Stuyvesant v. Western Mortgage & Investment Co., Ltd.

• Decision Date: 16 December 1895
• Citation: 43 P. 144,22 Colo. 28
• Court: Colorado Supreme Court
• Parties: STUYVESANT v. WESTERN MORTGAGE & INVESTMENT CO., Limited.

43 P. 144

22 Colo. 28

STUYVESANT v. WESTERN MORTGAGE & INVESTMENT CO., Limited.

Supreme Court of Colorado

December 16, 1895

Appeal from district court, Larimer county.

Action by the Western Mortgage & Investment Company, Limited against John R. Stuyvesant, to compel payment of a promissory note. From a judgment for plaintiff, defendant appeals. Affirmed.

The Western Mortgage & Investment Company, Limited, is a corporation incorporated under the laws of Great Britain, and doing business in the state of Kansas. On the 15th day of October, 1885, John Harms, of Marion county, Kan., there borrowed of the said corporation the sum of $3,376.25, giving to said company, in its corporate name, his promissory note therefor, payable one year after date, and, to secure the payment of the same, gave a mortgage, executed by himself and wife, upon lots 13, 14, and 15 in block 1, Beebe's additon, and lots 3, 5, and 6 in block 11, and five other lots in block 2, of Beebe's addition, all in the town of Hillsboro, Marion county, Kan., which mortgage was duly recorded on the 19th of November, 1885. After the maturity of this note, and on the 22d day of February, 1887, John Harms and his wife entered into a contract for the sale and conveyance to the defendant, Stuyvesant, of said lots 13, 14 and 15 in block 1, and lots 3, 5, and 6 in block 11 (which were included in said mortgage), together with certain other lots in the town of Hillsboro, not therein embraced, which agreement was evidenced by the following bond for a deed 'This instrument, made and entered into this 1st day of December, A. D. 1886, between John Harms, of the county of Marion and state of Kansas, party of the first part, and John R. Stuyvesant, of the county of New York and state of New York, party of the second part, witnesseth, that the said party of the first part hereby covenants and agrees that, if the said party of the second part shall first make the payments and perform the covenants hereinafter mentioned on his part to be made and performed, the said party of the first part will convey and assure to the party of the second part, or to such person as the said second party may designate, in fee simple, clear of all incumbrances whatever by a good and sufficient warranty deed, the following lots or parcels of ground, to wit: Lots thirteen (13), fourteen (14) and fifteen (15) in block one (1), Beebe's addition to the town (now city) of Hillsboro, lots three (3), five (5), and six (6) in block eleven in the town (now city) of Hillsboro, and lots one (1), two (2), three (3), and four (4) in block one (1), Hill's second addition to the town (now city) of Hillsboro, all being in the county of Marion and state of Kansas. And the party of the second part hereby agrees and covenants to pay the said party of the first part the sum of eight thousand two hundred and thirty-three and 75/100 dollars on the execution of this instrument, and assume the payment of a mortgage of $3,376.25 on said lots 13, 14, and 15, block 1, in said Beebe's addition to said town of Hillsboro, and also the payment of a mortgage of $800 on said lots 1, 2, 3, and 4 in block 1 in Hill's second addition to said town of Hillsboro; said sum of $8,233.75 having been paid to said party of the first part on and before the execution of this instrument, the receipt whereof is hereby acknowledged by said party of the first part. Now, therefore, the said party of the first part is hereby held and firmly bound unto the said party of the second part, in the sum of $16,467.50, upon condition that if the said party of the first part shall on or before the 1st day of March A. D. 1887, convey to said party of the second part, or to such person or persons as the said second party shall designate, by a good and sufficient warranty deed in fee simple, clear of all incumbrances whatever, except said above-mentioned mortgages, the said parcel of real estate above mentioned, then this obligation shall be void and of no effect; otherwise to be and remain in full force and virtue.' As a part of the consideration for the purchase price of said premises, Stuyvesant, it will be seen, assumed and agreed to pay the said mortgage, and another mortgage for $800. In performance of said contract, and on the 22d day of February, 1887, Harms and his wife executed their deed for lots 13, 14, and 15 to Stuyvesant, as grantee, subject to the foregoing mortgage, the payment of which the grantee assumed, and also their deed to the wife of Stuyvesant, at his request, for lots 3, 5, and 6 in block 11, the said deed containing the same recital as to the mortgage. The note being overdue and unpaid, the plaintiff brought this action against Stuyvesant, upon his said covenant with Harms, to recover the amount due. The answer of the defendant contained a general denial, and set up, as a further and second defense, the foregoing contract of sale between John Harms and himself; alleging that defendant had kept and performed all of the conditions of the contract to be performed by him, except the payment of the said mortgage for $3,376.25. The defendant then alleged that he requested Harms to execute and deliver deeds according to the terms of said contract of sale, conveying lots 13, 14, and 15 to himself, and lots 3, 5, and 6 to his wife; and the answer further alleges that a deed of the three lots to his wife should, under the contract, have been conveyed free and clear of all incumbrances, whereas in fact it was made subject to the mortgage, the payment of which, by the deed, the grantee (his wife) was made to assume. The defendant further alleges that this failure upon the part of Harms to make the deed of the three lots to the wife of the defendant conform to the agreement escaped his attention, because of his neglect, at the time of their delivery, closely to scrutinize the deeds which were drawn by Harms, the latter being then the confidential agent of the former. Wherefore, as it is said, Harms having failed to convey these three lots free from all incumbrances, according to the said agreement, and that being the sole consideration which moved the defendant to assume the payment of the mortgage, he is relieved of his obligation to pay the note. The plaintiff demurred to the second defense on the ground that it did not contain facts sufficient to constitute a cause of defense, and the court sustained the demurrer. Trial was had before a jury, and a verdict was given for the amount of the note, upon which judgment was rendered, from which the defendant appeals to this court. Such additional facts as will throw light upon the controversy will be mentioned in the opinion, in their appropriate place.

Answer, Affidavit of Defense, and Subsequent Pleadings.

Where the complaint on a note secured by a mortgage on land alleges that defendant assumed the payment of the note in part consideration for a conveyance of such land, and has accepted a deed and gone into possession of the land, an answer which, as a defense, alleges no liability because the deed does not comply with the terms of the bond under which it was made, but fails to deny the allegation of possession, is insufficient.

Robinson & Love, for appellant.

Jefferson McAnelly, for appellee.

CAMPBELL, J. (after stating the facts)

The specifications of errors...