Hitchens v. Milner Land, Coal & Townsite Co.

• Decision Date: 03 February 1919
• Docket Number: 9191.
• Citation: Hitchens v. Milner Land, Coal & Townsite Co., 65 Colo. 597, 178 P. 575 (Colo. 1919)
• Parties: HITCHENS v. MILNER LAND, COAL & TOWNSITE CO.
• Court: Colorado Supreme Court

178 P. 575

65 Colo. 597

HITCHENS v. MILNER LAND, COAL & TOWNSITE CO.

No. 9191.

Supreme Court of Colorado

February 3, 1919

Department 3.

Error to District Court, Routt County; John T. Shumate, Judge.

Suit by William Hitchens against the Milner Land, Coal & Townsite Company for reformation of a deed of trust.Judgment for defendant, and plaintiff brings error.Reversed and remanded.

Gooding & Gooding and A. M. Gooding, all of Steamboat Springs, for plaintiff in error.

Joseph K. Bozard, of Steamboat Springs, for defendant in error.

ALLEN J.

This is a suit for the reformation of a deed of trust, and to have the plaintiff declared to be the owner of a certain ditch and water right which is alleged to have been erroneously included in the description of property in the trust deed.The main question presented for our consideration is the sufficiency of the complaint, when tested by the demurrer which was filed by the defendant and sustained by the trial court.The plaintiff below elected to stand on the complaint, and brings the cause here for review upon the question above mentioned.

The suit was brought on December 28, 1915.The complaint for a first cause of action alleges, in substance, that on March 10, 1897, the plaintiff was the owner in fee simple of a certain tract of land, and also 'the Farnsworth ditch and water right, same consisting of 2.66 cubic feet of water per second of time, adjudicated to the plaintiff'; that at that time the plaintiff, desiring to secure a loan, offered to one Harding the above-mentioned land as security for a loan, 'expressly and specifically excepting from such offer the said Farnsworth ditch and water right,' and the said Harding agreed to loan the sum of $500 on such land that on March 19, 1897, the plaintiff executed his certain deed of trust to the public trustee of Routt county, Colo to secure to one W. H. Seegar, for whom Harding was the agent, the repayment of the loan of $500; that the trust deed was prepared by Harding; that Harding, contrary to the agreement with the plaintiff and to the intention and understanding of the parties, falsely and fraudulently, and with the intention of making a profit for himself 'inserted in said deed of trust a description of said Farnsworth ditch and water right, and the plaintiff relying on the skill and capacity of said Harding, he being then and there an attorney at law, and relying upon his integrity and honesty, signed and executed said deed of trust, without reading the same, and without knowing that thereby he conveyed his interest in and to said Farnsworth ditch and water right along with said land to said Seegar.'

The complaint further alleges that the land conveyed lies high above the Farnsworth ditch, and that it is impossible by reason thereof to apply any part of the water to that tract of land; that ever since plaintiff executed the deed of trust, conveying the above-mentioned tract of land, he'has been in the actual and exclusive possession of said ditch and water right, and has used the same throughout the summer months of each year, and did not know of the fact of said trust deed describing said water right and ditch until on or about the 2d day of August, 1915.'Subsequent purchasers of the property, described in the deed or trust, are then named in the complaint, and it is alleged that neither the defendant, the last purchaser, 'nor its predecessors in interest or privies in estate in said lands, have ever at any time used said water through said ditch or otherwise or at all, and have never at any time, although at all times aware of the fact of the plaintiff's continuous and notorious use of said water and said ditch, attempted to restrain him from so using said water and ditch, nor in any manner or method asserted or attempted to assert any right, title, or interest in or to said ditch and water right.'

The prayer of the complaint, after setting up a first cause of action, is for the reformation of the deed of trust 'and that it be so revised and amended as to omit from the description therein said Farnsworth ditch and water right,' and 'that the title to said ditch and water right be declared in the plaintiff as of fee simple and that the defendant be adjudged to have no right, title, or interest therein.'

The demurrer alleges that the complaint 'shows that the plaintiff has been guilty of laches in bringing this action.'This court has several times held, as stated in Allen v. Blanche Gold Mining Co., 46 Colo. 199, 202, 102 P. 1072, 1073, that----

'The procedure in this jurisdiction requires the question (of laches) to be raised by answer, not by demurrer.'

In Ballard v. Golob, 34 Colo. 417, 429, 83 P. 376, 380, it is said:

'Moreover, it has repeatedly been held by this court that when laches is interposed as a defense to an action that the proper procedure is to raise it by answer.This is upon the ground that the party against whom laches is charged shall have an opportunity to explain, and, while a very great number of authorities hold when such facts appear in a complaint that it may be taken advantage of by demurrer, we are committed to the other doctrine.'

To the same effect are the following cases: Price v. Immel, 48 Colo. 163, 169, 109 P. 941;French v. Woodruff, 25 Colo. 339, 54 P. 1015;Fairplay v. Park County, 29 Colo. 57, 60, 67 P. 152.

The demurrer should undoubtedly have been overruled so far as any of its grounds raised the question of laches.

Another ground of the demurrer is that the complaint 'pleads no equity,' and under this head the defendant in error contends that the complaint shows that plaintiff'was negligent in the execution of the instrument' because he failed to read the deed of trust at the time of signing the same.In Lloyd v. Lowe, 63 Colo. 288, 165 P. 609, L.R.A. 1918A, 999, this court held, in a case where a grantee accepted a deed containing an assumption clause which was inserted in the deed contrary to the agreement of the parties and without the knowledge of such grantee, that the fact that the grantee 'did not read the deed * * * does not charge him with negligence.'It has been repeatedly held that the fact that a person accepts or signs an instrument without reading the same is not of itself a conclusive barrier to suit.34 Cyc. 950.A party's failure to read a document may be excused 'where, for any special reason, the one party imposed implicit trust and confidence in the other.'1 Black on Rescission and Cancellation, § 56, p. 130.The complaint alleges that the plaintiff relied on the skill, capacity, integrity, and honesty of Harding, an attorney at law and the agent of the grantee, who prepared the deed of trust.We think the complaint, under the authorities above cited, contains sufficient allegations to negative negligence, and, as said in 34 Cyc. 976:

'When no negligence of complainant is shown, the bill is not demurrable for want of equity.'

It is alleged in the demurrer, as one of the grounds thereof, that the complaint 'pleads matters of which this defendant...