Foot v. Burr

Citation92 P. 236, 41 Colo. 192
Case DateOctober 07, 1907
CourtSupreme Court of Colorado

92 P. 236

41 Colo. 192

FOOT et al.
v.
BURR.

Supreme Court of Colorado, En Banc.

October 7, 1907


Appeal from District Court, City and County of Denver; John I. Mullins, Judge.

Action to quiet title by Edwin N. Burr against Robert E. Foot and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

[41 Colo. 193] Macbeth & May, Robt. E. Foot, and John F. Truesdell, for appellants.

Richardson & Hawkins, for appellee.

CASWELL, J.

Action to quiet title in the usual form; plaintiff alleging ownership in fee and possession of the property, and alleging that the defendant Robert E. Foot, for himself individually and as trustee for the use of one Lydia L. Foster and John Sanger, claim some right, title, and interest in certain property described. The answer of defendants admitted that they claimed an adverse interest in the land, and described such interest as created by a trust deed executed by one Frances D. Parr, the former owner of the land, and given by her to secure her unpaid note now held by defendant John Sanger; but the facts alleged in the petition not admitted by the answer were denied. The answer further avers that, under the power and authority vested in defendant Foot as trustee, [41 Colo. 194] he had a legal right to sell the real estate involved for the purpose of satisfying the indebtedness, and that he was proceeding in conformity with the terms and conditions of the trust deed to sell the property pursuant to the conditions thereof and the power of sale therein contained. The plaintiff below demurred to the answer of defendants, setting up the statute of limitations. The demurrer was sustained, and, the defendants electing to stand upon their answer, a decree was entered adjudging the plaintiff to be the owner of the property in controversy, and that the defendants had no right, title, or interest, individually or as trustee for the use of John Sanger or any other person, in said property or any part thereof, and quieted the title in the plaintiff, and enjoined the defendants from asserting any right, title, or interest in or to the said property or any part thereof as against the plaintiff. The case comes to this court by appeal.

It is suggested that the law does not permit the mortgagor or his grantee to quiet title against the holder of the mortgage on the naked ground that the right to foreclose the mortgage has been barred by the statute of limitations. Our attention has been called to the case of Gibson v. Johnson, 73 Kan. 261, 84 P. 982. But the answer in the case in hand is not susceptible of the same construction as the answer in the case cited. We think the answer in this case clearly alleges that the debt was valid and indisputable;that the defendant Foot had a right to sell the property and apply the proceeds to the debt, and that he was proceeding to do so; that the trust deed constituted a lien upon the property superior to that of plaintiff; that such facts were alleged affirmatively against the plaintiff for the purpose of overthrowing his case; and that the [41 Colo. 195] plaintiff might properly plead the bar of the statute of limitations as against such affirmative allegations. This was the ruling in the Kansas case cited, and is in accord with the ruling of this court. Buckingham v. Orr, 6 Colo. 590; Schlageter v. Gude, 30 Colo. 310, 70 P. 428; Hunt v. Hayt, 10 Colo. 281, 15 P. 410; Hexter v. Clifford, 5 Colo. 168, 173.

The real question presented, however, is whether the demurrer was properly sustained, and this raises directly the question as to whether the statute of limitations, which bars a personal action on the note of Frances D. Barr, also bars the contract remedy of [92 P. 237] sale by the trustee. In the case of Holmquist v. Gilbert, 92 P. 232, decided at this term of the court by an opinion prepared before the presentation of this case, the court held that our statute of limitations does not affect the right of foreclosure of a trust deed or the power of the trustee to foreclose by advertisement and sale; and such is the ruling in this case. Our statute of limitations (section 2900, Mills' Ann. St.) reads: 'The following actions shall be commenced within six years next after the cause of action shall accrue, and not afterwards.' The proceeding by trustee to sell the property by advertisement is in accordance with the terms and conditions of the trust created by the deed, and is in no sense an action such as is contemplated by our statute. Both by our Code and by the decision of this court, an action is a proceeding before a court of justice in a manner prescribed by the court or the law. Jones v. Bank of Leadville, 10 Colo. 479, 17 P. 272. The first section of our Code of...

