21 Colo. App. 399 | Colo. Ct. App. | 1912
In a suit pending in tlie district court of Adams County, appellee was appointed receiver of tlie property of The Brighton Milling and Elevator Company (hereinafter called the Brighton company), with power to sell all real estate and other property owned by the company, -under the direction and orders of
“Denver, Colorado, May 29, 1906.
E. A. Bromley, Receiver,
Brighton, Colo.
Dear Sir:—
Mr. Herman Rueter was here last week and I had a talk with him in regard to the purchase of the Brighton elevator, together with the four lots that go with the property. Myself and our superintendent went down and looked it over and I offered two thousand five hundred cash. I am this day in receipt of a letter from Mr. Rueter accepting my offer. He says he gave the letter to you and that you informed him you would accept the offer but that you had to go away for' three or four days and that as soon as you returned you would get the title and abstract and turn the property over to me.
In accordance with this letter I will understand that the property is sold by you and purchased by me on above terms and to show good faith, enclosed find my check for $100 to apply on the payment. The other $2,400 to be paid as soon as title is made satisfactory to our attorney, you to furnish abstract as soon as you possibly can.
Please acknowledge receipt of this check and state definitely how soon you can give possession. I don’t think we ought to pay the entire taxes for the year 1906 as the year is now half past and it would be fair to deduct the proportionate amount of taxes; that is to say, whatever the taxes were last year, I think that 5-12ths of that amount covering the five*402 months of this year that you have been in possession should be deducted from the purchase price.
We should like to send some one down at once to begin work remodeling the place. Kindly advise us whether or not we may do so, obliging. Will have-two men go to work there in the morning.
Yours very truly,
(Signed) J. K. Mullen.”
The Mr. Bueter mentioned in the letter was an officer and a large stockholder and creditor of the Brighton company, and in order to accomplish the winding up of its affairs and sale of its assets, he had induced appellant to make an examination of the mill and elevator property, which was followed by the proposal for its purchase, indicated in the letter to the receiver. It does not appear that appellee made any direct reply to appellant’s letter, but he retained and collected the check for one hundred dollars sent by the appellant; and the latter took possession of the property within a few days after the date of his letter, and proceeded to make some extensive repairs and alterations, as hereafter stated. On the twenty-sixth day of June, following the receipt of appellant’s letter, appellee obtained an order from the judge of the district court authorizing him to sell and convey lots forty-six and forty-seven, and fractional lots forty-eight and forty-nine, in block three, Brighton Park, Adams County, “at private sale for not less than twenty-five hundred dollars ($2,500), and for as much higher price as is possible to procure therefor,” and, when sold, “to> execute a proper deed of conveyance therefor to the purchaser, the same to be first approved by the court before delivery.” That order was made upon the
In response to this order to show cause, appellant filed an answer, setting up his letter to appellee of May twenty-ninth, the payment of the one hundred dollars, and the delivery of the abstract of title of the lots to appellant for examination. He furthei averred that he caused examination to be made of the title to the premises, which showed that the title to the greater part of the lots was vested in The Union Pacific Bailroad Company, and not in the Brighton company, or its receiver, and that the receiver, at the time of receiving the offer to'purchase, knew the title was in that condition; that tlie respondent (appellant) had at all times since the date of his offer been ready, able and willing to comply with the same, but that the receiver had failed and refused to convey a good and sufficient title to the lots, or to refund the one hundred dollars paid. This pleading contained a prayer that the receiver be or
Upon issues thus framed the matter was tried before the court, with the result that judgment was rendered ordering appellant to pay appellee, as receiver, two thousand, four hundred dollars, for the use of the Brighton company., and that appellant pay the costs of the proceeding against him, taxed in the sum of two hundred and sixty-Jive dollars and seventy-seven cents; from which judgment this appeal was prosecuted.
It appeared from the evidence that on September 28th, 1869, a receiver’s receipt was issued by the receiver of the United States land office at Denver to David IT. Moffat, Jr., which was followed by a patent to Moffat from the United States, of date May 10th, 1870, for a part of section six, township one south, range sixty-six west, which included the four lots, upon which was situated the mill and elevator building of the Brighton company, and to which that company claimed title through a chain of mesne conveyances from said original patentee, Moffat. The Brighton company, then, was in possession of the premises, and all thereof, so far as this record
The various acts of Congress mentioned were offered in evidence at the hearing in the district court, as well as a certain master’s deed to the Union Pacific Railroad Company, whereby that company acquired title, through mortgage foreclosure, to all the railroad, right of way, lands, land grants, railroad property and franchises formerly owned by the Denver Pacific Railway and Telegraph Company-— the company mentioned in the act of Congress of March 3rd, 1869 (15 U. S. Stats., page 324), which act is discussed in the opinions in Union Pac. R. R. Co. v. City of Greeley, supra. It was also in evidence that the roadway of the Union Pacific company is on the same location as the original line of the Denver Pacific Railway and Telegraph Company from Denver to Cheyenne. Without entering into any general discussion of the various opinions in the Greeley case, supra, it suffices to say that all of the judges were agreed that in virtue of the provisions of the act of March 3rd, 1869, in connection with the original Union Pacific act of July 1st, 1862, and the amendatory act of July 2nd, 1864 (chap. 216, 13 U. S. Stats.), the predecessors in title of the present Union Pacific Railroad Company acquired a right of way over the public lands of the United States extending two hundred feet in width on each side of the center line of the railroad of the Denver Pacific Railway and Telegraph Company from Denver to Cheyenne. As to the date when the grant of such right of way took effect, as against individuals claiming rights derived from the United States, by private purchase, or otherwise under the land laws
It is recognized by the two decisions last cited that the present Union Pacific company has succeeded to the rights of its various predecessors in title, including the Denver Pacific Bailway and Telegraph Company, under the acts of Congress; and if that be true, it seems to follow that its title to the right of way in question is inalienable by private grant, without the consent of Congress, and not subject to be devested by adverse possession. Nor. Pad. R. R. Co. v. Smith, 171 U. S. 260; Nor. Pac. Ry. Co. v. Ely, 197 U. S. 1; Kindred v. U. P. R. R. Co., 168 Fed. 648.
