Shannon v. Timm , 22 Colo. 167 ( 1896 )

Mr. Justice Campbell

delivered the opinion of the court.

This controversy may best be presented by considering the defenses interposed by the defendant, which are, first, that the words contained in the deed from Bumann to the plaintiff in relation to the right of way do not amount to a grant in prcesenti, but at most are only a covenant to execute a deed for the right of way at some future time, and that for this reason the plaintiff’s only remedy is by an action at law against her grantor for damages for failing to execute his agreement; second, if this is not true, that the appellee is estopped by reason of silently standing by at the trustee’s sale made at her instance and request, and not informing the plaintiff of the claim which she now asserts.

Under the facts of this case we are relieved of the necessity of determining whether or not this right of way is a continuous or discontinuous easement, whether apparent or nonapparent, and so whether or not the defendant who holds the servient estate took charged, or not charged, with notice of the existence of the easement as depending upon the nature of the same. Nor do we think that the proposition advanced by defendant, that there was no grant of this easement in the deed of-Bumann to the plaintiff, has any weight.

The law endeavors to give effect to the intention of the parties, whenever that can be done consistently with rational construction; and, if necessary to that end, an agreement to convey may sometimes be held to be equivalent to a grant. Here the proposed alleyway was designated by a clear and unambiguous description in the deed itself. The grantor reserved to himself the naked legal title of the ground over which the right of way was to be enjoyed, which was to be used “ so long as the grantee, her heirs and assigns, should require the same for such purpose.”

' Nothing further by the parties to this instrument was required to be done to give to the grantee the rights which she had purchased, and for which she had paid the consideration. This language in itself is sufficient to pass to the grantee this private way. Stetson v. Curtis, 119 Mass. 266; Williamston, etc., R. R. Co. v. Battle, 66 N. C. 540-546; Smith v. Worn, 93 Cal. 206; Parker et al. v. Nightingale et al., 6 Allen (Mass.), 341.

But suppose it was not. Certainly there appeared on record an agreement for the conveyance of a private wajq to compel specific performance of which contract an action lies both against the grantor, Bumann, and his remote grantee, the defendant, who is charged with notice of the recorded deed.

The estoppel in pais urged here does not arise for various reasons. The defendant well knew from the plaintiff’s recorded deed that an attempt, at least, had been made to create the easement of a private alley for her benefit upon the land which he proposed to buy; and when he negotiated with Mrs. Bumann she told him that plaintiff’s rights in this alley must be respected if he purchased lots 15 and 16, and the plaintiff herself informed defendant, both before, and at the time, he bid in the property at public sale, and before he parted with his money, that she owned this right of way, and intended to use the same.

Under our statutes (Mills’ An. Stats., sec. 446), by plaintiff’s recorded deed the defendant had constructive notice of her rights, and, besides this, he was in apt time informed by persons from whom such information should be acted upon and observed by a proposed purchaser, that the plaintiff claimed rights in the land which he proposed to buy. It is true that neither the deed of trust nor the trust deed contains any exception or reservation of this alleyway, but in the plaintiff’s deed there was a grant of this alleyway, — at least, as defendant concedes, an agreement to convey, — and as it provided, also, that the legal title to the ground was reserved to the grantor Bumann, the latter could convey, and his grantees take, only the naked legal title, subject to the easement. It’is evident that such was the understanding of the defendant, and that he was aware that by his deed he could take, as against the plaintiff, only this naked legal title.

But if this were not so, still the plaintiff is not estopped to assert her claim to this easement by anything that occurred at, or before, the sale under the trust deed.

In Griffith v. Wright, 6 Colo. 248, and Patterson v. Hitchcock, 3 Colo. 533, it was held that essential elements of estoppel by conduct are, inter alia, that there must be a concealment of a material fact; that the person from whom it was concealed must have been ignorant of the truth of the matter; and must have been induced to act because of such concealment. It is evident that not one of these three elements is present in this case, for, as has been said, the defendant well knew, both constructively and actually, that the plaintiff claimed to own and to exercise her right to use a private alleyway over and across the lands which the defendant proposed to buy. No concealment by her was practiced upon him; no silence was maintained when it was her duty to act. On the contrary, at least twice, as was found by the trial court, she informed him of her rights.

This contention that the defendant, by reason of the silence of the plaintiff, was induced to part with his money, and take his deed ignorant of the claim which she asserts in this action, is entirely without foundation. The price which he paid for the land which he bought was only what, willingly and with full knowledge of the plaintiff’s record rights and her own assertion in relation thereto, he bargained to pay before the mutual arrangement was entered into for going through the mere formality of advertising the property for sale under the trust deed.

The decree was right, and should be affirmed, and it is so ordered.

Affirmed.