48 Colo. 163 | Colo. | 1910
delivered the opinion of the court:
Appellant, as plaintiff, brought suit against the appellees, as defendants, to cancel a contract to sell certain real estate which he had entered into with the defendant Immel. The defendant Winegar, as assignee of the contract, filed a cross-complaint, asking for its specific performance. The judgment was in favor of Winegar, from which the plaintiff appeals.
The stenographer’s notes taken at the' trial were lost; consequently, counsel for plaintiff has not been able to present all the testimony, but contends that from the record proper, the pleadings, the exhibits introduced in evidence, and the decree,, errors are apparent which should reverse the judgment. Under the issues made by the pleadings the ultimate question presented, was, did Winegar make a case which entitled' him to a decree for a specific performance of the contract which plaintiff sought to have canceled? The court found the issues of fact in favor of this defendant, and it being admitted
But as counsel for plaintiff has urged upon our attention propositions which, .he contends, the record presented discloses for our consideration, we will take them up in the order presented by his brief.
In his complaint plaintiff set out the contract which he sought to have canceled. By this contract the plaintiff agreed to sell, and the defendant Immel to purchase, certain described real estate upon terms and within a time prescribed. This contract was assigned by Immel to the defendant Winegar, and on behalf of plaintiff it is urged that delay on the part of Winegar to comply with its provisions, and a refusal to accept the title which plaintiff offered to convey, precludes him from the relief of specific performance; and that if he had any cause of action it was limited to one for damages. In determining these questions, we- can only look to the pleadings, for the reason that all the testimony is not before us.
The contract is dated July 20,1905, and provided that the purchase should be consummated on August 20th following, at which - time, on paying the part, and securing the remainder of the purchase price, as agreed upon, the plaintiff should execute a deed conveying the premises agreed to be sold, free from all incumbrances. It further provided that on failure of Immel to comply with its terms it should be forfeited at the election of the plaintiff upon his giving Immel ten days’ notice of his intention so to do. The complaint avers that on the 9th of September, 1905, the parties to the contract, .by written indorsement thereon, extended it for ten days, in
By cross-complaint the defendant Winegar al-' leged, in substance, that plaintiff did not have, at the time of making the contract or at any time thereafter, until shortly prior to the commencement of this action, a clear and marketable title to the premises agreed to be conveyed; that his attention was called to the defects in the title; that he then requested time within which to perfect it, which was granted, as was stated in his complaint. It is then alleged that plaintiff did not, within the time mentioned in his contract, nor within the extension thereof, perfect his title to the premises, or render the same marketable; that prior to the 19th day of September, 19.05, Immel. notified the plaintiff that he was ready, able and willing to carry out and fulfill the contract upon his part, and to comply with all the terms and conditions thereof, and on that day tendered him the cash payment mentioned in the contract, and offered to execute notes and deed of trust for the remainder of the purchase price in accordance with its provisions as soon as he (the plaintiff) was ready to furnish him with a good or marketable title to the premises which he had agreed to convey, and that plaintiff then and there, and many times thereafter, promised' and agreed to perfect his title and to render the same marketable, before the defendants
Winegar then alleges that he and Immel, and each of them, at all times since the' execution of the contract, have been and still are ready, willing and able to carry out and fulfill its terms and conditions, but that plaintiff refuses and at all times has refused, to furnish a good and marketable title.
By answer to the cross-complaint and amendment thereto the plaintiff put in issue the affirmative allegations thereof, or pleaded facts the purpose of which was to excuse and relieve him from a compliance with the contract in response to the allegations upon which Winegar based his right to its specific performance. It thus appears from the averments of the cross-complaint that the delay on the part of Winegar to consummate the purchase was occasioned by the inability of plaintiff to convey a good title, and that he requested time within which to remedy its defects; that he promised and agreed to do so, and- further promised and agreed that Winegar would not be called upon to comply with its provisions until he had perfected his title. True, these averments were in issue, but they were found in favor of Winegar, thus determining a fact conclusive upon us, that plaintiff was the party responsible for the delay in consummating the contract. When the delay in carrying out a contract for the sale and purchase of real estate occurs without fault of the party seeking to enforce it, such delay is no defense to an action for specific performance. — Pomeroy on Specific Performance (2d ed.), § 405; Md. Construction Co. v. Kuper, 90 Md. 529; Keim v. Lindley, 30 Atl. (N. J.) 1063.
