16 Colo. 231 | Colo. | 1891
In April, 18Y9, Lester Drake was interested as owner in the Williams lode, situated in Gilpin county. The extent of such interest is immaterial, as he held contracts with the- other owners giving him -the right, for the time being, to sell the entire property. The plaintiff had been unsuccessful in his efforts to make such sale until he met defendants Weitbrec and Cooper. He was then in embarrassed circumstances, and the time of these options ivas about to expire when the negotiations with these defendants were entered upon. Upon the last day he succeeded in making a contract with them whereby they were to take six hundred feet of the property and pay therefor the sum of $36,500. About this time the defendants Weitbrec and Cooper, with one Parker, organized a corporation known as the Gilpin County Mining Company, in whose name the negotiations were finally consummated, although it is claimed that it was a personal enterprise on the part of Weitbrec and Cooper, with which the company had nothing whatever to do. The title to fifty feet of the six hundred being in dispute, it was arranged that the sale should be completed without regard to that portion of the claim. A separate agreement in writing was executed as to this, wherein the price to be paid therefor was fixed at $2,500. This amount was made payable on the 15th of September. 1880, or as soon as a good and sufficient title thereto could be furnished, Drake agreeing to furnish such title with covenants of warranty, except as against the United States. The price agreed upon for the five hundred and fifty feet was $34,000. This sum was paid as follows: Company stock for the corporation, for which Drake received in cash from Weitbrec and Cooper, $Y,500; the notes of the company for
In the year 1881, Drake, claiming to have secured the title to the remaining fifty feet, tendered a deed to the company for the same and demanded the $2,500 agreed to be paid thereafter. The company claiming some misrepresentation in reference to the property, declined to accept the deed and refused to pay the money. Thereupon Mr. Drake brought suit for this amount with interest. In that suit he obtained judgment against the company and caused an execution to be issued and levied upon the mining property, theretofore transferred by him to the company, but made no further attempt to satisfy the writ until the institution of the present action. Some of the notes given in part payment of the original purchase price falling due in the meantime, Weitbrec and "Cooper caused the property to be advertised for sale by the trustee. Drake thereupon instituted this suit to restrain the sale and subordinate the lien of the trust-deed to the lien of his judgment.
The pleadings of this case are somewhat voluminous, and I deem 'it unnecessary to make extended extracts therefrom. Drake having obtained the judgment for $2,500, which judgment remained unsatisfied, and having entered upon the possession, as he claims, of the fifty feet of ground under the mining laws of the United States, as public land, and, while claiming title thereto, seeks to subordinate the lien of the trust-deed to the lien of his judgment, and subject the property of the defendant mining company to sale in satisfaction of said judgment. He alleges that the defendants Weitbrec and Cooper are the sole owners of all the stock of the Gilpin County Mining Company, that they have declared dividends resulting from the products of the
Much appears in the complaint which is without bearing upon the actual controversy between the parties. It does not appear, however, by averment or otherwise, that any of the defendants are insolvent, and it is not shown, either by testimony or by the pleadings, that the plaintiff was induced by fraud or misrepresentation to enter into the contract of sale.
The consideration to be paid for the fifty feet was the sum of $2,500; the judgment against the company was rendered accordingly. It is admitted by the pleadings (the defendants having alleged it and the plaintiff not having denied it) that as a part of such judgment it was ordered and adjudged by the court that the said plaintiff deposit, and keep on deposit, with the clerk of .the district court a deed of conveyance of said fifty feet of said "Williams lode, said deed to be delivered to the defendant, the Gilpin County Mining Company. Thereafter, and before the institution of this suit, Drake having, as he alleges, deposited the deed to the property with the clerk of said court, assumed and avers in his replication to the answer, that the company had neglected to comply with the mining laws of the United States; had forfeited their right to said fifty feet, and that he had the right as a citizen of the United States to enter upon and repossess himself of the title and possession of said property. And this, too, in the face of his contract with the defendant company to make a good title to said fifty feet of ground, free and clear from all disputes, adverse claims and incumbrances, with covenants of
If plaintiff had deposited and kept on deposit the deed required by the judgment, and some third party, not knowing all the circumstances, had entered upon this fifty feet of ground, then the prayer of this complaint would appear in a different light; but how the individual, who was familiar with the defective title he possessed when he contracted to make the sale, who was familiar with the fact that the $2,500 was due to him only upon making a satisfactory. title, assumes that he can ask the aid of a court of equity in the enforcement of that judgment and the payment of that claim under the circumstances here presented, is beyond my fathoming. It is claimed that the sale was, in fact, made by Drake to Weitbrec and Cooper, and not to the company. And yet at the time when Drake was in possession of all the facts, he instituted suit against the corporation and obtained judgment against it as the sole vendee. It will be conceded that the conduct of Weitbrec and Cooper concerning the affairs of the corporation is open to be questioned by a creditor, a bona fide creditor, an equitable creditor, one who could step into a court of equity with clean hands, and who, coupled with his equity, could show the insolvency of the defendant company; but when such a claim to equity emanates from one who seeks to get something for nothing, who occupies the position of being now the owner and possessor of the • identical property which moved the defendant company to execute the agree
Drake evidently sought by his complaint and by his testimony, and the counsel on behalf of appellant herein seeks to convey, the impression that he never understood the language of the papers that he was signing. This cannot be true, especially it cannot be true in the face of his own testimony.
“ Q. Under what circumstances did you sign that paper?
“ A. When I sold the property up there. It must have been on the table in Mr. Orahood’s office, and Mr. Orahood must have told me to sign it and I signed it without any hesitation. He told me to sign that paper and to sign other papers and I signed it. I did it without any question.”
Drake was present at the time with his counsel, and the court below was warranted in concluding from the testimony that Drake understood fully at the time the nature of the transaction upon which he entered. It is claimed the capital stock was issued to Drake in order that it might appear to be fully paid up. If this be true, and it seems quite probable from the evidence, plaintiff’s position is not benefited thereby. After having taken and retained the benefits of the transaction for these many years, he cannot now be heard to complain.
I am clearly of the opinion that the proof is not sufficient to warrant a decree for the plaintiff in this action, and that the judgment of the district court should be affirmed.
Bissell and Heed, CC., dissent.
For the reasons stated in the foregoing opinion the judgment of the court below is affirmed.
Affirmed.