Chever v. Horner

• Decision Date: 28 January 1888
• Citation: 17 P. 495,11 Colo. 68
• Parties: CHEVER v. HORNER et al.
• Court: Colorado Supreme Court

17 P. 495

11 Colo. 68

CHEVER v. HORNER et al.

Supreme Court of Colorado

January 28, 1888

Appeal from Arapahoe county court.

Charles G. Chever, appellant, brought an action at law against the defendants, Henry E. Rogers and John W. Horner, for possession of lot 10, block 176, in the East division of the city of Denver, claiming ownership in fee-simple. The complaint alleged that Rogers wrongfully withheld possession from the plaintiff, and that Horner claimed title adversely to him. The defendants filed separate answers, Rogers saying he could not obtain information sufficient to form a belief whether the plaintiff was seized of any estate or interest in the lot; and Horner averring ownership in fee-simple in himself, that Rogers was his tenant, and traversing the rights claimed by the plaintiff. The replication denied the rights and title claimed by Horner. The property in controversy constitutes a portion of the original town-site of the city of Denver, entered by James Hall, probate judge of Arapahoe county, May 6, 1865. The entry was made under and by virtue of the acts of congress of May 23, 1844, and May 28, 1864, (5 U.S. St. at Large, 657, 13 U.S. St. at Large 94,) 'in trust for the several use and benefit of the rightful occupants and bona fide owners of the improvements.' Upon the trial in the district court the plaintiff proved that he had filed upon the lot in question in the office of the probate judge, on the seventh day of August, 1865. He also introduced in evidence a deed for said lot, dated May 8, 1875, from William C. Kingsley, probate judge of Arapahoe county, to himself. Defendant Horner introduced in evidence, to establish his title to the lot in controversy, a deed from Probate Judge Downing to John Hughes, bearing date October 24, 1867. This was followed by a deed from John Hughes to the defendant of an undivided half of said lot, dated November 26, 1870, and a decree of the district court of Arapahoe county, in partition proceedings made and entered at the April term of 1877, vesting the other undivided half thereof in said defendant. On rebuttal the plaintiff offered to prove that Hughes, grantee of Probate Judge Downing, never filed upon the lot as required by the territorial act of 1864; that at the time of the execution of Judge Downing's deed to him there were two filings upon the lot, one by the plaintiff, and the other by one John M Veasey; also that Hughes was not a beneficiary under the trust created by the acts of congress; that he was not an occupant, or entitled to possession of the lot in controversy, and had no improvements thereon. Plaintiff also offered to prove that on the 23d day of May, 1873, he was in possession of the lot, and that on the 30th day of the same month the defendant Horner broke through the fence, moved a frame house upon the lot, and took possession thereof. These offers of proof were all rejected by the court, exceptions being reserved by the plaintiff. The act of congress of May 23, 1844, authorizing the entry of town-sites in trust for the use and benefit of the occupants, required the trust to be executed in respect to the disposal of lots, and the proceeds of sales thereof, according to such regulations as might be prescribed by the legislative authority of the state or territory in which the town-site was situated; and it also provided 'that any act of said trustees not made in conformity to the rules and regulations herein alluded to shall be void and of none effect.' The congressional act of May 28, 1864, entitled, 'An act for the relief of the citizens of Denver, in the territory of Colorado,' extending the provisions of the former act to specific subdivisions of land, provided 'that in all respects, except as herein modified, the execution of the foregoing provisions shall be controlled by the provisions of said act of 23d of May, 1844, and the rules and regulations of the commissioner of the general land-office.' The territorial legislature, by an act approved March 11, 1864, prescribed rules and regulations for the execution of the trust arising under the former act, and by operation of law they were equally applicable to entries made under the latter act.

J. Q. Charles and H. C. Dillon, for appellant.

J. W. Horner and Lucius P. Marsh, for appellees.

BECK C.J., ( after stating the facts as above.)

