People v. Clough

• Decision Date: 11 February 1901
• Citation: 16 Colo.App. 120,63 P. 1066
• Parties: PEOPLE v. CLOUGH. [1]
• Court: Colorado Court of Appeals

63 P. 1066

16 Colo.App. 120

PEOPLE v. CLOUGH. ^[1]

Court of Appeals of Colorado

February 11, 1901

Error to district court, Arapahoe county.

Action by the people of the state of Colorado against Adelia E Clough, executrix of the estate of John A. Clough. From a judgment for defendant, plaintiff brings error. Affirmed.

Byron L. Carr, Atty. Gen., and Tolles &amp Cobbey, for the People.

R.W Bonynge, Rising & Marshall, and Doud & Fowler, for defendant in error.

WILSON J.

In December, 1888, one Frank K. Atkins purchased from the state four quarter sections of state land for the price and sum of $6 per acre, being $960 for each quarter section. Upon payment in cash at the time of the purchase of 30 per cent of the purchase price of each tract, and the execution of a bond required by the state board of land commissioners, he received from the board a certificate of purchase in the usual form for each quarter section. Each bond ran to the people of the state of Colorado, and was in the sum of $1,344, being double the amount of the unpaid balance due on the purchase money. The condition was "that if the above-bounden, Frank K. Atkins, will secure the state from loss or waste, and will not cut or waste more timber than shall be necessary for the improvement of the land, or for fuel for the use of the family of the purchaser, before final payment made for said land; and, further, that he will well and faithfully pay the residue of the purchase money for said land to the people of the state of Colorado, in seven equal annual payments, on the 24th day of December in each year, payments to be made to the state board of land commissioners, with interest on each of the deferred payments at the rate of seven per cent. per annum from date; and, further, that he shall and will faithfully comply with all the terms of the certificate of purchase issued to him by the register of the state board of land commissioners, and with all the provisions of the law relating to the sale, etc., of state lands,--then this obligation to be void, otherwise to be and remain in full force and effect." Each of the bonds was signed as surety by John A. Clough, now deceased, the administrator of whose estate is the defendant herein. In April, 1889, Atkins assigned the certificates to one Stuart O. Henry, and thereafter two of the seven annual payments provided for were made and indorsed upon the certificates. No further payments were made. The Colorado Savings Bank afterwards became the owner of the certificates, through a mortgage executed to it by Henry upon his interest in the premises, and at its instance the board of land commissioners ordered the attorney general of the state to institute this suit upon the bonds given by Atkins with Clough as surety, to recover the balance due on the purchase price of the said lands, upon condition that the bank pay all costs and expenses for the institution and maintenance of the suit, and further agreeing that upon recovery by the state, if such were the case, the state would convey the premises by good and sufficient deed to Thomas B. Stuart, assignee of the bank. The findings of the court were in favor of plaintiff upon the issues joined, but judgment was rendered against the defendant for nominal damages only, namely, for the sum of one dollar in each cause of action. The plaintiff thereupon brings the cause to this court on error for review.

The contention of the defendant is that, under the proof, plaintiff in error failed to make a case, because it is claimed the bond was conditioned in the alternative for the performance of one of two things, and that plaintiff neither alleged nor proved the nonperformance of both of the conditions, both of which were essential to have sustained a judgment in behalf of plaintiff. It is further contended that, in the event this proposition is not correct, the bonds were penal bonds, and, under the pleadings and proof, plaintiff was entitled to recover, if at all, nominal damages only, as it did.

It will be observed that the bond was fourfold in its conditions. The obligor bound himself--First, to secure the state from loss or waste; second, not to cut or waste more timber than should be necessary for the improvement of the land, or for fuel for the use of the family before final payment; third, to make payment of the residue of the purchase money at the times and in the manner provided in the certificate of purchase; fourth, that he would faithfully comply with all the terms of the certificate of purchase issued to him, etc. We think the law is well settled, as contended for by defendant, that the obligation expressed in the bond which the maker assumed, to comply with all the terms of the certificate of purchase for the land, makes such certificate of purchase, with its terms and conditions, a part of the bond. Forst v. Leonard, 112 Ala. 296, 20 So. 587; Locke v. McVean, 33 Mich. 473; Mayor, etc., of City of New York v. New York Refrigerating Const. Co., 82 Hun, 553, 31 N.Y.S. 714. In Locke v. McVean it was said by the court that in such case the transaction must be viewed as it would be if the contract--which in this case was the certificate of purchase--had been copied into the preamble of the condition of the bond. The recitals in the certificate of purchase, therefore, constitute a part of the bond, and reference must be made to them, equally with any other recital in the bond itself, to determine the character of the obligation which the maker of the bond and his surety assumed, and their liabilities thereon. Each of these certificates, after reciting the fact of purchase by Atkins, the amount of the purchase money, the payment of the 30 per cent., and the fact that upon surrender of the certificate, and fully complying with the conditions of the bond, and with all the provisions of the statute in such case, and upon the payment of the balance due as provided, the said Atkins would be entitled to a patent for the land, also contained the following provision: "Time is an essential ingredient in the premises, and the purchaser herein agrees, in accepting the certificate, to make the payments as above specified, or, on failure so to do, to immediately vacate said premises. Thereafter remaining in possession of said property shall be unlawful, and the occupier may be summarily ejected, and the right of possession shall revert to the state of Colorado." It is upon this that the defendant bases his claim that the bond, so far as it applied to the payment of the balance of the purchase money, was in the alternative. It is his contention that the obligation with reference to the payment of the balance of the purchase money could be satisfied by the immediate vacation of the premises, and in this we think he is correct.

In addition to such construction being apparently supported by the plain language of the contract, an examination of the various statutes in reference to the sale of state lands, and the powers and duties of the state board of land commissioners, will show such to have been the intent of the law under which the contract was executed, and which enters into and controls it. The first legislative enactment in regard to the sale and disposition of state land was in 1877. Gen.Laws 1877, p. 719. Section 5, art. 4, of this act provided that the purchaser of each tract at public sale should make the first cash payment, being 30 per cent. of the whole amount of the purchase money, and execute a penal obligation, conditioned for the payment of the residue of the purchase money to the people of the state of Colorado, in seven equal annual payments, with interest, etc. Section 9 provided that, if any one payment should remain unpaid for one year after the same became due, the state board of land commissioners might direct the attorney general to put such obligation in suit, or might again sell the land for part payment of which the obligation had been given. By these statutes, the intent was manifestly shown to make the primary, principal, and only purpose and object of the bond that for the direct...