Moore v. Allen

• Decision Date: 17 April 1899
• Parties: MOORE v. ALLEN.
• Court: Colorado Supreme Court

57 P. 698

26 Colo. 197

MOORE v. ALLEN.

Supreme Court of Colorado

April 17, 1899

Error to Lake county court.

Ejectment by Mrs. Lucy A. Allen against Mrs. Susan Moore. There was a judgment for plaintiff, and defendant brings error. Reversed.

Action in ejectment by defendant in error, as plaintiff below against defendant, who is plaintiff in error here, to recover possession of certain real estate situate in the city of Leadville. For answer, defendant pleaded: First. A general denial. Second. By way of cross complaint alleges a parol antenuptial agreement between herself and husband, who, at the time it was made, was the owner of the property in dispute, whereby he agreed to convey the same to her after their marriage; that she would not have entered into the marriage relation, except for such agreement, and avers that in pursuance thereof, and prior to her marriage with him, she was given possession of these premises, and has made lasting and valuable improvements thereon, but that her husband has neglected and refused to convey the property to her; and that plaintiff, before she purchased, was notified of her rights and claims therein. She also pleads particular acts, upon which she relies to establish such possession, and the erection of such improvements. A motion to strike this portion of the cross complaint, which embraced a statement of these acts, was interposed and sustained. To the cross complaint, as it then stood, a general demurrer was filed by plaintiff, which was likewise sustained, and, defendant electing to stand by her cross complaint, a trial was had upon the issues made by the complaint and general denial. The plaintiff introduced in evidence a power of attorney, in which one Waltimore Arens was designated as the attorney in fact by the parties executing it, and also a deed from these parties, which purported to be executed by them, per one Waldemar Arens, their attorney in fact. Each of these instruments affected the title to the property in controversy. There was no evidence attempting to show that Waltimore and Waldemar referred to the same person. This deed was necessary in order to establish any title in the plaintiff, for, without it, there was a break in the chain. The judgment was in favor of plaintiff, to which the defendant prosecutes a writ of error to this court, and assigns as errors: First, sustaining the motion to strike second, sustaining the demurrer to the cross complaint; and third, admitting the power of attorney and deed in evidence.

A. J. Sterling, for plaintiff in error.

Nash &amp Bouck and N. Rollins, for defendant in error.

GABBERT J. (after stating the facts).

The errors assigned will be considered in the order above named. The ultimate facts with reference to the delivery of possession of the premises to the plaintiff in error and the erection of improvements thereon by her were alleged, and the particular acts which she sets out regarding such possession and improvements would be competent evidence to introduce for the purpose of establishing such facts; but they do not belong in the cross complaint. In pleadings, issues of fact are made on the material, ultimate facts, properly pleaded and not on the evidence, which it is proper to introduce and consider in determining in whose favor such issues are established. By the demurrer to the cross complaint, two questions are presented: First. Do the facts pleaded with reference to the antenuptial agreement entitle plaintiff in error to the premises? Second. If so, does it appear that defendant in error had notice of such rights? Agreements of the kind under consideration are included in those which, by the statute of frauds, must be in writing, and signed by the party to be charged therewith, otherwise they are declared void (Mills' Ann. St. § 2025); but equity will not permit this statute to be made an instrument for the perpetration of that which it was designed to prevent. According to the averments of her cross complaint, plaintiff in error would not have entered into the marriage contract except for the promises on the part of the one with whom she so contracted to convey to her these premises. He has failed to carry out his agreement, but by his promise, upon which she relied, she has been induced to enter into a relation from which she cannot recede, and which she is powerless to change. The result of his deception and artifice is such a fraud upon plaintiff in error, and has placed her in such situation, that the promise to convey is taken out of the statute; or,...