Bursack v. Moore

Opinion by

Mr. Justice Kelley.

This is a companion case to Bursack v. Moore, 165 Colo. 414, 439 P.2d 993, in which we affirmed a judgment for the specific performance of a contract for the sale and purchase of a 240 acre farm.

The instant action was instituted by Mrs. Bursack, owner of the farm, to evict Mr. and Mrs. Moore, who were in possession as tenants from year to year as holdover lessees, under an original written lease for one year. Case No. 23015 was filed March 24, 1966. This case was filed March 10, 1967, some twenty days prior to the judgment rendered in Case No. 23015.

This matter was tried to the court and, on May 26, 1967, it entered a judgment for the defendants predicated on the following findings of fact:

“The purported agreement, which is the subject of Civil Action No. 8649 [No. 23015], if it is valid as a contract for the sale and purchase of land was entered into before March 1, 1967.

“That if the purported agreement in Civil Action No. 8649 [No. 23015] was a valid contract, it was not the intention of the parties for defendant to vacate possession of the land and retake possession under the sale and purchase agreement, but that it was the intention of the parties to continue in possession.”

The court concluded:

“Whether plaintiff is entitled to possession in this action depends on the final outcome of Civil Action No. 8649 [No. 23015] in this court.”

The court’s findings are supported by the record.

The judgment is affirmed.

Mr. Chief Justice Moore and Mr. Justice Day concur.