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71 Colo. 502

Book v. Book

Supreme Court of Colorado

Decided June 5, 1922

Supreme Court of Colorado · decided 1922-06-05

<p>1. Appeal and Error — Fact Findings — Presumption. Where no specific findings are made by a trial court, the court of review will not presume the determination of a fact contrary to the weight of the evidence.</p> <p>2. Deeds — Present—Escrow. A deed placed in the hands of a third person to be delivered to the grantee on payment of the purchase price, is not a present deed, but one in escrow and passes no title until performance of the condition.</p> <p>3. Title. An instrument which may never convey title, although known to exist by a subsequent grantee taking for value, in good faith, without fraud, cannot prevent the subsequent deed from becoming effective.</p> <p>4. Title — Conveyance. One who executes a deed and places it in the hands of a third party for delivery on payment of the purchase price, does not thereby part with his title, and a subsequent deed executed and delivered before the performance of the escrow condition, passes the title.</p> <p>5. Not Set Aside for Trivial Reasons. If a deed is made by, one seized in fee and having a perfect right to convey, other persons cannot question its efficacy in giving title to the grantee, except upon the ground that they are creditors of, or bona fide purchasers from the grantor, or are holders under such purchasers or have authority from them.</p> <p>6. Real Property — Quieting Title — Possession. One not in possession of real estate may not maintain an action to quiet title thereto.</p> <p>7. Rules — Supreme Court — Rehearings. Rule 47 of the Supreme Court concerning petitions for rehearings, discussed.</p>

Cited by 3 later decisions — most recently December 1992

3 state decisions

Good law ✅— No negative treatment on recordhow we know

Reversed · Decided 1922-06-05

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¶1On Application for Rehearing.

¶2Application for Rehearing stricken from the files for violation of Rule 47. Rehearing Denied.

Per Curiam :

¶3*507The application for a rehearing in this case covers over twenty pages, containing citations from opinions, recital of evidence, and argument against the conclusions announced by this court. It violates the rule promulgated in December last, which prohibits reargument on application for rehearing.

¶4The application is stricken from the files under said rule, ' and that action is taken the more readily because we find in the argument nothing new, or which in any way calls for a rehearing.

¶5It appears that there has been, on the part of some members of the bar, a misunderstanding of this rule. It is, in substance, the same as the rule which has been in effect in Illinois for many years. In adopting the rule we subscribed to the statement made by the Illinois court in Chicago City Ry. Co. v. O’Donnell, 208 Ill. at page 281, 70 N. E. 477, where it is said:

“A rehearing may be had in this court when any material fact has been overlooked or misapprehended or where the court has failed to determine some proposition of law that is of controlling importance in the cause, and the only legitimate office of the petition for rehearing is to show, by a terse and accurate statement, the court’s inadvertence, with reference to such portions of the brief or abstract as will sustain petitioner’s position. … Helpful arguments, both oral and printed, are welcomed by this court. It is our earnest desire that a litigant should avail himself to the fullest extent of his right to argue, orally and otherwise, his cause in this forum. The proper time to argue, however, is at the time of submission, and when a case has been fully argued, has received careful consideration and been decided, a reargument in a petition for a rehearing can serve no useful purpose. All that is proper in that respect is a reference to that portion of the brief and argument which petitioner conceives will show the error of the court.”

¶6This rule does not, as some have supposed, prohibit the citation of authorities, or a reference to those cited in the *508briefs; but it does aim to prevent the reargument of questions on which the court has passed. To refer the court to a specific matter, deemed necessary for consideration, is much more likely to produce the desired result than is an extended reargumént in which such matter is included.

¶7As has been pointed out in another Illinois case, the allowance of reargument on application for rehearing tends to induce less thorough argument in the first instance, and less consideration on the part of the court.

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