Foster v. Coffey

Mr. Justice Teller delivered the opinion of the court. [172] Defendant in error was plaintiff in a suit to cancel a deed given by Louise Coffey, his wife, one of the plaintiffs in error; for a partition of the land conveyed by said deed; and for a division of certain personal property alleged to be owned by plaintiff and his wife in common. The complaint alleges that the plaintiff is the owner, and in possession, of an undivided one-half interest in certain described lands and water rights, the other half interest being in defendant Louise Coffey, which lands she has attempted to convey to her children by a former marriage, reserving to herself a life estate. The wife’s answer denies plaintiff’s ownership of the land mentioned; and admits the execution of the deed to her children. The other defendants in the suit are the said children, whose answer presents no new issue. Plaintiff, by replication, alleges that in 1899, prior to the marriage of plaintiff and defendant Louise Coffey, the said defendant agreed with the plaintiff that if, after their marriage, he took charge of the farm on which she was at that time living, being the premises described in the complaint, she would convey to plaintiff an .undivided one-half interest therein, if the plaintiff should, in due season, pay a bequest of 81,000.00 made by the will of Louise Coffey’s deceased husband to each of her four children, which said bequests were a charge on the farm. It is further alleged that the plaintiff has performed his part of said agreement, having from the time of his marriage forward, managed the farm in said contract mentioned, and paid the said bequests. Plaintiff testified to the making of the agreement set up in the replication, and to his performance of it. His wife, in her testimony, denied that such an agreement had ever been made. There was a mass of testimony as to the plaintiff’s business operations during the said years. The fact that the bequests were paid in accordance with the alleged agreement was not disputed. It appears that, through plaintiff’s management, a fund was created from which adjoining lands were purchased, which, under the manage [173] ment of the plaintiff, produced valuable crops. The proceeds of these crops, not applied in the purchase of other lands, as well as the proceeds of lands sold, were divided equally between the parties. The wife admitted that plaintiff had, at different times, requested a conveyance to him of one-half of the home farm, thus conceding that he claimed the interest which he now asserts had been promised him. There being a direct conflict of evidence, the trial court might well have decided the case for the plaintiff solely upon the testimony as to the agreement. But there are other facts in evidence, -bearing upon the question in issue, which the trial court might reasonably have regarded as supporting plaintiff’s contention. The charge that the court’s finding is not sustained by the evidence, is, therefore, without foundation. It 'is objected, however, that the replication is a departure, because, it is said, the complaint alleged ownership in fee, while the replication set up an equitable title, derived from a contract executed upon the part of the plaintiff. The complaint did not, in terms, allege title in fee, but merely that the plaintiff was the owner, which language is consistent with an equitable title. We find no reason for holding that there is a departure. That the defendants were not permitted to plead the statute of frauds is immaterial, because the evidence shows that the contract was executed upon the part of the plaintiff. So, though the agreement might have been void under the statute of frauds, it became binding upon the defendant when fully performed by the plaintiff. There is no merit in the contention that the action was barred by the statute of limitations.’ Time is not of the essence of a contract, unless so made specifically, or by the circumstances of the case; and lapse of time is no objection to the specific performance of such contract, where the claimant has been in possession of the property. Byers v. Denver Circle R. Co., 13 Colo. 552, 22 Pac. 951. [174] The evidence supports the court’s findings, and the record shows no prejudicial error. The supersedeas is denied, and the judgment affirmed. Mr. Justice Allen and Mr. Justice Whitford dissent. Mr. Chief Justice Scott not participating.