Million v. Botefur
| Decision Date | 07 March 1932 |
| Docket Number | 12599. |
| Citation | 9 P.2d 284,90 Colo. 343 |
| Parties | MILLION et al. v. BOTEFUR et al. |
| Court | Colorado Supreme Court |
In Department.
Error to District Court, Rio Grande County; Jesse C. Wiley, Judge.
Suit by Lena Million and others against Ernest W. Botefur and others. To review a judgment for defendants, plaintiffs bring error.
Affirmed.
W. Scott Carroll, of Del Norte, and James P Veerkamp, of Monte Vista, for plaintiffs in error.
Ralph W. Bishop, of Del Norte, and Chinn & Strickler, of Colorado Springs, for defendants in error.
Plaintiffs in error, certain of the heirs at law of Mary Botefur deceased, brought suit against Ernest W. Botefur, W. H Fahnstock, and the Rio Grande State Bank in the district court of Rio Grande county seeking to partition land claimed to have been owned by Mary Botefur at the time of her death on March 27, 1924. The surviving heirs at law of Mary Botefur were her husband, Fritz Botefur, plaintiffs in error, and Ernest W. Botefur, defendant in error. Fritz Botefur died intestate March 4, 1928, leaving him surviving, as his sole heirs at law, plaintiffs in error and the defendant in error Ernest W. Botefur.
Defendants claim that Mary Botefur was not the owner of said property in fee simple at her death and in support thereof proved the execution, acknowledgment, delivery, and recording of a warranty deed dated May 11, 1923, wherein the grantor was Mary Botefur and the grantee, Ernest W. Botefur, her son. If this deed is valid, plaintiffs in error have no cause of action.
Plaintiffs in error contend that it is not a valid warranty deed, but an 'abortive will,' because of the following provision attached to the habendum clause: 'Provided however, the said party of the first part, hereby expressly reserves to herself the use and enjoyment of said premises and the right to receive the rents, issues and profits arising therefrom, and to occupy said premises as a home, for and during the term and period of her matural life, and at her death said life estate hereby reserved in said premises, together with the fee title thereto to vest absolutely and in fee simple to the said party of the second part.' The instrument is designated and is in the usual and customary form of a warranty deed with granting and habendum clauses. It was acknowledged, delivered to the grantee, and recorded as a warranty deed. If construed as a will, it would be a nullity. It is elementary...
To continue reading
Request your trial
-
Owens v. Tergeson
...no mineral interests) must prevail. That indeed was the common law view endorsed by the supreme court in Million v. Botefur, 90 Colo. 343, 345, 9 P.2d 284, 284 (1932). See, e.g., CNX Gas Co. v. Rasnake, 287 Va. 163, 752 S.E.2d 865, 867–68 (2014) (discussing the common law rule). However, in......
-
Premier Bank v. Board of County Com'Rs, No. 08CA2384.
... ... And, to the extent that there is any conflict between the warranty clause and the granting clause, the latter controls. See Million ... 214 P.3d 579 ... v. Botefur, 90 Colo. 343, 345, 9 P.2d 284, 284 (1932) (clear unequivocal language in a granting clause controls contradictory ... ...
-
Oken v. Hammer
...instrument void or meaningless, an instrument involving property rights will be, when possible, construed as valid. Million v. Botefur, 90 Colo. 343, 9 P.2d 284 (1932); see generally Annot., 16 A.L.R.3d 951 (1955). A power to encumber property is considered properly exercised when necessary......
-
Mitchell v. Espinosa, 16566
...only in covenant of seisen or habendum clause, that no reservation of any interest is established as a matter of law. Million v. Botefur, 90 Colo. 343, 9 P.2d 284, and Skerritt Investment Co. v. City of Englewood, 79 Colo. 645, 248 P. 6, are cited as authority for the general rule that a re......
-
CHAPTER 2 ACQUIRING EXPRESS RIGHTS-OF-WAY: DRAFTING CONSIDERATIONS
...bargain, sell and convey..." [88] Langazo v. San Joaquin Light and Power Corp., 32 Cal.2d 678, 90 P.2d 825 (1939). [89] Million v. Botefur, 9 P.2d 284, 90 Colo. 343 (1932). [90] Pagel v. Gisi, 132 Colo. 181, 286 P.2d 636 (1955). [91] McDonald v. Kummer, 56 Colo. 153, 137 P. 51 (1913). [92] ......
-
Beneficiary Deeds in Colorado - Part I: Overview of Legislation - Estate and Trust Forum
...debt of a remainderman during the continuance of the preceding estate." Amjur Attachment§ 109. 63. CRS § 15-15-409. 64. Million v. Botefur, 9 P.2d 284 (Colo. 1932). 65. McLean, supra, note 61. 66. CRS § 15-15-409. 67. CRS § 15-15-215. 68. CRS § 15-15-403. 69. CRS § 15-15-413. 70. CRS §§ 38-......