26 Colo. App. 374 | Colo. Ct. App. | 1914
delivered the opinion of the court.
Judgment reversed.
Appellee, hereinafter called plaintiff, brought her suit against the defendants upon an executory contract to recover the unpaid portion of the stipulated purchase price of certain real estate. The complaint alleged that a “verbal contract” was entered into, by which plaintiff agreed to sell, and defendants agreed to buy, said real estate for a consideration of $1,450, of which $750 was to be paid in money and $700 by delivery of certain horses, and that upon payment of the consideration, plaintiff agreed to convey said real estate by good and sufficient warranty deed, subject only to a trust deed encumbrance for the sum of $2,200; alleged the execution and delivery by plaintiff to defendants of a good and sufficient ‘warranty deed according to the terms of the contract, and the acceptance and record thereof by defendants; that no part of the purchase price had been paid, with the exception of $203, and prayed judgment for $1,247, with interest.
All the material allegations of defendants’ answer and cross-complaint necessary to a determination of this case in their favor are established by the'evidence. On September 3, 1909, a deed with full covenants of warranty as to title, etc., was executed by plaintiff and delivered to defendants. Within a few days thereafter $302 was paid by defendants upon plaintiffs order or checks, and two of the horses were delivered. Upon examination of the abstracts of title, the void deed hereinbefore mentioned was discovered, whereupon defendants promptly notified the plaintiff of the defect in the title, tendered a reconveyance of the title, and demanded a return of the amount paid on the purchase price and redelivery of the horses, and compensation for expenses paid and im curred. Within a short time thereafter, the tender of reconveyance and demand for return of purchase price, with damages, was repeated, and both times refused by plaintiff. The
Plaintiff’s contention is that, although she sued upon the contract of purchase and sale, and for failure of defendants to- perform the same, said contract was an ex'ecuted contract, and that defendants’ remedy, if any they had, was upon the covenants of warranty in the deed, and not upon a breach of the -contract sued upon. With this contention we do not agree. The contract, when sued upon, was executory. An executed contract is one in which nothing remains to be done by either party. — Fox Kitton, 19 Ill. 519, 532; Farrington v. Tennessee, 95 U. S. 679, 683, 24 L. Ed. 558; Adams v. Reed, 11 Utah 480, 40 Pac. 720, 724; State v. Jersey City, 39 N. J. Law 575; 581, 86 Am. cDee. 240. It is a contract in which all the parties have performed all the obligations which they have originally assumed. — Watkins v. Nugen, 118 Ga. 372, 45 S. W. 262, 263. An executed contract is not properly
J.t is true that a deed in the form agreed upon had been executed and delivered, and accepted pending the examination of title, and to that extent only was the contract executed by the plaintiff. At all times she retained possession of the premises conveyed, and collected and appropriated the rentals. The deed did not give good title, nor could it. The purchase price had not been paid by the defendants, and in that respect the contract was not executed by them; in fact, as has been stated, the basis of the complaint is the alleged failure of the defendants to' perform their' part of the executory contract. The plaintiff, having sued on the contract, cannot shift the theory.upon which she proceeded, so as to prevent the defendants from making any legitimate defense to the contract.
In Price v. Immel, 48 Colo. 163, at page 170, 109 Pac. 941, 945, the court said:
“The vendee under an executory agreement to purchase real estate has a right to' insist upon a marketable title — that is, one without defects of which he can lawfully complain, unless he has expressly agreed to' take such title as the vendor may be able to convey.”
We have held that the contract sued on was executory, and there is no pretense of an express agreement to take less than a good marketable title. There was no evidence to go to the jury upon which they could find, or draw a legitimate inference of, an unqualified or unconditional acceptance of the deed as compliance with the contract for a merchantable title.
The judgment is reversed and cause remanded for further proceedings in accordance with the views herein expressed.
Reversed and remanded.