Lambert v. Murray
| Decision Date | 06 January 1912 |
| Citation | 120 P. 415,52 Colo. 156 |
| Parties | LAMBERT v. MURRAY et al. |
| Court | Colorado Supreme Court |
Casemaker Note: Portions of this opinion were specifically rejected by a later court in 254 P. 768
Casemaker Note: Portions of this opinion were specifically rejected by a later court in 259 P. 1033
Error to District Court, Washington County; H. P. Burke, Judge.
Action by George Murray, M. C. Henneberry, and Clara W. Thompson copartners, doing business under the firm name of the Bank of Akron against W. T. Lambert. There was a judgment for plaintiffs, and defendant brings error. Reversed and remanded.
Allen & Webster, for plaintiff in error.
J. E McCall and Stuart & Murray, for defendants in error.
This writ of error was sued out to review a judgment of the district court in favor of the plaintiffs, who are defendants in error here. The action was one to quiet title. The complaint was in the usual form. The answer consisted of five numbered paragraphs. The plaintiffs seem to insist that each of these paragraphs was a separate answer, while the defendant contends that they all constitute one answer. It is unnecessary to determine this. It will be assumed, as the plaintiffs seem to contend, that the third paragraph is a separate answer, and it will be spoken of hereafter as the answer. In this answer the defendant alleged that he was the full, absolute, and unqualified owner in fee simple of the land described in the complaint, and then stated perhaps unnecessarily, that he obtained his title by a tax deed from the county treasurer of the then county of Arapahoe. It is then alleged that, under and by virtue of the tax deed, the defendant took and ever since has remained in possession of the premises, and that he paid all taxes assessed thereon since the date of the tax sale, which, together with the sum bid at the said sale, amounted to the sum of $300. The allegations in the answer of ownership and possession in the defendant are in effect a denial of ownership and possession in the plaintiffs. Bessemer I. D. Co. v. Wooley, 32 Colo 437, 440, 76 P. 1053, 105 Am.St.Rep. 91. The answer, therefore, which constituted one defense, not only asserted an adverse interest in the defendant, specifying its nature, but also denied that the plaintiffs were in possession of the premises.
Section 274, Rev. Code (section 255, Mills' Code), under which the action was brought, reads: 'An action may be brought by any person in possession by himself or his tenant, of real property, against any person who claims an estate therein adverse to him, for the purpose of determining such adverse claim, estate or interest.' This statute is plain. The person who may bring such an action must aver his possession, coupled with his title to the premises. This the plaintiffs did. Before the defendant could put the plaintiffs upon proof of their possession and ownership, it was necessary for him to assert an adverse interest in himself. The defendant, in the answer under consideration, not only asserted an adverse interest in the premises, specifying its nature, but also denied the possession of the plaintiffs. These are the facts with reference to the pleadings under consideration. It is to these facts that the law must be applied. Under all the decisions of this court, the assertion of an adverse title in the defendant with a specification of its nature, coupled in the same defense with a denial of the possession of the plaintiff (if such a denial in necessary), is sufficient to put the plaintiff upon proof of his title and possession, and under such circumstances, the proof of the one is as necessary for the maintenance of the action as the proof of the other. Wall v. Magnes, 17 Colo. 476, 30 P. 56; Phillippi v. Leet, 19 Colo. 246, 35 P. 540; Reynolds v. Campling, 23 Colo. 105, 46 P. 639; Mitchell v. Titus, 33 Colo. 385, 80 P. 1042; Lambert v. Shumway, 36 Colo. 350, 85 P. 89; Sayre v. Sage, 47 Colo. 559, 108 P. 160; Buckland v. Fielder, 48 Colo. 153, 109 P. 262; Empire Co. v. Bender, 49 Colo. 522, 113 P. 494.