The contention of counsel for plaintiff that Winegar was limited to an action for damages, is based upon the ground that it appears from the
It is next urged, as we understand the argument of counsel for plaintiff, that the defendant Winegar was guilty of such laches as to preclude him from a specific performance of the contract. The argument on this proposition appears to be based upon the avérments of the cross-complaint. This is equivalent to asserting that the cross-complaint exhibits unnecessary delay on the part of Winegar, and that
Hence, we cannot consider this question from the averments of the cross-complaint. Any alleged unnecessary "delay of "Winegar to comply with his contract which plaintiff may have relied upon to defeat a specific performance as stated in his answer to the cross-complaint was determined against him by the trial court, and this phase of the question is not open for our consideration when all of the evidence is not before us. ■
For the purpose of showing plaintiff’s title and establishing that it was perfected such a length of time before suit was commenced or the. defendants were guilty of such delay in complying with the terms of the agreement to purchase by setting up trifling or vexatious objections to the title that specific performance should have been denied, plaintiff introduced an abstract of title to the premises described in the contract. All the testimony not being, before us, we cannot consider the abstract for the purpose of determining these questions.
It is next urged that the cross-complaint does not tender an issue on the subject of title because on this question conclusions of law and not ultimate facts are pleaded. No such question was raised below. An objection made for the first time on review by appeal is not regarded with favor by the appellate court, even though it is one which may be raised at any time.—Mulock v. Wilson, 19 Colo. 296. At
The contract of sale contained the following provision : “And the said party of the first part (plaintiff) on receiving such payment at the times and in the manner above mentioned, agrees to execute and deliver to the said party of the second part or his assigns a good and valid warranty deed for the conveying and assuring said party of the second part and the title to the above described premises free from all incumbrances.” Under this clause it is urged that plaintiff was under no obligation to convey a perfect title, but that the execution and delivery of a warranty deed would satisfy the contract, even though a perfect title was not conveyed, and that the demand of Immel for a good title and his refusal to accept any other deprived him, as well as his assignee, Winegar, of the right to enforce specific performance. The vendee under an executory agreement to purchase real estate has a right to insist upon a marketable title — that is, one without defects of which he can lawfully complain, unless he has expressly agreed to take such title as the vendor may be able to convey.—Godding v. Decker, 3 Col.
Under tke clause in question tke vendee did not agree to accept anything less than a good title; consequently, it must he implied that plaintiff agreed to convey that character of title.
Dargin v. Cranson, 12 Col. App. 368, cited hy counsel for plaintiff, is readily distinguishable from the case at bar. In that case the subject of sale was an interest in a mining claim, which had not been patented, and it was held that by virtue of the contract relating to the sale, the vendor only agreed to convey his possessory title. The other cases cited by counsel for plaintiff are also clearly distinguishable from the one under consideration. They relate to the form of deeds, or when a covenant of warranty is limited to the title of the grantor, or where the vendor only stipulated to convey his right, title and interest in premises which he had contracted to sell.
It is next urged on behalf of plaintiff that as the contract provided he could cancel it, and that as he did elect to cancel it in conformity with its provisions, and the defendant Winegar had failed to act in response to the notice of cancellation within the time he should have acted, that, therefore, he has lost all right to claim a specific performance of the contract. On account of the absence of all the testimony, this question is eliminated. • The cross-complaint alleged, and the court determined as a fact, that plaintiff, after the service of the notice upon which he relies, repeatedly requested time to complete his title, and promised to carry out the contract as soon as he had perfected his title to the premises which he had agreed to convey, and that Winegar accepted and relied upon these promises. From this
The decree entered by the court recites that -all the material allegations in the cross-complaint are true; that all of the material allegations of the complaint controverted by the answer are not true; that at the time of the execution of the contract of sale plaintiff did not have a good or merchantable title to the premises therein described, and did not have such title until some time subsequent to the commencement of this action. This decree is attacked because, instead of making specific findings of fact, it recites that the allegations in the cross-bill are true, and the material allegations in the complaint controverted by the answer are not true. In this respect the decree is not a model. The better and more comprehensive form is to recite the findings of fact, and not refer to the allegations of the pleadings in' the why adopted; but this defect does not justify a reversal. In the absence of specific and unambiguous findings of fact to the contrary, appellate courts must assume that the lower court intended to find those facts which are responsive tó the issues made by the pleadings and essential to the judgment rendered.—Fanny Rawlings M. Co. v. Tribe, 29 Colo. 302; Persse v. Gaffney, 5 Col. App. 374.
