10 Colo. 316 | Colo. | 1887
Counsel for appellant in their argument have arranged the errors assigned under three heads, and have accordingly presented the same for consideration.
1. It is argued that the lessee cannot bind the estate of the lessor with a lien. This proposition may be conceded; but when the lessor, being the owner of the entire estate, subject only to the lease, buys the said leasehold estate, and thereby becomes vested with the entire estate, and possession and control thereof, he does not thereby remove the incumbrance of a third party upon the estate so purchased. By so uniting the two estates, the lesser
But the two estates, when owned by the same person, are only regarded in equity as separate when equitable considerations justify or require such action; and since appellant purchased the lease with full knowledge of the lien rights of appellees, and since the leasehold estate was of much greater value than the amount of the lien, as evidenced by the sum paid therefor by appellant, we are of the opinion that no equitable consideration exists requiring us to hold that an absolute merger did not take place. Smith v. Roberts, 91 N. Y. 476; Koenig v. Mueller, supra.
2. It is argued that the decree was invalid as to the hfatatorium Association, and consequently invalid as to appellant. This argument rests upon the assumption that judgment was rendered against the association without legal notice of the proceedings after appeal. Assuming that appellant has the right to question this part of the decree, we must declare the objection not well taken. The prayer for the appeal and order of the county court allowing the same are general, and covered the entire decree. Counsel for appellant do not question the right of Young & Savin to take the appeal in this way. They assume that the whole cause, by the appeal, was taken to the district court for a trial de novo. The decree in the district court, which is part of the record proper, recites the filing therein of the amended complaint, the answer thereto of appellant, and the entry of default against the association. There is nothing in the
3. It is argued that the decree was not supported by the evidence. It is contended on the part of appellant that the evidence shows that the said building materials were not sold upon credit to the said association, but to one Griffith, and on this account there was no right to a. lien. If such were the facts in the case, they might defeat the lien; but, from the evidence adduced, the findings were against this view, and we see no reason to disturb such findings. It is also contended that the building provided for by the terms of the lease was not completed in the time therein specified, and the lease, by its terms, was subject to forfeiture. Be this as it may, the lease never was forfeited, and the leasehold estate never was so terminated, as no forfeiture was ever claimed or asserted by appellant. He preferred to acquire the estate by purchase, after receiving the rental to April 1st; thereby repelling any claim or intention of a forfeiture thereof, he then purchased the leasehold estate, together with the improvements and materials on the premises, and so received possession thereof. It is therefore apparent that he did not acquire the leasehold estate by forfeiture, but by purchase.
The decree should be affirmed.
We concur: Macon, 0.; Rising, 0.
For the reasons assigned in the foregoing opinion the decree of the district court is affirmed.
Affirmed.
