(225 P.)

stipulations may be contained in the policy | day, since contract was merged in deed, in view or contract." It then provides:

"But no statement or declaration made to or by an agent, examiner or other person, not contained in the application shall be taken or considered as having been made to or brought to the notice or knowledge of the company, or as charging it with any liability by reason thereof."

This provision of the law clearly exempts the company from obligations arising from any oral statements, made by Evans when taking the application, which were not also in the application itself.

U. S. Accident Assn. v. Kittenring, 22 Colo. 257, 44 Pac. 595, is conclusive against the judgment. In that case there was an application containing a stipulation that the policy should take effect only from the time of its acceptance. The admission of testimony of statements, made by the solicitor at the time of the application, to the effect that the policy would be in force from the date of the application, was held error.

[6] It is further contended by defendant in error that the retention by the defendant company of the premium paid for several months is a recognition of the policy. No such inference can properly be drawn from the fact mentioned, because the evidence clearly shows that the company, as soon as informed of the claim, rejected it on the ground that the policy had not been issued until after the death of the applicant.

[7] It appears, then, that there is no sufficient evidence to support the finding that Evans had authority to make a contract of insurance. To establish the rule that insurance companies can be bound under the circumstances here shown would be to put them at the mercy not only of their authorized agents, but of persons who volunteer to act as such. There was no oral contract of insurance, and the policy, having been issued after the death of the applicant, and before the company had knowledge of his death, is, of course, invalid. For these reasons the judgment is reversed.

DENISON and WHITFORD, JJ., concur.

(No. 10711.)

of grantor's obligation under deed to give im-
mediate possession, under section 4885, instead
of date specified in contract, and grantor's lia-
bility for breach of duty to deliver possession,
scission or damages, under contract.
for damages only, under deed, instead of re-

A breach of covenant of warranty and quiet enjoyment in a deed gives rise to an action for damages and not for rescission, except in case of fraud or lawful exclusion from possession. 4. Covenants 94-Covenant of seizin broken as soon as made by adverse possession.

A covenant of seizin is broken as soon as made by adverse possession, rightful or wrongful.

5. Cancellation of instruments —3—Rule stated as to right to rescind for breach of covenant of seizin.

Breach of covenant of seizin does not justify rescission unless there is fraud, or perhaps insolvency, of grantor.

6. Cancellation of instruments

10-Failure

of grantee to obtain possession held not to give right to rescission, in view of adequate remedy at law.

Grantee's failure to obtain possession under deed containing covenants of seizin, quiet enrefusal to surrender possession, did not enjoyment, and warranty, because of third party's title grantee to rescission, in absence of fraud or insolvency of grantor, since in such case there is a plain, speedy, and adequate remedy at law.

Department 2.

Error to District Court, El Paso County; Arthur Cornforth, Judge.

Suit by Genevieve Dunnean against Lloyd Thomas. Decree for plaintiff, and defendant brings error. Reversed and remanded.

Orr & Little and Henry T. McGarry, all of Colorado Springs, for plaintiff in error. W. D. Lombard, C. B. Horn, and E. D. Preston, all of Colorado Springs, for defendant in error.

THOMAS V. DUNNEAN. (Supreme Court of Colorado. April 7, 1924.) 1. Deeds 94-Contract held merged in deed. Failure of grantor, who executed warranty deed which was in short form under C. L. § DENISON, J. Genevieve Dunnean ob4879, and contained covenants of seizin, quiet tained a decree in a suit against Lloyd enjoyment, and warranty, but which did not Thomas to effect a rescission of a contract specify date when grantee was to be given pos- between them for the purchase and sale of session, to put grantee in possession did not entitle grantee to rescission of previously ex- real estate, and he brings the matter here ecuted contract for purchase, in which grantor for review. The essential facts are as folcovenanted to deliver possession on specified lows:

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Thomas owned lots and a house thereon in Roswell, El Paso county. July 16, 1921, he and Mrs. Dunnean entered into a sealed agreement whereby he covenanted to sell said property to her and she agreed to buy it. It was also agreed that she should have until July 20th to examine the abstract and prepare deed, etc., and he covenanted to deliver possession on the 1st day of August. She complied with the contract on her part, and on the 22d received a warranty deed in the short form, under C. L. § 4879, which includes covenants of seizin, quiet enjoyment, and warranty, but she was not put in possession, because a tenant of Thomas refused to surrender. There was then some negotiation between them, he offering to stand the expenses of ejectment and pay rent pending it, but nothing resulted, and in January, 1922, she began the present proceeding in equity for a rescission.

shall be held to carry with them the right to immediate possession of the premises or interest conveyed, unless a future day for the possession is therein specified."

