Petri v. Doughty

75 Colo. 551 | Colo. | 1924

Mr. Chief Justice Teller

delivered the opinion of the court.

Defendant in error brought suit in the county court of Delta county against plaintiff in error on a contract by which she sold to the defendant in the action her right in a desert land entry.

The complaint sets up the making of the contract, and that the defendant made the prescribed cash payment, but declined to execute a note for the remainder of the purchase price agreed upon, or to secure the same upon the land, as agreed. The agreement provided that a balance of $1,500 should be evidenced by a note of that amount, and that it should be secured on the land as soon as proof was made thereon, if not sooner paid. The contract was entered into in January, 1912, and the complaint alleges that proof was made in December, 1919. The answer admitted execution of the agreement and the conveyance of the land, and sets up the statute of limitation.

The prayer of the complaint was for a mandatory injunction, requiring the defendant to execute a mortgage on the property to secure the balance due, and that the defendant be required specifically to perform his contract by executing such mortgage. Complainant waived all claim above §2,000. The court found for the plaintiff, holding that the contract became an equitable mortgage, when the final proof had been made on the entry, and directed a foreclosure of the mortgage. Plaintiff in error relies upon three points: First, want of jurisdiction; second, the statute of limitations; third, that the decree is contrary to law.

On the first point it is contended that this was a suit for mandatory injunction, which the county court has no authority to grant. Section 5770, C. L. 1921. It is true that the prayer was for a mandatory injunction, but it asks also that specific performance of the contract be ordered. It is well settled that a court of equity may grant any relief to which a complainant is entitled under the allegations of the complaint, and the proof introduced in support thereof. The prayer of the complaint is not controlling. The court, therefore, had jurisdiction of the cause since the complaint sets up grounds for equitable relief.

Further objection is made that the court is without jurisdiction because the complaint did not allege that the value of the property was less, than §2,000. The complaint, if defective in this respect, was aided by the answer which alleges that the property is not worth §1,500.

The note having been due more than six years before the beginning of the suit, it is claimed that it is barred by the statute of limitation. The trial court having, rightly as we think, found that this is a suit in which it is proper to direct a foreclosure of an equitable mortgage, it follows that the barring of the note does not bar a suit on the contract. No action to compel performance of the contract to give the mortgage was possible until proof had been made under the entry. It is wholly immaterial whether the delay was due to the defendant, or to causes over which he had no control; the result is the same in either case. The statute could not run until the right of action had accrued.

In Folda Real Estate Co. v. Jacobson, 75 Colo. 16, 223 Pac. 749, this court held that the statute of limitations barred action on the note but did not constitute a bar to the debt itself. This would seem to be conclusive upon this point, but without that ruling we are of the opinion that the bar did not act upon the agreement in the contract and therefore that the decree of .foreclosure is valid.

The third point is based upon the two points discussed and therefore needs no consideration.

The judgment is accordingly affirmed.

Mr. Justice Whitford and Mr. Justice Denison concur.