26 Colo. 534 | Colo. | 1899
delivered the opinion of the court.
The question presented for our determination is whether, under the facts as presented by the record in this case, the
“ In many cases, however, where the title proves defective in part, or to an extent not very essential, specific performance will be decreed, with a ratable deduction of the purchase money, by way of compensation for the deficiency.” 2 Kent’s Com. 475.
Furthermore, if by reason of a substantial defect in the title, the vendor is unable to carry out the contract on his part, it by no means follows that a vendee who has acquired possession thereunder can retain such possession, refuse to accept a conveyance, and arbitrarily refuse any performance on his part. He may elect to accept the title as it is, with such a reduction of the purchase price as will compensate him for the deficiency (Pomeroy on Contracts, Specific Performance, § 438 and cases cited), or rescind the contract. If he elects to rescind, he must offer to restore possession upon
It is clear, therefore, that in the circumstances of this case, the appellee was entitled to avail himself of the remedy afforded by this action. The objection based upon the judgment lien was obviated by the deposit in court.of a sufficient sum to remove that incumbrance, in case the judgment was affirmed by the court of appeals.
Regarding the further objection, predicated upon the alleged dedication of a portion of the land to the use of the public for a street and alley, if such dedication was in fact made, and was not acquiesced in by the company as claimed by appellee, it could not in its very nature affect the use and enjoyment by the company of the residue of the land.. It at most deprived it of the use of the surface of a small and inconsiderable part of the land sold, and had appellants seen fit to amend their answer, as suggested by-the court, and introduce proof of the damages occasioned thereby, they would have been allowed a proportionate reduction of the purchase price. But, having declined to do so, the court below could not, under the issues joined and the evidence introduced, render any other judgment than it did. The judgment, therefore, must be-affirmed, which is accordingly done.
Affirmed.