Roberts v. Roberts

• Decision Date: 09 April 1945
• Docket Number: 15461.
• Citation: 113 Colo. 425,158 P.2d 184
• Parties: ROBERTS v. ROBERTS.
• Court: Colorado Supreme Court

158 P.2d 184

113 Colo. 425

ROBERTS v. ROBERTS.

No. 15461.

Supreme Court of Colorado, En Banc.

April 9, 1945

Error to District Court, Larimer County; Frederic W. Clark, Judge.

Action by James Evan Roberts against Ernest W. Roberts to cancel a deed. Judgment for defendant, and the plaintiff brings error.

Affirmed.

One suing for cancellation of deed, executed by him, must prove his right to such relief by production of most definite clear, and indubitable evidence.

Waldo Riffenburgh, of Fort Collins, and Horace N. Hawkins and Horace N. Hawkins, Jr., both of Denver, for plaintiff in error.

Fancher Sarchet, of Fort Collins, for defendant in error.

ALTER Justice.

James Evan Roberts, plaintiff in error, was plaintiff in an action brought by him on April 16, 1942, against Ernest W. Roberts, defendant in error, to cancel a deed to a large tract of land in Larimer county, Colorado. The parties hereto will be designated as plaintiff and defendant as those positions were occupied by them in the trial court.

This action for the cancellation of a deed, together with an action for an accounting, were consolidated for trial and brought to this court on a consolidated record. The accounting action has heretofore been decided. Roberts v Roberts et al., Colo., 155 P.2d 155. Upon trial of the cancellation action Before the court without the intervention of a jury, judgment was entered in favor of defendant, to review the adverse judgment plaintiff sued out this writ of error.

The complaint alleged that on October 1, 1930, Ernest W. Roberts defendant herein, together with his brother, George F Roberts, the father of plaintiff, transferred and conveyed by warranty deed certain real estate in Larimer county, Colorado, to plaintiff, 'That the defendant on or about the 27 day of August, A. D. 1938 for the purpose of defrauding the plaintiff, promised and agreed with plaintiff that if the plaintiff would reconvey the above described real property unto the defendant that the defendant would in due time reconvey said real property unto the plaintiff; that relying on said promise the plaintiff conveyed said real estate unto the defendant by his deed dated the 16th day of May, A. D. 1938, * * *.' The complaint further alleged that demand had been made by plaintiff upon defendant for a reconveyance, and the failure of defendant so to do.

The answer admitted the conveyance from defendant to plaintiff on October 1, 1930; admitted the reconveyance from plaintiff to defendant by deed dated May 16, 1938, and admitted the refusal to reconvey the property to plaintiff.

Defendant, for a second answer and defense, alleged that on October 1, 1930, he and his brother, George F. Roberts, were the owners as tenants in common of a large tract of land in Larimer county, Colorado, and on said day defendant and George F. Roberts executed separate deeds to undivided one half interests in said tract to plaintiff, reserving life interests in themselves; that the deeds were made with the understanding that they were not to be recorded until the death of the grantors, notwithstanding which plaintiff, by means unknown to defendant, secured possession of the deed from defendant to plaintiff and recorded the same on November 5, 1930. There was no consideration except love and affection for the deed from defendant to plaintiff, and the deed from defendant to plaintiff was never delivered. Defendant frequently requested plaintiff to reconvey the property to him, and on May 16, 1938, plaintiff complied with his request and executed, acknowledged and delivered a deed conveying not only the interest acquired by plaintiff from defendant but likewise the interest acquired by plaintiff from his father.

For a third and further defense, defendant plead laches.

For a fourth defense, defendant plead the statute of limitations.

Although it is doubtful, we shall assume that the complaint stated a cause of action in fraud. The consolidated record makes it difficult for us to segregate the evidence applicable to the cancellation action from that applicable to the accounting action, and we take this occasion to disapprove the consolidation of cases, thus entailing upon us the duty of determining from the record what evidence is applicable to the separate actions.

The evidence in this case is rather voluminous, and the witnesses are in irreconcilable differences as to the facts surrounding the execution of the deeds on October, 1, 1930, as well as the occasion for the deed from plaintiff to defendant executed...