Wier v. Johns

• Decision Date: 20 June 1890
• Citation: 14 Colo. 493,24 P. 262
• Parties: WIER v. JOHNS.
• Court: Colorado Supreme Court

24 P. 262

14 Colo. 493

WIER v. JOHNS.

Supreme Court of Colorado

June 20, 1890

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

J. P. Heisler and Benedict &amp Phelps, for appellant.

Dand & Fowler, for appellee.

REED C.

Appellant plaintiff below, on the 1st of May, 1889, was, and for a long time previous had been, the owner of a tract of land near the city of Denver, and, being desirous of encouraging manufacturers, and enhancing the value of his land, entered into a contract with appellee whereby appellant was to donate and deed a tract of land to appellee in consideration of his building and maintaining on some part of the land quite an extensive factory for the manufactory of carriages. The contract in the first instance was for the donation of a tract 10 acres in extent. Afterwards it was increased, and was to be 12 acres. After that, and before a conveyance was made, a question arose between the parties in regard to the extent of the tract; appellant insisting it should not exceed 10 acres. In order to arrive at the proper conclusion a surveyor was employed by the appellee; and, with the assistance of appellant, a survey was made of four different parcels, conforming to the Platte river, and to streets to be laid out for the subdivision of the property. After some negotiation, appellee expressed a willingness to take the four tracts in full satisfaction, which seems at the time to have been acquiesced in by appellant, but, as alleged, under a mistake as to the aggregate quantity embraced in the four parcels; he supposing it did not much, if any, exceed 10 acres in extent. A plat was made of the surveyed area, showing streets, size of blocks, courses distances, etc. According to the evidence the four tracts aggregated about 13.15 acres, exclusive of streets and the river, for which appellee requested a deed, which was made and executed, describing the tracts by courses, distances, metes, and bounds, but not designating the number of acres. The deed was delivered to appellee, who executed and delivered a contract to erect a factory. On the 29th of May, 1889, appellant commenced this suit by filing a complaint alleging his contract to convey 10 acres and no more, the making and delivery of the deed by which, as alleged, he conveyed a fraction over 14 acres; averring that the deed was by him executed under a misapprehension of the amount of land, and by mistake, and obtained by appellee through fraud and concealment of the facts; that the land donated and conveyed was worth $2,000 an acre, for which he received no consideration except the proposed erection of the factory; and asking that the deed be canceled and held void, that the description in the deed be corrected so as to embrace the proper amount of land, that the defendant be required to reconvey to plaintiff all land conveyed in excess of the 10 acres, and for an injunction restraining the defendant from selling or imcumbering the land. A trial was had to the court, resulting in a judgment for the defendant.

Several errors are assigned, but those relied upon are, in substance, that the finding was against the evidence and the law. Much testimony was taken in regard to the original and subsequent contracts of the parties as to the amount of land to be conveyed, which need not be considered by this court, as it appears that such contracts had expired by limitation, or had been superseded, and that, at the time of the survey and attempted designation and final adjustment of the matter, there was no definite understanding between the parties either as to quantity--whether 10 or 12 acres--or location; and, as all former negotiations must be regarded as leading up to, and having been merged, in final adjustment, much of the testimony may be disregarded except in so far as it explains the intention of appellant as to the amount of land he was to convey.

The only question necessary to be determined is whether appellant was overreached by fraud and concealment on the part of appellee, and, through misapprehension of the facts or by mistake, conveyed more land than he intended, and the other had a right to require. It is apparent from the evidence that appellant was, in the transaction, generous in the extreme, conveying a very large and valuable property for apparently a very inadequate consideration, and conscientiously carrying out an oral agreement when it could not have been enforced, perhaps, at law. It is equally apparent that appellee was selfish and...