In construing the foregoing statutes, this court has held that the execution and delivery of a deed to a portion of the Denver town-site, by a probate judge, acting under and by virtue of these statutes, was analogous to the granting of a patent by the land department of the government, and that the same presumptions in favor of the regularity of such deed exists as in the case of a patent issued by the government. It has long been a settled doctrine that a government patent cannot be impeached collaterally nor the regularity of the proceedings anterior to its issue called in question in an action at law, where the land department of the government had jurisdiction to dispose of the land. The adjudications of the supreme court of the United States upon this point are reviewed in Anderson v. Bartels, 7 Colo. 256, 3 P. 225, a case substantially similar to that here presented, and which we think conclusive of most of the questions raised by the assignment of errors in this case. It was there held that the conclusive presumptions attaching to a patent were applicable to the deed of a probate judge, assuming to act under and by virtue of the United States and territorial town-site statutes. One of the positions assumed by appellant's counsel is that the present case should be distinguished from the Anderson Case, because its essential facts are different, and for the reason that the questions of law involved did not arise in the former case. We reply that the controlling legal proposition is the same in both cases, viz., can the prior deed executed by the probate judge be collaterally impeached by proof that certain preliminary requisites of the law have not been complied with? In the former case this question was determined in the negative. Why should it be determined differently in the present case? The principle reasons assigned are that the deed sought to be impeached in the former case, that from Probate Judge Downing to Foy, (through which, by mesne conveyances, defendant Caroline E. Downing deraigned title,) was based upon a filing made in accordance with the territorial act of March 11, 1864, while no such proof was made in support of the Hughes deed in the present case; and plaintiff offered to show that no filing had been made by Hughes. While the fact that Foy had made such filing was disclosed by the record in the former case, it was not a controlling fact in the decision. The doctrine announced was that the deed upon its face purported to have been issued in pursuance of the law, and was therefore only assailable in a direct proceeding to set it aside. Another proposition insisted upon is that it was admissible to attack the Hughes deed for fraud in its execution, and for this purpose the offer to prove that Hughes had never filed upon the lot in question should have been allowed. The fraud alluded to is imputed to the probate judge. The language of counsel is: 'That the action of Downing in issuing the deed in question to Hughes was a fraud upon the rights of the plaintiff in this case, will hardly be questioned.' Whether this charge be true or not, the proposition that upon this ground the validity of the deed was examinable, in an action of this character, is in conflict with the leading cases on the subject. The doctrine is established by numerous decisions of the supreme court of the United States that, should the officers of the land department, in issuing a patent, err in respect to their duty, or as to questions of fact or law, or even act from corrupt motives, the patent cannot be collaterally attacked for such cause, if, upon any state of facts, the patent might have lawfully issued; and that against collateral attack it will be presumed the necessary facts existed. Parties aggrieved by such error or fraud must resort to a direct proceeding to set aside the patent. Smelting Co. v. Kemp, 104 U.S. 636; Johnson v. Towsley, 13 Wall. 72-83; Moffatt v. U.S. , 112 U.S. 24, 5 S.Ct. 10. It is held in Field v. Seabury, 19 How. 323-333, that when a patent has issued without any provisions incorporated for inquiring into its fairness as between grantor and grantee or between third parties, a third party cannot raise, in ejectment, the question of fraud as between the grantor and grantee, and thus look beyond the patent. This case declares that a patent cannot be collaterally avoided at law for fraud, and that the court had never declared it could be done. A third proposition is that the case comes within the two exceptions to the rule of conclusive presumptions mentioned in the Anderson Case; the first being, when there is a contest between two patentees for the same land, that a patent takes effect from the date of the original proceedings to obtain title, and in such case they are referred to for the purpose of ascertaining which of the contestants took the first steps; the other instance being under a statute declaring a patent void, where no entry as an initiatory proceeding had been made. These exceptions require explanation. In a contest between two patentees, concerning the same tract of land, where the patents were issued by the land department of the government under the general land laws thereof, and the land in...