Opinion
Feb. 23, 1972.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 118
Gordon, Lefferdink & Legg, John J. Lefferdink, Lamar, for plaintiffs-appellants.
Gibson, Gerdes & Campbell, Paul J. Gerdes, Colorado Springs, for defendant-appellee.
ENOCH, Judge.
This appeal concerns rights to certain mineral interests which plaintiffs-appellants contend are either being held in trust for them by defendant-appellee, D. W. Wills, or that they are entitled to such interests by virtue of a contract with D. W. Wills. Plaintiffs-appellants are all heirs of Porter A. Thompson, deceased, and will be referred to as plaintiffs or by name. Defendant, Edna Gally Thompson, is also an heir of Porter A. Thompson and will be referred to by name. Defendant-appellee, D. W. Wills, was a business associate of Porter A. Thompson and will be referred to by name. Trial was to the court and judgment was entered in favor of D. W. Wills. We affirm.
The background of this controversy is as follows: In 1921 Porter A. Thomspon conveyed certain mineral rights to the Thompson Land Company. An affidavit signed by Porter A. Thompson in 1927 stated that the Thompson Land Company was a partnership composed of Porter Thompson; his son, Milton H. Thompson; and D. W. Wills. Porter Thompson died in 1936 and thereafter Milton Thompson and D. W. Wills conveyed 1/3 of the mineral interests to D. W. Wills, 1/3 to Milton Thompson and 1/3 to Robert D. Thompson, as administrator of the estate of Porter A. Thompson.
Plaintiff Field Thompson (son of Porter Thompson and brother of Milton Thompson) alleges he was not aware of the mineral interests until 1961. After investigating these interests, he informed D. C. Wills that Wills was holding mineral rights to which the heirs of Porter Thompson were entitled. Discussions between Field Thompson and D. W. Wills culminated in an agreement whereby Wills promised to quitclaim his 1/3 interest to the heirs of Porter Thompson if Field Thompson would get releases from these heirs and provided Field Thompson did not file a lawsuit against him. Releases from all Thompson's heirs were subsequently obtained by Field Thompson, except one from Edna Gally Thompson. Wills refused to deliver the deed under these conditions and this suit was thereafter filed to require Wills to convey his record title to the heirs.
I.
Plaintiffs' first allegation of error is that the trial court erred in not finding that Wills held title to a 1/3 interest in the minerals under a resulting or implied trust in favor of the heirs of Porter Thompson.
Plaintiffs contend that Porter Thompson conveyed his mineral interests to the Thompson Land Company for reasons of personal convenience. Despite Porter Thompson's affidavit to the contrary, they assert that D. W. Wills never owned any interest in the company. The plaintiffs further contend that the deeds made to D. W. Wills, Milton Thompson and Robert D. Thompson, as administrator of the estate of Porter Thompson, were made at the suggestion of an oil company to facilitate leasing arrangements, and were not intended to convey any beneficial interests. This latter contention contradicts an affidavit signed and recorded by Milton Thompson which adopted the earlier affidavit of Porter Thompson and acknowledged D. W. Wills' interest as a partner and the conveyance to him. Plaintiffs' theory is also contrary to the deposition of D. W. Wills. Under these circumstances, the trial court was fully justified in finding plaintiffs' theory of a resulting or implied trust to be without merit. Where there is sufficient evidence in the record to sustain the trial court's findings, as there is here, the reviewing court is bound by such determination. Whatley v. Wood, 157 Colo. 552, 404 P.2d 537.
II.
Plaintiffs also contend that the trial court erred in not finding that there was a contractual agreement by D. W. Wills to convey his 1/3 mineral interest to the heirs of Porter Thompson. It is undisputed that D. W. Wills offered to convey the minerals if releases were obtained from the heirs. The trial court found, and we agree, that Will's offer could only be accepted by tender of releases from all Porter Thompson's heirs. Because such a tender was not made prior to the institution of this action, D. W. Wills was not contractually obligated to convey his mineral interests to the heirs. See Nucla Sanitation District v. Rippy, 140 Colo. 444, 344 P.2d 976.
Judgment affirmed.
SILVERSTEIN, C.J., and COYTE, J., concur.