35 Colo. 512 | Colo. | 1906
delivered tlie opinion of tlie court:
Appellants, wlio were defendants below, seek tlie overthrow of a decree which determined that the
Mattie B. Burris, as the assignee of her husband, William M. Burris, brought this action as the sole plaintiff against the defendants as heirs at law of Benjamin Franklin, deceased, to compel a conveyance of certain mining property in accordance with the requirements of a contract therefor which was entered into between Benjamin Franklin and plaintiff’s assignor. The complaint is in the ordinary form for specific performance, alleging the contract, the performance by plaintiff, and non-performance by defendants, of the conditions thereby imposed upon them respectively.
To this complaint the defendants filed an answer of which the first defense denied that their ancestor ever made the contract pleaded in the complaint, and alleged that in June, 1898, he and William M. Burris did enter into a contract different from the one set out in the complaint concerning the same mining property whereby, among other things, Franklin agreed to convey it to Burris whenever tire latter paid to the former the sum of $5,000; that this contract never was performed by either of the immediate parties thereto, or their successors or representatives.
For a third and separate defense, and by way of a cross-complaint, defendants allege the making of ■the first contract between plaintiff’s assignor, William M. Burris, and their ancestor, Benjamin Franklin, which was never performed, the abandonment thereof, and the execution of the second contract, as previously described in this statement. That under the second contract William M. Burris entered into possession of the mining property as a tenant of Benjamin Franklin, and ever since has been in such possession and paid rent therefor; that neither William M. Burris nor the plaintiff herein has ever performed the conditions of either the- first or the second contract which were by them to be performed as conditions precedent to the conveyance by Benjamin Franklin, but, in disregard of the rights of de
William M. Burris and the mining company were ordered to be brought in to plead, and did plead, to the cross-complaint. Burris filed a disclaimer, in which he stated that before the action was begun, he had parted with all of his rights to plaintiff, and now claimed no interest whatever to the properties in dispute or the subject-matter'of the litigation. The plaintiff, Mattie B. Burris and the El Paso company each filed a separate pleading which, in substance, was the same, to the amended
To the answer to the cross-complaint the defendants filed replications, but, as they are not reproduced in the abstract, we may presume that they contain nothing material so far as concerns the questions involved in this appeal.
At the close of the plaintiff’s case the defendants, while reserving the right allowed by the court to introduce evidence in case their motion was not sustained, moved for a nonsuit upon various grounds, among which were that the plaintiff had
1. Under the one assignment of error already adverted to, a large part of defendants’ briefs is directed against what they call the flagrant error of the trial court in disregarding entirely the issues made by the pleadings, and determining the controversy upon the assumed equities of the litigants, which none of them had set forth in the pleadings, and which, since they were entirely outside the issues, it was beyond the jurisdiction of the court to settle. It is said, first, that the written contract introduced by plaintiff as proof of the allegation in her complaint of the contract declared on, was a material variance from such allegation; and because of such variance and plaintiff’s failure to- show performance by her before the action was begun, a non-suit should have been granted.
With reference to this and kindred contentions of appellants, it is sufficient merely to say that, under the facts disclosed by this record, they are not entitled to- avail themselves of the point even if, under other conditions and in other circumstances, there was any merit in it. If the defendants wished to rely upon plaintiff’s alleged lack of proof of her own case, or the variance referred to, they should not have proceeded, as they did, with an attempt to establish the affirmative defenses and the cross-complaint of their answer. Doubtless defendants elected
Naturally the first inquiry, which has already been answered, is: Are the issues made by the
To make the point, if possible, more clear, as well as to show the correctness of the court’s findings, we shall set forth the situation of the parties and the surrounding circumstances during the time of the various transactions between them. Neither William M. Burris nor his wife, as assignee (until she received her deed), nor Benjamin Franklin, the ancestor of the defendants, ever had any legal title whatever to this mining property. The inception of the right, which the respective parties assert, so far as the questions here are concerned, arose out of, and was created by, a contract between William M. Burris and the Fords and Anderson, who were the legal owners of the property, whereby, in consideration of the payment of a stipulated sum of money, William M. Burris should have the right to a conveyance. In connection with this option Burris was given a lease upon the property, and entered into possession thereunder. This lease and the option to purchase Burris afterwards assigned to the Little May mining company. While this property was being worked under the lease, certain indebtedness was incurred for which mechanics’ liens were filed,
Assuming, because the parties themselves have apparently done so, but not deciding, that such an option as this is subject to sale on execution, it appears that whatever right Franklin obtained at the sheriff’s sale, so far as affects the pending action, was the option to buy which Burris originally obtained from the Fords and Anderson. It was upon the supposed rights which, Franklin obtained at this sale that the first contract was made between him and Burris. Because.no substantial right was acquired at this sale, or on account of indefiniteness in the contract with respect to the time within which Burris might pay the consideration and receive from Franklin a deed of his interest in the property, or for some other reason which, in any event, is not of much importance here, the parties concluded to annul the first contract. And so, after what is called the second sheriff’s sale, adverted to later, occurred, and based thereupon, the second contract was entered into, supplanting the first.
