18 Colo. App. 313 | Colo. Ct. App. | 1903
Plaintiff Robertson and Bruce F. Johnson made an exchange of real property situate in Larimer county, the plaintiff paying in cash a difference of about six hundred dollars. The negotiations on the part of Johnson were conducted almost entirely by Miss Sarah E. Eddy, who acted as his agent, and in such capacity alone, so far as the plaintiff knew. In reality, she was interested in and the principal beneficiary of the trade, she owning an equity in the land to be conveyed by Johnson, and the cash payment to be made in this trade by the plaintiff being about sufficient to liquidate her indebtedness to J ohnson. Each piece of realty had a mortgage encum
There is no conflict in the evidence bearing upon the facts material to the determination of this controversy, and this court is therefore not concluded by any findings of the trial court.. There is not the slightest testimony tending to show that the defendant at the time of or prior to the execution of the Robertson deed had any knowledge whatever of any intention to insert in it her name as the grantee. Iier testimony is unequivocally'to the contrary, and also to the .effect, that she never saw the deed and never
It follows, therefore, upon general principles, that in order to be bound the consent of the obligor must be shown in some way. Where the contract is in writing, and signed by both parties, this may be done by proving the signature to the instrument, but where the alleged contract, as in this instance, is unilateral in form, the assent of the party not signing, and sought to be bound, must be shown in some way, as by the acceptance or enjoyment of the benefits and profits from the conveyance. Where the grantee is the actual purchaser — the one who accepts the conveyance and goes into possession of the premises conveyed — the assumption may readily be indulged, from possibly in some cases slight circumstances, that he assented to an assumption clause in the conveyance, but we think that both under the authorities and in reason, the circumstances should be much stronger before such an assumption could
The recording of the deed does not in any sense show a delivery or acceptance by the grantee so as to bind her, because, if for no other reason, the deed contained a clause which was unusual in and not necessary to a conveyance, and to which the actual assent of the grantee as well as of the grantor, was necessary. Whatever argument, if any, could be based upon the failure of a grantee to read the deed, it is not necessary to consider, because in this case, according to the evidence, the grantee never had a chance to read it. She never even had an opportunity to read the correction deed until after she had conveyed the title which was vested in her. We see noth
If it had been shown that the defendant in this
Coolidge v. Smith, 129 Mass. 554, upon which-counsel for plaintiff confidently rely, is clearly distinguishable from the case at bar. In that ease, a husband, without the previous knowledge or consent of his wife, caused her name to be inserted as grantee in a deed which contained a clause assuming an enciimbrance upon the property. The evidence disclosed that the wife had knowledge of the conveyance soon after its execution, and that she thereupon claimed to be the owner of the land; and that after the date of the conveyance she went alone to the house of the mortgagee, and paid interest due upon the mortgage debt, stating that she had purchased the property, and had come to pay such interest. There was also evidence tending to show that the husband had previously in other transactions acted as the agent of the wife with her consent. The materiality of the difference in the facts of the two cases is at once apparent.
Every case of this kind must depend mainly upon the special circumstances connected with and surrounding it. No general rule decisive in all cases can be laid down. — Elliott v. Sackett, 108 U. S. 142.
Upon the evidence presented in this case, we have no hesitancy in saying that the- judgment rendered was not justified, and cannot be sustained. It must therefore be reversed.
Reversed.