53 Colo. 186 | Colo. | 1912
delivered the opinion of the court:
Appellees, plaintiffs below, brought suit, against appellants to quiet title to an interest in lands in Morgan county. The judgment was in favor of the plaintiffs, from which the defendants have appealed.
Thomas D. Malloy, who lived at Yuma, Arizona, for himself and as attorney in fact for his sister,. Mrs. Harris, executed a deed for the interest in the real estate in controversy, conveying it to Patrick J. Malloy, and deposited it in escrow with the State Bank, at Hillrose, with instructions to deliver on or before a specified date, on payment of a sum named, with the reservation that the grantors, retained the right to withdraw the deed at any time before the deal contemplated was. consummated. The deed, because of irregularities, was not satisfactory, and another was executed and deposited with the bank under practically the same instructions, except that the cashier was directed that he might deliver to the grantee, without the payment of the purchase price, but at the risk of the bank, in which event the grantors would wait a reasonable time for the purchase money; that is, if the bank delivered the deeds without the money being paid within the time fixed by the instructions, it was to be responsible to1 the grantors for the purchase price, which should be paid to* them within a reasonable time. Pursuant to these instructions, the cashier handed the deeds, to Patrick J. Malloy, taking his note for four thousand dollars, which was the amount of the purchase price. It appears that the bank neglected, to notify Malloy at Yuma of this transaction. Shortly afterward the defendant, Brinker, acting for himself and his co-defendant, Joslin, offered Mallojr at Yuma fifteen hundred dollars for his interest, which the latter accepted by wire. He then wrote the bank that the
The first point urged 011 behalf of appellants is, that the court erred in holding that the handing of the deeds by the bank to Patrick J. Malloy was a delivery; and second, that the court erred in holding that the delivery of these deeds could not be attacked by the appellants under the pleadings, for the reason that when the gantor of a deed does not attack the validity of its delivery, it can not be so attacked by other persons for him. In connection with these two alleged errors, it is also urged that the court erred in excluding testimony which would have tended to prove that the deeds, were not, in fact, delivered by the bank to the grantee, Malloy. These three propositions can be considered together.
We think the testimony indisputably establishes an intention on the part of the bank to make an absolute delivery of the deeds to the grantee, Malloy, for the purpose of conveying title, and accepted by the grantee for that purpose. The bank had instructions from the grantor to deliver the deeds, provided it became responsible to him for the purchase price.
These deeds were not recorded until after the suit for specific performance was commenced, and the lis pendens filed. For this reason it is asserted on behalf of appellants, that they are not bound by these conveyances. We think it .appears, without question, that Brinker, who was acting for himself and Joslin, had actual notice of the existence of these conveyances prior to the time when he opened negotiations with Malloy at Yuma for the purchase of his interest in the property. Such being the case, the fact that they were not of record cuts no figure. Sec. 694 Rev. Stats., 1908.
The judgment of the district court is affirmed.
Judgment Affirmed.