No proof whatever was offered or admitted touching plaintiffs' possession, nor was it shown that the land was vacant or unoccupied. At the close of plaintiffs' case, a motion was made that the complaint and action be dismissed for the reason that the evidence was insufficient to sustain the allegations of the complaint, and because no proof had been submitted requiring the defendant to make any defense. This motion was overruled, and the defendant did not thereafter supply any deficiency in plaintiffs' proof. It is the contention of the plaintiffs that the defendant set up an affirmative defense and asked for such affirmative relief as to now preclude him from requiring that the plaintiffs prove possession. The weakness of plaintiffs' contention in this regard lies in the fact that the defendant did not set forth an affirmative defense in the nature of a cross-complaint, nor ask for any relief except such as he was entitled to under the statute. It is plain from a reading of section 274, supra, that the purpose of such an action is action is to determine the adverse claim, estate, or interest of the defendant, and in this determination the relative merits of the two titles would be involved. The defendant set forth just what the statute required, namely, his adverse interest. In his prayer, perhaps unnecessarily, he asked that the complaint be dismissed; that he be decreed the owner of the lands described in the complaint; that the plaintiffs are without title, and for his costs. The determination of the adverse title would necessarily result in just what the defendant asked for, if he sustained his answer, so that his prayer asked for no other relief than he would have been entitled to if he had merely alleged his adverse title and omitted the prayer. To hold that, on account of his defense and prayer, he waived proof of possession by plaintiffs, would be to say that the assertion of his adverse title, which the statute required, would be such a waiver, and the statute, so far as possession is concerned, would be thus entirely abrogated. The plaintiffs base their contention upon the case of Relender v. Riggs, 20 Colo.App. 423, 79 P.
328. That case is entirely different from this one. There the defendant filed a cross-complaint setting forth that plaintiff's title was based on a sheriff's deed; that the judgment upon which the execution had issued was obtained upon an indebtedness that had originated in fraud against the company that owned the premises; that the defendant obtained a judgment against the same company, and had purchased the premises under an execution sale after the plaintiff's purchase; that the sheriff had refused to issue a deed to the defendant, and was a necessary party to a complete determination of the controversy. Upon this state of facts, the court said: The answer here was far from the cross-complaint filed in the Relender Case, and, furthermore, this defendant objected to the failure of proof when plaintiffs closed their case. That was not so in the Relender Case. The holding of that case is set forth in the syllabus thus: 'In an action to quiet title defendant by filing a cross-complaint in which he sought to have his own title quieted, and by failing to object to the insufficiency of plaintiff's proof at the close of plaintiff's testimony, waived objection to plaintiff's failure to prove possession.' The other cases cited by the plaintiffs are similar to the Relender Case, and are not applicable.
The plaintiffs also say that they proved title in fee in themselves, and that such title carries with it a presumption of possession sufficient to make prima facie proof thereof. They base this claim principally upon the case of Walker v Pogue, 2 Colo.App. 149, 29 P. 1017, wherein the court, in the course of its opinion, said: 'The possession of real property is in all cases supposed to follow a conveyance of the legal title unless retained for a given time by contract of the parties.' This is no doubt true as an abstract proposition. It is supposed that when a person sells real estate that he delivers the possession, but a supposition is not a presumption. Furthermore, the court held that the case was not an action to quiet title under section 274, but was an action to set aside a conveyance made by the plaintiff on the ground of fraud, so that the question of possession was wholly immaterial in that case, and anything said with regard to it was obiter. The decisions of this court in cases under section 274 confine the proof of title as being sufficient proof of possession to vacant and unoccupied lands. In Morris et al. v. St. Louis N. Bk., 17 Colo. 231, 29 P. 802, it is said that there is a fiction of law that the possession of vacant or unoccupied lands follows the legal title, expressly excepting, however, from this fiction the case of a legal title derived through a tax deed. In Phillippi v. Leet, supra, it was said that the evidence showed that the land in controversy was open prairie, and that the defendant had a survey made of the tract and placed monuments at the corners of the land then in possession of plaintiff's grantor. The language of every opinion must be taken in connection with the facts to which it is applied. It appears in that...
To continue reading
Request your trial