Meyer v. Wright
| Decision Date | 14 April 1913 |
| Citation | 131 P. 787,24 Colo.App. 53 |
| Parties | MEYER v. WRIGHT. |
| Court | Colorado Court of Appeals |
Appeal from District Court, Eagle County; Charles Cavender, Judge.
Suit by George S. Wright against R.J. Meyer. Judgment for plaintiff and defendant appeals. Affirmed.
Henry R. Rhone, of Grand Junction, for appellant.
John A Ewing and Frazer Arnold, both of Denver, for appellee.
May 28 1908, plaintiff (appellee) instituted suit against defendant (appellant) in Eagle district court. The complaint, among other things, alleged that on June 10, 1907, the Gold Belt Mining, Milling & Prospecting Company of Council Bluffs Iowa, a corporation, was the owner of certain patented claims, machinery, and improvements therein described; that the taxes upon said premises were delinquent for the year 1900, and the property had been sold by the treasurer of Eagle county on the 17th day of October, 1901, for such delinquent taxes; that at the tax sale defendant purchased said property and received a treasurer's certificate therefor; that on June 10, 1907, plaintiff was interested in the property as a stockholder and as attorney for the stockholders of said mining company, and on that day entered into a written contract with defendant, under the terms of which defendant agreed to obtain a treasurer's deed for the premises in pursuance of his certificate of sale and thereupon convey the said property to plaintiff; and that, in consideration of such conveyance, plaintiff agreed to pay defendant the full amount of taxes, with interest and penalties and all other expenses incurred by defendant in obtaining said deed. The contract provided for an alternative consideration to be paid by plaintiff at his option, not necessary to consider. The contract contained an acknowledgment by defendant of the receipt of $10 from plaintiff as part payment of the consideration. The complaint further alleges that on August 2, 1907, it was found and determined that a balance of $397.75 was due defendant under the terms of said contract, which sum, on the 7th day of August, 1907, plaintiff paid to defendant, which he received and retained; that on October 27, 1907, defendant received from the treasurer of said county the tax deed for the premises described; that defendant had paid all subsequent taxes and had done all things necessary and requisite to entitle him to the tax deed aforesaid; that plaintiff complied with and performed all the terms of said contract on his part to be complied with and performed; that defendant refused to convey to plaintiff the said property and his interest therein acquired by virtue of the tax deed, closing with a prayer for specific performance of the contract and general relief. To this complaint a demurrer was interposed by defendant, containing two grounds: First, that the complaint did not state facts sufficient to constitute a cause of action; second, "that the contract set out in said complaint is illegal and void, contrary to public policy, contrary to good morals, and cannot be enforced." The demurrer was afterwards heard by the court and overruled, whereupon defendant elected to stand on his demurrer, saved proper exceptions to the court's ruling, and took the case, by appeal, to the Supreme Court. The case is now before us for determination by lawful transfer from the Supreme Court.
As we interpret the demurrer, only one ground recognized by the Code is therein stated, to wit, the first. The alleged second ground does not state any one of the seven reasons for demurrer found in section 50, Mills' Annotated Code. The matters, however, contained in this second ground could probably be urged in support of the first. The record shows that, after defen...
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