2 Colo. 89 | Colo. | 1873
I. It is argued that the demurrer put in by the plaintiff in error in the court below, though interposed subsequent to the expiration of the rule given at the previous term, was, nevertheless, in apt time, having been filed before any further steps taken in the cause, and this position seems to be warranted by the cases cited by counsel. Castle v. Judson, 17 Ill. 584; Cook v. Forrest, 18 id. 582; Bingham v. Meries, 7 Cr. 99. The case of Dunn v. Keegan, 3 Scam. 295, seems to countenance the same doctrine.
We agree that where the rule expires in term time and the pleading be interposed before application for default, it may well be considered as filed in apt time, even though after the lapse of the day named in the rule, for in such case the opposite party omitting to take advantage of his adversary’s default, on the first day thereof, may be said to impliedly stipulate that the pleading may still be interposed, that is to say, that the rule shall be so extended to include that day. This is the fair inference from his silence. And this implied stipulation may be said to be renewed with each hour and moment which lapses, so that, if interposed at any time before default prayed, the pleading is in time. This I conceive to be the only reasoning upon which the usage obtaining in the courts in this respect can be supported, for unless a supposed stipulation of parties interposes to excuse the delay, it is in effect to say that the orders of the court in this respect are of no binding force. But it is clear that no such stipulation can be implied to excuse a failure to comply with a rule expiring in vacation, for, in such case, the party to be answered has no opportunity to take advantage of the default until the term sits, his silence in the meantime being enforced cannot give rise to any inference of acquiescence. And not only is the rule when applied in the last case unwarranted by the reasoning which supports it in the former, but it is manifestly against good policy that it should be applied in those cases where the time limited expires in vacation. If, when required to
The section here referred to is only a statutory rule to declare, and is of no more binding force than a like rule of court. Yet this construction of the statute was never indulged, nor, so far as I know, ever contended for. Whatever may be the weight of authority elsewhere, we conceive that a just distinction may be taken between rules to plead expiring in term time, and those which expire in vacation. In the latter case, we think a strict observance of the rule ought to be enforced. Clearly, for cause shown, the court may, in its discretion, excuse the default, and permit the party to interpose his pleading after the lapse of the day named in the rule; but unless some matter of excuse be shown, a pleading filed after the day limited ought not to be regarded, where, as in this case, the plaintiff, at the earliest opportunity, applies to have the pleading taken from the files.
2. It is argued that, by the conveyance of April 30, 1867, the defendant obtained the title which Tubbs, before that, had; and that the obligees in the bond of October 12, 1864, if they desired to perform the conditions thereby imposed upon them, should have applied to the defendant. The payment of the purchase-money to, and the conveyance by, Tubbs, it is said, work nothing; for Tubbs had then nothing to convey; therefore, it is said, there was error in requiring the defendant, to release to the complainant. But this argument omits from view the bond to reconvey, which was executed by Walker to Tubbs, on the 1st day of May, A. D. 1867. This obligation gives to the former conveyance the effect of a mere mortgage; it is as if the condition of the bond had been written in the deed. If the obligation to convey had been conditioned upon payment at the day, or the like, then, in order to entitle the obligee to have performance of the bond, upon payment, at a later day, it might,
So far as the effect of the conveyance by Tubbs is concerned, therefore, Walker was never any thing more than a mortgagee in possession. Whenever his debt was satisfied, by the yield of the mine, or otherwise, he was bound to re-convey; and the obligee, Tubbs, having, by the conveyance of October 11,1869, transferred his equity to the Shocks, the complainants, by their conveyance of November 5,1869, succeeded to all the rights which Tubbs had, and the defendant, on the satisfaction of his debt, was bound to convey to the complainant, whether the Shocks had performed the condition of the bond or not. So far as this argument is concerned, therefore, there was no error in the decree.
But it is to be observed that the decree requires the defendant to release to the complainant the premises “in the deed from the said Tubbs to the said defendant described.” This imports that the defendant shall release all present interest. It is nowhere alleged that Tubbs held paramount or perfect title, or even had any estate whatsoever in the premises ; it does not affirmatively appear that the plaintiff in error received the possession from him ; nor does the acceptance of a bare release, such as the conveyance of April 30, 1867, was, estop plaintiff in error from questioning the title of the releasor. For any thing that can be known then, the plaintiff in error may, since the conveyance from Tubbs, have acquired a superior title from another source. The effect of the release, which by the decree the defendant is required to make, would be to pass out of plaintiff this superior title. In this, therefore, there was error.
3. The decree of the district court directs that the defendant,, on demand, surrender to the complainant possession
Again, if we look to the exhibits to aid the bill, it would seem that we must give effect to every thing which appears there, whether favorable to the plaintiff or otherwise ; and
So far as the decree directs an absolute release by the •defendant, Walker, and a surrender of his possession to ' the complainant, the decree is beyond the allegation of the bill, and must be reversed; and if the decree of this court shall go no further than this, all questions presented by the present record will have been completely resolved. Inasmuch, however, as to pause here will leave the controversy between these parties still undetermined, and will require the complainant to renew the litigation in another form, we shall reverse the decree in all things, and remand the cause with direction to the district court to allow the complainant to file an amended bill.
Reversed.