Rittmaster v. Brisbane

• Decision Date: 05 February 1894
• Citation: 35 P. 736,19 Colo. 371
• Parties: RITTMASTER v. BRISBANE. [1]
• Court: Colorado Supreme Court

35 P. 736

19 Colo. 371

RITTMASTER v. BRISBANE. ^[1]

Supreme Court of Colorado

February 5, 1894

Appeal from district court, Lake county.

Action by W. H. Brisbane against Alex. Rittmaster to recover real property, and for damages for its detention. There was judgment for plaintiff for the possession of the land, and for $2,700 damages. Defendant appeals. Reversed.

The following is the Richner-Van Natta deed, referred to in opinion:

'This deed, made this twenty-first day of October, in the year of our Lord one thousand eight hundred and seventy-nine between Herman Richner, of the county of Lake and state of Colorado, of the first part, and N. T. Van Natta, of the county of Republic and state of Kansas, of the second part witnesseth, that the said party of the first part, for and in consideration of the sum of one hundred dollars ($100) to the said party of the first part in hand paid by the said party of the second part, the receipt whereof is nereby confessed and acknowledged, has remised, released sold, conveyed, and quitclaimed, and by these presents does remise, sell, convey, and quitclaim, unto the said party of the second part, his heirs and assigns, forever, all the right, title, interest, claim, and demand which the said party of the first part has in and to the following described real estate, situate, lying, and being in the county of Lake and state of Colorado, to wit, lot numbered six, (6,) in block five, (5,) and lot five, (5,) in block three, (3,) in the city of Leadville, Leadville Improvement Company's addition. It is hereby expressly covenanted and agreed that the grantee herein shall pay to William H. Bush, of Leadville, Colorado, the balance of the purchase money due on said property. To have and to hold the same, together with all and singular the appurtenances and privileges thereunto belonging, or in any wise thereunto appertaining, and all the estate, right, title, interest, and claim whatsoever of the said party of the first part, either in law or equity, to the only proper use, benefit, and behoof of the said party of the second part, his heirs and assigns, forever. In witness whereof, the said party of the first part has hereunto set his hand and seal the day and year first above written. [Signed] Herman Richner. [Seal.]'

Syllabus by the Court

1. Where an issue of fact is tried at nisi prius upon evidence taken and reported in writing, the appellate court will sift and weigh the evidence with the view to a just determination of the issue, uninfluenced by the finding of the trial court.

2. In an action to recover real property, the burden of proof is upon the plaintiff to establish the title which he asserts by a preponderance of the evidence.

3. A deed must be delivered before it becomes operative as a conveyance, and, in general, acceptance is essential to complete the delivery and pass the title. As to persons sui juris, acceptance as well as delivery is a matter of intention, to be proved by some act or declaration, or to be presumed from circumstances, but will not be lightly presumed where the grant imposes some burden or obligation upon the grantee; and the recording of a deed by the grantor without the direction or knowledge of the grantee is not, of itself, evidence of acceptance.

Alvin Marsh, for appellant.

Blake & Sayre, for appellee.

ELLIOTT J.

This action, as insituted, would have been called 'ejectment' under our former practice. Brisbane, plaintiff below, by his complaint claimed to be the owner in fee of lot 5, in block 3, in the Leadville Improvement Company's addition to the city of Leadville, in Lake county, Colo. Rittmaster, defendant below, by his answer claimed title in fee to the west 100 feet of said lot 5, but disclaimed having any interest in the residue. Both parties claimed the premises by mesne conveyances from William H. Bush as the common source of title. It appears that Bush, as owner of the property, on July 22, 1879, executed a warranty deed conveying the west 100 feet of said lot 5 to one Herman Richner. The deed was not delivered at that time, but was deposited as an escrow with the Miners' Exchange Bank in Leadville, to be delivered to Richner upon his paying the purchase money. The consideration stated in the deed was $1,300. On October 21, 1879, before Richner had finished paying for the property, before he had entered into possession thereof, and while the deed from Bush to him was still held as an escrow by the bank, Richner executed, and on the same day caused to be recorded in the recorder's office of Lake county, a quitclaim deed of the property in controversy (including other property) to one N. T. Van Natta, of Kansas. On May 14, 1887, one C. C. Joy, as the agent of W. H. Bush, visited Van Natta in Kansas, and obtained from him a quitclaim deed of the premises to Bush. This deed was recorded May 31, 1887. On June 4, 1887, Bush gave a quitclaim deed of the premises to the plaintiff, Brisbane. This deed was recorded June 7, 1887.

