Fallon v. Davidson

• Decision Date: 27 January 1958
• Docket Number: No. 18035,18035
• Citation: 320 P.2d 976,137 Colo. 48
• Parties: William J. FALLON, Plaintiff in Error, v. Dorothy J. DAVIDSON, Vernon R. James, Bernice Strange, Inez Cuthier, Marjorie Browne, Doris Van Loan, Ardis Browne, and Vera Foster, Defendants in Error.
• Court: Colorado Supreme Court

Page 976

320 P.2d 976

137 Colo. 48

William J. FALLON, Plaintiff in Error, v. Dorothy J. DAVIDSON, Vernon R. James, Bernice Strange, Inez Cuthier, Marjorie Browne, Doris Van Loan, Ardis Browne, and Vera Foster, Defendants in Error.

No. 18035.

Supreme Court of Colorado, En Banc.

Jan. 27, 1958.

Lance W. Newby, Longmont, for plaintiff in error.

John S. Schaper, Robert H. Schaper, Colorado Springs, for defendants in error.

MOORE, Justice.

We will refer to the parties as they appeared in the trial court where defendants in error were plaintiffs, and plaintiff in error was defendant.

The action is one to determine the ownership of certain land in El Paso county, Colorado. Defendant claims full ownership thereof by reason of the issuance to him of a sheriff's deed on December 14, 1931, and the fact that thereafter he has been 'in the actual, visible, distant, hostile, exclusive, continuous, and uninterrupted possession' of the land in question. He also relies on the fact that under the color of title supplied by said deed he paid the taxes upon the real estate for the year 1930, and thereafter to and including the year 1955.

Plaintiffs filed their complaint more than eighteen years after the sheriff's deed was issued and after defendant allegedly went into 'exclusive' possession of the property.

In 1931 title to said land was vested as to 4/3 thereof in C. V. James and 1/4 thereof in the plaintiffs, who are his wife and children. They assert ownership of a 1/32 interest each in the property as tenants in common with defendant.

Defendant Fallon recovered a judgment against C. V. James in the district court of Boulder county. An execution issued thereon dated January 23, 1931, directed to the sheriff of El Paso county who levied upon the lands in dispute. At the sheriff's sale Fallon became the purchaser and on December 14, 1931, the sheriff's deed was issued to him. This instrument contained inter alia the following statement:

'Now, Therefor, Know All By This Deed, That I, Robert M. Jackson, Sheriff of the County of El Paso in the State of Colorado, in consideration of the premises, have granted, bargained, and sold and do hereby convey to the said William J. Fallon, his heirs and assigns, the following-described tracts of land, situate, lying and being in the County of El Paso and State of Colorado, to-wit:--the east half of Section thirty-four (34), Township eleven (11) South, Range sixty (60) West of the sixth (6th) P. M., El Paso County, Colorado.

'To Have and To Hold the said described premises, with all the appurtenances thereunto belonging, to the said William J. Fallon, his heirs and his assigns, forever.'

Nothing appears from the deed to indicate that only the actual 3/4 interest of the original judgment debtor was sold.

The trial court adjudged that each of the eight plaintiffs, as tenants in common, was the owner of a 1/32 interest in the land, and that defendant was the owner of a 3/4 interest therein. Defendants, seeking reversal of the judgment, brings the cause to this court by writ of error. There is no dispute as to the controlling facts as above set forth.

Question to be Determined.

First: Where title to real estate is held by tenants in common, and one of said tenants becomes a judgment debtor whose interest in the property is sold under execution; and where the sheriff's deed does not describe the fractional interest of the judgment debtor which was sold, but purports to convey the whole; can the grantee in said deed acquire full title by adverse possession as against the original tenants who shared the title with the judgment debtor?

This question is answered in the negative. In Reagan v. Dick, 88 Colo. 122, 293 P. 333, 334, this court said:

'So far as the sheriff's deed is concerned, it passed title to plaintiff to such property or interest therein as was owned or held by the judgment debtor at the time of the levy of the execution, and subsequent sale thereunder. If the judgment debtor had good title, the execution creditor obtained it, and, if the judgment debtor possessed no title or interest, the execution creditor could acquire none. Copeland v. Colo. Bank, 13 Colo.App. 489, 491, 59 P. 70; Irwin v. Beggs, 24 Colo.App. 158, 163, 132 P. 385; Ohio & Colorado Smelting & Refining Co. v. Barr, 58 Colo. 116, 131, 144 P. 552; Kreps v. Webster, 85 Colo. 572, 573, 277 P. 471, .

'Possession, if claimed under the sheriff's deed, was to such property only as therein described belonging to the judgment debtor; therefore there could be no possession, under the sheriff's deed, to the property in controversy here.'

The sheriff's deed to Fallon conveyed to him only the 3/4 interest in the land which was owned by James at the time of the sale. The grantee in said deed became a tenant in common with plaintiffs. It is well established in Colorado that possession of one co-tenant is possession of all. Rose v. Roso, 119 Colo. 473, 204 P.2d 1075; Hed v. Pullara...