Hurd v. Smith

• Decision Date: 01 April 1880
• Citation: 5 Colo. 233
• Parties: HURD ET AL. v. SMITH.
• Court: Colorado Supreme Court

5 Colo. 233

HURD ET AL. v. SMITH.

Supreme Court of Colorado

April, 1880

Appeal from District Court of Clear Creek County.

MARGARET SMITH, the appellee, commenced her action in the District Court of Clear Creek County, upon two certain promissory notes, given by the appellants, Nathan S. and William J Hurd, payable to her order, dated July 5, 1877, for two hundred dollars each, due eight and eleven months from date respectively.

The defendants answered:

'That plaintiff holds said notes in trust for her husband, William F. Smith, who is indebted to defendant, Nathan S. Hurd, in the sum of ten dollars, due and owing since 1877.

'For a second cause of counter-claim and cause of recoupment.

'1. That said notes were part payment for lots 3 and 4, in block number 24, in the town of Georgetown, in said county and State, which the defendant, Nathan S. Hurd bought of William F. Smith, the plaintiff's husband, who made, executed signed, sealed and delivered to said Nathan S. Hurd, a general warranty deed bearing date of July 2d, 1877' (deed set out in full).

'That on September 4, 1877, the plaintiff made, executed and delivered to the defendant, Nathan S. Hurd, a general warranty deed to the same premises described in the foregoing deed, with same covenants of warranty as contained in the above deed, and of the same tenor and effect as the above deed.

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'2. That said notes were given in part payment for said lots conveyed by said deeds, and were given for no other or further consideration than as such part payment.

'3. That one Charles J. Yates was in possession of that part of said lot four lying east of the center of Clear Creek, on July 2nd, 1877, and since said date, and now is in possession of said part of lot four, claiming the same adversely to the defendant, Nathan S. Hurd, and under a title, it is said derived from said William F. Smith prior to his making his said warranty deed to said Nathan S. Hurd; and that upon and ever since the date last aforesaid, said Charles J. Yates has held and now holds possession of that part of lot four lying east of said Clear Creek, against the will and consent of said Nathan S. Hurd.

'4. That the rental value of that part of said lot so possessed by said Yates as aforesaid, is, as defendant believes and therefore charges the fact to be, at least ten dollars per month.'

'For a third defense:

'1. That on and ever since July 2nd, 1877, one Charles J. Yates possessed, and now possesses, adversely to said Nathan S. Hurd, a part of lot 4 mentioned and described in the warranty deeds in the II defense above set forth; and that part of said lot four which lies east of the center of Clear Creek.

'2. That said Charles J. Yates claims under a title, as it is said, made by said William F. Smith to said Yates prior to July 2nd, 1877.

'3. That at the March term of the county court, in and for said county, in the year 1878, said Nathan S. Hurd sued said Yates in an action of ejectment for the recovery of that part of said lot four so possessed by said Charles J. Yates, as aforesaid.

'4. That in said ejectment suit, the plaintiff, Nathan S. Hurd, alleged and complained that he was the owner in fee of said lots three and four; and that said Yates possessed and claimed to rightfully possess said lots in said deeds described in the second defense above set forth; and that said Yates claimed an interest in said lots, adversely to plaintiff, the said Nathan S. Hurd.

'5. That said Charles J. Yates answered said complaint, and disclaimed all interest in and to said lots, except that part of lot four, lying east of the center of Clear Creek; which part of said lot four claimed he owned by virtue of a contract made with said William F. Smith, in April, 1874, wherein said William F. Smith agreed to sell to him, the said Yates, that part of lot four lying east of the center of Clear Creek aforesaid; which lot is described in the warranty deeds in the II cause of action herein set forth, on payment to him, the said Smith, the sum of fifty dollars; which sum the said Yates averred that he had paid to said Smith, in pursuance of said contract.

'6. That on or about April 23, 1878, a judgment and decree was made and entered in said ejectment cause, denying that the portion of said lot four so possessed and claimed by said Yates, as aforesaid, was the property of said Yates, and that he had good title thereto.

'7. That that part of said lot four possessed by said Yates, as aforesaid, defendants believe, and therefore charge the fact to be, is worth five hundred dollars, and was of this value on the 2d day of July, 1877.

'8. Wherefore defendants aver that the consideration of said notes has wholly failed.'

'And for a fourth defense and cause of counter-claim:

'1. That the rents, issues and profits of that part of lot four possessed by Charles J. Yates, as is set forth in the III defense herein, has been worth, as defendants believe, and have reason to believe, and therefore charge the fact to be, the sum of ten dollars per month from July 2d, 1877, to the present time.

'2. Wherefore defendants pray that ten dollars per month be allowed as counter-claim and recoupment against said notes from July 2d, 1876, and that judgment be given therefor.'

'And for a fifth defense and counter-claim:

'1. That defendant, Nathan S. Hurd, commenced an action of ejectment against Charles J. Yates, to recover a part of lot four; said lot being described in the warranty deeds in the II cause of action above and herein set forth, the said suit being the same action and suit described and referred to in the III cause of action herein and above set forth, and that said suit was commenced at the time, in the manner and for the purposes therein set forth.

'2. That the defendant, Nathan S. Hurd, gave notice in writing to said William F. Smith, as well as to him as agent for Margaret Smith, the plaintiff, of the pendency of said suit, and of the notice of the defense of said Charles J. Yates in said suit, and notifying and requesting them to attend to said suit and the trial of the same, and defend the title of the same, in pursuance and compliance with their covenants of warranty, in their warranty deeds contained; copies of which deeds are in the II cause of action herein and above set forth; and that said notice was served on William F. Smith, by delivering him copies of said notice on or about March 19, 1878, and before the trial of said ejectment cause in the county court of said county.

'3. That said William F....