Hayt v. Hunt

• Decision Date: 18 October 1887
• Citation: 10 Colo. 278,15 P. 410
• Parties: HAYT v. HUNT.
• Court: Colorado Supreme Court

15 P. 410

10 Colo. 278

HAYT v. HUNT.

Supreme Court of Colorado

October 18, 1887

Commissioners' decision.

Appeal from district court, Huerfano county.

The complaint alleges that on or about July 9, 1878, the defendant was the owner of a body of unimproved and unoccupied land near to and adjoining the town of Alamosa, in Conejos county; that he was anxious to make said land valuable, and bring it into market for speedy sales, and to that end proposed to one A. C. Rupe that if he would cause to be built a good house and other surrounding improvements on a certain definitely described portion and parcel of said land he would deed the said portion and parcel of said land to Wilhelmine F. Rupe, the wife of said A. C. Rupe; that said A C. Rupe and Wilhelmine F. Rupe, relying upon the promises of the defendant, caused to be built upon said described premises a large and comfortable dwelling-house, a stable and suitable outhouses, and expended in the improvements of said premises the sum of $6,500; that defendant on the ninth day of July, 1878, made, executed, and delivered to said Wilhelmine F. Rupe a warranty deed to certain definitely described premises; that at the time said deed was so made executed, and delivered, the defendant and the said A. C. Rupe, and the said Wilhelmine F. Rupe, each supposed that it fully and perfectly described the premises upon which said improvements had been made, and that it conveyed the title to the premises so improved; that said premises were occupied and possessed by said A. C. Rupe, his wife and family, from July, 1878, until the same were delivered by them to the plaintiff; that in August, 1882, it was discovered by said A. C. Rupe and his wife that said deed made by defendant to said Wilhelmine F. Rupe did not describe and include all of the said premises upon which the said improvements were placed, and they demanded of said defendant a deed for all the ground so occupied and improved by them, which deed the defendant refused to make; that thereupon the said A. C. Rupe and the said Wilhelmine F. Rupe threatened to move their said houses and all their said improvements off said premises, and that defendant fearing that they would do so, and believing that if said house and improvements were taken away, it would injure the sale of the balance of his said property, went to one Charles D. Hayt, the husband of the plaintiff, who was acting as the agent and attorney of the said Wilhelmine F. Rupe, and said to him that he would not make a deed of the premises to the said A. C. Rupe or to Wilhelmine F. Rupe; that he did not want the house removed away, for it would injure the balance of his land, and if the said Hayt or any of his friends would buy Rupe out, he would make a good title to the premises to the purchaser; that plaintiff, relying upon the said promises of the defendant, on September 1, 1882, through her said husband, Charles D. Hayt, acting as her agent, purchased said premises of the said Wilhelmine F. Rupe, and entered into the immediate possession and occupancy thereof; that plaintiff paid for said premises the sum of $2,000, and has spent in improving the same the sum of $700, and that plaintiff and her family have occupied said premises from the said September 1, 1882, and are still occupying the same; that on the eleventh day of April, 1883, the plaintiff received a quitclaim deed from said A. C. Rupe and Wilhelmine F. Rupe for all their interest in said premises; that plaintiff and her grantors have paid all the taxes and assessments assessed against said premises for the years 1879, 1880, 1881, 1882, and 1883; that plaintiff has requested defendant to make her a deed to said premises, and perfect her title thereto, and that he has refused and still refuses so to do.

Prays judgment: (1) That the absolute title to the said premises be adjudged and decreed to be in plaintiff. (2) That defendant be decreed to make to the plaintiff a good and sufficient deed to said premises by a short day to be fixed by the court. (3) For general relief.

Defendant demurred to the complaint upon the following grounds: (1) That said complaint does not state facts sufficient to constitute a cause of action. (2) That said complaint is ambiguous, unintelligible, and uncertain. Demurrer overruled, and five dollars costs taxed against defendant on account of said demurrer. Defendant elected to stand upon his demurrer.

Upon a hearing of the cause, decree entered that plaintiff is entitled to have a title from defendant for the said premises, and that defendant, within 60 days from the date of said decree, convey by a sufficient deed of conveyance all his right, title, and interest in and to the premises first definitely described, and set out in said complaint. Defendant duly excepted to all the rulings of the court, and to the entry of the decree.

L. B. France, for appellant.

Blackburn & Dale, for appellee.

RISING, C.

The errors assigned are based upon the ruling of the court on the demurrer, and upon the action of the court in imposing costs upon the defendant upon overruling his demurrer.

The argument of counsel for appellant, upon the first ground of the demurrer, is that the statement of facts in the complaint shows the alleged contract to be within the statute of frauds, and that the action was not brought within the time limited by statute, and that each of these objections is fatal on demurrer, upon the ground that the complaint does not state facts sufficient to constitute a cause of action. The objection that the action is barred by the statute is not raised by the demurrer. This defense is in the nature of a special privilege, and must be pleaded specially, whether the pleading be by demurrer or answer. Hexter v. Clifford, 5 Colo. 168-173.

It does not appear upon the face of the complaint that the proposition made by Hunt to Rupe was not in writing, and therefore, as to the allegations relating to the transactions between Hunt and A. C. Rupe and Wilhelmine F. Rupe, the complaint is sufficient. The question should have been...