[3] As to the second difference: A breach

No future day for the possession was specified in the deed in question. A declaration of intent to postpone possession in another instrument is not enough. Drake v. Root, supra; Omaha, etc., Co. v. Tabor, supra. Consequently the deed requires immediate delivery of possession, and is inconsistent with the requirement of the contract. of covenant of warranty and quiet enjoyment in a deed gives rise to an action for damages, and not for rescission, except in case of fraud or lawful exclusion from possession, neither of which appears here. 39 Cyc. 1413, 1443, and 2009; Miller v. Miller, 47 Minn. 546, 50 N. W. 612; Smith v. Scribner, 59 Vt. 96, 7 Atl. 711; and cases The plaintiff in error presents three propcited below. ositions: (1) That his demurrer to the comThe plaintiff was, in effect, plaint was erroneously overruled because (a) evicted by the tenant when the deed was dethe complaint does not state a cause of ac-livered (Id.), and her action for damages tion; (b) the plaintiff had an adequate remedy at law. (2) That the contract was merged in the deed. (3) That the evidence was insufficient to justify the decree.

[1] We think the real question in the case is whether the failure to give possession is a ground for rescission, and the answer to this question depends on whether the contract to deliver possession August 1st was merged in or replaced by the deed. The argument that it is not is a strong one, because by the contract Thomas is required to do two things to deliver a deed and to deliver possession. Obviously the delivery of the deed satisfied only the first requirement, and the second has not been performed. We think, however, that the contract is merged, because it is so different from the deed that they cannot stand together. It differs in these respects: (1) It requires a different time for delivery of possession; the deed immediate (C. L. § 4885; Drake v. Root, 2 Colo. 685, 690; Omaha, etc., Co. v. Tabor, 13 Colo. 41, 49-50, 21 Pac. 925, 5 L. R. A. 236, 16 Am. St. Rep. 185), and the contract August 1st. (2) The grantor's liability upon the deed for breach of duty to deliver would be only for damages; upon the contract, probably rescission or damages. Bullard v. Bicknell, 26 App. Div. 319, 49 N. Y. Supp. 666; Kopp v. Kopp, 48 Hun, 532, 1 N. Y. Supp. 261. [2] As to the first difference: C. L. § 4885, is as follows:

"All conveyances of real estate, and of any interest therein, duly executed and delivered,

then accrued.

[4, 5] Of the covenant of seizin: It is broken as soon as made by adverse possession rightful or wrongful. Stearns v. Jewel, 27 But we can Colo. App. 390, 149 Pac. 846. find no case that such a situation justifies rescission unless there is fraud or, perhaps, insolvency of the grantor. To the contrary, see Topping v. Parish, 96 Wis. 378, 71 N. W. 367, and Hart v. Hannibal, etc., R. R. Co., 65 Mo. 509.

[6] It follows from these differences that the deed and contract cannot stand together, and therefore the contract to deliver possession on August 1st is replaced by or merged in the covenants of the deed, and so the question now is not whether the contract, but whether the deed, can be rescinded, and whether the plaintiff had an adequate remedy at law, not on the contract, but on the deed. It seems, from what has been said and from the cases above cited, that there can be no rescission under the facts before us. This is true because, since, no fraud or insolvency is shown, no equity is shown, and because there is a plain, speedy, and adequate remedy at law. 15 C. J. 1292; Topping v. Parish, supra; Alger v. Anderson (C. C.) 92 Fed. 696, 717.

Judgment reversed, and cause remanded for further proceedings not inconsistent herewith.

TELLER, C. J., and WHITFORD, J., con

cur.

(225 P.)

Error to District Court, Prowers County; crudely drawn, and is more or less confusA. F. Hollenbeck, Judge.

Gordon & Gordon, of Lamar, for plaintiff he was entitled to the remainder of the in error.

Allyn Cole, of Lamar, for defendant in er- position.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

FARMERS' UNION MILLING & ELEVATOR
CO. et al. v. LOVELAND FARMERS' CO-
OP. PRODUCE CO, et al. (No. 10940.)
(Supreme Court of Colorado. April 7, 1924.)
I. Fraudulent conveyances 87(1)-Debtor
may in good faith pay one creditor by trans-
fer of goods.

