13 Colo. App. 116 | Colo. Ct. App. | 1899
The matters involved and the propositions decided will more clearly appear by a brief statement of the issues presented by the pleadings. Hubbard filed a bill in equity to have an instrument in writing theretofore executed by the defendant, Mulligan, declared a lien and foreclosed. It substantially recited that Mulligan had filed in the United States land office an application to enter the northwest quarter section 21, township 2; the advancement by Hubbard to Mulligan of divers sums of money amounting to $2,000 for the improvement of the premises and the expenditure of the money in and about the improvements on the land. In consideration of these premises Mulligan for himself and his heirs, executors, and assigns, covenanted with Hubbard that
The defendant answered by several pleas, the first of which was a denial of all the allegations of the complaint; the second, an averment that there was never any debt rvhich the defendant was obligated to pay, and that the instrument was made for Hubbard’s accommodation and without consideration. Third, he set up a partnership between himself and Hubbard which resulted in an indebtedness in his favor.; admitted the applications made by the plaintiff and the defendant for the two quarter sections, the northwest and the northeast, and alleged an indebtedness from Hubbard to him in a sum named and the procurement of his signature to the instrument for a special purpose incident to divorce proceedings pending between Hubbard and his wife, and averred that his signature was obtained by fraud. Fourth, he set up an association between himself and Hubbard, the carrying on of a stock business on that tract of land, the dissolution by consent and a’ release. Fifth, he stated a copartnership in the livery business, a resulting profit, and an agreement by Hubbard to pay, nonpayment, and a statement of the balance due thereunder.
When it came to trial, the plaintiff produced the agreement, the certificate showing the entry by Mulligan, November 14, 1888, and rested. Thereupon the defendant offered his testimony. He was himself a witness, and he produced other testimony than his own to the proposition that the instrument was without consideration and given to permit Hubbard to show it in the divorce proceedings between himself and his wife. He. then offered testimony to the point that there were no improvements put on the land by Hubbard or advancements made for the purpose out of his own funds, but that whatever was done to improve the quarter was paid for out of funds resulting from their copartnership for stock-raising purposes and out of the proceeds of the livery business carried on by Hubbard and in which Mulligan claimed a half interest. He also offered testimony to the point that originally there was a contract between the Platte Land Company and himself, whereby that corporation had agreed to deed the north half of section 21 on the payment of a certain consideration specified in the written contract between the parties. This contract was dated the 8th of April, 1886. It was an agreement by the Platte Land Company to sell Mulligan the north half of section 21 on the basis of certain payments to be thereafter made at times therein designated. It stood in Mulligan’s name when he executed this mortgage. The security was delivered intermediate the execution of the contract by the Platte Land Company and Mulligan’s preemption. To make the situation plain it may be stated that when the Platte Land Company agreed to convey the land it was supposed to be a part of the lands granted to the Union Pacific Railroad Company. Subsequently the railroad’s title was disputed and all parties were doubtful about it. A further agreement between the Platte Land Company
The evidence which Mulligan offered and which he was permitted to introduce, tending to maintain his contention that the agreement was not a contract but was executed for the sole purpose of permitting Hubbard to exhibit it and use it for ulterior purposes in a controversy then existing between Hubbard and his wife respecting a divorce and the division of property, was objected to by the plaintiff in error as tending to contradict the terms of a written instrument. The rule respecting the introduction of parol testimony to contradict the terms of a written instrument is tolerably well settled. It has been invoked and held in force in many cases, and under widely different circumstances. To this general rule there are few exceptions. It ordinarily excludes parol testimony as to prior and contemporaneous agreements, as well as to all subsequent declarations which' tend to vary or modify the terms of the instrument and which do not amount to a substituted agreement either on a past or a present consideration. In construing a contract courts are always permitted to resort to surrounding circumstances because thereby they put themselves in the position of the parties and can under those circumstances and in the light of the situation intelligently interpret it. On the argument, however, it was sought to bring this case within an exception and to apply the principle expressed in The Denver Brewing Co. v. Barets, 9 Colo. App. 341, and Hurlburt v. Dusenberry et al., 57 Pac. Rep. (Colo. Sup. Ct.) 860.