And so, from the decree,' although informal, we must hssume that the court found the facts at issue under the pleadings in favor of the defendant Wine-
The decree is also attacked upon the ground that relief-in the way of specific performance should not he granted after an unreasonable delay; that it created a new contract for the parties; that it contradicts the allegations of the cross-complaint; rand that the contract upon which it is based fails to show a covenant upon the part of plaintiff to convey a marketable title. Prom the questions already disposed of, all these propositions are eliminated, except those urged to the effect that the decree created a new contract for the parties, and contradicts the allegations of the cross-complaint. The decree pro^ vides, in substance, that within thirty days from the date of its rendition Winegar should pay into the registry of the court, for the use and benefit of plain•tiff, the sum of $775.00, the balance of the purchase price' of the premises described in the contract; that within that period and upon payment of the above mentioned sum into the registry of the court plaintiff should make, execute, acknowledge and deliver to the clerk of the court, for the use of Winegar, a good and sufficient deed of conveyance,' conveying to' him the premises described in the'contract; that such conveyance should be a warranty deed in the form usually employed in this state, and should convey such premises free and clear of incumbrances and taxes. The decree then provides that if plaintiff shall so elect and signify such election by serving a notice on the defendant Winegar and filing it with the clerk within fifteen days from the date of the rendition of the decree, the defendant shall, 'instead of the payment above "provided, and within the time above mentioned, pay to the clerk for the use of plaintiff the sum of $241.67, and make, execute and
Except in.so far as it provides for the payment of the whole of the purchase price, the decree is in strict conformity with the terms and conditions of the contract which it decreed should be enforced. The purchase price was $800.00. Twenty-five dollars was paid at the time of its execution, which would leave a balance of $775.00. The contract further provided for notes secured by deed of trust on the premises for the respective amounts provided in the alternative in the decree, if plaintiff elected to take such .notes instead of the cash, such notes to run- for the length of time provided in the decree, and to be subject to a discount of six per cent, if paid before maturity. But counsel- for plaintiff contends that he should have been awarded interest at the rate of six per cent., either on the cash payment or on the notes provided, from the date the cash was to be paid, and the notes executed as provided in the contract. It does not appear that the defendants or either of them were ever in the possession of the premises which the plaintiff agreed to convey. On the contrary we -think it is fair to assume from the pleadings of the plaintiff, and also from the statements of his counsel in
It is also the law that where the postponement of the execution of a contract for the sale of real estate has been occasioned by the misconduct of the vendor, the purchaser shall have the same length of time in a decree for the specific performance of such contract for the payment of the purchase money that the contract of sale provides.—King v. Ruckman, supra. This identical question was under discussion in the case above cited, which was an action for the specific performance of a contract to sell real estate. The decree provided that on the execution of - a conveyance by the vendor a mortgage should be executed
‘ ‘ This part of the order is put in dispute by the defendant on the ground that this works an alteration of the contract, and that all that the court can rightfully do on a bill of this character is to order the agreement, such as it was, to be specifically performed. But this objection certainly is not tenable. The contract on this point cannot now be carried into effect. The stipulated time for the giving of the title on the one side and the mortgage on the other has gone by, and is irretrievable. Prom the necessity of the case there must be something substituted in this' respect for what the parties agreed. It is impracticable to execute the contract in this particular except qpon the doctrine of cy pres. The decree in this feature of it, g’oes upon the theory that the stipulation for time for the payment of the residuum of the price after the acquisition of the title by' the purchaser was a substantial part of the agreement, and it seems to me that.this is well founded in the merits of the case. After a vendee gets title and the possession he is then in a position to _turn the land to account in the way of raising money.' He can, either in whole or in part, sell or mortgage it. The complainant in this case was, by force of his agreement, entitled to this advantage, and I, therefore, entirely assent to the view of the Vice Chancellor, that he ought not to be deprived of it by the misconduct of the other party. ”
If an objection could be successfully interposed to the decree for the- reason that it provided for the payment of the whole of the purchase price in cash (no such provision being in the contract), it is cured
The decree is also assailed upon two other grounds: (1) Winegar is relieved from paying taxes which he would have been required to pay had the purchase been consummated within the time prescribed by the contract,- and (2) that Winegar was allowed thirty days within which to comply with the
From the record before us it appears that- the judgment of the district court is correct, and it will, therefore, stand affirmed. Affirmed.
Chief Justice Steele and Mr. Justice White concur.