Latta v. Clifford

• Decision Date: 01 August 1891
• Parties: LATTA v. CLIFFORD et al.
• Court: U.S. District Court — District of Colorado

47 F. 614

LATTA v. CLIFFORD et al.

United States Circuit Court, D. Colorado.

August, 1891

Syllabus by the Court

Where a statute requires, as an element necessary to give title by limitation, peaceable and undisputed possession of lands or tenements for a stipulated time, it is not required that a person shall have his feet on every square foot of ground, in order that it may be said under the law he is in possession. If he does that with reference to property of that kind which men usually do with their own, such as improving it, or using it for any purpose, that is possession, although the person may not live on it. The control, management, and direction that he may take with reference to the property, although he has never been on it, where it is under his control management, and direction, may be sufficient to establish possession.

Possession may be established by inclosure, by cultivation, by the erection of buildings or other improvements on the land, or in fact by any use that clearly indicates its appropriation and actual use by the person claiming to hold it.

Color of title means that which in appearance is title, but which in reality is no title. A deed which upon its face seems to convey title, but in reality, because of some defect, does not do so, is a good foundation for color of title.

What is color of title must be determined by the court.

Whether a party, in claiming realty under color of title, acted in good faith, is a question for the jury.

Before it can be said that a party acts in good faith in asserting a right under color of title, it must be found as a fact that he acted with reasonable diligence to ascertain the real character of the title under which he claims.

What is meant by reasonable diligence is not the diligence or skill that would be employed by a practiced conveyancer, or a skillful or acute attorney, but the diligence exercised by ordinary men generally.

If that kind of diligence has been employed, and has been honestly employed, and, when so employed, there appears that upon the face of the conveyance which seems to convey title, that would be the exercise of that reasonable diligence that the law contemplates shall be exercised before it can be said that a party has acted in good faith.

Where a statute of limitations provides that one of the conditions of obtaining a title under it is that the party claiming title shall for a stated time pay all taxes assessed, if the party pays to the collector all taxes assessed by the assessor, and extended against him on the tax book, he has complied with this requisite of the law, although he may not have paid interest on the taxes, due because of non-payment of the same at the time they were due, if such interest has not been ascertained and charged to him by the collector, and he has not been required by such collector to pay the same.

The plaintiff, a citizen of Montana, brought her suit in ejectment against the defendant Clifford, as well as the Globe Smelting & Refining Company, for the recovery of the following land, lying in the county of Arapahoe, Colo to-wit: The S.W. 1/4 of the N.E. 1/4 of section 14, and the S.W. 1/4 of the N.E. 1/4 of section 15, all in township 3 S of range 68 W. Plaintiff in her complaint alleges that her said lands are worth not less than $100,000; that she is the owner in fee-simple of the same, and entitled to the undisputed possession thereof. She dismissed her suit as to the Globe Smelting & Refining Company. Defendant Clifford, for answer to plaintiff's cause of action, says that on the 24th of April, 1872, he in good faith purchased from Louise Stroup and Peter R. Stroup, her husband, the following portion of the land sued for by the plaintiff, to-wit: The S.W. 1/4 of the N.W. 1/4 of section 14, in township 3 S., of range 68 W. of the sixth principal meridian, in Arapahoe county, Colo.; that Louise L. Stroup and her husband executed to the defendant a warranty deed for the same, and delivered the same to the defendant, which said deed pretended to convey said land to the defendant in fee-simple; that thereupon the defendant in good faith entered into the possession of the said land by virtue of the claim and color of title aforesaid, to-wit, the said warranty deed, and that this defendant has remained in the peaceable and undisputed possession of said land, under said claim and color of title, for the 24th of April, 1872, to the time of the beginning of suit; that he has paid all taxes assessed against the land from the year 1882 to 1889, when this suit was brought. He further alleges that by reason of the premises, and by force of the statute of the state, he became, and no is, the owner in fee-simple of the land described in his answer. This is the only land now in controversy in this suit. The acknowledgment of the deed of Louise L. Stroup and Peter R. Stroup is as follows:

'Territory of Colorado, County of Arapahoe-- ss.: I, Samuel E. Brown, a notary public in and for said county, do hereby certify that Louise L. Stroup and Peter R. Stroup. who are personally known to me to be the same persons described in and who executed the within indenture, appeared before me this day, and personally acknowledged that they signed, sealed, and delivered the said indenture as their free and voluntary act and deed, for the uses and purposes therein set forth; and the said Louise L. Stroup, wife of the said Peter R. Stroup, she owning the said premises in fee, being by me examined at the execution of said deed separate and apart from her husband, and the contents of said deed made known and explained to her by me, then declared that she voluntarily signed the said deed, and is still satisfied therewith.

'Witness my hand and notarial seal at Denver, in said county, this 24th day of April, 1872. SAMUEL E. BROWN, Notary Public.

The statute of Colorado on the subject of acquiring title by possession under color of title and claim of right and payment of taxes is as follows:

'That every person in the peaceable 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 thereafter 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. ' Section 1694, p. 600, Gen. Laws, and section 1, p. 177, Acts 1874.

S. L. Carpenter, for plaintiff.

Doud & Fowler, for defendants.

PARKER J.,

(sitting by designation, after stating the facts as above.) The case, as you know, gentlemen of the jury, is one of great importance, and it has been very elaborately, as well as very ably, presented by counsel on the respective sides of it. Not only the questions of law that have been addressed to the court, but the facts, have been argued to you by the counsel, in an honorable, upright, and very able manner. In this verdict you ar sworn to find, as in every other verdict, there are just two elements,-- first, the truth of the case as you may find it from the testimony, and the principles of law that are applicable to that truth. When we are called upon to find whether a proposition is sustained in a case, we must first ascertain what the proposition involved is,-- that is, what we are called upon to find; then, whether such proposition is established or refuted. In a lawsuit the propositions involved grow out of the allegations in the complaint of the party who brings the suit,-- who comes into court as the complaining party,-- and of the answer to that complaint by the party who responds by way of answer to it. What is alleged in the complaint of the plaintiff as to the condition of the case you are trying constitutes the propositions that are asserted upon his side, and what is alleged upon the part of the defendant constitutes the propositions that he asserts to be true. Then, let us see what propositions are substantially asserted by the plaintiff. I am not going to read the pleadings to you, or take up your time in that way; for the truth is, in order that the court may held the jury understand the law, it should be made as brief as possible, because when you remember the evidence, and remember the arguments upon the testimony and upon the law of the case, as presented by counsel, your minds are generally pretty well filled. If you are then called upon to apply law, that is stated by the court in an abstruse way or that is covered up by an abundance of words, such action of the court has a tendency to darken the condition of the case in your minds, instead of throwing light upon it, which it is the duty of the court to do, Let us see what are the propositions asserted by the plaintiff. They are that this land, the description of which you have had given to you, belongs to the plaintiff. Why? Because the plaintiff is the owner in fee-simple, and entitled to the possession of the property described. She claims that it is by means of a fee-simple title that she is entitled to it. I say, in this connection, because I might overlook it, that the evidence offered upon the part of the plaintiff

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