Ross v. Purse

• Decision Date: 21 December 1891
• Parties: ROSS et al. v. PURSE.
• Court: Colorado Supreme Court

28 P. 473

17 Colo. 24

ROSS et al. v. PURSE.

Supreme Court of Colorado

December 21, 1891

Appeal from district court, Arapahoe county.

Suit by St. Clair Ross, Jr., and others, against John Purse, Sr., to compel specific performance of a contract. Judgment for defendant on demurrer. Plaintiffs appeal. Reversed.

Syllabus by the Court

1. One acquiring the legal title to ground, with notice of the possession, claim of ownership, and pending attempts to correct the defective description by a person other than his grantor, takes the title subject to the rights of the adverse claimant.

2. A written memorandum by the grantor, agreeing to convey the legal title to his grantee, who has purchased, paid for, and reduced to peaceable possession property which by mistake was omitted from the original deed, does not evidence a contract for the sale of land, within the meaning of the statute of frauds; and the technical rules relating to specific performance where no part performance has taken place are inapplicable.

3. Courts award the plaintiff any relief to which his pleading and proof entitle him, regardless of the prayer of his complaint.

4. The four things that must appear in contracts as prerequisites to a decree for specific performance are the names of the parties, the terms and conditions, the interest or property and the consideration.

5. If the written instrument contain indicia by reference to which, coupled with the defective description otherwise the identity of the premises can reasonably be determined specific performance may be decreed.

6. The statement of the consideration is sufficient if a way be clearly pointed out for determining the same, even though the precise character or amount thereof be left unexpressed.

7. Where the writing requires the digging of a well, without specifying its depth or the character of the timbering, it will be held to call for a well so constructed as to be suitable for the usual and ordinary purposes of such an improvement in the particular locality specified; and, where such well is to be upon lots 8 and 9, it is to be upon whatever part of the tract the owner for whose use it is dug shall designate.

D. S. Benton, for appellants.

E. Miles, for appellee.

HELM C.J.

For the purposes of the present decision, all material averments of fact in the complaint are admitted by the demurrer, and must be taken as true. We shall therefore assume the truthfulness of the matters thus alleged, and review the case now presented as if they had been established by proof. Ross Jr., and Purse did not meet as strangers and execute the writing we are about to consider, as evidence of an ordinary contract of purchase. Ross, for a valuable consideration, duly paid, bought of one Perky lots 10 and 11, in the block 47, mentioned, lot 10 having upon it at the time a brick dwellinghouse. Through mutual mistake, the deed specified lots 11 and 12 instead of lots 10 and 11. Ross, however, immediately moved into the house upon lot 10, and remained in the peaceable and exclusive possession thereof continuously to the date of trial, a period of nearly three years. Upon discovering the mistake two years subsequent to the original purchase, Ross began negotiations with Perky for the purpose of having it corrected. Pending these negotiations, Purse acquired the legal title to lot 10 with full notice of Ross' possession, claim of ownership, and attempts to correct the defective description. After the acquisition of title by Purse, the negotiations theretofore pending between Ross and Perky were continued between Ross and Purse, resulting in the written instrument above mentioned, which reads as follows: 'Denver, Colo., December 7, 1887. I hereby agree to give St. Clair Ross, Jr., a deed to lot No. 10 in block No. 47, in Swansea, 1st Add.; and he is to dig me a well on lots 8 and 9, same block and addition; and T. Clair Ross, Sr., is also to deed unto me lot No. 8, in said block and addition. JOHN PURSE, Sr.' This instrument was duly executed by Purse, and delivered to Ross. It is unskillfully drawn, and, so far as mere form is concerned, invites much of the criticism offered by counsel for appellee. But it is the direct outgrowth of the transactions narrated, and should be viewed in connection there with. Purse merely stepped into the shoes of Perky, and the discussion will proceed precisely as if Perky had retained the legal title and were the party defendant. Thus it appears that the written instrument in question does not evidence a contract for the leasing of land, nor one for the sale of an interest therein. It is simply an agreement to complete the execution of the original contract of purchase, which, through inadvertence and mistake, was left in an imperfect condition. Ross, Jr., was not seeking to buy lot 10. He had already bought this lot, performing his part of the contract of purchase by payment of the consideration therefor, and in pursuance of the purchase had entered into possession of the premises. Purse did not profess to sell the lot to Ross; he could not deny Ross' equitable ownership, but evidently insisted upon certain terms as conditions precedent to the recognition by deed of that ownership. Thus the writing in question was a mere memorandum, evidencing an arrangement whereby Ross was to obtain the formal conveyance of the legal title of property which he had previously bought, paid for, and reduced to...