Denny v. Ashley

• Decision Date: 18 January 1889
• Parties: DENNY v. ASHLEY.
• Court: Colorado Supreme Court

20 P. 331

12 Colo. 165

DENNY v. ASHLEY.

Supreme Court of Colorado

January 18, 1889

Commissioners' decision. Appeal from county court, Chaffee county.

A. W. Sindlinger, for appellant.

John K. Vannatta, for appellee.

STALLCUP C.

This was an action by the appellee, who was plaintiff below, to cancel an adverse claim asserted by the appellant against certain real estate of appellee's. Decree was given for appellee, canceling the claim, and removing the cloud from the title. The appellant's claim to the real estate was by virtue of an execution sale thereof, and deed of the sheriff to him thereunder. The judgment upon which the execution issued was on a money demand for the sum of $155 and had been recovered against the grantor of appellee in said county court upon default of answer or appearance, upon a personal service of summons made on the defendant therein in the state of Missouri; and the said judgment was so given and entered against the grantor of said appellee after the conveyance of said real estate to the appellee. It is argued that the decree should be reversed, for the reason that the appellee failed to show title and possession of the premises at the commencement of the action, and that appellant's claim to said premises was sustained by said sheriff's deed of conveyance to him. Section 257 of the Code provides that 'an action may be brought by any person in possession, by himself or his tenant, of real property against any person who claims an estate or interest therein adverse to him, for the purpose of determining such adverse claim.' It sufficiently appears from the evidence that appellee was in possession by tenant at the commencement of the action.

The said deed of conveyance of said premises to the appellee was executed in the state of Missouri, and was acknowledged by a notary public there whose name appears, by his signature thereto, as 'W. F. Bill,' and his name so appears in the impression made by his notarial seal thereto. In the certificate of the secretary of the state of Missouri, and the copy of the notarial commission thereto, the name appears as 'Wilbur F. Bill.' It is contended that for this discrepancy, so appearing, the deed should not have been admitted in evidence. This circumstance was insufficient to warrant a rejection of this evidence.

The important question in the case is that of the validity of the said adverse claim to the said real-estate...