Knight v. Lawrence

• Court: Colorado Supreme Court
• Writing for the Court: ELLIOTT, J. (after stating the facts).
• Citation: Knight v. Lawrence, 19 Colo. 425, 36 P. 242 (Colo. 1894)
• Decision Date: 07 March 1894
• Parties: KNIGHT v. LAWRENCE. [1]

36 P. 242

19 Colo. 425

KNIGHT v. LAWRENCE. ^[1]

Supreme Court of Colorado

March 7, 1894

Error to district court, Arapahoe county.

Action by Elizabeth J. Knight against Thomas W. Lawrence for recovery of real property. Defendant obtained judgment. Plaintiff brings error. Reversed.

Synopsis of the Pleadings.

Complaint as in an ordinary action of ejectment, plaintiff claiming title in fee to lots 5 and 6 in block 125, east division of the city of Denver, Arapahoe county, Colo.

Answer First Defense. Denies plaintiff's title, possession, and right of possession.

Second Defense. Alleges title, possession, and right of possession in defendant.

Third Defense. Alleges title in defendant derived from plaintiff and her husband through sundry mesne conveyances by virtue of the execution and delivery of a certain deed, as follows:

'This deed made this 23d day of September, in the year of our Lord one thousand eight hundred and seventy-two, between Elizabeth J. Knight and Henry Knight, of the county of Arapahoe and territory of Colorado, of the first part, and Martin H. Marriott, of the county of Arapahoe and territory of Colorado, of the second part, witnesseth, that the said party of the first part, for and in consideration of the sum of four thousand dollars to the said party of the first part in hand paid by the said party of the second part, the receipt whereof is hereby confessed and acknowledged, have granted, bargained, sold, and conveyed, and by these presents do grant, bargain, sell, convey, and confirm, unto the said party of the second part, his heirs and assigns forever, all the following described lot or parcel of land situate, lying, and being in the county of Arapahoe and territory of Colorado, to wit: Two town lots in Denver city, in said county and territory, known and designated in the plat of said town as lots five and six in block number one hundred and twenty-five (125), lying and being on Champa street, between L. & M. It being agreed and understood that J. G. Perino holds a deed of trust given by E. J. and H. Knight for the sum of twenty-five hundred dollars, which is now assumed by the party of the second part, and is to be paid by him, which, with the sum of fifteen hundred dollars cash, constitute the consideration in full. Together with all and singular the hereditaments and appurtenances thereunto belonging or in any wise oppertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof, and all the estate, right, title, interest, claim, and demand whatsoever of the said party of the first part, either in law or equity, of, in, and to the above-bargained premises with the hereditaments and appurtenances. To have and to hold the said premises above bargained and described, with the appurtenances, unto the said party of the second part his heirs and assigns forever. And the said Elizabeth J Knight and Henry Knight, parties of the first part, for their heirs, executors, and administrators, do covenant, grant, bargain, and agree to and with the said party of the second part, his heirs and assigns, that at the time of the ensealing and delivery of these presents, they are well seised of the premises above conveyed as of good, sure, perfect, absolute, and indefeasible estate of inheritance in law, in fee simple, and have good right, full power, and lawful authority to grant, bargain, sell, and convey the same in manner and form aforesaid, and that the same are free and clear from all former and other grants, bargains, sales, liens, taxes, assessments, and encumbrances of whatever kind or nature soever, and the above bargained premises in the quiet and peaceable possession of the said party of the second part, his heirs, and assigns, against all and every person or persons lawfully claiming or to claim the whole or any part thereof the said party of the first part shall and will warrant and forever defend. In witness whereof the said party of the first part have hereunto set their hands and seals the day and year first above written. Elizabeth J. Knight. [Seal.] H. Knight. [Seal.]