Such is the chain of title under which appellee, Brisbane, claims in this action. The chain of title upon which appellant, Rittmaster, relies, is as follows: While the deed from Bush to Richner was held by the bank as an escrow, Richner, having made certain payments on account of the property, was permitted to take possession of the same in November, 1879. On February 24, 1880, Richner finished paying for the property, and received the deed previously held as an escrow. He thereupon executed and delivered a warranty deed of the property to Alexander Rittmaster (appellant) and Levi and Abram Rachofsky, and thereupon the grantees under the latter deed went into possession of the property. Both of these deeds were recorded March 8, 1880. On June 1, 1886, the Rachofskys gave a quitclaim deed of the premises to appellant, which deed was recorded June 5, 1886.

From the foregoing it is clear that, to entitle Brisbane to recover, two questions must be resolved in his favor,--that is, in the affirmative: First. Was the deed of October 21, 1879, from Richner to Van Natta, actually delivered by Richner, and accepted by Van Natta, before Rittmaster and the Rachofskys acquired their deed to the premises? Second. If the Richner-Van Natta deed was thus delivered and accepted, was it effectual to convey to Van Natta the fee-simple title afterwards acquired by Richner?

In respect to the second question, it will be observed that the deed is a mere quitclaim and release. It does not purport to convey 'an estate in fee simple absolute,' nor does it purport to convey the land at all, but merely the right, title, or interest which Richner had in the premises at the time of its execution. Counsel concede that section 4 of the statute of conveyances (Gen. St. § 201; Mills' Ann. St. § 430) 'has no application except in cases where the deed purports to convey an estate in fee simple absolute.' But they contend that, as Richner had some right and title to the premises when he executed the deed to Van Natta, his deed, if delivered and accepted in time, was effectual to convey such right and title as he then had, and that, when he subsequently acquired the legal title, it immediately inured to the benefit of Van Natta by virtue of the delivery and acceptance of the deed of October 21, 1879, to the exclusion of the intermediate purchasers. It is also urged that, in determining the effect of the deed, the following provision must be considered: 'It is hereby expressly covenanted and agreed that the grantee herein shall pay to William H. Bush, of Leadville, Colorado, the balance of the purchase money due on said property.' It may be conceded that a voluntary acceptance of the deed by Van Natta would, by reason of such covenant, have rendered him liable for the balance of the unpaid purchase money. But the covenant is a mere personal covenant. It is not a covenant running with the land. It is not a covenant of seisin, nor for quiet and peaceable possession, nor of general or special warranty. Counsel for appellee have presented an elaborate brief, based upon common-law authorities, in support of their views: but we need not now determine the questions of law thus presented, since they depend upon questions of fact, to be determined from a consideration of the evidence as disclosed by the record: Did Richner deliver his deed of October, 1879, to Van Natta? and did Van Natta accept the same?

1. This cause was tried by the court without a jury, and it is urged that, as delivery and acceptance are questions of fact, the appellate court should consider itself bound by the findings of the trial court. The general rule undoubtedly is that the appellate court will not disturb the findings of the trial court upon an issue of fact, where the court tries the issue upon evidence given orally, by living witnesses, in its presence, provided there is a substantial conflict in the evidence bearing upon such issue. But when the issue is determined upon testimony taken and reported to the trial court in writing the rule is different. In such case as was said by Chief Justice Thatcher in Jackson v. Allen, 4 Colo. 268, the 'appellate court will not sustain the decree of the court below, merely on the ground that it is not unsupported by evidence, but will examine the entire record--sift all the evidence adduced--with the view of arriving at the truth.' The reasons for this distinction have been so often pointed out that they need not be repeated. Miller v. Taylor, 6 Colo. 41; Sieber v. Frink, 7 Colo. 148, 2 P. 901; Bank v. Newton, 13 Colo. 250, 22 P. 444; Kimball v. Lyon, 19 Colo. 266, 35 P. 44. At the second trial of this cause, in April, 1890, (the trial now under review,) all the direct testimony bearing upon the question of Van Natta's alleged acceptance...