After, the first contract was made, and while the property was being worked under the lease assigned by Burris to The Little May Gold Mining Company, the company became indebted to Burris, who was, at one time, its manager. He brought suit upon the debt, obtained a judgment, and, at the execution sale
The facts which we have just related are not in serious conflict. At least, the evidence tended to establish them, and the court found that they existed. The court specifically found that Burris himself bid in the property at the second sheriff’s sale, and the amount of the judgment which he recovered was the bid which was made; that Franklin paid no part of the consideration therefor in any manner whatever, and the evidence tended to show that the reason Burris had the certificate of sale issued in Franklin’s name was by way of security to Franldin and to the others interested in the judgment which he had recovered, and under which the first sheriff’s sale was made. At all events, the court found, and the evidence supports the finding, that the sole consideration for the second sale was the amount of the judgment which Burris obtained against the Little May mining company, and which at the time he owned absolutely. All of these rights, as we have said, which Burris had in and to this property, were assigned to' Mrs. Burris.
The evidence also tends to show that Mrs. Burris and her husband, who seemed to be acting as her agent, considered that whatever rights Franklin had under these various contracts were merely in the nature of a security, and that in equity the rights belonged to the plaintiff herein, and so, after the
If the questions determined hy the trial court and the equities thus ascertained are within the issues raised hy the pleadings, as they unquestionably are, there can be no doubt whatever, in the light of the foregoing summary of the evidence upon which the findings of the court were made, that the decree is fully justified* We have decided that the evidence was within, and responsive to, the issues, and are thoroughly satisfied that the decree accords with good practice. If the trial court committed prejudicial error in this case, in any of its phases, it was against plaintiff, and not against defendants. Defendants themselves introduced in their pleadings, and relied upon, and claimed to be the equitable owner of the property in question, under the second contract. They asked the court to make a decree adjudging them to be the owners. Had the court found from the evidence that such equities were with the defendants and rendered a decree in accordance with their prayer, certainly the defendants urould not be here complaining that the pleadings were ignored. When, however, the trial court found against them upon the very issues which they tendered, and rendered a decree, not such as they prayed, but one in favor of the plaintiff and the El Paso company, we fail to see how defendants possibly can say, if the evidence is sufficient, that the trial was of matters outside the issues. The form in which the decree is cast is not material. Equity looks to the substance, and not the form. In view of the fact that the legal title was in
We repeat that a careful examination of the record satisfies us that, if any injustice was done, it was to the plaintiff, and not to the defendants; but as plaintiff has not assigned cross-errors, but is content with the decree as rendered, she is not in a position to complain. We have hot deemed it important or necessary to consider the various other questions which have been elaborately argued by counsel in their briefs. We may say, however, that other considerations occur to us why the defendants have no cause of complaint, and there are other substantial reasons to our mind why the decree should be affirmed. But, in view of the findings of the court upon which its decree was rendered, and which seem to us to have been abundantly supported by the evidence and warranted by the issues made by the pleadings, we have concluded not to prolong the opinion by what, in the circumstances, would be an unnecessary discussion.