Empire Ranch & Cattle Co. v. Bender

• Decision Date: 06 February 1911
• Citation: 113 P. 494,49 Colo. 522
• Parties: EMPIRE RANCH & CATTLE CO. v. BENDER.
• Court: Colorado Supreme Court

113 P. 494

49 Colo. 522

EMPIRE RANCH & CATTLE CO. v. BENDER.

Supreme Court of Colorado

February 6, 1911

Appeal from District Court, Washington County; H. P. Burke, Judge.

Action by Sarah E. Bender against the Empire Ranch & Cattle Company. Judgment for plaintiff, and defendant appeals. Affirmed.

R. H Gilmore, for appellant.

Allen & Webster, for appellee.

BAILEY J.

This is an action to quiet title under section 255 of the Code. The complaint, as amended, alleges that the plaintiff is the owner and in possession of the S.W. 1/4 of section 21 township 1 North, range 51 West, in Washington county, Colo that the defendant claims some right, title and interest in the land, which is without right as against the plaintiff and is a cloud upon her title. For a first defense, the defendant denies each and every allegation of the complaint, except it admits that it claims title to the real property described therein; and for a second and separate defense sets up a tax title, praying for a judgment and decree quieting same. Plaintiff had judgment and defendant brings the case here for review on appeal.

In the defendant's brief the question of the insufficiency of the complaint to support the action, because of its failure to allege that the title claimed by the defendant is adverse, is suggested. No such objection was made below, there is no assignment of error thereon and this matter is thus, for the first time, brought to the attention of this court, or of any court. It might well be held, under this state of facts, that this objection has never been legally raised. However, even if it be true that the complaint was obnoxious to a general demurrer, which we do not decide, it is clear that the omission from the complaint was cured by the allegations of the second defense, as it sets up an adverse title to that of plaintiff, and so supplied any supposed defect in the complaint. Robinson Con. Min. Co. v. Johnson, 13 Colo. 258, 22 P. 459, 5 L.R.A. 769. It is to be further observed that the defendant asks for affirmative relief under its second defense, to the end that its title be quieted, and that plaintiff be barred and estopped from asserting any claim to the property in dispute, thus submitting the entire controversy to the court for adjudication, so that this objection, in any event, is not now good. The fact that the defendant later, by amendment, had stricken from its prayer the request for affirmative relief does not alter the situation to his advantage. The jurisdiction of the court attached upon the filing of the answer, and nothing that the defendant might do thereafter, by way of amending its prayer, could oust that jurisdiction. In Goodrum et al. v. Ayers, 56 Ark. 93, 19 S.W. 97, the Supreme Court of that state, speaking to an analogous proposition, had this to say:

'Conceding that the plaintiff was not in possession of the land, and for that reason could not maintain a suit to quiet title, it cannot avail the appellant; for he filed a cross-bill seeking to quiet his own title, and it gave the court jurisdiction of the entire controversy.'

The evidence is that prior to the inception of the alleged tax title one Jacob F. Eckels, in possession as owner of the land in controversy, under patent from the United States, dated November 6, 1895, conveyed the premises in dispute, for a consideration of $1,150, to Sarah E. Bender, plaintiff, and that at the time of the commencement of this action and at the trial the lands were vacant and unoccupied. The title in fee in plaintiff to the land carries with it presumptive possession, and entitles her to maintain this action, in the absence of actual entry and adverse possession by another. Phillippi v. Leet, 19 Colo. 246, 35 P. 540; Morris et al. v. St. Louis Nat. Bank, 17 Colo. 231, 29 P. 802; Mitchell v. Titus, 33 Colo. 385, 80 P. 1042; Keener v. Wilkinson, 33 Colo. 445, 80 P. 1043. Not a syllable of testimony was given or offered to show actual entry or adverse possession by another.

The tax deed offered in evidence, to support defendant's adverse claim, was unacknowledged. Without acknowledgment it is a nullity, and was not competent in evidence for any purpose. Under the...