contention of plaintiff error in Colorado

1958In Walton v. Wormington, 89 Colo. 355 , 2 P. (2d) 1088 , this court said: “There is no merit in the contention of plaintiff in error that the will creates a trust or a spendthrift trust.

1958In Walton v. Wormington, 89 Colo. 355 , 2 P. (2d) 1088 , this court said: “There is no merit in the contention of plaintiff in error that the will creates a trust or a spendthrift trust.

1950This precise point was considered by the supreme court of North Dakota in State ex rel. v. Hall, 44 N.D. 459 , 171 N.W. 213 , and there determined adversely to the contention of plaintiff in error.

1950This precise point was considered by the supreme court of North Dakota in State ex rel. v. Hall, 44 N.D. 459 , 171 N.W. 213 , and there determined adversely to the contention of plaintiff in error.

1942It is true, as stated by counsel, that the conditions of a deposit in escrow may be written or oral, or partly written and partly oral, but where, as here, “a written escrow agreement sets forth the conditions upon which the deed shall be delivered, it will be deemed to contain the entire agreement, and a prior or contemporaneous oral agreement prescribing different or additional conditions is not admissible.” Gardiner v. Gardiner, 36 Ida. 664 , 214 Pac. 219 .

1942It is true, as stated by counsel, that the conditions of a deposit in escrow may be written or oral, or partly written and partly oral, but where, as here, “a written escrow agreement sets forth the conditions upon which the deed shall be delivered, it will be deemed to contain the entire agreement, and a prior or contemporaneous oral agreement prescribing different or additional conditions is not admissible.” Gardiner v. Gardiner, 36 Ida. 664 , 214 Pac. 219 .

1941The common-law rule undoubtedly is in accordance with the contention of plaintiff in error. 33 C.J., p. 1111, §65, citing Bissell v. Cushman, 5 Colo. 76 .

1928As supporting this contention of plaintiff in error, see the following cases: Crawford County Com’rs v. Strawn, 157 Fed. 49 , 15 L.

1928It must be admitted that Hall v. Beymer, 22 Colo. App. 271 , 125 Pac. 561 , lends countenance to the contention of plaintiff in error, as it appeared in that case that the trust fund, which was in the form of a draft, was used by the insolvent bank to apply on its indebtedness to a correspondent bank.

1928It must be admitted that Hall v. Beymer, 22 Colo. App. 271 , 125 Pac. 561 , lends countenance to the contention of plaintiff in error, as it appeared in that case that the trust fund, which was in the form of a draft, was used by the insolvent bank to apply on its indebtedness to a correspondent bank.

1925Starbird v. Cranston, 24 Colo. 20 , 48 Pac. 652 .

1925Starbird v. Cranston, 24 Colo. 20 , 48 Pac. 652 .

1925It is conceded that if the facts were only such as thus far mentioned the contention of plaintiff in error would have to be upheld, and the judgment reversed, under the authority of Smith v. Davis, 67 Colo. 128 , 186 Pac. 519 , where this court said: “It is settled in this jurisdiction that a grantee of land who assumes and agrees to pay a note secured thereby, may be sued directly by the holder of such note.

1920In Heckman v. Manning, 4 Colo. 543 , it is said: “The doctrine that a release of one of two or more joint, or joint and several obligors or promisors operates to release the others, is a common-law rule which has been so long and well settled in its application by the courts of this country, as to be elementary.” Citing Benjamin v. McConnel, 4 Gilm.

1918In the case of German-American Insurance Co. v. Hyman, 42 Colo. 156 , 94 Pac. 27 , 16 L.

1917It is not necessary where by its nature a covenant runs with the land that it shall contain the word ‘assignee’ or ‘assigns.’ ” To sustain the contention of plaintiff in error that the assumption of all current liabilities does not include liability on the lease he cites State v. County of Marion, 21 Kan. 419 , and The Matter of Assignment of Henover, 70 Hun. 56 , 23 N. Y.

1917It is not necessary where by its nature a covenant runs with the land that it shall contain the word ‘assignee’ or ‘assigns.’ ” To sustain the contention of plaintiff in error that the assumption of all current liabilities does not include liability on the lease he cites State v. County of Marion, 21 Kan. 419 , and The Matter of Assignment of Henover, 70 Hun. 56 , 23 N. Y.

