Weghorst v. Clark

• Court: Colorado Supreme Court
• Writing for the Court: DENISON, J.
• Citation: Weghorst v. Clark, 66 Colo. 535, 180 P. 742 (Colo. 1919)
• Decision Date: 05 May 1919
• Docket Number: 9133.
• Parties: WEGHORST v. CLARK et al.

180 P. 742

66 Colo. 535

WEGHORST v. CLARK et al.

No. 9133.

Supreme Court of Colorado

May 5, 1919

Department 2.

Error to District Court, Adams County; Harry S. Class, Judge.

Suit by Henry C. Weghorst against John R. Clark and others. Judgment of nonsuit and plaintiff brings error. Reversed.

Benedict & Phelps, of Denver, for plaintiff in error.

D. W Baters, of Albia, Iowa, and Melville & Melville, of Denver for defendants in error.

DENISON J.

This was a suit by Weghorst to rescind a contract and for reconveyance of land. He was nonsuited.

The plaintiff, Weghorst, on the 22d of October, 1913, entered into an agreement in writing with the defendant John R Clark, whereby Clark agreed to convey 80 acres in Morgan county to Weghorst and Weghorst agreed to buy the same and pay cash $1 and convey to Clark 327 acres in Adams county therefor. The contract contained the following clauses:

'It is understood that the above 80 acres of land is incumbered with a mortgage of seventeen hundred dollars, which party of the second part agrees to pay. * * * It is also understood that this 327 acres is to be clear of all encumbrances.

'It is also provided and agreed that party of the first part is to have a reasonable time to examine and except this 327 acres.

'It is mutually agreed that good and sufficient warranty deeds are to be exchanged and delivered immediately after abstracts of titles shall have been exchanged and examine showing good and merchantable titles.

'Should abstracts of title require correction a reasonable time shall be given therefore 10 days may be had in this work.'

It appears from the record on error that Weghorst was a resident of Ft. Morgan, John R. Clark a resident of Iowa, the defendant D. N. Clark was his nephew, and the defendant C. W. Hammond was a real estate agent in Ft. Morgan who was endeavoring to bring about an exchange of the property.

The plaintiff claims that the defendant Hammond, in order to defraud him, persuaded him to execute a warranty deed and leave it in his hands. He did execute such a deed, and gave it to Hammond to be delivered after the deeds had been examined by his attorney, the abstracts delivered, the titles examined, and everything was ready for consummation. John R. Clark also placed in Hammond's hands a deed of the 80 acres to Weghorst. Hammond, without awaiting the examination of deeds or abstracts, sent the deed from Weghorst to Adams county for record, but retained the deed from John R. Clark to Weghorst, which Weghorst did not see until after his deed to Clark had been recorded, and which contained, immediately after the description, the following:

'The same to be clear of all incumbrance except a mortgage of seventeen hundred dollars, and the bonded indebtedness, which party of the second part agrees to assume and pay.'

The eighty acres was subject to a mortgage in excess of $1,900, and J. R. Clark, in preparation for the fulfillment of the contract, reduced the mortgage by payment to $1,700.

The 80 acres in Morgan county was within the limits of an irrigation district, which had issued bonds which constituted the bonded indebtedness referred to in the clause above quoted. The authorities levied a tax for the irrigation district for the year 1913, which amounted to upwards of $300 against the 80 acres in question. The parties fell into a dispute about the premature record of the deed from Weghorst, the payment of this tax, and other less important matters, and in March, 1914, Weghorst demanded that John R. Clark pay the paid tax and deliver him a deed, subject to the $1,700 incumbrance. It is not clear whether he intended to demand the deed free from the bonded indebtedness, and it is claimed that he had waived that defect in the title.

In the meantime John R. Clark and conveyed the Adams county land for a valuable consideration, as he claims, to D. N. Clark, There was no proof of notice to D. N. Clark, nor was there any proof of lack of notice to him of Weghorst's claims. John R. Clark refused to pay the tax, and Weghorst brought suit to rescind the contract and for a reconveyance of the Adams county land.

Under ...