Robbins v. Nelsen

• Court: Colorado Supreme Court
• Writing for the Court: ALLEN, J.
• Citation: Robbins v. Nelsen, 70 Colo. 504, 202 P. 707 (Colo. 1921)
• Decision Date: 05 December 1921
• Docket Number: 10206.
• Parties: ROBBINS v. NELSEN.

202 P. 707

70 Colo. 504

ROBBINS v. NELSEN.

No. 10206.

Supreme Court of Colorado

December 5, 1921

Department 1.

Error to District Court, Weld County; Henry J. Hersey, Judge.

Suit by Gladys J. Nelsen against Frank S. Robbins. Decree for plaintiff, and defendant brings error.

Reversed with directions to dismiss.

McConley & McConley, of Sterling, for plaintiff in error.

W Mabry King, of Sterling, for defendant in error.

ALLEN J.

This is a suit in equity to cancel a deed and to compel a reconveyance of certain real estate. A decree as prayed for in the complaint was rendered in favor of plaintiff. The defendant brings the cause here for review and applies for a supersedeas.

On February 14, 1921, the plaintiff and defendant entered into a written contract whereby plaintiff agreed to convey to defendant a tract of land in Weld county, Colo., and defendant agreed to transfer to plaintiff certain town lots upon which there was a garage building with the usual equipment, located in Greeley Center, Greeley county, Neb. About three weeks thereafter, in accordance with the contract, deeds to the respective properties were exchanged between the parties. The plaintiff also, in compliance with a further provision of the contract, delivered to defendant a promissory note for the sum of $2,150.

In this suit the plaintiff, Gladys J. Nelsen, seeks a cancellation of her deed, and a decree compelling the defendant, Frank S. Robbins, to reconvey to her the Weld county land. The relief sought is predicated upon alleged fraud of the defendant. In this connection the complaint alleges that, to induce the plaintiff to make the agreement of exchange, the defendant falsely and fraudulently represented that the mortgage on the Nebraska property 'had been reduced by monthly payments to a sum not to exceed $2,100.' This is the only representation alleged which, the record shows, can be made the basis of a charge of fraud.

It will be assumed that the representation, if made, was material, and that the plaintiff relied thereon, although upon the question of materiality we do not deem the evidence in favor of plaintiff to be highly convincing. The consideration which plaintiff thought she was receiving must have exceeded $4, 250 in value, since the Nebraska property was known to be incumbered to the extent of about $2,100, and she gave her note for $2,150. Plaintiff's Exhibit C shows the incumbrance to be $2,451.43, which is only $351.43 more than the $2,100 which, it is alleged, defendant represented it to be. It conclusively appears that defendant truthfully represented that the original amount of the mortgage was $2,500, and that it was held by the Nebraska Building & Loan Company. The written contract between the parties did not refer to the indebtedness as being in the sum of $2,100, but it is described as being 'in the original amount of $2,500 and payable $35 monthly.'

We will assume, also, that the representation was made as charged. The evidence as to this, too, is not strong. The defendant did not deal directly with plaintiff, but with her husband, James C. Nelsen. The latter, as a witness for plaintiff, testified that the defendant, in referring to the mortgage, said that 'the balance was around $2,000 and $2,100.'

It was incumbent upon the plaintiff to show that the alleged false statement was made either with knowledge of its falsity or with reckless ignorance as to its truth or falsity, and that it was made with intent to deceive. 39 Cyc. 1260, 1261.

The defendant did not claim to have personal knowledge of the amount due under the mortgage. Plaintiff's husband, who was her agent in these transactions with defendant, and who was her principal witness, testified that the defendant said 'that he had a lawyer there in Greeley Center, Neb., that was taking care of the payments on the loan.' The evidence shows that this representation of the defendant was true, and there is no evidence to the contrary. The defendant was, and for some time had been, absent from the state of Nebraska. On November 30, 1920, he received a letter from his attorney wherein the latter stated that the tenant of the garage was behind $16 or $20 in the payment of rent, and that the rent enables the attorney to 'pay the loan each month.' This is evidence that the defendant believed the mortgage...