City of Boulder v. Plains Loan, Realty & Investment Co.

• Decision Date: 03 March 1924
• Docket Number: 10684.
• Citation: 224 P. 233,75 Colo. 86
• Parties: CITY OF BOULDER v. PLAINS LOAN, REALTY & INVESTMENT CO.
• Court: Colorado Supreme Court

224 P. 233

75 Colo. 86

CITY OF BOULDER v. PLAINS LOAN, REALTY & INVESTMENT CO.

No. 10684.

Supreme Court of Colorado

March 3, 1924

Department 2.

Error to District Court, Boulder County; Neil F. Graham Judge.

Suit by the Plains Loan, Realty & Investment Company against the City of Boulder and others. Decree for plaintiff, and the brings error.

Affirmed.

Frank L. Moorhead, of Boulder, for plaintiff in error.

Kenneth E. Grant, for defendant in error.

DENISON J.

The defendant in error was plaintiff below. It brought and won a suit in ejectment against the city of Boulder and others. All the others defaulted, and the city brings the case here for review.

The plaintiff in error claims the suit was one to quiet title but it is clearly ejectment both in substance and prayer, and since defendant did not disclaim, the plaintiff did not need to prove possession in defendant, but could maintain the action, although the lot in question was vacant. Code 1921 §§ 286, and 296; Bennett v. Rohan, 73 Colo. 551, 5504, 216 P 1052. The complaint was in five paragraphs: The first alleged incorporation of plaintiff; the second incorporation of the city of Boulder; the third certain evidential matters that ought to have been left out; the fourth 'that plaintiff is the owner in fee simple and entitled to the immediate possession' of the lot in question; and the fifth 'that the defendants and each of them wrongfully and unlawfully withholds possession of said real estate, and wrongfully and unlawfully continues to exercise acts of ownership over the same.'

The answer denied the plaintiff's incorporation only in the statutory form, for want of information sufficient, etc which, upon a matter of record such as incorporation, is an admission. Fravert v. Fesler, 11 Colo.App. 387, 53 P. 288; Smith v. Stubbs, 16 Colo.App. 130, 63 P. 955; Johnson v. Walker, etc., Co., 68 Colo. 160, 187 P. 1029. It admitted the incorporation of the defendant, denied the allegations in paragraph 3, which were not traversable, and attempted to deny the allegations in 4 and 5, in ipsis verbis and in the conjunctive, negatives pregnant, which amounted to an admission. Mastin v. Bartholomew, 41 Colo. 328, 92 P. 682; Sweet v. Barnard, 66 Colo. 526, 182 P. 22; A., T. & S. F. R. Co. v. Sullivan, 173 F. 456, 459, 97 C.C.A. 1; Ex parte Wall, 107 U.S. 265, 275, 2 S.Ct. 569, 27 L.Ed. 552. See, also, La Shar v. People, 74 Colo. 503, 223 P. 59, decided at the present term. There were therefore no issues raised by the answer, and the title of the plaintiff must be taken as perfect, subject, if to anything, to the liens stated in the second defense.

In its second defense the city claimed that it had a lien for city improvement assessments superior to the title of the plaintiff, which was a tax...