Lewis v. Weitbrec

58 Colo. 147 | Colo. | 1914

Mr. Justice Gabbert

delivered the opinion of the court:

Section 60 of our Civil Code (Mill’s), section 66, Revised Code 1908, provides that sham and irrelevant answers and defenses may be stricken on motion. Here then is authority to strike an answer which is irrelevant, and the question raised by the motion is not whether the pleading, to which it was directed, stated a cause of action, but whether the facts, therein alleged, were relevant to the cause stated in the complaint. It was therefore proper to raise this question by motion to strike, and not by demurrer; and the important point is whether the further answer, cross-complaint and counterclaim was relevant to the cause of action, to which it was interposed as a defense.

Counsel for defendant contend that the action by plaintiff has a double aspect in that it is to remove a cloud upon title and cancel a contract, which it is as: serted, constitutes such cloud. This is not entirely accurate. According to the complaint, plaintiff is 'the owner and in possession of the ranch. The purpose of his action is to secure a decree declaring that defendants have no interest in the ranch by virtue of a contract of record executed by Morris without authority, which is a cloud upon his title. Lewis, by his pleading, under consideration, puts the averment of the want of authority of Morris to execute the contract in issue; avers notification to plaintiff, that he was able and willing to perform it; alleges that he never tendered specific performance because it was clear that to do so would be idle, and that he was thereby deprived of his bargain to his damage in the sum of ten thousand dollars, for which he prays an equitable lien on the premises, ór that a decree cancelling the contract be made ■ conditional upon plaintiff paying him that sum. In brief, this pleading avers that plaintiff is bound by the contract, but treats it as breached, and claims unliquidated damages in the sum of ten thousand dollars on account of the failure of plaintiff to abide by his contract, which sum defendant asks to be decreed an equitable lien on the ranch.

The contract purported to give defendant the right to consummate a purchase, upon ternas therein specified, but he has abandoned that right and counts upon damages for its breach. Consequently, the contract,' with respect to specific performance, is no longer in force. It does not give Lewis any lien for damages for a breach and the only right defendant now has, under the contract, according to the averments of his pleading, is an action for damages, which he attempts to assert in a suit by Weitbrec, to have it removed as a cloud upon his title. He bases this right upon the averment that plaintiff is bound by the contract, but this does not entitle him to any interest in the ranch under the contract. In an action to remove a cloud upon title, the defendant, by his answer, must state facts from which it appears that he has an interest in the property involved by virtue of the instrument which it is alleged constitutes a cloud, and not merely a.right tó a personal action against the plaintiff under such instrument, otherwise his pleading is irrelevant, and under the provisions of the code to which we have referred, may be stricken.

The case is no different from what it would have been, so far as any question in this case is involved, had plaintiff merely averred in his complaint that he was the owner and in possession of the ranch; that defendant claimed an interest therein adverse to plaintiff, which was without foundation, and defendant, in his answer, had set up the execution of the contract; its breach by plaintiff; that specific performance had not been tendered because plaintiff had refused to recognize the contract, and defendant had claimed damages for its breach. Clearly, such an answer would not have exhibited any interest of defendant in the premises and would have been irrelevant.

Summarized, the action by plaintiff was to obtain a decree, declaring that defendants were not entitled to any interest in the premises by virtue of the contract executed by Morris. Lewis, by his pleading, discloses that he has no interest in the ranch under this contract, but counts on damages for its breach. This cannot operate to defeat the right of plaintiff to a decree to the effect that Lewis was without interest in the premises by virtue of the contract. With respect to a cross-complaint and counterclaim, the law, as applicable to the case at bar, bearing in mind its nature and purpose, is that it must state a caues of action from which it appears that defendant is entitled to such affrmative relief against the plaintiff as will defeat his right, either in whole or in part, to have the cloud upon his title removed.—Bliss on Code Pleading, sec. 386, 387; Mattoon v. Baker, 24 How. Pr. Rep. 329; Osmers v. Furey, 32 Mont. 581, 81 Pac. 345; Meyer v. Quiggle, 140 Calif. 495, 74 Pac. 40.

The judgment of the District Court is affirmed, but in so doing, we do not hold that defendant, Lewis, may not have an action for damages. That question is not involved, and as stated in the decree of the trial 'court, the right of Lewis and Morris, or either of them, to maintain an action on a plain money demand against the plaintiff, growing, out of the transaction set out in the pleadings, is not intended to be, and is not determined.

Judgment affirmed.

■ Mr. Chief Justice Musser and Mr. Justice Bailey concur.