Downing v. Bartels

• Decision Date: 14 March 1884
• Citation: 7 Colo. 256,3 P. 225
• Parties: DOWNING and another v. BARTELS.
• Court: Colorado Supreme Court

3 P. 225

7 Colo. 256

DOWNING and another v. BARTELS.

Supreme Court of Colorado

March 14, 1884

Appeal from the county court of Arapahoe county.

Blood & Bartels, for appellants.

France & Rogers, for appellee.

BECK C.J.

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. 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 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 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 that Johnston 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 deed executed by said probate judge to Morris B. Foy was not executed in conformity with the acts of congress, and the acts of the legislature of Colorado relating to the execution of the trust vested in the probate judge. Said plaintiff was also permitted to introduced evidence to show that said deed was fraudulently issued by said probate judge, there being no such person as the said Morris B. Foy.

The jury were instructed substantially that the conveyances introduced by the plaintiff made out a prima facie case in her favor, entitling her to recover. They were told to disregard the outstanding title acquired through the tax sale; and as to the title derived by the said defendant by conveyances from Downing, probate judge, that it constituted a complete defense to the action, unless they found from the evidence that no such person as the said Morris B. Foy existed, or that he had not, by himself or agent, filed his claim to the lot in question with the probate judge on or before the tenth day of August, 1865; but that if they found either of the last-mentioned facts to be true, the deed to Foy was fraudulent and void, and the verdict must be for the plaintiff.

The controlling questions presented by this record related to the admission and exclusion of testimony, and to the instruction referred to. The plaintiff produced in evidence a regular chain of conveyances from the government down to herself; the defendant Downing an equally regular chain of title from the same original source to her. No error occurred thus far in the admission of testimony. The defendants' offer to introduce a title derived from the Denver Town Company was properly rejected, and the jury correctly instructed to disregard the tax title. The former could not in any view of the case prevail over the title derived by the plaintiff by mesne conveyances from the government, and the latter was void for the reason that the property was not liable to taxation at the time it purported to have accrued. Equally incompetent as against the plaintiff's title was the offer, in this action, to prove the occupation and improvements of D. A. Johnston, and his conveyance to said defendant. There was no way of deriving title except as pointed out by the congressional and territorial acts, and none of the rejected testimony constitutes a title thereunder. Clayton v. Spencer, 2 Colo. 380.

This narrows the contest down to the title vested by the United States in the probate judge of Arapahoe county, and the two chains of title proceeding from that functionary,--one to the plaintiff, through deed of Henry A. Clough, probate judge, to Louis F. Bartels, bearing date October 29, 1872; the other to the defendant, through deed of Jacob Downing, probate judge, to Morris B. Foy, bearing date October 3, 1868. The deed from Clough, probate judge, was executed on the assumption that the title of the lot in controversy had not passed by the deed from Downing, his predecessor in office, to Foy, and is supposed to have been authorized by the territorial act approved February 8, 1872, entitled ' An act to provide for the further execution of the trust relating to the city of Denver, and to regulate the same.' This act required the probate judge to make a list of all parcels of land embraced in the patent to the town-site to which claims had not been filed on or before August 9, 1865, (specifying certain reservations and exceptions,) and upon completion of the list to advertise and sell said parcels at public vendue, to the highest bidder, for cash. Notice was required to be given of the time when the probate judge would commence to make the list, and when sitting for that purpose the city attorney or any citizen had a right to be present, and to suggest, by petition, that lots or lands had been omitted from the list, and that filings which appeared to have been made on or before the ninth day of August, 1865, were in fact made after that time. Upon presentation of such petition, continues the act, 'it shall be the duty of said probate judge to inquire into the same by such competent testimony as may be produced before him in that behalf, and if he shall be of opinion that such lots or lands have been wrongfully omitted, he shall thereupon include the same in such list, and proceed to advertise and sell the same.'

In pursuance of said act, Probate Judge CLOUGH...