Walker v. Pogue

• Decision Date: 25 April 1892
• Citation: 29 P. 1017,2 Colo.App. 149
• Parties: WALKER v. POGUE et al.
• Court: Colorado Court of Appeals

29 P. 1017

2 Colo.App. 149

WALKER v. POGUE et al.

Court of Appeals of Colorado

April 25, 1892

Appeal from district court, Arapahoe county; W.S. DECKER, Judge.

Bill by John Brisben Walker against Americus L. Pogue and others to set aside a conveyance of land on the ground of fraud. Defendants had decree, and plaintiff appeals. Affirmed.

The other facts fully appear in the following statement by REED J.:

Appellant was plaintiff below. The suit was brought for equitable relief on the following facts, alleged in the complaint: That on September 3, 1883, plaintiff was the owner of certain lots in the city of Denver, and in possession of them, and at the time of bringing suit was still in possession, never having resigned it; that the defendants claim an estate or interest in the property adverse to plaintiff; that the defendants have no right, title, or interest whatever in the property that on the 3d day of September, 1883, Pogue represented to plaintiff that he was the owner of a stock of hardware stored in the city of Richmond, state of Indiana, of a good and merchantable quality, manufactured from good material, and of the quality then in use, worth $15,000, which he wished to exchange for the lots; that he gave plaintiff an inventory of the goods; that the plaintiff, relying upon such statements, made the exchange, and on the date mentioned conveyed the property by deed to Pogue; that on some blank date the goods were shipped to Denver, "and were delivered to plaintiff in consideration of the conveyance aforesaid;" that all the representations of Pogue were false and fraudulent; that the goods were not of good quality, were not merchantable, were of poor material, and that many of the goods contained in the inventory were missing; that he discovered these facts on the 11th of October, 1883, which, though not definitely stated, appears to have been some time after the delivery and acceptance of the stock; that on the date last mentioned he notified Pogue and Bradbury "that the contract was rescinded, and then and there offered to Pogue to return the hardware, and demanded a reconveyance of said *** lots, *** and that said Pogue refused to receive the said stock of goods and make said conveyance;" that afterwards, on the 10th of November, 1883, Pogue conveyed the property to W.H. Bradbury; that no consideration passed; that Bradbury had full knowledge of all the facts and circumstances; that Bradbury was the agent of Pogue, and assisted him in perpetrating the fraud, etc.; that in January, 1884, Bradbury conveyed two of the lots to the Randolph Land & Stock Company; that such conveyance was without consideration, with full knowledge of the facts, and void. Prayer that the deeds from plaintiff to Pogue, from Pogue to Bradbury, and from Bradbury to the Randolph Company be declared fraudulent and void, and that each of the parties be required to convey to the plaintiff, and for an injunction, etc. A demurrer was filed to the complaint--First, that the complaint did not state facts sufficient to constitute a cause of action; second, that the complaint showed upon its face that it was a bill for relief on the ground of fraud, and that the alleged fraud was discovered on the 11th of October, 1883, and that the bill of complaint was not filed until July 27, 1887, more than three years after the discovery of the fraud. The demurrer was sustained, and an appeal taken.

Platt Rogers and Ross & Deweese, for appellant.

Wolcott & Vaile, for appellees.

REED J., (after stating the facts.)

Two questions are presented for determination: First. Does the complaint state facts sufficient to constitute a cause of action. Second. Was the suit barred by the statute of limitations? Preliminary to the discussion of either question it appears necessary to determine the character of the suit. Appellant at the outset declares it to be one brought under chapter 22, Code 1887, of "Actions to Quiet Title," and the brief and argument are based upon that supposition. Appellees regard it as a suit to rescind a contract because of fraud in obtaining the title. By section 255 of the Civil Code it is provided: "An action may be brought by any person in possession by himself or his tenant of real property against any person who claims an estate therein adverse to him, for the purpose of determining such adverse claim, estate, or interest." The possession of real property is in all cases supposed to follow a conveyance of the legal title unless retained for a given time by contract of the parties. There does not appear, in this case, to have been any contract. What the character of the possession was is not disclosed. Had the property been improved, it would probably have been so stated, and the same had it been in any way actually occupied by appellant. If vacant, constructive possession passed to the grantee by the conveyance. We do not think cases...