As against other creditors, a debtor has right to transfer goods to a creditor in payment of a bona fide indebtedness; and, this being done, and possession given such creditor, the transfer will defeat subsequent attachment of such goods by another creditor.

2. Fraudulent conveyances 299 (9)-Finding of transfer of possession to creditor before attachment by another creditor held justified by evidence.

1

Facts in evidence that, before plaintiff's attachment as creditor of defendant, intervener P. demanded of defendant a settlement of accounts and redelivery of goods sold by P. to defendant, that they inventoried the goods, and P. gave a receipt therefor, then rented a warehouse and removed all the goods to it, held to justify finding that at time of attachment the goods were not in defendant's possession, but in possession of P., a possession sufficient against other creditors.

Department 1.

Error to District Court, Larimer County; Neil F. Graham, Judge.

Action by the Farmers' Union Milling & Elevator Company against the Loveland Farmers' Co-Operative Produce Company; the B. F. Avery & Sons Plow Company and other creditors of defendant intervening: Judgment for the named intervener, and plaintiff and another intervener bring error, and apply for a supersedeas. Application denied, and judgment affirmed.

Edward V. Dunklee and Everett E. Trout, both of Denver, and C. E. Johnson, of Berthoud, for plaintiffs in error.

Otto Bock, of Denver, and Mortimer Stone, of Ft. Collins, for defendants in error B. F. Avery & Sons Plow Co.

The plow company was the holder of a conditional sales contract, purporting to sell the goods herein involved to the defendant and reserving title in itself. This conThe goods were de tract is not relied on. livered to the defendant. The plow company contends that prior to the attachment the goods were returned to it and were in its possession. If this is the fact, then the judgment below may be sustained on the theory that the defendant had the right to transfer the goods to the plow company in payment of a bona fide indebtedness. Buchanan v. Scandia Plow Co., 6 Colo. App. 34, 39 Pac. 899; Coryell v. Olmstead, 64 Colo. 378, 172 Pac. 14, 14 A. L. R. 5.

The principal contention of the plaintiffs in error is that the plow company did not have possession of the goods at the time of the attachment. In their brief they say:

"The undisputed evidence shows that the apparent possession of the goods and machinery in question was always in the produce company. In fact, the actual possession of the goods never left the produce company until attached by the sheriff for taxes on March 9, 1923, in whose custody they have ever since been. At no time were they in the full possession of the Avery Company, which, in law, left the goods subject to attachment by the plaintiffs in error."

We are unable to agree with the statement quoted. The writ of attachment was issued on March 19, 1923. Prior to this time, and on March 4, 1923, the plow company demanded of defendant a settlement of demanded a redelivery of the goods. About the company's account, and in a day or two March 8, 1923, the defendant and the plow company inventoried the goods then in possession of defendant, and the plow company gave a receipt for the goods. As between the defendant and the plow company the goods were thereafter in the possession of the latter. The plow company then rented a warehouse. At about 6:30 o'clock a. m. on March 9, 1924, the plow company began removing the goods to its warehouse. It continued removing the goods, and removed all of them to the warehouse on the same day.

The contention of plaintiffs in error that the possession never was in the plow com

ALLEN, J. This is an action begun as one upon a promissory note against the Loveland Farmers' Co-operative Produce Company, hereinafter referred to as the produce company is based on the actions of the sheriff, pany. The plaintiff attached certain goods as the goods of the defendant. Other creditors of defendant intervened. One of these, the B. F. Avery & Sons Plow Company, claims that the property attached is its own property, and was in its possession at the time of the issuance of the writ of attachment. The controversy relates to the property attached. The court found the issues in that matter in favor of the plow company. The plaintiff and another intervening creditor bring the cause here for review, and apply for a super-pany's warehouse. sedeas.

acting as a tax collector. The sheriff came to the defendant produce company's building about two or three hours after the plow com. pany began removing the goods, and informed the representatives of the plow company that he "levied on this stuff for taxes." The sheriff allowed the plow company to continue to remove the articles, and allowed it to store them in its own warehouse. The sheriff actually took possession of the goods afterwards and when they were already in the plow com

In our opinion under the foregoing facts For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(225 P.)

the trial court was justified in finding that the goods were in the possession of the plow company before the attachment, and not in the possession of the defendant produce company. The possession of the plow company was sufficient as against other creditors of the defendant.

