Gumaer v. Draper
| Citation | 33 Colo. 122,79 P. 1040 |
| Parties | GUMAER v. DRAPER. |
| Decision Date | 06 February 1905 |
| Court | Colorado Supreme Court |
Appeal from District Court, Fremont County; M. S. Bailey, Judge.
Action for the recovery of land by William W. Draper against E. L Gumaer. From the judgment rendered, both parties appeal. Affirmed.
James T. Locke and Patterson, Richardson & Hawkins, for appellant.
Chas E. Waldo and Clyde C. Dawson, for appellee.
Negotiations for the purchase by Mrs. Gumaer appellant (defendant below), of certain lands in Custer and Fremont counties, owned by Draper, appellee and plaintiff resulted in the following contract:
'The consideration for said lands being Eleven Thousand One hundred eighteen 50/100 dollars, and to be paid as follows, towit:
Cash..............................
$ 1,240 00
On or before August 15th, 1899....
2,158 50
On or before Dec. 15th, 1899......
2,240 00
On or before April 15th, 1900.....
2,240 00
On or before August 15th, 1900....
3,240 00
----------
'Two warranty Deeds covering said lands are enclosed and attached to a sealed envelope and are to be placed in the First National Bank of Pueblo, Colorado, and to be held by said bank as security for said Eleven Thousand One Hundred Eighteen 50/100 Dollars, or any part thereof, together with interest at six per cent from date and ten per cent per annum after maturity until paid. On payment of the full amount of said consideration and interest thereon, then the said bank is to deliver to said E. L. Gumaer or order, the attached envelope together with the two enclosed deeds. In the event of the said amounts are not paid on or before the Fifteenth day of August, 1900, then the said envelope and deeds are to be returned to W. W. Draper and possession of the place given him. It is further understood and agreed that said E. L Gumaer is to have the full use and benefit of said 1120 acres from this date, and the taxes are to be paid by said E. L. Gumaer commencing with the assessment for the year 1898 which she agrees to pay, also agrees to pay promptly the taxes for 1899 and 1900.
'[Signed] William W. Draper.
'E. L. Gumaer, by A. R. G. Agt.'
The cash payment of $1,240 was made by Mrs. Gumaer at the time the contract was executed, and she was at once thereafter let into possession; but neither of the deferred payments was made at the time designated, or at all. Because of such failure, and a few days after the expiration of the time prescribed for making the last payment, Draper demanded of, and received from, the bank with which the title papers were deposited, the attached envelope and deeds, and within a few days brought this action against Gumaer for the recovery of possession of the property.
To the complaint setting forth the foregoing facts there was filed an answer containing, among other defenses, what if designated a cross-complaint, in which defendant alleges that she and plaintiff, several months after the execution of the contract set forth in the complaint, entered into a further agreement whereby plaintiff waived the requirement as to the time of the four deferred payments mentioned in the contract of April 4th, and also waived the right to resume possession as originally agreed upon; and that defendant, relying upon such agreement and understanding with plaintiff, did not make the payments, or any of them, at the times originally designated, and, so relying, made large and valuable improvements upon the premises to the amount of about $3,500, which she would not have made, were it not for such waiver, all of which was known to plaintiff; and, furthermore, in pursuance of such subsequent agreement, plaintiff never made demand upon defendant for any of such payments before bringing this action. As soon as defendant learned that plaintiff has withdrawn from the bank the title deeds, she offered to pay, and was able, willing, and desirous of paying, to the plaintiff the full amount of the deferred payments and interest; but plaintiff then and at all times thereafter refused to accept the same. Defendant, therefore, asked the court to compel plaintiff to execute and deliver to her deeds of conveyance for the property upon the payment by her of the balance of the purchase price in accordance with the terms of the original contract, and general relief was prayed.
The trial court found the issues in favor of defendant, and declared that plaintiff had a vendor's lien upon the premises in controversy to the extent of the unpaid purchase price, but was not entitled to the possession of the premises. On the contrary, the decree provided, in accordance with the prayer of the cross-complaint, that defendant within a specified time should pay to plaintiff the balance of the purchase price, and the plaintiff should then deliver the necessary deeds to defendant, and upon failure so to pay that the lands should be sold to satisfy the vendor's lien, and the proceeds, or so much thereof as were necessary, should be applied to the payment of such indebtedness. To the decree both parties excepted, and prayed an appeal to this court. The defendant perfected her appeal, and brought up the record. The appellee has assigned cross-errors.
1. The appellant says that the contract above set forth amounts to a present sale of the lands. In...
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