34 Colo. 236 | Colo. | 1905
delivered the opinion of the court.
This was an action to foreclose -an instrument, in effect, a mortgage, running from appellee to appellant. This instrument recited that appellee had filed upon certain land under the preemption laws of the United States; that appellant had advanced to him $2,000 for the improvement thereof; that the funds had been so expended, and in consideration of such advancement provided that in the event appellee should acquire title under such filing that said sum, with interést, should become a lien on said land, and within a prescribed time should be paid to appellant, and, in default of payment, for a foreclosure.
Appellee acquired title under the filing; there was default in the stipulated payment, and hence this
Appellant says there was no evidence to sustain this finding and asks „a reversal with instructions to enter judgment as prayed in the complaint.
The mortgage recited that the consideration therefor had been advanced by appellant. The trial court proceeded on. the theory that proof that the recited consideration was not provided by appellant was proof that the mortgage was without consideration.
The contention of appellant was that the consideration had been provided by him; that of appellee that it had been furnished by the firm of Hubbard & Mulligan, composed of appellant and appellee. The contention of appellee was that in 1882 he and appellant had formed a. partnership in the livery business; that this continued until the fall of 1885, when it was sold and the proceeds invested in establishing a live stock business on the land covered by the mortgage, which live stock business was. owned by appellant and 'himself as partners; that by such firm the advancements recited in the mortgage were made. Appellant denied the existence of such partnership at any time prior to the giving of the mortgage in suit and contended that he individually had provided the consideration in question.
The court evidently found on this issue for appellee, and for such reason held the mortgage to be without consideration.
We do not concede that proof that the advances recited in the mortgage were made by Hubbard & Mulligan would show it without consideration, but it is unnecessary to discuss this question because in
In October, 1887, upon the same day as that upon which the mortgage was given, appellant, by hill of sale, transferred to appellee an undivided one-half interest in the personal property employed in the live stock and ranch business, and thereafter until March, 1889, a partnership in such business existed between appellant and appellee. March, 1889, tbe association thus established was dissolved and a mutual release executed operating on all partnership matters. This release was offered in evidence to show a discharge of the obligation created by the mortgage sued on. It was properly rejected because manifestly the individual liability created by this mortgage was not within the terms of this release.
This action was instituted in 1895, has been tried twice below and this is its third consideration, by an appellate tribunal. No defense has been shown to the mortgage sued on, none can be, and the litigation should end. The cause will he reversed with instructions to the lower court to enter judgment for appellant (plaintiff) as prayed in the complaint.
Judgment reversed. Reversed.
Chief Justice Gabbert and Mr. Justice Maxwell concur.