Drake v. Root

• Decision Date: 01 February 1875
• Parties: DRAKE et al. v. ROOT.
• Court: Colorado Supreme Court

2 Colo. 685

DRAKE et al. v. ROOT.

Supreme Court of Colorado

February, 1875

Error to District Court, Gilpin County.

MANSEL H. ROOT brought ejectment against Lester and Eugene Drake, to recover possession of a certain lot of ground, of about two acres, together with a dwelling-house and stable. In the first count, the plaintiff claimed title in fee; in the second count, he set up title as follows: 'And said plaintiff avers that he claims title to said premises in this count mentioned by purchase from Lester Drake.' In the third count, he set up title as follows: 'And the said plaintiff avers that he claims title to the premises in the count mentioned by purchase, and by possession and occupation, under the laws of the United States, and the laws of said Territory of Colorado, and the local laws, rules usages and customs of Lake Gulch District, in which said lands are situated. The trial was had at the November term 1874, upon the general issue. At the trial, the plaintiff gave evidence to prove that Lester Drake, with his family and his son Eugene, resided upon the premises; he also put in evidence a warranty deed, in the usual form, from Lester Drake, and Eliza, his wife, to the plaintiff, dated December 8, 1873, conveying the premises described in the declaration. The certificate of acknowledgment was as follows:

'Be it remembered, that on the 10th day of December, A. D. 1873 before me, the undersigned, a notary public in and for the county of Gilpin aforesaid, personally came Lester Drake and Eliza Ann Drake, his wife, who are personally known to me to be the same persons described in, and who executed, the foregoing deed and acknowledged that they executed the same freely and voluntarily, and for the uses and purposes therein mentioned. And I further certify that the said Eliza Ann Drake, wife of said Lester Drake, having been examined by me touching the execution and acknowledgment of said deed, separate and apart from and out of the presence of her said husband, the contents, meaning and effect of said deed were by me fully explained to her, separate and apart and out of the presence of her said husband, and after such explanation by me, and while still separate and apart from and out of the presence of her said husband, she acknowledged that she had freely and voluntarily executed the said deed for the uses and purposes therein mentioned, and that she did not wish to retract the same, and that the same was not made through the fear or compulsion of her said husband.'

To which the defendants objected that there was no waiver of the homestead right in deed or acknowledgment. The defendant Lester Drake gave in evidence that he had resided with his family upon the premises, the most of the time for ten years past; that he was residing there in December, 1873, when the deed to plaintiff was made, and that he had resided there ever since that time; that Eugene Drake was his son, residing with him. The defendants then offered to prove that before and at the time of the execution of the deed to plaintiff, the defendant Lester Drake was indebted to plaintiff in the sum of $18,828.65, which was mentioned as the consideration in the deed, and which was secured on a portion of the property described in the deed; that at the time of the execution of the deed it was agreed between them that said Drake should deed to the said Root the lands described in the deed, and that the amount of indebtedness due should be taken as the consideration in the deed. The Root should at the same time give back to Drake a bond to reconvey to said Drake the property in said deed mentioned, at any time within fifteen months from the 1st day of January, 1874, upon payment of the said sum in deed and bond mentioned, and that the said Drake might retain the possession of the house and lot in controversy, for the space of one year; and further, that the said bond to reconvey was duly executed by Root, and the said Root also verbally agreed at the time of the execution of the bond and deed, that the said Drake might retain possession of said house and lot in controversy, for the period of one year. Which said evidence the court refused to hear, and the defendants excepted.

The defendants then offered in evidence a deed of trust, in the usual form, being dated April 5th, A. D. 1867, made by said Lester Drake to Willard Teller, conveying a large number of lode claims, together with the house and lot in controversy; which said deed was declared to be in trust to secure the payment of three promissory notes therein mentioned, amounting to $6,393.32, and interest at the rate of four per cent per month.

And upon the objection of the plaintiff, the deed last mentioned was excluded.

The defendants asked the court to charge, 'That in order that plaintiff may recover in this case, he must show to their satisfaction that he has the legal title to the property in the declaration mentioned, and that he was at the time of the commencement of this suit entitled to the possession thereof, and that the legal title is all the title with which they have any thing to do, and that it is also incumbent on the plaintiff to show what title he claims, whether in fee, or for a term of years, or the right to occupy, possess and enjoy the property under the local laws and customs of said mining district, and if plaintiff has failed to show what title he claims, he is not entitled to recover in this action,' which the court refused and the defendant excepted.

The verdict was as follows:

'We, the jury in the above-entitled cause, find the defendants guilty; and we find that the plaintiff is the owner of the premises, as averred in the declaration, and is entitled to the possession thereof.'

Upon which the court gave judgment and the defendants sued out this writ of error.

Mr. H. M. TELLER and Mr. WILLARD TELLER, for plaintiffs in error.

Mr. L. C. ROCKWELL, contra.

HALLETT C. J.

The act which exempts homesteads from execution and sale, under process of law (R. S. 385), contains no provision as to selling or conveying such property, except by way of mortgage. By the sixth section it appears that a wife must join in a mortgage of the homestead, but nothing is said as to any other conveyance, and, therefore, all others must be governed by the general law regulating conveyances of real estate. It will not be contended that by living upon a tract of land the owner will lose the right to alienate it, and as to the wife, under the general law (R. S. 259), she has no right of dower, and by the fourth section of this act, she has a right in that homestead only of which the husband is seized at the time of his death. But, if it was necessary that the wife of Lester Drake should join in the deed to defendant in error, that was done, and the instrument was executed and acknowledged in the manner required by section six of the act. In Illinois, the statute seems to...