Allenspach v. Wagner , 9 Colo. 127 ( 1886 )

Elbert, J.

The defendant in error, Wagner, took his appeal from the county court to the district court under section 5, chapter 23, General Laws, 254. No written notice was given the plaintiff of defendant’s application to the county court to fix the time within which the appeal bond should be filed. The refusal of the district court to dismiss the appeal on this ground was not error, as it appeared that plaintiff’s attorney was present in the county court at the time of the application, and participated in the discussion respecting it. Such being the fact, no written notice was necessary, however it might be otherwise.

We think the district court right in holding the special matter set up in the answer, and unreplied to, a good defense.

The offer of the defendant’s grantee, Pettinger, to waive the provision of the lease terminating the tenancy in case of sale, and. to treat the sale in all respects as subject to plaintiff’s lease, left the plaintiff without any legal ground of complaint. It then became his legal duty to either pay rent to the grantee of the reversion or to surrender the leased premises. He could not complain that the defendant sold subject to the lease, as his right to sell remained unabridged. He could not complain of having to pay rent to Pettinger instead of Wagner, for a covenant to pay rent is not personal, but runs with the land, and, in this case, the plaintiff’s covenant to pay rent was a covenant with the defendant and “his assigns.” As to the tenant, the grantee of the reversion stands in the same position that the lessor did before he parted with the reversion. Tayl. Landl. & Ten. § 439.

Nor is it sufficient for the plaintiff to say that the sale was frauduleht and void. A court will not inquire into a fraud except at the instance of the party injured by it. The effect of the sale would have been to terminate the plaintiff’s leasehold estate under the provision of the lease, had the parties insisted upon it. But the defendant’s grantee offered to waive the provision, and to treat the sale as subject to the lease. This left the plaintiff without a case calling for the interference of the courts. Had the grantee insisted upon the forfeiture, and had the powers of a court of equity been invoked by a bill for equitable relief against the alleged fraudulent sale, a decree that the sale should be treated as in all respects subject to his lease would have met all of the plaintiff’s equities. What a court of equity would have decreed, conceding the sale to have been fraudulent, was offered the plaintiff without suit, and by him refused. So the answer alleges. Substantially, the answer is this: It denies the fraudulent conspiracy; admits the sale and eviction; but alleges, in effect, that the sale of the leased premises was subject to the lease, and that the plaintiff was evicted by reason of his refusal to pay the stipulated rent to the defendant’s grantee. This was a good defense, and, not having been traversed, the defendant was entitled to judgment of nonsuit.

■We do not inquire into the proceedings, in the action of forcible entry and detainer before the justice and county court. This is not an action to recover possession, but for damages; and we do not see that the judgment in the county court affects the defense. The special matters set up in the defendant’s answer were not necessarily in issue in the action in that court, nor' do they appear to have been in issue in fact. Wells, Res. Adj. 161.

The judgment of the court below is affirmed.

Affirmed.