Muir v. Pratt

• Citation: 71 P. 896,18 Colo.App. 363
• Parties: MUIR v. PRATT et al.
• Decision Date: 09 March 1903
• Court: Court of Appeals of Colorado

71 P. 896

18 Colo.App. 363

MUIR v. PRATT et al.

Court of Appeals of Colorado

March 9, 1903

Error to Arapahoe County Court.

Action by Mathew S. Muir against Noah R. Pratt and others. Judgment for defendants, and plaintiff brings error. Affirmed.

Thomas & Thomas, for plaintiff in error.

Ward &amp Ward, for defendants in error. W.H. Davis, pro se.

THOMSON J.

The judgment below was for the defendants, and the plaintiff has brought the case here by writ of error.

The complaint alleged that on the 6th day of May, 1899, the defendant Noah R. Pratt represented to the plaintiff that a friend of his, whom the plaintiff afterwards found to be his son, Arthur A. Pratt, had a valuable piece of land, situate in Bijou Basin, in Elbert county, which he held in virtue of a valid homestead filing; that the land was improved with a dwelling house and some fencing; that water could be found on the land at a depth not exceeding 30 feet from the surface that all kinds of crops could be raised on the land without irrigation; that he could induce his friend to relinquish his filing on the land for $250; that the relinquishment was worth that sum; that the plaintiff could then make a filing of his own in the United States land office in Denver, and become the owner of the land; that believing the representations to be true, and not knowing to the contrary he was induced by the defendants Noah R. and Arthur A. Pratt to deposit with the defendant W.H. Davis $250; Arthur A Pratt at the same time depositing with Davis a pretended relinquishment of his homestead filing; the condition of the deposits being that Davis should hold them until certain papers should arrive from the East, upon the arrival of which he should turn the relinquishment over to the plaintiff, and the money to the defendant, Arthur A. Pratt. It was further averred that the representations made by Noah R. and Arthur A. Pratt were knowingly and intentionally false; that the land was not in Bijou Basin; that all kinds of crops could not be raised on the land without irrigation; that what was represented as a dwelling house was a "dugout"; that there was no fencing on the land; that water could not be obtained within 30 feet by sinking a well; that Arthur A. Pratt did not have a valid or subsisting homestead filing on the land; that his filing was made on the 12th day of January, 1898, and that he never took up his residence on the land, or made any improvements upon it, and that long prior to the day when he made the pretended relinquishment he had wholly abandoned it--having, therefore, on the day of the relinquishment, nothing to relinquish; that, as soon as the plaintiff discovered the falsity of the representations, he notified the defendant Davis to return to him the money he had deposited, and to the other defendants the relinquishment; and that he also notified the other defendants that he withdrew from the trade, and demanded of them a release to him of the money, but that Davis refused to deliver him the money, and the other defendants, notwithstanding their fraud and willful deceit, laid claim to its ownership. Judgment was demanded against all of the defendants for $250, and a finding and judgment against the defendants Pratt as for fraud and willful deceit.

The defendant Davis answered that he held the $250 mentioned in the complaint as custodian only, that he had no interest in the money or the controversy, and that he was ready and willing to pay the money over to the person or persons to whom the court might award it.

The answer of the defendants Pratt admitted that certain of the representations alleged to have been made by the defendant Noah R. were made by him; admitted the deposit with Davis of the $250, and the relinquishment, upon the conditions stated in the complaint; and denied the other allegations of that pleading. This answer alleged further that the plaintiff, before depositing his money with Davis and before the execution of the relinquishment by Arthur A., made a personal examination of the entire tract of land concerning which he was negotiating, informing himself fully respecting its capabilities and the improvements upon it, and, with the knowledge thus acquired, offered to purchase the relinquishment for $250; that the...