment for the specified sum. The counterclaim contained no statement concerning the possession or surrender, and was without any averment of an offer to rescind, or an offer to reconvey, prior to the suit. The plaintiff replied, and denied all the allegations, and then set up that when the bargain was made, and the money paid, he executed a bond to Decker and Descent, in the penalty of $4,000, which recited that Godding had agreed to sell Decker and Descent certain described property, and that the bond had for its condition that if Decker and Descent should pay the notes at maturity, and the taxes on the blocks, Godding should, on the completion of the payments, execute and deliver a good and sufficient warranty deed to Decker and Descent, or to such persons as they might name. The bond recited that, in case of a failure to pay, Godding could treat Decker and Descent as tenants holding over, or might enforce the payment of the notes. The bond further provided that, if the purchase money should not be paid according to the tenor of the notes, then Decker and Descent should forfeit that part of the consideration paid. In his reply Godding stated that, on the 8th of March, he held a receiver's receipt for the land, and that no contest respecting his entry was pending in the land office, although he admitted that one Carrie Myton had filed a protest in the land office at Lamar, protesting against the making of any title to him. The protest was dismissed, and the receiver's receipt issued, prior to the time the contract was made, and these facts seem to have been fully known and discussed between the parties at the time of the sale. The case was tried largely on a stipulation which disclosed the issuance of the receipt on the 23d of February, 1887, the platting of the land, the making of the contract as stated in the pleadings, and its performance to the extent mentioned. The bond was set out, the record of the receiver's receipt stated, and by express agreement the controversy was narrowed to the consideration of four matters: First, the circumstances of the execution of the paper signed by Decker, Descent, and Godding; second, Godding's representation as to his title to the premises; third, the knowledge which Decker and Descent had concerning the situation of the title; fourth, the proof as to the title which was to be attacked. This was to be made subject to objections by the production of a transcript from the land office in the matter of Carrie Myton's protest, and sundry letters from the officers of the land department of the government concerning the protest and its disposition.

Descent and Decker were fully informed concerning the status of Godding's title, and they bought and took the bond knowing that he held a receiver's receipt, issued after a protest had been filed by Carrie Myton in the local office where Godding's application was pending. The only evidence offered under the stipulation concerning the proceedings in the land office may be conveniently subdivided into three parts: The first, called "Exhibit C," appears to be a kind of a docket recital of what was done in the local land office. It is a chronological statement by the register of the land office of what was done, but contains no copies of any instrument filed, nor any copies of papers showing what was done, otherwise than as may appear from these docket entries. The evidence was objected to, but admitted. The defendant followed this proof by a copy of a letter from the commissioner of the land office, reviewing the proceedings of the local officers, and concludes with an order which, in effect, undertakes to suspend the entry, and reinstate the case for hearing. A rehearing was had, the original action of the local officers reaffirmed, and this action was apparently again subjected to review in the land office at Washington. The plaintiff introduced the commissioner's letter showing that the department sustained the action of the local officers, and affirmed the validity of the entry. This last letter was dated August 31, 1889, and was some five months prior to the final decree in the case. It is contended that an appeal was taken from this decision of the commissioner to the secretary of the interior, who is the head of the land department, but it is proven only by this recital in Exhibit C: "Appeal filed November 19th, 1889, and transmitted to the commissioner G.L.O. December 24th, 1889." The evidence disclosed that Decker and Descent went into the possession of the property at the time of the making of the contract, and dealt with it as owners, and negotiated with divers parties with reference to the sale of a portion of the lots embraced in the blocks which they purchased. On this record and proof a decree was entered which substantially recited that Godding was indebted to Decker for $350, with interest at 10 per cent. from March 8, 1887; that he should recover nothing on his promissory notes, and that the contract between Godding and Decker and Descent should be rescinded, and be held null and void as to Decker, and that Decker should reconvey an undivided one-half interest in the property acquired by virtue of the contract. An execution was ordered accordingly. There was no finding, disposition, or determination of the controversy, in so far as regarded Descent, although it appeared that a summons was issued to him on October 4th, and served October 9th. Descent was thus brought into the case by process, but his rights and interests, and Godding's rights and interests as to him, were left wholly undetermined. To review this judgment and decree, Godding sued out a writ of error.

Steele & Malone, B.L. Carr, an F.P. Secor, for plaintiff in error.

Clarence Way, Pence & Pence, and Jas. S. McGinnis, for defendants in error.

BISSELL, J., (after stating the facts.)

In many particulars the contract under consideration was executory. It had not been concluded by the transfer of title, and the balance of the consideration was to antedate in its payment the delivery of the deeds. It therefore follows that Decker and Descent are not brought...