14 Colo. 75 | Colo. | 1890
delivered the opinion of the court.
The complaint in this case averred, among other things, that on the 12th day of March, 1884, Brunk made and executed to one Gorton his promissory note for $2,500, payable in two years, with interest at the rate of eight per cent, per annum; that at the same time Brunk
The complaint further alleged “that, in writing the said special condition above mentioned, the said defendant Brunk left out, by mistake, inadvertence or fraud, the words, ‘the said property above described,’ after the words, ‘a special lien upon;’ that such mistake was not discovered by the said Gorton or defendant Brunk until-after the recording of the said title-bond, which was recorded on the 17th day of March, 1884, in Book 51 of Deeds, on page 277, of the records of Summit county, Colo.; that it was the intention of the defendant Brunk to give to the said Gorton a lien upon the said property above described, for the payment of the said note of $2,500, and a good security upon such mining property for the payment of the said note, but that, through mistake, inadvertence or fraud, the bond was drawn, executed, acknowledged and delivered with the said words, ‘the property above described,’ left out; ” that the alleged claim or interest of the remaining defendants in the
The prayer was that the instrument be reformed so as to express the full intention and meaning of the parties thereto; also that, unless the note and interest be paid, a decree of foreclosure be entered in accordance with law.
To this complaint a demurrer was filed and sustained. Judgment being entered upon these pleadings in favor of defendants, the present appeal was taken.
The purpose of the parties in executing the instrument described by the complaint is too clear to be misunderstood. A cursory examination of this instrument shows clearly that, while intended to be a title-bond, it was also designed to operate as a mortgage up on the premises mentioned, securing payment ‘ofthe $2,500 note. The SO-called “special condition” is not worded in accurate legal terms; it was written by Brunk, who was not a lawyer; but it declares that the bond “shall be and remain a special lien upon, and for the payment of, a certain promissory note,” etc. - Lien upon what? No one •could read the language employed without being impressed with the certainty that some words were omitted, but no real doubt could exist as to what the omission related. The natural and reasonable inference, from the entire context of the writing, is that the intention of the parties was to create a valid incumbrance upon the real •estate previously therein described. It is hardly necessary to remind counsel that we are not here dealing with a case where no property is described in any part of the writing.
By the assignment of the note to Smith, the security, •such as it was, passed also to him. Were Brunk the only
We do not discuss the question of misjoinder of parties. If plaintiff is entitled to a mortgage lien upon the premises, subsequent purchasers or incumbrancers are certainly proper parties to his action for reformation and foreclosure.
The court erred in sustaining the demurrer. The judgment is accordingly reversed and the cause remanded.
jReversed.