Stout v. Gully

• Decision Date: 24 December 1889
• Citation: 13 Colo. 604,22 P. 954
• Court: Colorado Supreme Court
• Parties: STOUT v. GULLY et al.

22 P. 954

13 Colo. 604

STOUT v. GULLY et al.

Supreme Court of Colorado

December 24, 1889

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

Markham & Dillon, for appellant.

L B. France, for appellees.

RICHMOND C.

This is an action to recover the possession of real property, to-wit Lots 21 and 22, in block 144, East Denver, Clement's addition to the city of Denver. The identity of the lots is admitted. The cause was tried to the court upon an agreed state of facts, a jury being expressly waived. By the agreed state of facts it appears that on November 18 1870, Alfred H. Clements obtained a decree in the district court of Arapahoe county against Stout, the appellant canceling a conveyance by James Hall, as attorney for said Clements, of the lots in controversy. Stout prayed an appeal to the supreme court of the territory of Colorado. The appeal was allowed, but the same was never perfected. In February, 1872, by stipulation between the attorneys, the case was filed in the supreme court, issuance of writ of error being waived. Machebeuf v. Clements, 2 Colo. 36. At the February term, 1873, the supreme court of the territory reversed the decree of the district court. On July 26, 1871, Clements sold the lots in controversy to Thomas and James Gully, and the title subsequently became vested in defendants. It will be seen that, some eight months after the decree in favor of Clements in the district court, the defendants' grantors purchased, for a valuable consideration, the property in question from Clements; that at the time of the purchase no appeal had been taken from the decree, and no suit was pending; and that seven months thereafter elapsed before any steps were taken in the supreme court of the territory with a view to a reversal of the decree, and that a year elapsed before the termination of the cause on error. The contention on the part of appellant is that the defendants' grantors were purchasers pendente lite with notice. The burden of their arguments is directed to the support of this proposition. Counsel for appellees admit that a purchaser pending litigation will be bound by final decree in the suit, but insist that the question does not arise in this case, and such it appears was the conclusion of the court below. All of the authorities cited in the brief of appellant are applicable to his theory, and support the proposition that a purchaser pending litigation will...