3 P. 225 (Colo. 1884), Downing v. Bartels

Citation:3 P. 225, 7 Colo. 256
Opinion Judge:BECK, C.J.
Party Name:DOWNING and another v. BARTELS.
Attorney:[7 Colo. 257] Blood & Bartels, for appellants. France & Rogers, for appellee.
Case Date:March 14, 1884
Court:Supreme Court of Colorado

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3 P. 225 (Colo. 1884)

7 Colo. 256

DOWNING and another



Supreme Court of Colorado

March 14, 1884

Appeal from the county court of Arapahoe county.

[7 Colo. 257] Blood & Bartels, for appellants.

France & Rogers, for appellee.


This was an action of ejectment brought by the appellee, Caroline H. Bartels, to recover possession of lot 6, of block 63, in the east division of the city of Denver. It was originally instituted against the defendant Anderson only, the complaint alleging that Louis F. Bartels, deceased, died July 27, 1874, seized in fee of said lot, and by his last will devised the same to the plaintiff for and during her life, or until she again married; that she has not since married; that on September 1, 1874, while plaintiff was seized in fee and entitled to possession, the defendant, without right or title, entered upon the lot, ejected the plaintiff, and still withholds the possession from her. Anderson answered, denying that Louis F. Bartels was, in his life-time, seized of the property, and averring that said defendant entered upon the premises September 1, 1878, as tenant of his co-defendant, Caroline E. Downing, and has continued in possession to the present time. [7 Colo. 258] Caroline E. Downing, who was made a co-defendant on her own motion, also answered, denying the title alleged in Louis F. Bartels, and the title and right of possession of the plaintiff, and averred that she, long prior to September 1, 1874, was seized in fee of the premises, and long prior to that date was in lawful possession thereof as the owner in fee. The cause was tried to a jury, the trial developing the fact that both the plaintiff, Bartels, and the defendant Downing claimed title from the same source, viz., by deed from the probate judge of Arapahoe county. The jury returned

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a verdict in favor of the plaintiff, Caroline H. Bartels, on which judgment was entered that she recover the lot and premises in controversy, and that a writ of restitution issue therefor. This lot comprised a portion of the original town-site of the city of Denver, entered by James Hall, probate judge of Arapahoe county, on the sixth day of May, 1865, by virtue of the special act of congress 'for the relief of the citizens of Denver,' approved May 28, 1864. 13 St. at Large, 94.

The plaintiff, to maintain the issues on her part, introduced the following conveyances, to-wit: United States to James Hall, probate judge, patent for said town-site, dated July 1, 1868, which recites the entry of the land in trust for the several use and benefit of the occupants thereof, according to their respective interests, under the act of congress aforesaid, and to his successors and assigns, in trust as aforesaid. James Hall, probate judge, to Omer O. Kent, successor in office, same tract, March 16, 1867. Omer O. Kent, probate judge, to Jacob Downing, successor in office, same tract, August 31, 1867. Jacob Downing, probate judge, to Henry A. Clough, successor in office, same tract, except the executed part of the trust, September 23, 1869. Henry A. Clough, probate judge, to Louis F. Bartels, the lot in controversy, by virtue of a sale in [7 Colo. 259] pursuance of the territorial act of February 8, 1872, and previous legislation, dated October, 29, 1872. It was then admitted that the plaintiff is the heir of Louis F. Bartels, deceased. Objections were made and exceptions saved to the admission of deeds from Downing to Clough and from Clough to Bartels.

The defendant Caroline E. Downing, to maintain the issues on her part, introduced certified copies of the following deeds to said lot: Jacob Downing, probate judge, to Morris B. Foy, October 3, 1868; Morris B. Foy to Samuel N. Hoyt, July 9, 1869; Samuel N. Hoyt to Jacob Downing, June 28, 1870; Jacob Downing to Daniel C. Oakes, June 10, 1871; Daniel C. Oakes and wife to Caroline E. Downing, January 3, 1873,--which deeds were received in evidence. Defendant then offered in evidence certified copies of the following conveyances: A certificate of one share in Denver City, to William Clancy, issued by E. P. Stout, president, and William Larimer, secretary, bearing date March 31, 1859; deed from William Clancy to William Marchant, dated November 1, 1859; deed from William Marchant to D. A. Johnston, dated June 4, 1861,--all of which conveyances were rejected, and exceptions to the rulings saved. The said defendant then introduced a tax deed for said lot in evidence, executed by James M. Strickler, treasurer of Arapahoe county, to Jacob Downing, dated February 11, 1875, by virtue of a tax sale for delinquent taxes of the year 1871. Testimony was introduced showing that D. A. Johnston built a small house partly upon this lot late in 1871 or early in 1872, and that he executed a lease of the premises to tenants July 1, 1872. The said defendant then offered to prove

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that Johnston [7 Colo. 260] was in the occupation of the premises in the fall of 1871, and continued in the occupation thereof until 1875, when he conveyed the same to the defendant Downing, and that she continued in the occupation thereof until the commencement of this suit, and is still in the occupation thereof. This offer was rejected as immaterial, to which ruling an exception was reserved. The plaintiff was permitted to introduce testimony in rebuttal for the purpose of impeaching the title derived by Caroline E. Downing by mesne conveyances from Jacob Downing, probate judge, on the ground that the...

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