40 Colo. 395 | Colo. | 1907
delivered the opinion of the court:
On May 3, 1893, the plaintiffs (appellees here) executed and delivered to the defendants a warranty deed for the premises known as lots 23 and 24, block 3, Kettle’s Addition to the city of Denver. The consideration named in the deed is twelve thousand dollars. This deed contains a covenant that the property is free and clear of all liens and incumbrances “except a certain deed of trust recorded in book 888, March 7th, 1893, given to secure six thousand dollars at seven and one-half per cent, per annum.” On September 25, 1894, the property was sold under
The court found in favor of the plaintiffs, and rendered judgment against the defendants in the sum of $1,326.65. Prom this judgment the defendants appealed- to the court of appeals.
It is contended that the alleged contract is within
The agreement set out in the pleadings and testified to by the plaintiffs was not an agreement to, answer for the debt of another person. The plaintiffs testified that the defendants agreed to assume and pay certain notes given by the plaintiffs and secured by a deed of trust upon the property conveyed by them to the defendants.
“The statute applies to promises to pay the debt of another; and this is construed by the courts of both countries to mean the debt of some person other than the immediate parties to the contract of guaranty and owed to one of those parties-.”— Browne on the Statute of Frauds, § 188.
It is also claimed that the agreement was not to be performed within a year, and therefore came within the provisions of the statute of frauds. The case Curtis v. Sage, 35 111. 22, holds, under a state of facts very similar to those shown in this case, that such a contract is not within the statute of frauds. Nor was the action barred by the statute of limitations. The alleged agreement was to pay the notes of the plaintiffs. The cause of action did not accrue to the plaintiffs until they were required to pay the notes. Within six years after they were required to make payment they brought this action, therefore it was not barred.
‘ ‘ The rule applicable to all contracts, that prior stipulations are merged in the final and formal contract executed by the parties, applies, of course, to a deed based upon a contract to- convey. When a deed is delivered and accepted as performance of a
The courts have recognized various kinds of stipulations and agreements as not coming within the rule, and have permitted parties to show that a deed absolute on its face is not so in fact, and that the consideration named was not the real consideration. Whether the agreement alleged to have been made between the parties to this case could be proved and enforced as being within one' of the exceptions to the rule stated, or could not be shown or enforced because within the rule, we shall not determine, but we shall assume that such an agreement can be proved and enforced.
While courts have recognized parol agreements which vary the terms of deeds, the quantity and quality of the proof required to establish such agreements is not the mere preponderance required in the ordinary civil action, but that degree of proof required to sustain a conviction in a criminal case.— Armor v. Spalding, 14 Colo. 302; Davis v. Hopkins, 18 Colo. 153.
There was a direct conflict in the testimony. The plaintiffs testified that the defendant Charles W. Enos agreed to pay the incumbrance on the property; he testified as positively that he refused to accept a conveyance binding him to become personally liable for the mortgage debt. He says that a deed was first prepared by the broker who acted as agent in the negotiations, containing a clause that the grantee assumed and agreed to pay the incumbrance, and that he refused to accept such a deed. One of the plaintiffs testified that he did not read the deed care
“I saw the deed, but I did not read it particularly over, I trusted to my real estate man, and he betrayed me. ’ ’
Question. “How so?” Answer. “The way you think; he made the deed out to read wrong. ’ ’
The court excluded any further testimony upon this subject.
The deed itself does not release the plaintiffs from personal liability on the notes, but merely excepts the deed of trust from the covenant against incumbrances. We can place no other construction upon the language of the plaintiff John Anderson than that he had instructed the broker to prepare a deed by which the defendants were to assume the mortgage debt and to pay it, and that he had failed to do so. The deed itself should be regarded as important evidence. It acknowledges the receipt of twelve thousand dollars, simply conveys the property subject to' the deed of trust, and contains no statement of assumption or agreement to pay the notes, and does not allege that the amount of the incumbrance was allowed to the defendants on account of purchase money. Prom the deed itself it would appear that the plaintiffs had received twelve thousand dollars from the defendants, in consideration of which they had conveyed the property to the defendants, and that they, and not the defendants, were to pay the incumbrance. The plaintiffs claim that of the consideration six thousand dollars was allowed defendants because they agreed to pay the incumbrance, and that the balance was made of items of cash paid and property transferred to plaintiffs by the defendants. To thus vary the terms of the deed by parol proof, it wás incumbent upon plaintiffs to establish, beyond a. reasonable doubt that such
For the reasons given, the judgment is reversed.
Reversed.
Mr. Justice Caswell and Mr. Justice Maxwell concur.