Atkinson v. Tabor

11 Colo. 277

• Court: Supreme Court of Colorado
• Decided: April 15, 1888
• Status: Published

Opinions

Stallcup, C.

Did the attempt of the appellees to detain in the hands of the bank the purchase money paid in the manner and for the purpose' shown subject them to a cancellation of their deeds of conveyance, and a return of the property conveyed thereby? The appellants affirm the same, for the reasons, as they contend, that the said payment to the bank was not a bona fide payment, and that the said injunction order obtained was an “abuse of process.” But, in view of the evidence, this position is untenable for these reasons: The payment of the purchase money to the bank was for the appellants, and to their credit, was an unconditional payment, and was made according to the escrow conditions. By such payment the bank was authorized to deliver the deeds, and, when the bank was so authorized to deliver, the appellees were authorized to receive the same. Notwithstanding the proceedings for the writ of injunction were concurrent with the performance of the escrow conditions, the money so paid by the appellees was thereby, and ever since has been, treated by appellees as the money of appellants. There was no abuse of process in the premises, for the reason that no advantage was obtained by force of the writ itself; that is to say, the act complained of — the delivery of the deeds — was not procured thereby. The findings and the weight of the evidence are to the effect that the sole purpose of the writ was for indemnity for the deficit, and not for procuring the delivery of the deeds, and that the purchase money had been paid bona fide for delivery thereof.

The Bruckman claim was sufficient to cause apprehension, and a desire to avoid trouble and possible loss thereby. The acquisition thereof at an outlay of $25,000, the voluntary and unqualified dissolution Of the injunction, and offer of dismissal of the cause by appellees thereupon, leaving themselves liable upon their bond for any injury caused thereby, together with the direct and uncontradicted evidence of the appellees, seem to be sufficient to warrant the findings of the referee of the bona fides of the payment of the purchase money, as well as the entire want of equity to sustain the cross-complaint. Our Code of Oivil Procedure provided for the speedy hearing of motions to dissolve such injunctions in term time or in vacation, so that a speedy dissolution or modification of this injunction was at all times easily attainable if the same was wrongfully issued. Why this line of procedure was ignored by the appellants, and why they stood by and waited for nearly four months before electing to pursue the course they have pursued, are matters we need not consider, as they apply only to the question of laches; and, as we have seen, there never was any right to the relief demanded by appellants in their cross-complaint, that question is not necessarily in the case.

By stipulation duly made it was provided that the evidence should be taken by a notary public, and accordingly submitted to the referee. The hearing was accordingly had before the referee. It appears that.the oath taken and subscribed to by the referee bears date only two days prior to the day upon which the report was filed. The objection is here made that the oath should have been taken and filed by j;he referee prior thereto. This objection was waived by action of the parties in proceeding without question thereof. Keator v. Plank-Road Co. 7 How. Pr. 41. Besides, such incident would be insufficient to warrant a reversal here, for the reason that the judgment order of the court denying the relief demanded by appellants is sustained by the weight of the evidence, and therefore should be affirmed.