The exception was stated in those decisions and applied,
The plaintiff insists that the evidence which the defendant gave which tended to show that Hubbard had put no improvements on the premises and had furnished no money for that purpose, was likewise inadmissible because the instrument was under seal, and the consideration might not be contradicted by parol testimony. We concede that this doctrine is supported by many reputable authorities, and was undoubtedly the law in some jurisdictions. I have never been quite able to appreciate the importance which the common-law
It will be remembered there was an outstanding contract with the Platte Land Company to convey. This passed by assignment in 1889 to Hubbard. The defendant insists that Mulligan had no title to the land because when he made the agreement with Hubbard the Platte Land Company was without interest, and the only title which he obtained was subsequently acquired by pre-emption and patent. Under these circumstances it is insisted that he had no interest which could be the subject of mortgage. We do not so understand the law. It has always been the rule that when the mortgagor is without interest a subsequently acquired title will inure to the benefit of the mortgagee by virtue of the conveyance contained in the mortgage. This interest is subject to foreclosure. 1 Jones on Mortgages, § 679; Kirkaldie v. Larrabee et al., 31 Cal. 455; Spiess v. Neuberg, 71 Wis. 279.
This security may therefore be upheld if it is otherwise legal and valid. A further reason for the application of this doctrine is found in the very terms of the instrument. Mulligan thereby agreed that in case he should be permitted to enter or should afterwards directly or indirectly acquire title from the government this security should extend to the land in order that Hubbard might receive the moneys which he advanced to improve and better the property.
The defendant insists that the security may not be enforced because it is illegal. He contends that it is an alienation of
The rule has been expressed in many late cases and may now be regarded as part of the settled jurisprudence of the country. The defendant goes farther and insists it appears by Hubbard’s own evidence that such was its purpose and therefore we should declare, the contract void. We do not appreciate this necessity. We are quite ready to concede our inability to understand why this testimony was ever given or why on cross-examination the defendant should have been permitted to elicit it. As we look at it, whether it was or was not true, it is without significance and importance. There are some cases which hold, and some which seem to intimate, that even though this might be true, yet if it appeared that in point of fact the plaintiff had advanced money for the improvement of the property he might as for money had and received, compel the defendant to reimburse him regardless of the invalidity of the contract. Bateman v. Robinson, 11 N. W. Rep. 736; Anderson v. Carkins, 135 U. S. 483. In the latter case, Mr. Justice Brewer without deciding the precise proposition, said, “ It may be that Carkins can recover from
With this principle so thoroughly established by such a long, persuasive and strong line of authorities, we are unable to concur with the trial court. It may be when the case is retried the court may conclude there is enough in the evidence to defeat the plaintiff’s contention and to demonstrate the want of sufficient consideration. What it will conclude on this matter of fact we do not know, nor do we think it proper for us to express our own convictions about it. We understand the very great burden which a defendant assumes who undertakes to contradict a solemn and written instrument. He has the right to assume it, and if he supports it to the court’s satisfaction he may succeed. As the case now stands this is the only vital question.
The plaintiff in error argues that the testimony given by an attorney was wholly illegitimate and not receivable because of the relations which existed between the attorney and Hubbard at the time he acquired the facts about which he undertook to testify. We do not intend to comment on this phase of the case or on the propriety or impropriety of that testimony. The court made no findings of fact, nor did its decision at all turn on matters to which the attorney testified. On the subsequent trial if the court is compelled to determine questions of fact at all affected by the testimony of the attorney, it will then become important for it to decide whether that testimony is legitimate and whether the attorney ought to be received as a witness. Should this matter hereafter be • passed upon, it may be necessary for us to decide it. As the case now stands, we do not recognize its sufficiency or importance, nor do we feel at liberty in advance to determine this
We do not believe counsel have any right to complain because we refuse either to review or to decide any of these questions of fact. It was their privilege to require the court to make findings of fact that the case when it came up might be finally and absolutely determined. Failing to do this they cannot be heard because we decide the only question of law presented by the record, and respecting which as we conceive, the court erred.
Since we believe the court erred in holding the contract illegal and void, the decree entered must of necessity be reversed.
Reversed.