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14 practice notes
  • Fitzgerald v. Flanagan
    • United States
    • Iowa Supreme Court
    • 10 Abril 1912
    ...Pa. 530, 26 Atl. 104, 34 Am. St. Rep. 717;U. S. v. Trust Co., 213 Pa. 411, 62 Atl. 1062; Camden v. Alkire, 24 W. Va. 674; Foot v. Burr, 41 Colo. 192, 92 Pac. 236, 13 L. R. A. (N. S.) 1210. But in this state, in Arkansas, by a recent statute, in California, in Idaho, Illinois, Kentucky, Minn......
  • Ed. Fitzgerald v. Flanagan
    • United States
    • United States State Supreme Court of Iowa
    • 10 Abril 1912
    ...530 (26 A. 104, 34 Am. St. Rep. 717); United States v. Trust Co., 213 Pa. 411 (62 A. 1062); Camden v. Alkire, 24 W.Va. 674; Foot v. Burr, 41 Colo. 192 (92 P. 236, 13 L. R. A. (N. S.) 1210). But in this state, in Arkansas, by a recent statute, in California, in Idaho, Illinois, Kentucky, Min......
  • National Tailoring Co. v. Scott, 2392
    • United States
    • United States State Supreme Court of Wyoming
    • 3 Agosto 1948
    ...reiterated the rules announced by it in two of its prior decisions-- Holmquist vs. Gilbert, 41 Colo. 113, 92 P. 232, and Foot vs. Burr, 41 Colo. 192, 92 P. 236--thus: "In the above cases it was held: (1) That our statute of limitations operates only to bar the remedy by an action, and ......
  • Top Rail Ranch Estates, LLC v. Ronald E. Walker & Walker Dev. Co., Court of Appeals No. 12CA0227
    • United States
    • Colorado Court of Appeals of Colorado
    • 20 Marzo 2014
    ...even though the debt was extinguished by the foreclosure sale and the instrument was surrendered to the public trustee); Foot v. Burr, 41 Colo. 192, 197–200, 92 P. 236, 237–38 (1907) (noting that a deed of trust is both a lien and a personal contract); see also Compass Bank v. Kone, 134 P.3......
  • Request a trial to view additional results
14 cases
  • Fitzgerald v. Flanagan
    • United States
    • Iowa Supreme Court
    • 10 Abril 1912
    ...Pa. 530, 26 Atl. 104, 34 Am. St. Rep. 717;U. S. v. Trust Co., 213 Pa. 411, 62 Atl. 1062; Camden v. Alkire, 24 W. Va. 674; Foot v. Burr, 41 Colo. 192, 92 Pac. 236, 13 L. R. A. (N. S.) 1210. But in this state, in Arkansas, by a recent statute, in California, in Idaho, Illinois, Kentucky, Minn......
  • Ed. Fitzgerald v. Flanagan
    • United States
    • United States State Supreme Court of Iowa
    • 10 Abril 1912
    ...530 (26 A. 104, 34 Am. St. Rep. 717); United States v. Trust Co., 213 Pa. 411 (62 A. 1062); Camden v. Alkire, 24 W.Va. 674; Foot v. Burr, 41 Colo. 192 (92 P. 236, 13 L. R. A. (N. S.) 1210). But in this state, in Arkansas, by a recent statute, in California, in Idaho, Illinois, Kentucky, Min......
  • National Tailoring Co. v. Scott, 2392
    • United States
    • United States State Supreme Court of Wyoming
    • 3 Agosto 1948
    ...reiterated the rules announced by it in two of its prior decisions-- Holmquist vs. Gilbert, 41 Colo. 113, 92 P. 232, and Foot vs. Burr, 41 Colo. 192, 92 P. 236--thus: "In the above cases it was held: (1) That our statute of limitations operates only to bar the remedy by an action, and ......
  • Top Rail Ranch Estates, LLC v. Ronald E. Walker & Walker Dev. Co., Court of Appeals No. 12CA0227
    • United States
    • Colorado Court of Appeals of Colorado
    • 20 Marzo 2014
    ...even though the debt was extinguished by the foreclosure sale and the instrument was surrendered to the public trustee); Foot v. Burr, 41 Colo. 192, 197–200, 92 P. 236, 237–38 (1907) (noting that a deed of trust is both a lien and a personal contract); see also Compass Bank v. Kone, 134 P.3......
  • Request a trial to view additional results

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