Drummond v. Christensen

• Decision Date: 04 March 1929
• Docket Number: 12021.
• Citation: 275 P. 906,85 Colo. 284
• Parties: DRUMMOND v. CHRISTENSEN.
• Court: Colorado Supreme Court

275 P. 906

85 Colo. 284

DRUMMOND v. CHRISTENSEN.

No. 12021.

Supreme Court of Colorado

March 4, 1929

Error to District Court, City and County of Denver; James C Starkweather, Judge.

Action by Donald F. Drummond, trustee under the last will and testament of Fannie F. Drummond, deceased, for the use and benefit of Edna Drummond Mayfield, against Marie Christensen. From a judgment of dismissal, plaintiff brings error.

Reversed and remanded.

Frank L. Hays and Joe H. Ross, both of Denver, for plaintiff in error.

BUTLER J.

The plaintiff in error, plaintiff below, brought this suit against the defendant in error to quiet title to real estate. The complaint is in the usual form, and contains the averments customary in suits to quiet title, including an allegation that the plaintiff is in possession of the property.

In her answer, the defendant denies plaintiff's ownership, and by way of counterclaim, she alleges that the plaintiff had conveyed the property to her, and that by virtue of such conveyance she, the defendant, is the owner of the property. The defendant prays that the title to the property be quieted in her.

In his replication, the plaintiff denies having conveyed the property to the defendant; alleges that the defendant procured the execution of plaintiff's deed by false representations; alleges further that the deed was placed in escrow, to be held pending negotiations between the plaintiff and the defendant for an exchange of property; that without the plaintiff's consent or knowledge the escrow holder caused the deed to be placed of record; that the negotiations for exchange fell through; and that the contemplated deal between the plaintiff and the defendant was never consummated. The prayer of the complaint was renewed.

The defendant filed a motion for judgment on the pleadings on the ground that 'the complaint and replication * * * do not state sufficient facts to constitute a cause of action against this defendant.' The trial court took the view that, as the defendant claims title under a conveyance by the plaintiff to her, the plaintiff cannot maintain an action to quiet title; presumably relying upon three decisions to the effect that in such case the defendant's title or claim is not an adverse title or claim, within the meaning of section 275 of the Code of Civil Procedure. Those cases are Walker v. Pogue, 2 Colo.App. 149, 29 P. 1017; Miller v. Hall 14 Colo.App. 367, 60 P. 194; Italian-American Bank v. Lepore 79 Colo. 466, 246 P. 792. Stating that the proper course for the plaintiff to pursue would be to sue in equity to cancel the deed, the court ordered the entry of a judgment dismissing the action, 'without prejudice, however, to either of the parties.'

We need not discuss, nor need we at this time either approve or disapprove, the holding in the cases relied upon by the trial court. In the present case, if the defendant had pleaded merely as a defense the conveyance by the plaintiff to her, it would present the question ruled upon by the trial court. Bu...