12 Colo. App. 465 | Colo. Ct. App. | 1899
Among the various propositions urged by the appellant against Hubbard’s recovery, but one ought to disturb the judgment and that only if the facts bring the case clearly within the statute of limitations. It would be so manifestly inequitable to permit the land company to keep Hubbard’s money without the conveyance or the ability to convey the land which was the consideration for its payment, that no court should hesitate in its conclusions unless staggered by some legal or equitable principle which stops its course.
In 1886, the Platte Land Company had attempted to acquire title to a good deal of land in the vicinity of Denver which was at that time supposed to be included within the limits of the government grant to the Union Pacific Railroad Company. There was some question respecting the
“ It is distinctly understood by the second party, that the*468 patent for all of the above described land is at present withheld from the Union Pacific Railway Company, by the United States government, and therefore the title to the said above described land does not fully rest in the first party to this agreement, and it is hereby agreed by the second party that in case patent shall not be issued to said railway company, for said land, he shall accept and receive back whatever sums of money he shall have paid to the first party under this contract, without demanding any interest thereon and shall also immediately surrender this contract to said first party, and said first party shall be as fully relieved of any and all obligations under this contract, as if this contract had never been made.”
This obligation sets out what the parties agreed on and the conditions and circumstances which led to its execution. There was grave doubt whether the railroad company had title, whether a patent would ever issue to it for the land, and whether the Platte Land Company could ever get the title so as to be able to answer for its part of the engagement. To protect itself, and to protect the purchaser, this agreement, which provided in case patent should not issue, Mulligan should receive back his money without interest, and the company he thereby relieved from its obligation to convey and he from his contract to pay, was a method which the parties provided for the adjustment of any dispute respecting title. It transpired that Mulligan and Hubbard each proceeded to make entry on a quarter section of the land. Such proceedings were had that on the 5th of November, 1889, Hubbard made a cash entry for a quarter section and paid for the land, and in 1890 on the 5 th of December the government patent issued to Hubbard, and letters patent were delivered conveying the northwest quarter of section 21, township 2. The event provided for by the contract occurred. The patent did not issue to the railroad company, but the title of the government did pass to the cash entryman who received the evidence of the government’s title. The second indorsed clause of the amendatory provision of the original agreement became operative.
The land company, which is the appellant, insists that under the terms and conditions of the contract Mulligan forfeited all right to insist on the repayment of the money and lost all claim thereto because he failed to make the annual payments punctually according to the terms of his agreement. We see very little force in this suggestion. We are quite unable to understand how the land company can insist on a forfeiture which is a harsh right unless the company was in condition to carry out and execute its part of the agreement. As we look at it, the company may not insist on forfeiture unless at the same time it was in a condition to convey; the one would in our judgment be entirely dependent on the other; if the land company could never maintain an action for the specific performance of its contract, if it never acquired a title which it could tender and convey on the payment of the consideration money, it never put itself into a condition where it could insist that Mulligan had lost his money because of his failure to comply with the terms of the agreement which it was incapacitated to carry out and execute. The original contract entirely failed, and the consideration on which Mulligan paid his money also failed. The land company received- his money, never gave anything for it, nor was it ever in a condition to enforce payment of the consideration by offering to convey the title. Under ordinary conditions, there having been a complete failure of consideration, Mulligan would have the right to recover unless there was some intervening reason. But the strongest answer to the whole contention respecting the matter of forfeiture is found in the indorsed clause on the agreement.
The land company insists that the court erred in permitting testimony tp be given respecting a waiver of the payment of these various annual sums. It is quite immaterial whether the court erred in permitting that testimony, or whether it was properly received because the error if it were one, was entirely harmless when we determine that the right of forfeiture never accrued to the land company and could not accrue so long as they were unable to make title. The evidence however would seem to be entirely admissible. It is urged in the argument that the agreement between the parties was under seal and that the agreement to waive the annual payments lay in parol, and that it could not be thus proven, nor could the condition of a sealed instrument be thus waived. Whatever may have been the law with reference to sealed instruments in the early times, it seems to be now tolerably and completely settled that the conditions of sealed instruments may be abrogated, waived, or varied by parol and the modifications supported by oral testimony. Especially is this true with reference to the time and condition of payment. Canal Co. v. Ray, 101 U. S. 522; Munroe v. Perkins, 9 Pick. 298; Homer v. The Gruardian Mutual Life Insurance Co., 67 N. Y. 478; Moore v. The Detroit Locomotive Works, 14 Mich. 266 ; McCreey et al. v. Day et al., 119 N. Y. 1.
The evidence therefore was entirely admissible, .and if inadmissible, was harmless.
The only other question, and in fact the only vital one in the cáse, respects the statute of limitations. The contract
It is equally unaffected by the doctrine respecting laches which is frequently invoked in courts of equity, and which is suggested in this case as a bar. The land company has got somebody’s money for nothing, and if the plaintiff has shown a right to recover that money, the land company should be compelled to pay unless they'can exhibit an adequate defense. It is entitled to no sort of consideration on any equitable principle and the court should not feel itself at liberty to apply the doctrine of laches unless the circumstances compel it. This we do not believe. There is no rule or principle in equity with which we are familiar which will permit the land company to defeat the plaintiff’s recovery.
We are unable to discover any errors in the record, and the judgment will therefore be affirmed.
Affirmed.