Tonopah Colorado Leasing Co. v. Seeman Inv. & Finance Co.

• Decision Date: 01 June 1925
• Docket Number: 11138.
• Citation: 237 P. 161,77 Colo. 421
• Parties: TONOPAH COLORADO LEASING CO. v. SEEMAN INVESTMENT & FINANCE CO.
• Court: Colorado Supreme Court

237 P. 161

77 Colo. 421

TONOPAH COLORADO LEASING CO. v. SEEMAN INVESTMENT & FINANCE CO.

No. 11138.

Supreme Court of Colorado

June 1, 1925

Rehearing Denied June 22, 1925.

Department 3.

Error to District Court, Clear Creek County; S.W. Johnson, Judge.

Action by the Seeman Investment & Finance Company against the Tonopah Colorado Leasing Company. Judgment for plaintiff, and defendant brings error.

Affirmed.

Warwick M. Downing and Richard E. Downing, both of Denver, for plaintiff in error.

Morrison & DeSoto, of Denver, for defendant in error.

ALLEN C.J.

This is an action by lessor against lessee to recover upon a covenant in the lease concerning the payment of taxes. Judgment for plaintiff. Defendant brings this writ, and applies for a supersedeas.

On August 8, 1922, the defendant was in possession of the leased property, consisting of mining property, under a lease from the Continental Mines Power & Reduction Company. The title of that lessor being doubtful, defendant began to negotiate with plaintiff, and on November 3, 1922, agreed with it to remain in possession and work the property while plaintiff was perfecting its title.

On December 27, 1922, the plaintiff, as lessor, signed and acknowledged the lease involved in the instant case, and delivered the instrument to the attorney for defendant. Defendant made some further examination of plaintiff's title, and delivered the lease, signed up on its part, back to plaintiff, on or about March 15, 1923. The lease bears the date of December 27, 1922, being the date it was executed by plaintiff lessor.

The covenant sued upon reads as follows:

'(11) To promptly pay all taxes of whatsoever kind or nature legally assessed against said demised premises which may hereafter become due and payable, when and as the same become payable.'

It is conceded that defendant is liable for the first half of the taxes for the year 1922 if the covenant operates from and after December 27, 1922. The question argued is, Does it so operate?

The complaint alleges, and the answer does not deny, that the defendant entered into the possession of the property. The evidence shows that defendant was in possession at the time the lease was prepared, signed executed, and delivered by plaintiff to defendant's attorney, December 27, 1922. Under the facts of this case the lease operated from its date, notwithstanding the fact that defendant for a time held the instrument and did not deliver it back to plaintiff until about March 15, 1923. The facts are somewhat analoguous to those in Johnson v. Shelley, 54 Utah 305, 180 P. 431, where the syllabus in the Pacific reporter reads as follows:

'Where the terms of a lease were agreed upon, the lease written and the tenant went into possession, but the signing of the lease was delayed until the landlord could acquire title to property included therein, the liabilities of the tenant dated from the agreement, not from the execution of the lease.'

In the opinion it is said:

'It seems to us quite evident that there was but one agreement between the parties, and that was the agreement under and by which defendant took possession of the premises. The agreement by its terms fixes definitely the date when the relationship of landlord and tenant between the parties began. * * *

'The...