1917It is not necessary where by its nature a covenant runs with the land that it shall contain the word ‘assignee’ or ‘assigns.’ ” To sustain the contention of plaintiff in error that the assumption of all current liabilities does not include liability on the lease he cites State v. County of Marion, 21 Kan. 419 , and The Matter of Assignment of Henover, 70 Hun. 56 , 23 N. Y.

1917Such compensation shall be ascertained by a board of commissioners, of not less than three freeholders, or by a jury, when required by the owner of the property, in such manner as may be prescribed by law, and until the same shall be paid to the owner, or into court for the owner, the property shall not be needlessly disturbed or the proprietary rights of the owner therein divested.” Of this constitutional provision it was said in Dolores No. 2 Land and Canal Co. v. Hartman, 17 Colo. 138 , 29 Pac. 378 : “Section 15 of the Bill of Rights declares, inter alia, ‘that private property shall not be

1916This question has been expressly determined as against the contention of plaintiff in error in the case of Perkins v. Marrs, 15 Colo. 262 , 25 Pac. 168 .

1916But Judge Bis-sell in his dissenting opinion asserted the rule applicable in such cases to be: “In cases of this sort the true rule is ‘that which the law will say a contracting party ought in reason to be satisfied with, that the law will say he is satisfied with. ’ Duplex Safety Boiler Co. v. Garden, et al., 101 N. Y. 387 , 4 N. E. 749 , 54 Am.

1916But Judge Bis-sell in his dissenting opinion asserted the rule applicable in such cases to be: “In cases of this sort the true rule is ‘that which the law will say a contracting party ought in reason to be satisfied with, that the law will say he is satisfied with. ’ Duplex Safety Boiler Co. v. Garden, et al., 101 N. Y. 387 , 4 N. E. 749 , 54 Am.

1916This judgment was affirmed by the Court of Appeals, 25 Colo. App. 540 , the court rejecting the contention of plaintiff in error that the defendant had in his answer admitted being in possession in 1902, and hence was bound to pay the tax of that .year; and that he could, therefore, acquire no title under a tax deed on a sale for those taxes.' "The Court of Appeals held that, inasmuch as the plaintiff by his objection excluded on the trial the tax deed of 1899, and thereby prevented proof of title under which defendant would have had at least constructive possession, he cannot now properly cla

1913Tappen & Noble, 2 Speer, (S. C.) 536; Smith v. Turner, 33 Ore. 379 , 54 Pac. 166 .

1913Tappen & Noble, 2 Speer, (S. C.) 536; Smith v. Turner, 33 Ore. 379 , 54 Pac. 166 .

1913In principle at least the following authorities are against the contention of plaintiff in error. —McCowen v. Few, 12 Cal. Ap. 482, 123 Pac. 354 ; Harwood ads.

1911The case at bar is, in principle, decided against the contention of plaintiff in error here in Hurtgen v. Kantrovitz, 15 Colo. 442 .

1910In Schwartz v. People, 46 Colo. 239, 281 , we expressly held that, though a precinct in a given ward may refuse to become anti-saloon territory, the ward of which the precinct is a'part may, nevertheless, immediately thereafter, without reference to the twenty-three months ’ limitation, vote upon the question of becoming anti-saloon territory, and, if the vote he in the affirmative, the “ward thereupon becomes anti-saloon territory throughout its entire extent, covering the included precinct; because it is expressly provided that, when any subdivision votes to become anti-saloon territory, it

1902But if the decision of the secretary of the interior in this case can, by any canons of construction, be considered authority for the contention of plaintiff in error here, that a prospector may, without restriction, within the limits of a prior valid placer claim, prospect for, and thereafter lawfully locate, lodes not known to exist at the time of the application for a placer patent, its binding effect would seem to be overcome by the" decision of the supreme court of the United States in Bennett v. Harkrader 158 U. S. 441 , and in many other decisions of that and other courts.

1900State v. Warner, supra, is cited as probably the strongest case in support of the contention of plaintiff in error.