Stewart v. Ganley

• Decision Date: 15 June 1888
• Citation: 18 P. 619,11 Colo. 458
• Parties: STEWART v. GANLEY.
• Court: Colorado Supreme Court

18 P. 619

11 Colo. 458

STEWART v. GANLEY.

Supreme Court of Colorado

June 15, 1888

Commissioners' decision. Appeal from district court, Pueblo county.

Action by M. McLaughlin against Alexander T. Stewart, to compel a conveyance of land. From a decree that plaintiff was entitled to a conveyance upon paying defendant $909.73 both parties appealed. McLaughlin having died, the administrator of his estate, John W. Ganley, was substituted as appellee.

George Q. Richmond and Patton &amp Urmy, for appellant.

John M. Waldron and C. E. Gast, for appellee.

RISING C.

This action was brought by McLaughlin against Stewart to obtain a decree requiring said Stewart to convey to said McLaughlin by a good and sufficient deed, all the right, title, and interest held by said Stewart in and to lots 8 and 9, in block 6, and lot 8, in block 10, in the State addition to the city of Pueblo, upon the payment by McLaughlin to Stewart of such sum of money as the court should determine that Stewart is equitably entitled to receive. Upon trial the court decreed that McLaughlin is entitled to a good and sufficient conveyance of the premises in controversy from Stewart, upon the payment to him of the sum of $909.73 by McLaughlin, and that Stewart make such conveyance; and that upon his refusal so to do the clerk of said court, acting as commissioner make, execute, and deliver such deed upon such payment being made. From the decree Stewart appealed, and McLaughlin appealed from so much of said decree as required him to pay said sum of $909.73 to said Stewart, as a condition precedent to his right to the conveyance from Stewart as provided in said decree. On the 15th day of April, 1880, the state of Colorado being the owner of the premises in controversy, the state board of land commissioners sold the same to one John Lynch for the sum of $235, and on said date Lynch paid 30 per cent. of the purchase price; and, on the 19th day of May, 1880, received from said board a certificate of such sale, which certificate recited, among other things, that said Lynch, his heirs or assigns, would be entitled to a patent from the state to said premises upon the surrender of said certificate and the payment of the balance of said purchase money and interest. On the 23d day of February, 1882, Lynch conveyed the premises in controversy, by deed, to Charles Kretschmer in trust, to secure the payment of his promissory note for $1,800, bearing even date with said deed, made and delivered to said McLaughlin, and due one year after date, which said deed was filed for record on said day; and thereafter, upon said note becoming due and remaining unpaid, said Kretschmer, as such trustee, at the request of said McLaughlin, proceeded to advertise for sale, and to sell, said premises in accordance with the provisions of said trust deed, for the purpose of paying said note, at which sale said McLaughlin became the purchaser of said premises, and to whom said trustee made a trustee's deed for the same on the 5th day of May, 1883, which deed was filed for record on the 7th day of May, 1883. The certificate of purchase was filed for record on June 16, 1882; and on May 5, 1883, and after the sale of said premises under said trust deed, Lynch assigned said certificate to Stewart, to whom a patent to said premises was issued by the state on May 7, 1883. There is evidence tending to show that, prior to the purchase of said premises by Lynch, Stewart agreed with him to let him have the sum of $750 to make said purchase and improve said premises; that on the day Lynch purchased said premises Stewart let him have $250, and about a month after let him have the further sum of $500, and that Lynch at that time gave Stewart his note for $750, and to secure its payment deposited with Stewart the certificate of purchase of said premises; and at the same time a written memorandum was made, stating that Stewart had loaned Lynch $750, for which Lynch had deposited said certificate with Stewart, and that if Lynch should fail to pay the note for $750, the certificate and a certain lease should be assigned to Stewart, which memorandum was signed by Lynch and Stewart, and given to a Mr. Canning to hold for them, and that the assignment of said certificate by Lynch to Stewart on the 5th day of May, 1883, was made in carrying out the conditions of said written memorandum. There is also evidence tending to prove that McLaughlin, prior to his taking the trust deed from Lynch, had actual notice that Stewart held the certificate of purchase as security for money loaned to Lynch.

A careful examination of the evidence leads us to conclude that it is sufficient to support the decree rendered, in so far as the decree is assailed by appellant or appellee. The claim of appellee is that appellant holds the legal title to the premises in controversy as trustee in trust for him, as grantee of all of Lynch's equitable interest therein. Under the equitable rule that treats the vendee in an agreement to convey real estate as the owner of the land, and the vendor as the holder of the legal title in trust for the vendee, Lynch must, after the purchase from the state, be considered as the owner of the premises, with the legal title thereto outstanding in a trustee...