Knox v. Gibson

• Decision Date: 11 November 1912
• Parties: KNOX et al. v. GIBSON.
• Court: Colorado Court of Appeals

128 P. 470

23 Colo.App. 402

KNOX et al. v. GIBSON.

Court of Appeals of Colorado

November 11, 1912

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

Action by Charles E. Gibson against Charles D. Knox and the Empire Ranch & Cattle Company. Judgment for plaintiff, and defendants appeal. Reversed.

R.H Gilmore, of Denver, for appellants.

John F Mail, of Denver, for appellee.

CUNNINGHAM, J.

The appellee, as plaintiff below, brought his action, under section 255 of the Code, to quiet title to certain lands in Yuma county. As required by this section, plaintiff alleged that he was the owner and in possession of the land. There was no attempt to prove actual possession, and from the record it may be assumed that the land was vacant. Hence, if the plaintiff had possession at all, it must have been constructive possession and dependent entirely upon whether or not he proved title in himself.

1. For the purpose of making his case, plaintiff introduced a patent from the government to one Hass, a trust deed given by Hass a trustee's deed (resulting from the foreclosure of said trust deed) to the Colorado Securities Company, and a deed from a receiver appointed by the district court, running to the plaintiff; the receiver having been appointed by the court in a certain action against the Colorado Securities Company. If either of the last two instruments--that is, the trustee's or the receiver's deeds--were void or insufficient on their face to convey title, and were not aided by any other evidence, then the plaintiff failed in his attempt to prove title, and failing to prove title there would be no proof of his possession, since, as we have seen his possession must have been, if he had possession at all, purely constructive.

We have recently held, following the rule laid down in Carico v Kling, 11 Colo.App. 349, 53 P. 390, and the authorities there cited, that the recitations in a trustee's deed are prima facie proof of the matters stated in them. But the trustee's deed offered by the plaintiff in this case omitted certain recitations essential to its validity. For instance, it does not give the date on which the publication of the foreclosure notice was begun, how long the same was published, or in what paper it appeared. Neither does the trustee's deed recite that any request had been made by the legal owner or holder of the note of the trustee to have the trust deed foreclosed. It seems there was a purported advertisement of the trustee's sale, which recited the things usual in such published notices, attached to an affidavit of publication by one Williams, who stated that he was the editor of the Yuma Pioneer, a weekly newspaper, etc., and that he had published the notice in his paper for five consecutive weeks, giving the dates of publication. The trustee makes reference to the matter of advertisement in the following language: "That said premises were on the ______ day of ______, A.D.1894, by the said party of the first part [meaning himself, the trustee] duly advertised for public sale on the 20th day of June, 1894, at the Tremont street door of the courthouse in the county of Arapahoe, and state of Colorado; that said notice was published in the ______ for the period of ______ days, and certified copy of said advertisement is herein incorporated." It will be seen that the published notice returned by the printer must be looked to for the recitations pertaining to the publication--that is, as to the length of time it run, and the dates thereof--and also it is to this publication that we must look for the recitations pertaining to the request of the cestui que trust for the foreclosure of the trust deed, and, perhaps, other essential recitations. The question therefore is: Can the recitations of the publisher of a foreclosure notice, supported...