39 Colo. 326 | Colo. | 1907
delivered the opinion of the court:
• ■ Appellant, a corporation and plaintiff below, brought suit in the district court of Costilla county to recover the value of certain lumber and other items of personal property described in the complaint. The appellee Wellington filed an answer. The trial was had in the district court, a jury being waived. A motion was made to make the answer more definite and certain, which was overruled, and the action of the judge in overruling same is assigned for error. The case was tried to the court and there seems to have been no restrictions as to the admission of evidence under the issues as framed, and it further appears that the appellant was not prejudiced by the action of the judge in denying the motion, and the ruling is therefore sustained.
One of the main questions in this controversy is whether the appellant owned, and was entitled to the possession of, certain lumber, nails, and other personal property described in the complaint, at the
Of the defendants, Mrs. Wellington is the only one who defended in this suit. It appears from the testimony of herself and husband, that at the time of the erection of the tannery building, she sold the Labor Exchange a bill of lumber amounting to about one hundred and seventy-five dollars ($175.00); the lumber was delivered and used in the construction of the building; at that time they expected to join the organization, but neither she nor her husband did so; that they were paid a small amount on account of the lumber, and thereafter procured a judgment against the Exchange for oné hundred and fifty-eight dollars ($158.00), which, on the 4th day of March, 1901, had not been paid. There is testimony by the appellee to the effect that before the judgment was obtained, some members of the association gave her the building in settlement of her claim, and also that there was talk of a compromise in settlement of the judgment, she to take the building therefor, if she could have time to move it off the lots, but that she did not take the building in settlement of her judgment because she could not make arrangements with Mr. Terry to move it. She based her right to take the lumber from appellant upon this agreement with some members of the Exchange that she should have the building in settlement of her claim or her judgment. The testimony is contradictory and inconsistent. She cannot have the building in settlement of her claim, and then have a judgment based upon the same claim and upon evidence that the Exchange still owed her the amount. She must rely upon the one or the other, and as she obtained a judgment, it seems of necessity that she must rely upon that. It
The court found that it was necessary that some proceedings should be taken by appellant to have the reversion declared, by the judgment of a court, before it could claim any title to the property under the reversion; and it is claimed by the appellee' that either a judgment, or decree,, or a deed from the
There is no question about the right of The Mosca Town Company to convey the limited fee in the first instance, and no question about the right of the grantee to accept the deed containing the condition and to make the character of contract it did make. When the building' was taken down and the materials removed, there were no rights in the appellee which could attach to them. It follows, then, that the action of herself and her agents and em
The judgment is reversed. ' Reversed.
Chief Justice Steele and Mr. Justice Maxwell concur. _