Opinion
No. 74-467
Decided June 17, 1975. Rehearing denied July 8, 1975. Certiorari granted September 29, 1975.
From judgment dismissing his quiet title action, plaintiff appealed.
Reversed
1. QUIETING TITLE — Deeds — Predecessor in Title — Vested in Plaintiff — Subsequent Deeds — Passed No Title — Judgment For Defendants — Unsupported by Evidence. Since, based upon the documents introduced in quiet title action, title to the land in question was vested in plaintiff by virtue of quitclaim conveyances of a predecessor in title executed as of May 9, 1969, certain deeds executed thereafter by that predecessor in title to defendants, passed no title to them; hence, the trial court's finding that title was in one of the defendants is unsupported by any evidence.
2. APPEAL AND ERROR — Estoppel Issue — Not Asserted — Trial Level — Not Considered — On Appeal. In quiet title action, the issue of estoppel asserted against plaintiff was not raised by the pleadings, nor was it included as an issue in the pretrial order, and was therefore not considered by the trial court; thus, it will not be considered for the first time on appeal.
Appeal from the District Court of Lake County, Honorable Charles R. Casey, Judge.
Cosgrief, Dunn, French Seavy, V. G. Seavy, Jr., for plaintiff-appellant.
Feldhamer, Plotz Eskwith, P.C., Kenneth M. Plotz, for defendants-appellees.
Plaintiff, Percy F. Lee, appeals from a judgment entered after a trial to the court dismissing his complaint to quiet title to four subdivision lots located in Lake County, Colorado. We reverse.
Defendant Buena Vista Bank and Trust Company held a deed of trust on the subject property dated September 7, 1971, to secure a loan made to defendant W. C. Jones in the amount of $7,500. After foreclosure proceedings were instituted through the public trustee, Lee initiated the present action to quiet title in him and have the deed of trust and certificate of purchase issued by the public trustee declared void. The Bank answered the complaint denying that Lee held title and requested that the complaint be dismissed. A pre-trial order was entered specifying as the only issue in the case whether Lee held title or whether the Bank acquired title through foreclosure of its deed of trust.
Insofar as pertinent to this appeal, Lee introduced into evidence the following deeds and other documents in support of his claim: Quitclaim deed from one Eagan to Percy Lee Auto Sales, Inc., executed in 1964; a certificate of name change from the Colorado Secretary of State issued in 1966 authorizing a name change from Percy Lee Auto Sales, Inc., to Colorado Springs Leasing, Inc.; warranty deed from Colorado Springs Leasing, Inc., to Gerald O. Essendrop, executed in 1968; and, two quitclaim deeds from Gerald O. Essendrop, each conveying two of the lots, dated in May of 1969, conveying the subject property to Lee.
Lee also introduced the following deeds, which were all executed after the above conveyances, to show that the Bank did not hold title by foreclosure against Jones: A deed from Essendrop purporting to convey the property to his wife; a deed from the wife back to Essendrop; then a deed from Essendrop to Colorado Springs Leasing; and a special warranty deed from Colorado Springs Leasing to Jones dated August 30, 1971, which was executed by Percy Lee as president. All documents were duly recorded. Finally, the Bank's deed of trust from Jones was introduced.
Testimony relative to the deed to Jones and the loan transaction was in conflict. Lee testified that the deed from Colorado Springs Leasing to Jones was not supported by consideration inasmuch as Jones was to pay for the lots and had not paid. He also testified that he signed this deed under protest. He stated, in effect, that he refused to convey his title to the lots until he was paid for them.
In contrast, Jones testified that Lee was engaged as manager of a used car lot in Buena Vista to be operated by a corporation owned by Jones. According to Jones, Lee was to be compensated by a share of the profits from the used car lot, and Lee was to put up security for a loan to obtain operating capital. The proceeds of the loan were deposited to the account of the Buena Vista venture. Jones could not state how the proceeds were expended except to acknowledge that some of the proceeds were used to operate the Buena Vista business. In any event, sometime after the loan transaction, Lee and Jones signed an "agreement" wherein Jones agreed to convey the subject property to Colorado Springs Leasing if the loan was repaid and Lee agreed that if Jones had to repay the loan, Jones could liquidate the property.
The used car venture was unsuccessful, the Bank made demands on Jones for payment, he refused, and it foreclosed the deed of trust through the public trustee.
Insofar as material here, the trial court found that at the time the special warranty deed was executed to Jones, Colorado Springs Leasing, Inc., held title, that Lee had apparent authority to make the conveyance to Jones, and that the conveyance was supported by consideration in that it was an inducement to obtain a loan from the Bank.
Lee contends that the trial court's finding that title was in Colorado Springs Leasing is unsupported by any evidence. We agree.
[1] Based upon the documents introduced, title was vested in Lee by virtue of Essendrop's quitclaim conveyances as of May 1969. See Bradbury v. Davis, 5 Colo. 265. Since Lee held title, the deeds executed thereafter by Essendrop to Colorado Springs Leasing, and by Colorado Springs Leasing to Jones, passed no title. See Burt v. Rocky Mountain Fuel Co., 71 Colo. 205, 205 P. 741.
[2] In support of the judgment, the Bank here contends that Lee is estopped from asserting that Colorado Springs Leasing did not hold title. The Bank relies on alleged representations by Lee that he would convey his title to provide security for the loan. Lee specifically denied making such representations. However, the issue of estoppel was not raised by the pleadings, nor was it included as an issue in the pre-trial order, and was therefore not considered by the trial court. Thus, it will not be considered for the first time on appeal. Fallis v. Zurich Insurance Co., 28 Colo. App. 235, 472 P.2d 174.
The judgment is reversed and the cause remanded with directions to enter the appropriate decree.
JUDGE SMITH and JUDGE KELLY concur.