26 Colo. 197 | Colo. | 1899
delivered the opinion of the court.
The errors assigned will be considered in the order above named. The ultimate facts” with reference to the delivery of possession of the premises to the plaintiff in error, and the erection of improvements thereon by her, were alleged, and the particular acts which she sets out regarding such possession and improvements would be competent evidence to introduce, for the purpose of establishing such facts; but they do not belong in the cross-complaint. In pleadings, issues of fact are made on the material, ultimate facts, properly pleaded, and not on the evidence which it is proper to introduce and
By the demurrer to the cross-complaint two questions are presented:
First. Do the facts pleaded with reference to the ante-nuptial agreement entitle plaintiff in error to the premises ?
Second. If so, does it appear that defendant in error had notice of such rights ?
Agreements of the kind under consideration are included in those which, by the statute of frauds, must be in writing, and signed by the party to be charged therewith, otherwise, they are declared void (Mills’ Ann. Stats, sec. 2025): but equity will not permit this statute to be made an instrument for the perpetration of that which it was designed to prevent. According to the averments of her cross-complaint, plaintiff in error would not have entered into the marriage contract, except for the promises on the part of the one with whom she so contracted, to ■ convey to her these premises. He has failed to carry out his agreement, but by his promise, upon which she relied, she has been induced to enter into a relation from which she cannot recede, and which she is powerless to change. The result of his deception and artifice is such a fraud upon plaintiff in error, and has placed her in such situation, that the promise to convey is taken out of the statute; or, perhaps, more accurately speaking, equity will not permit it to shield such a fraud. Green v. Green, 34 Kan. 740; Peck v. Peck, 19 Pac. Rep. (Cal.) 227; Petty v. Petty, 4 B. Monroe, 215; Glass v. Hulbert, 102 Mass. 24. This conclusion, however, only affects' the immediate parties to the contract, and the question still remains, can it, on the facts stated, be successfully asserted against the defendant in error, which is the second proposition raised by the demurrer. It is charged that she purchased the property with notice of the rights of plaintiff in error, but from whom ? Was she an immediate grantee of the husband, or did she take title from him or his grantee, with notice of these rights ? The cross-complaint is silent on this subject. If she took title from a
The general denial put in issue every material allegation of the complaint. The only ground upon which plaintiff relied to establish her right to the premises, was, that she held the fee title, and unless the deed purporting to be executed by the grantors therein named, per Waldimar Arens, their attorney in fact, was properly admitted, she has failed in this respect. There was no attempt to show that Waltimore and Waldimar Arens w;ere, in fact, one and the same person, and the deed must have been admitted solely upon the ground that it was prima facie the act of the grantors, by virtue of the power of attorney. It is urged that this was warranted on account of the similarity of the names, Waltimore and Waldimar, and that the doctrine of idem sonans applies. In
It is claimed by counsel for defendant in error, that inasmuch as each of the parties claim title from a common source, namely, from the husband of plaintiff in error, the latter is estopped from objecting to the deed in question. They do not so claim, for with the. cross-complaint eliminated, the only issues between the parties were those made by the complaint and general denial.
For error in admitting the deed, the judgment is reversed, and the cause remanded for a new trial, and such preliminary or other proceedings as may be proper.
Reversed and remanded.