Norris v. Colorado Turkey Honestone Co. , 22 Colo. 162 ( 1896 )

Mr. Justice Campbell

delivered the opinion of the court.

A number of errors have been assigned by the appellant relating to the rulings of the court upon the admissibility of evidence, to the insufficiency of the evidence to sustain the findings and decree, to the insufficiency of the complaint, and to the denying of appellant’s motion for a nonsuit.

The contention of appellee is that we cannot i*eview the evidence for the purpose of determining its sufficiency to support the findings and decree, because appellant saved no exception to the final judgment. This court has repeatedly so held, and the authorities are collected in the case of Jerome v. Bohm, 21 Colo. 322.

We are not satisfied that the complaint sets up with sufficient precision such a mutual mistake as would entitle the original grantees to a reformation of the deed, or that it clearly appears that the strip of land described in the complaint was, as a matter of fact, intended to be conveyed by the grantor; but, on the contrary, giving to the complaint the utmost plaintiff can claim, we are of opinion that the appellant never intended to convey anything but the northwest quarter of the northeast quarter of section 12, — certainly never intended to convey a forty acre tx-act carved out of the larger tract, disregarding entirely the government subdivisions. Such being the case, merely because of the alleged fraudulent representations made by the appellant that the hotel site, quarry and mouth of the canon were within this forty acre tract so conveyed, plaintiff had no right to a deed for an entirely different forty acre tract out of the larger tract including these desired things. For such fraud, if established, it is true, there is a remedy, but it is not a reformation of the deed, which, in effect, is to compel a conveyance from the grantor of something which she never intended to convey, as a punishment for her alleged misrepresentations, but rather the remedy is a rescission of the contract or a suit for damages by the grantees against their grantor. There are, however, other insufficiencies in the complaint which bar a recovery.

The action, as stated, is founded upon a mutual mistake of the grantor, Norris, and her grantees, Durbin and Casey, whereby a forty acre tract of land was conveyed which it was neither the intention of the grantor to sell, nor of the grantees to buy, but the real intent and purpose was, on the one side to sell, and on the other to buy, a forty acre tract of land including “ the mouth of the canon, the quarry, and the building site.”

In her deed to Casey and Durbin there was described as the subject of the grant the northwest quarter of the northeast quarter of section 12. In conveying to Porter, Casey and Durbin described the same tract which was mentioned in the deed to them, and in the deed from these three to the appellee company the same description is found. If, as is claimed, by conduct which, in law, is a fraud upon the part of appellant, her grantees paid their money, and took a deed, for land different from, or of less value than, that which both parties intended should be transferred, these grantees have their remedy against their grantor. If this right of action, whatever it may be, is assignable at all, it cannot be transferred merely by a conveyance of the land, and it is not one of the implied covenants of the deed; for such right to sue is not a covenant running with the land, but is personal. Hence, to effect an assignment, there must be employed apt and appropriate' words.

There is no claim that this right, or cause, of action was ever assigned, as such, by appellant’s immediate grantees to the appellee; but, on the contrary, the theory of the complaint is that this right of action passed from appellee’s grantors to it as a covenant running with the land. But such is not the law.

• It is doubtless true, as a general rule, that the assignee of property takes it subject to all the obligations and liabilities, and clothed with all the rights, which attach to it in the hands of the assignor; and that a purchaser ordinarily will be subrogated to all the rights of the vendor in the property, even though they are not expressly conveyed to him. Broom’s Legal Maxims (8th ed.), 472; Sheldon on Subrogation, sec. 34.

But the facts of this case do not bring it within the application of the foregoing authorities. A grantee’s cause of action against his grantor for such misrepresentation as was made by the appellant in this case is a personal one, and does not pass to any subsequent purchaser from the grantee. Ordinarily, a mere right of action which has become vested in his grantor, such as an action for deficiency in the quantity of the land, or (as in this case) an action for conveying, as the result of a mutual mistake, land other than that which it was the intention of both parties should be conveyed, and which entitles the vendor to an action against the original owner for such deficiency, or such mistake, will not extend to the purchaser whose deed merely describes the same land as conveyed to his original grantor. Sheldon on Subrogation, sec. 37; Collins v. Suau, 7 Robt. (N. Y.) 623; Willoughby v. The Middlesex Co., 8 Metc. 296; Lawrence v. Montgomery et al., 37 Cal. 183 ; Davis v. Clarh, 33 N. J. Eq. 579; Chambliss v. Miller, 15 La. Ann. 713.

The mere fact that the appellant’s grantors are defendants here, and in their answer disclaim any rights adverse to appellant, is not equivalent to an allegation of an assignment to it of their rights, nor does it supplement the complaint so as to make it complete in this respect. An examination of the answer shows that this defect in the complaint is not thereby-cured .

There can be no pretense in this case that the plaintiff’s grantors at the time they purchased from the appellant were acting for 'it, or in its behalf. It was incorporated after these transactions took place, and there is nothing in the record to show that its formation was contemplated at the time of the original transfer, nor that it has any rights other than, or different from, those of any other grantee under a deed of conveyance.

Because of the insufficiency of the complaint the decree below cannot stand. The judgment and decree should, therefore, be reversed and the cause remanded, and it is so ordered.

Reversed.