73 Colo. 304 | Colo. | 1923
delivered the opinion of the court.
This is an action brought by W. T. John and M. U. John to quiet title to a tract of land in Kit Carson County. W. R. Lathrop and Henry D. Jones were made defendants. The defendant Lathrop made no appearance. The defendant Jones filed an answer. The cause was dismissed as to Lathrop. On trial to the court, without a jury, findings were for plaintiffs. A decree was entered accordingly. Both defendants bring the case here for review.
There are three assignments of error. The first alleges that the judgment is “against the evidence;” the second that it is “against the law;” and the third that the judgment is “against the law and the evidence.”
It was stipulated at the trial that both parties plaintiff and defendant derive whatever title they, or any of them, may have, from one James F. Varner, and that Varner was the owner of the land on May 2, 1917. On July 7, 1917, Varner made a conveyance of the premises by warranty deed. The deed was delivered to one Jesse F. Mathes. The name of the grantee was not filled in, at the time, but Mathes was authorized to complete the deed in that respect. His own name was placed in the deed, and on January 15, 1920, Mathes conveyed to the plaintiffs.
The deed from Varner to Mathes, although executed and delivered on July 7, 1917, was not recorded until December 30, 1919. In the meantime Varner, on September 25, 1918, executed a quit claim deed to Lathrop, and thereafter Lathrop conveyed to defendant Jones. The Jones deed was recorded December 24, 1919. Jones claims as an innocent purchaser, for value, and without notice of the prior unrecorded deed from Varner to Mathes. The court found, however, that Jones had notice, and so far as the defendant Jones is concerned that finding disposes of the principal issue of fact.
It is claimed the court erred in refusing to permit defendant to reopen the case after he rested. This question is not raised by any assignment of error.
It is also contended, in effect, that the judgment is against the law because the action was dismissed as to Lathrop. Lathrop had parted with his interest. He was not a necessary party. 32 Cyc. 1347.
The court made findings to the effect that Varner was induced to execute the quit claim deed to Lathrop by reason of misrepresentations made by Lathrop. The correctness of these findings is challenged by plaintiffs in error. They are, however, supported by the evidence. Moreover, if the fact were otherwise, it would be immaterial, since Varner had previously conveyed the property by warranty deed.
Plaintiffs in error also assume, apparently, that there
There is no error in the record. The judgment is affirmed.
Mr. Chief Justice Teller and Mr. Justice Burke concur.