Heaton v. Nelson
| Citation | 69 Colo. 320,194 P. 614 |
| Decision Date | 08 November 1920 |
| Docket Number | 9763. |
| Parties | HEATON v. NELSON. |
| Court | Supreme Court of Colorado |
Rehearing Denied Jan. 10, 1921.
Department 2.
Error to Pueblo County Court; Frank G. Mirick, Judge.
Action by David Heaton against Henry Nelson. Judgment for defendant and plaintiff brings error.
Affirmed.
M. J Galligan, of Pueblo, for plaintiff in error.
P. J Dugan, of Pueblo, for defendant in error.
This was an action before a justice of the peace on three promissory notes, for $50 each, appealed to the county court of Pueblo county, where defendant had judgment on the notes and for $100 on a counterclaim. Plaintiff brings error.
The plaintiff and defendant had entered into the following contract, and the notes in suit were those referred to therein:
'Pueblo, Colorado, January 24, 1917.
'Received of Henry Nelson the sum of one hundred dollars ($100.00), as payment on my house and lots at Turret, Chaffee county Colorado, to be known as lots 7 and 8 in the said town of Turret. I hereby agree to sell the said property, including all improvements now thereon, for the total price of two hundred and fifty dollars ($250.00), the said one hundred dollars ($100.00), which is hereby acknowledged, and three notes due as follows: Fifty dollars ($50) due on February 24, 1917. Fifty dollars ($50) due on April 24, 1917.
'I agree to furnish and deliver warranty deed to said property upon payment of the said last note of fifty dollars ($50) on April 24, 1917. Fifty dollars ($50.00) due on March 24, 1917. The said Henry Nelson is given permission to take possession of said property from this day and date.
David Heaton.'
Heaton had no title when the contract was made, nor when the last note matured, though some months later, and before suit, he acquired a tax title and tendered a deed, Nelson never offered or tendered payment of the notes.
An unqualified agreement to convey imports that a title of which vendee cannot lawfully complain will be furnished. McCutchen v. Klaes, 26 Colo.App. 374, 378, 143 P. 143; Price v. Immel, 48 Colo. 163, 109 P. 941. A tax title is not such. If the vendor cannot furnish, or refuses to furnish, a good title when due, or in a reasonable time, the vendee may rescind, defend a suit for the unpaid purchase money, and recover what has been paid. Weghorst v. Clark, 180 P. 742; Smith v. Lamb, 26 Ill. 396, 79 Am.Dec. 381; Siglin v. Frost, 173 Mass. 284, 53 N.E. 820; Lowe v. Harwood, 139 Mass. 133, 29 N.E. 538; Potter v. Ranlet, 116 Mich. 454, 74 N.W. 661; Bennett v. Phelps, 12 Minn. 326 (Gil. 216); Auxier v. Taylor, 102 Iowa 673, 675, 72 N.W. 291; Davis v. Van Wyck, 64 Hun, 186, 18 N.Y.S. 885. See, also, Heaton v. Myers, 4 Colo. 59.
A tender of the purchase price by the vendee before rescission was not necessary. Byers v. D. Cir. R. Co., 13 Colo. 552, 22 P. 951; Smith v. Lamb, 26 Ill. 396, 79 Am.Dec. 381; Bennett v. Phelps, 12 Minn. 326 (Gil. 216); Auxier v. Taylor, 102 Iowa 673, 72 N.W. 291.
The court left to the jury only the question of the identity of the lots to which the above agreement referred....
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Stewart Livestock Co. v. Ostler
... ... to import that a title will be conveyed of which the vendee ... cannot lawfully complain. Heaton v. Nelson , ... 69 Colo. 320, 194 P. 614. See also Kenefick v ... Schumaker , 64 Ind.App. 552, 116 N.E. 319 at page ... The ... ...
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Pacific Enterprises Oil Co. v. Hertz
...P.2d 102, 105 (1960) (purchaser of land is not required to accept title which invites or exposes him to litigation); Heaton v. Nelson, 69 Colo. 320, 194 P. 614 (1920); W.T. Craft Realty Co. v. Livernash, 27 Colo.App. 1, 146 P. 121, 123 (1915) (citing Price v. Immel, 48 Colo. 163, 109 P. 941......
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Fern v. Crandell
... ... title. He chose the last. If that defect was not removed ... within a reasonable time he still might rescind. Heaton v ... Nelson, 69 Colo. 320, 194 P. 614. The court by its general ... finding has found that the time within which it was removed, ... which was ... ...
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Gillett v. Cheairs
...480, which distinguishes Loud v. Pomona Co., but we are not wholly satisfied with the distinction. Defendant in error cites Heaton v. Nelson, 194 P. 614, 69 Colo. 320. that case, however, the contract to pay and that to convey were definitely dependent because the conveyance was to be 'upon......