Of course, these matters are not for our decision upon this record, further than this,- — that the preceding discussion proves that the title of the Brighton company to the portion of the lots included within the right of way of the railroad company is clearly defective, in a substantial sense, and that such defect is probably irremediable. As the part of the four lots., to which the Brighton company was without title, also contained the mill and elevator building, appellant’s objection to the title tendered by the receiver was evidently weighty and important, and was not “without merit,” or “a false and fraudulent pretext,” as averred in the receiver’s answer.
The doctrine of caveat emptor has no application to the conditions here presented. In the first place, it is the well-settled rule of courts of equity, that whore the court, through its receiver or other administrative officer, undertakes to sell real property under the orders of the court, in circumstances
Watrous v. Hilliard, 38 Colo. 255, prescribes no different rule. In that case, the excuse offered by the purchaser for not complying with his bid was .denounced by the court as “paltry.”
Furthermore, the evidence before us clearly shows that there was no completed sale as between the appellant and appellee. The former’s proposition was in writing, and expressed in tolerably plain English an offer to purchase “the Brighton elevator, together with the four lots that go with the property,” for two thousand, five hundred dollars cash, and it was stated: “In accordance with this letter
The order of June 26th, 1906, was not, in form or substance, the confirmation of a sale to appellant. It seems to have been obtained without notice, and upon its face merely authorized the receiver to sell the property for the price mentioned, or as much more as he might be able to get for it. In addition to this, the court had not the power to make a contract for appellant, without his consent, to purchase the property on any conditions other than those contained in his offer. There was no proof that he ever proposed or agreed to purchase or accept the title of the Brighton company, or made any offer except that contained in his letter of May twenty-ninth; but the evidence was conclusive to the contrary.
Within a few days after the date of his letter, appellant took possession of the elevator building and premises, and immediately proceeded to make extensive repairs and betterments in the old building. He remodeled it and installed therein new and improved mill machinery and equipment, and constructed a new elevator and warehouse adjoin
It is further strenuously argued for appellee that appellant has waived any right to object that the Brighton company is without title to the portion of the lots mentioned, because he has not offered to restore the possession of the property to appellee ; and a number of cases have been cited as bearing upon the conditions upon which equity will grant relief by way of the rescission or cancellation of a contract. It is not perceived that those cases have any application to the proceedings instituted by appellee on the basis of the order to show cause. Under the terms of that order, appellant’s attitude would appear to have been rather analogous to that of a vendee, made defendant to a suit for purchase money by a vendor, who was unable to convey a satisfactory title, as agreed, assuming for the argument the existence of a contract for the purchase of the property. In a case like the one last supposed, it was said: “If by reason of a substantial defect in the title, the vendor is unable to carry out the contract on his part, it by no means follows that a vendee who has acquired possession thereunder can retain such possession, refuse to accept a conveyance, and arbitrarily refuse any performance on his part. He'may elect to accept the title as it is, with such reduction of the purchase price as will compensate him for the deficiency (Pomeroy on Contracts, section 438, and cases cited), or rescind the contract. If he, elects to rescind, he must offer to restore pos
But it is apprehended that there is no fixed or arbitrary rule to control the equities of all cases.— McIndoo v. Morman, supra; 2 Warvelle, Vendors, section 8.69.
We refrain from pursuing this branch of tlie inquiry at greater length, because of the fact, to which attention has already been called, that no contract for purchase was ever consummated with appellant. The position of counsel for appellee that the contract was ‘ ‘ executed upon the delivery of the deed approved by the court,” is met by the unsurmouniable difficulty that the deed was not accepted, because the title was not satisfactory, and could not be made so. There was, therefore, no agreement at. all upon the terms of purchase, as proposed by appellant, who appears to have gone into the possession of the property and made the expenditures thereon, with the consent of appellee, pending an unconcluded negotiation for the purchase of the premises. In such circumstances, the court cannot make a contract for- the parties, out of the mere fact of
What has been said seems to sufficiently dispose of the case upon the record presented here. The decision is confined to the proposition that appellant is not a purchaser of the property from the receiver, because of the failure to comply with the requirement of appellant’s offei, with respect to title. No other question, arising out of appellant’s taking or detaining possession of the property, or affecting the ownership of the building, machinery, etc., is determined. The present order will be that the judgment of the district court of Adams county is reversed, and the cause is remanded to that court, with direction to vacate the order to show cause.
Reversed.