The application for a supersedeas is denied, and the judgment is amrmed.

TELLER, C. J., and BURKE, J., concur.

MATONOCK v. SPEER. (No. 10739.) (Supreme Court of Colorado. April 7, 1924.) 1. Ejectment 63-Complaint held to state cause of action for possession and damages. Complaint alleging that plaintiff was the owner in fee and entitled to possession of described real estate, that defendant ousted plaintiff and wrongfully witheld the land to plaintiff's damage in specified amount held sufficient, as against general demurrer, to state a cause of action for possession and damages under Code 1921, § 287.

as

2. Pleading 362 (2)-Allegations to transfers and effect of certain deeds should have been stricken as evidential matter and as anticipating defenses.

In action by owner of real estate for possession and damages allegations as to transfers to and by plaintiff and as to the effect of certain deeds, and the land intended to be conveyed thereby, should be stricken as evidential matter and as anticipating defenses.

3. Pleading 11-A party cannot procure determination as to effect of facts by pleading them.

A party may not, by his pleading, set up a certain state of facts which are improper as a pleading, and have a court, either upon its own motion or upon an attack by his adversary,

determine their effect as evidence. 4. Costs

238(1)-Party who brought about errors for which case is reversed not allowed costs.

Where demurrer to complaint was sustained because the complaint contained evidential matter and anticipated defenses, the Supreme Court, in reversing judgment on ground that the complaint, notwithstanding such matter, stated a cause of action, will not award plaintiff costs, since plaintiff herself brought about the errors.

Department 2.

John H. Voorhees, of Pueblo, for defendant in error.

DENISON, J. A general demurrer to the plaintiff's amended complaint was sustained. She elected to stand on the complaint, and brings the case here for review.

The complaint was as follows:

"The plaintiff above named complains of the defendant, and for amended complaint herein, for cause of action, complains of the defendant, and alleges:

"That on or about November 24, 1905, Paul Matonock was the owner in fee of the following described real estate, and while such owner the said Paul Matonock sold and by good and sufficient warranty deed conveyed to said plaintiff, said Ella Matonock, the north half of the northwest quarter of section 31, in township 24 south, of range 67 west, and on or about said November 24, 1905, by reason of the premises aforesaid, said Ella Matonock became and was on or about said date the owner in fee of said real estate, which said deed was recorded December 16, 1905, in Book 301 at page 460 in the, office of the county clerk and recorder of said Pueblo county.

"That afterwards, on or about November 2, 1906, and while said Ella Matonock was the owner in fee of said real estate, she sold and by good and sufficient warranty deed Paul Matonock and Ella Matonock conveyed to Annetta R. Moody that portion of the northwest quarter of section 31 in township 24 south, of range 67 west, described as follows: Beginning at a point on the south boundary of Main street (meaning Main street in the town of Rye), and 743 feet west from the northeast corner of block one of the town of Rye, Colo.; thence south (variation 14 degrees, 5 minutes east), 349 feet to a point; thence west 45/10 feet to a point; thence south 169 feet to a of the northwest quarter of said section 31; point on the south boundary of the north half thence west along said south boundary 592 feet to the center of the northwest quarter of

said section 31; thence south 130 feet to a point; thence west 30 feet to a point 16% feet north of the center of Greenhorn creek; thence south 33 feet to a point on the south side of the Greenhorn creek 161⁄2 feet from the center of said creek; thence meandering said creek in a westerly direction 161⁄2 feet on the southerly side of and 16% feet from the center of said creek 5095/10 feet to a blazed aspen or cottonwood tree; thence north 50 degrees and 15 minutes west 1145/10 feet to a point 211⁄2 feet east of private bridge 1457/10 feet south of the south boundary of the county road; thence north 30 degrees and 40 minutes east, 1694/10 feet to a point on the south boundary of the county road; thence easterly and northeasterly

Error to District Court, Pueblo County; along the southern boundary of the county road

James A. Park, Judge.

Action by Ella Matonock against J. M. Speer. A general demurrer to plaintiff's amended complaint was sustained, and she brings error. Reversed and remanded.

1,083 feet to the place of beginning, containing 8713/1000 acres, all in Pueblo county, Colo.

"That said plaintiff never sold, conveyed, or parted with her ownership or any interest therein, in the said real estate as herein before described as having been conveyed to her by

M. J. Galligan, of Pueblo, for plaintiff in said deed from said Paul Matonock, except that

error.

as described in her said sale and conveyance

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