Mackey v. Willson

• Decision Date: 05 April 1909
• Citation: 45 Colo. 316,101 P. 334
• Parties: MACKEY et al. v. WILLSON.
• Court: Colorado Supreme Court

101 P. 334

45 Colo. 316

MACKEY et al. v. WILLSON.

Supreme Court of Colorado

April 5, 1909

Appeal from District Court, Weld County; James E. Garrigues, Judge.

Suit by Sarah L. Mackey and another against Lewis N. Willson. From a judgment for defendant, plaintiffs appeal. Affirmed.

This suit was brought by the plaintiffs, Adlebert G. Mackey and Sarah L. Mackey, husband and wife, appellants here, in the district court of Weld county, Colo., on May 18, 1905 against the defendant, Lewis N. Willson, appellee here, for the cancellation of a certain contract of purchase and sale made and entered into by and between said parties on April 4th of that year, providing, in effect, for the exchange between them of certain ranch lands, those owned and exchanged by the plaintiffs being located in said county of Weld, and those belonging to the defendant and transferred in the transaction being situate in the county of Cheyenne and state of Nebraska, also to annul, set aside, and declare void the respective instruments which had theretofore passed between said parties in the mutual interchange and conveyance of the titles to said properties, all of which were executed agreeable to and in compliance with the terms of said contract of purchase and sale, or else for a decree directing reconveyances between the parties of the properties herein involved, also for damages for the use and occupancy meanwhile by defendant of the said Weld county lands, and for general relief.

The action is grounded upon alleged false and fraudulent representations claimed to have been made by defendant to the plaintiffs to induce and compass the exchange and trade, of and concerning which complaint is made, of said properties. All allegations of fraud, misrepresentations, and falsity are directly put in issue by the defendant in his pleadings. The case has been practically tried twice before the same judge once upon the plaintiffs' application for a receiver, at which all of the parties to the suit were personally present and examined, and at which the same kind, character and class of testimony introduced at the regular trial of the case was submitted. The trial judge, upon strangely conflicting testimony, going to substantially all of the material issues raised, touching the question of fraudulent and false representations, at both hearings found the issues against the plaintiffs, having denied the application for a receiver upon the first...