Opinion
No. 13,921.
Decided March 30, 1936. Rehearing denied April 27, 1936.
Suit to recover unpaid balance alleged to be due on the purchase price of real estate. Judgment for plaintiff.
Affirmed. On Application for Supersedeas.
1. PLEADING — Amended Complaint — Departure — Waiver. Where, after demurrer, an amended complaint is filed and motion interposed to strike on the ground of departure, on overruling of the motion, if defendant elects to answer, he thereby waives his ground of objection.
2. LIMITATION OF ACTIONS — Six-year Statute. In an action to recover unpaid balance on the price of real estate, on review of pleadings and proof it is held that the trial court properly overruled the contention of defendant that the six-year statute of limitations had run against the indebtedness.
3. APPEAL AND ERROR — Defense Not Pleaded. Argument concerning a defense which is not pleaded will not be considered on review.
4. PLEADING — Payment. An allegation that an indebtedness was to be paid in three years held, in view of the circumstances of the case under consideration, not to be inconsistent with pleading and proof that it was to be so paid in installments.
Error to the District Court of Montrose County, Hon. George W. Bruce, Judge.
Mr. L. C. KINIKIN, for plaintiff in error.
Mr. HERBERT L. STRANG, for defendant in error.
THESE parties are hereinafter referred to as Schildt and Topliss.
Topliss sued Schildt to recover an unpaid balance of $1,000 on the purchase price of real estate, and to establish the same as a lien against the property. On a trial to the court he had judgment accordingly. To review that judgment Schildt prosecutes this writ and asks that it be made a supersedeas. He assigns as error: (1) The overruling of a motion to strike; (2) the holding that the action was not barred; (3) the insufficiency of the evidence.
1. To the original complaint, alleging a promise to pay on demand, a demurrer was filed on the grounds of want of facts and the bar of the statute. An amended complaint, alleging a promise to pay within three years, was then filed. This Schildt moved to strike on the grounds of departure. The motion was overruled and Schildt elected to answer. He thus waived the departure, if any there was. 49 C.J., p. 833, § 1234; Ramsay v. Meade, 37 Colo. 465, 471, 86 Pac. 1018.
[2, 3] 2. The date of the transaction alleged was August 30, 1926. The answer pleads, and the evidence shows, that the unpaid balance was to be met by annual installments, the last of which would fall due August 30, 1929. The complaint herein was filed March 20, 1935, and the amended complaint June 13, following. Hence both pleading and proof bring the cause within the six-year statute relied upon. We need not notice the argument concerning the statute of frauds since it was not pleaded. Moreover, half the purchase price was paid and Schildt had both deed and possession. 27 C.J., p. 351, § 431.
3. The allegation that the balance was to be paid in three years is not, under the circumstances, inconsistent with pleading and proof that it was to be so paid in installments. It appears that these installments were to be evidenced by notes, which were drawn but never signed because of some disagreement concerning the price. However, Topliss has adopted the position of Schildt on that subject and, according to the pleadings and evidence of each, this $1,000 is due and wholly unpaid and Schildt has the property for one-half of what he admits was the agreed purchase price. We find no merit in the assignment.
It is further said that a vendor's lien is no longer available when the debt is not enforceable at law, citing Shaylor v. Cloud, 63 Fla. 608, and other authorities. Paragraph 1, supra, disposes of this.
The judgment is affirmed.
MR. CHIEF JUSTICE CAMPBELL and MR. JUSTICE HOLLAND concur.