Goldblatt v. Cannon, 13033.
| Decision Date | 05 March 1934 |
| Docket Number | 13033. |
| Citation | 37 P.2d 524,95 Colo. 419 |
| Parties | GOLDBLATT v. CANNON. |
| Court | Colorado Supreme Court |
Rehearing Denied May 7, 1934.
Error to District Court, City and County of Denver; George F Dunklee, Judge.
Action by H. B. Cannon, as executor of the estate of George McCarroll, deceased, against Moses L. Goldblatt and others. To review a judgment for plaintiff, named defendant brings error.
Reversed and remanded.
Louis A. Hellerstein, of Denver, for plaintiff in error.
Hudson Moore and Dayton Denious, both of Denver, for defendant in error.
We will refer to the parties on this review as plaintiff and defendants, as they appeared in the trial court.
Plaintiff as the executor of the estate of George McCarroll, deceased, brought this action against Simon Spiegleman, M. H. Spiegleman, and Moses L. Goldblatt to recover judgment on two due and unpaid promissory notes. His complaint, in two causes of action, alleges that he was the lawful holder and owner of the notes; that they, together with interest coupons, were executed by defendants June 8, 1927, payable to the order of one Haines and in the amounts of $12,500 and $2,500 respectively, the larger note being due three years from date, and the other eighteen months after date. Both notes provided for attorney's fees and costs of collection.
Defendant Goldblatt, who alone brings error, filed separate answer, admitting execution of notes with the other defendants, and alleging that they, as owners of lots 29 and 30, block 14, Schinner's addition to Denver, secured said notes by deed of trust on said property; alleging further that defendants sold the property to one Gantz, who assumed and agreed to pay the indebtedness secured by said deed of trust; that the holder of the deed of trust accepted Gantz as purchaser and thereby released the defendant; that defendant took Gantz to McCarroll, since deceased, who agreed, as consideration for consummating the sale, to release this defendant from liability on the note, and plaintiff is thereby estopped from prosecuting this action; that thereafter, when trust deed was in default, the time of payment was extended and the default waived, and, for that reason, this defendant is released; that the property was again sold, and the purchaser as holder of the deed of trust again accepted, and time of payment was again extended; that about September, 1930, McCarroll requested and procured a conveyance, for valuable considerations, of said property to a grantee designated by him; that then, having the fee title and mortgage, there was a merger, and the indebtedness was thereby fully paid; that this defendant became a guarantee only for payment of the note; and that no action could be maintained against him until plaintiff foreclosed on said property and exhausted his remedy against the grantee who assumed and agreed to pay.
After reply, and on September 18, 1931, evidence was produced by both parties, to a jury. Plaintiff moved for a directed verdict. His motion was sustained, and the jury was directed to sign a verdict for plaintiff for $18,148.30. Judgment was subsequently entered on the verdict.
In substance, the facts are that on June 8, 1927, this defendant, with other defendants, executed the notes and deed of trust to Charles H. Haines, who was in the employ of Willbur F. Denious, the attorney and agent for McCarroll, the deceased. The application for the loan was made to Denious. The property subsequently twice changed hands; each new grantee assuming and agreeing to pay the incumbrance, and actually paying interest to Mr. Denious. While the title was never in his name, the last real owner, known to all parties interested as such, was Otto Frederichs, who carried title in the name of Sherman, his father-in-law. The trust deed was in default for nonpayment of interest. Frederichs offered to execute, and Denious agreed that he might bring him, a deed to the property. Frederichs presented a deed from Sherman to Moore, an attorney associated with Denious. This was not accepted but Frederichs was then requested to and did get a deed with the name of grantee omitted. Frederichs then made a settlement with Denious, turning over to him the deed, a lease on part of the rented property, and some cash. Frederichs says this was all in consideration for the cancellation of the notes and trust...
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Simmons v.
...and the same person, in one and the same right, without any intermediate estate, unless a contrary intent appears." Goldblatt v. Cannon, 95 Colo. 419, 423 (Colo. 1934). But, as noted, it is currently unsettled whether merger takes place when severed surface and mineral estates "coincide and......
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...The question is upon the intention, actual or presumed, of the person in whom the interests are thus united. Goldblatt v. Cannon, 95 Colo. 419, 37 P.2d 524, 526 (1934) (emphasis added); see Colorado Nat'l Bank-Exchange v. Hammar, 764 P.2d 359, 361 If no actual intention to preserve the lien......
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...Salazar draws support for his argument that intent governs the occurrence of merger. Salazar cites our decisions in Goldblatt v. Cannon, 95 Colo. 419, 37 P.2d 524 (1934); Hart v. Monte Vista Bldg. Ass'n, 82 Colo. 204, 257 P. 1079 (1927); Weston v. Livezey, 45 Colo. 142, 100 P. 404 (1909), a......
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...demand and equity presume, a merger." International Trust Co. v. Rodewald, 96 Colo. 358, 43 P.2d 1003 (1935). See Goldblatt v. Cannon, 95 Colo. 419, 37 P.2d 524 (1934). Here, the evidence was undisputed that the value of the shopping center property at the time of the delivery of the public......
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...[20] This would be the minority view on this subject although it is supported by common law and the following cases: Goldblatt v. Cannon, 95 Colo. 419, 37 P.2d 524 (1934); St. Louis Trust Co. v. Jolliffe, 74 F.2d 247 (2d Cir. 1934). [21] Westland Oil Devel. Corp. v. Gulf Oil Corp., 637 S.W.......
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...Unsuspecting Federal Oil and Gas Lease Examiner," 25 Rocky Mt. Min. L. Inst. 18-1 (1979). [34] Id. [35] Id. (citing Goldblatt v. Cannon, 37 P.2d 524, 526 (Colo. 1934); Edmonds v. Beatie, 8 S.E.2d 559, 560 (Ga. App. 1940); (merger presumed if nothing more is known); Kelly v. Weir, 243 F.Supp......
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CHAPTER 12 MINERAL AND LEASEHOLD CONVEYANCE ISSUES
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