'Territory of Colorado, County of Arapahoe, ss.: I, John R. Elvans, a notary public in and for said county, in the territory aforesaid, do hereby certify that Henry J. Knight, who is personally known to me to be the person whose name is subscribed to the foregoing deed, appeared before me this day in person, and acknowledged that he signed, sealed, and delivered the said instrument of writing as his free and voluntary act for the uses and purposes therein set forth. And the said Elizabeth J. Knight, wife of said Henry J. Knight, having been by me examined separate and apart and out of the hearing of her husband, and the contents and meaning of said instrument of writing having been by me made known and fully explained to her, she acknowledged that she freely and voluntarily executed the same, and relinquished her dower to the lands and tenements therein mentioned, without compulsion of her husband, and that she does not wish to retract the same.

'Given under my hand and notarial seal this 23d day of September, A. D. 1872. John R. Elvans, Notary Public. [Notarial Seal.]'

Fourth Defense. Alleges, inter alia, the execution and delivery of the deed set forth in the third defense for a valuable consideration; that the deed was received and accepted by Marriott from plaintiff in good faith, and gave color of title under which, by plaintiff's consent, the grantee went into immediate possession of the premises, believing at the time, and always thereafter believing, that the deed conveyed to and vested in him the title in fee simple thereto; that said Marriott, his heirs, and the defendant have for more than 16 continuous and successive years thereafter, and next preceding the commencement of this action, been in the actual, peaceable, and undisputed possession of the property described in the complaint, under claim and color of title made in good faith, and during said time have paid all taxes legally assessed upon said property, to wit, from 1872 to 1888, inclusive; and that, by reason of the premises, and by force of the statute in such case made and provided, defendant must be deemed and held to be seised in fee of said premises, and entitled to have and retain the possession thereof.

Fifth Defense. Short plea of statute of limitations is affirmative form.

Replication: By a general replication, each of the affirmative defenses of the answer--that is, the second, third, fourth, and fifth defenses, respectively--is traversed. In addition to this, there are two special replications. The first is, in substance, as follows: For replication to defendant's third and fourth defenses, plaintiff says that on the 23d day of September, A. D. 1872, she was a married woman, the wife of one Henry Knight, who was then in full life, and that on said day she was, and ever since has been, and now is, the owner, and seised in fee in her own right, of the premises in the complaint described, and that the said Henry Knight did not then have, nor ever had, any right, title, or interest in or to the said premises other than as the husband of the plaintiff, and that the said supposed deed in said defenses set out is not her deed; all of which said Marriott, grantee in said deed, his heirs, and each of them, and the said defendant, at and after the time when it is alleged they acquired title and possession of the premises, respectively, well knew. The second special replication to said third and fourth defenses is the same in substance as the first, except that it does not contain the allegation that the deed of September 23, 1872, is not the deed of plaintiff. Defendant demurred to said special replication for insufficiency; that is, on the ground that neither of said replications states facts sufficient to constitute a reply to either the third or fourth defenses of defendant's answer. Upon argument and consideration, said demurrers were sustained; and thereafter, plaintiff electing to abide by said special replications, and declining to plead further, the court rendered final judgment, dismissing plaintiff's action.

Limitation Act of 1874: 'Section 1. That every person in the preaceable and undisputed possession of lands or tenements, including mining claims, under claim and color of title, made in good faith, including pre-emptions made in accordance with the laws of the state of Colorado, or any mining district wherein such property may be situate, who shall for five successive years hereafter continue in such possession, and shall also, during said time, pay all taxes legally assessed on such lands, tenements or mining claims, shall be held and adjudged to be the legal owners of said lands, tenements or mining claims, to the extent and according to the purport of his or her proper title or pre-emption. All persons holding under such possession by purchase, devise or descent, before said five years shall have expired, and who shall continue such possession and continue to pay the taxes aforesaid, so as to complete the possession of and payment of taxes for the term aforesaid, shall be entitled to the benefit of this section.' Gen. St. § 2186.

Conveyances by Married Women: 'Sec. 17. Married women may convey their estate in lands by uniting with their husbands in any conveyance thereof, and acknowledging the same separate and apart from their husbands, and the officer hearing such acknowledgement shall certify that the same was made upon examination separate and apart from, and out of the presence of the husband of such woman, that the contents, meaning and effect of such deed were by him fully explained to her. The provisions of section fifteen of this chapter shall not apply to conveyances by married...