Rosengrave v. Clelland

16 Colo. App. 474

• Court: Colorado Court of Appeals
• Decided: September 15, 1901
• Docket: No. 2032
• Status: Published

Opinion

Gunter, J.

This action, originating in a justice court upon a covenant in a -warranty deed against taxes, is here from a trial on appeal in the county court. The defense was, that the deed was made in pursuance of a written contract between the grantor therein and a third party; that such contract was assigned to and assumed by the grantee in the deed, the plaintiff below, the appellee here; that such contract contained a provision obligating the contractee to discharge the taxes here in question ; that such clause should have gone into the warranty deed, and that by mistake it was omitted therefrom and the clause obligating the grantor to discharge such taxes included therein; that such facts entitled appellant to a reformation eliminating such covenant for payment of taxes from the deed and were, therefore, a defense hereto. This equitable defense requiring affirmative relief could be entertained only in a court having equitable jurisdiction. A justice of the peace has no equitable jurisdiction under the laws of Colorado. Robinson v. Compher, 13 Colo. App. 343; Am. & Eng. Ency. of Law, vol. 18, p. 31.

This true, the county court acquired no jurisdiction of the defense on appeal. Robinson v. Compher, supra. Judgment affirmed.

Affirmed.