10 Colo. 357 | Colo. | 1887
On the 14th and 15th days of July, 1880, the defendants Robert W. Kevin, James S. Kevin, Ann B. Ross and Oliver P. Ross conveyed to Isaac Taylor and Charles C. Miles, by warranty deeds, certain mining claims situated in Clear Creek county, Colorado, and procured one Henry Thompson to convey to said Taylor and Miles, by warranty deed, one of said mining claims.
On the 15th day of July, 1880, the following agreement was entered into:
Article of agreement made and entered into this 15th day of July, A. D. 1880, by and between Isaac Taylor and Charles O. Miles, of Peoria county, Illinois, of the first part, and Robert W. Kevin, James S. Kevin, Oliver P. Ross and Ann B. Ross, of Clear Creek county, Colorado, of the second part, witnesseth, that the said parties of the first part, for and in consideration of the covenants and agreements hereinafter set forth, to be kept and performed by said parties of the second part, agree as follows, to wit: To notify parties of the second part that they, the parties of the first part, will either accept the undivided one-half of certain lode mining
“ .Witness the hand and seals of the parties hereto this-15th day of July, A. D. 1880.
“Isaac Taylor. [seal.]
“Charles 0. Miles, [seal.]
“Robert W. Kevin, [seal.]
“James S. Kevin.” [seal.]
On the 6th day of October, 1880, Taylor and Miles notified said defendants, in accordance with the terms of said agreement, that they elected not to retain the undivided one-half of said premises, but had elected to take from said defendants the sum of $12,000, with interest, and tendered deeds of conveyance for said claims as provided for in said agreement. Defendants did not then pay, and have not since paid, said sum of $12,000, and interest, or any part thereof. On May 11, 1881, Taylor and Miles conveyed said premises to the plaintiff by quitclaim deed.
Plaintiff in its complaint alleges that the said sum of' $12,000 was loaned to said defendants by Taylor and Miles; and that the deeds from defendants and Thompson were given as security for the payment of said sum, with interest at ten per cent, per annum, within ninety days, from the date said sum should be demanded by Taylor and Miles; and pray that said deeds may be adjudged
Defendants in their answer deny that Taylor and Miles loaned them $12,000, or any other sum; allege that plaintiff corporation was created for the express purpose of acquiring the said mining claims, and not for the purpose of purchasing or dealing in mortgages, and set up the agreement above set out; and allege that the conveyance to plaintiff by Taylor and Miles was not intended to assign or transfer to plaintiff any claim which Taylor and Miles may have had against defendants for said sum of $12,000, nor any rights or lien which Taylor and Miles may have had for the recovery of payment thereof.
Dor a second defense, defendants allege that, on June 14, 1881, plaintiff commenced an action against defendants, praying a perpetual injunction against them, restraining them from working the Lulu mine, and based its claim for such injunction upon its rights to possess said claims, under the conveyance thereof by Henry Thompson; that defendants answered the complaint in said action, admitting the conveyance by Thompson and themselves to Taylor and Miles, and alleging that said conveyances were made as a mortgage, to which answer plaintiff replied, denying that said conveyances were made as a mortgage, and alleging that said conveyances were absolute and without condition, verbal or written. Said suit was voluntarily dismissed by the plaintiff August 15,1881. Taylor and Miles testified in.said case that they.did not purchase one-half of said Lulu mining claim, but that they made an absolute purchase of the whole of said claim from Henry Thompson, with an agreement from defendants.
Plaintiff’s replication to defendants’ answer alleges, that the conveyance to it by Taylor and Miles did purport, and was intended to assign, and did assign and transfer to plaintiff, any and all claim said Taylor and
Trial to the court, and decree June 28, 1883, that plaintiff is entitled to recover of the defendants Robert W. Kevin, James S. Kevin, Oliver P. Ross and Ann B. Ross the sum of $12,000, and interest; that said defendants pay said sum to plaintiff, or its solicitors, on or before nine calendar months from July 25, 1883, with costs of suit; that in default of such payment, the title to the premises rests in plaintiff and its assigns, and the clerk of the court to certify the substance of the decree; and that certificate may be recorded, and the same shall be evidence of the extinguishment of defendants’ right and title to the premises; and that said debt of $12,000, and interest, shall from that time be wholly extinguished; that if defendants pay said sum, and interest, before the expiration of nine months, the plaintiff, within thirty days from the date of such payment, to reconvey to said defendants said premises, and appointing a commissioner to make such conveyance, in case of the failure of the plaintiff so to do. Defendants appeal.
The first, second and fourth assignments of error are based upon the ruling of the court in admitting the testimony of the witness Hitchcock in relation to the transfer by Taylor and Miles to the plaintiff of a claimed indebtedness due from defendants; and the third assignment of error is based upon the ruling of the court in permitting the witness Hitchcock to explain what he meant by speaking of Taylor and Miles as trustees in his cross* examination by defendants. It appears from the evidence that the title to the premises described in the deeds from
The facts set up by defendants for a second defense do not constitute an estoppel. The statements contained in the complaint, relied on as an estoppel, are not statements of matters of fact, but a statement of a legal conclusion drawn from facts. In the case set up the plaintiff and defendants in that suit each drew their conclusions from the same facts, and the plaintiff said the deeds conveyed an absolute title, and defendants then said that the deeds and agreement constituted a mortgage. There is' no admission of a fact here to create an estoppel. Thayer v. Arnold, 32 Mich. 336, 341.
It is set up in defendants’ answer, and urged in appellants’ argument, that the plaintiff corporation is not authorized by its articles of incorporation to purchase mortgages. The question does not arise upon the facts of the case. The whole transaction, relating to these mining claims, shows the purpose of entering into it to be the acquirement of mines for the purpose of operating the same by such corporation. The deed from Taylor and Miles to plaintiff was made to effectuate the objects of such organization, and, under the circumstances of this case, there can. be no question but that plaintiff was empowered by its articles of incorporation to do just what it did do.
Upon all questions of fact affecting the merits of this case there is no dispute. The deeds from defendants and Thompson to Taylor and Miles and the agreement between defendants and Taylor and Miles must be con
The facts alleged and proved clearly entitled the plaintiff to a decree of foreclosure and sale. To warrant a decree of strict foreclosure, where the practice permits such a foreclosure, the evidence should show that the interests of both parties require it. The bill of exceptions does not purport to contain all the evidence, and does not contain any evidence upon this question. This court cannot review the findings of the court below, upon which the decree is based, unless the bill of exceptions brings up the evidence upon which the findings are to be reviewed; and when this is not done, this court will assume that the evidence given was suffi
We concur: Macon, 0.; Stallcup, 0.
For the reasons assigned in the foregoing opinion the judgment of the district court is hereby reversed and the cause remanded, with directions to enter judgment in accordance with the views expressed in said opinion.
Reversed.