Litch v. Bryant

• Decision Date: 06 July 1909
• Citation: 103 P. 289,46 Colo. 160
• Parties: LITCH et al. v. BRYANT.
• Court: Colorado Supreme Court

103 P. 289

46 Colo. 160

LITCH et al. v. BRYANT.

Supreme Court of Colorado

July 6, 1909

Appeal from District Court, Logan County; E. E. Armour, Judge.

Action by Mary M. Bryant against M. Litch and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Quitman Brown, for appellants.

Munson & Munson, for appellee.

MUSSER J.

The appellee brought this action on the 6th day of March, 1905 to quiet her title to certain lots in the town of Atwood. The complaint was in the usual form. The amended answer of the defendants, who are appellants here, consisted of two parts. The first was a denial of the ownership of the plaintiff. As each defense must be complete in itself, this was insufficient as a defense in such an action. Mitchell v. Knott, 43 Colo. 135, 139, 95 P. 335. The second part was what the defendants called a cross-complaint. In this cross-complaint it is alleged that defendants in different interests are the owners in fee of the premises; that plaintiff claims title by virtue of a tax deed to one Stratton, executed and delivered in September 1899, and a quitclaim deed from Stratton to her; that for various reasons as set forth in the cross-complaint the tax sale was void and the tax deed issued in pursuance of the sale was also void, though it is not alleged that the deed was void on its face, and the facts alleged, which would avoid the sale, are without the deed; that the tax deed and the quitclaim deed constitute a cloud upon defendants' title. The possession of the plaintiff is not denied, and the facts, as alleged, make it appear that the plaintiff is in possession under a void title, and that the defendants are entitled to the possession. Defendants pray that the tax deed and plaintiff's quitclaim deed be set aside; that title be quieted in defendants as their interests may appear and for general relief. This cross-complaint states facts sufficient as against general demurrer to constitute a defense to plaintiff's action. McCroskey v. Mills, 32 Colo. 271, 75 P. 910. It is the only sufficient defense pleaded. But it is more than a defense. It appears from the pleading that defendants are the owners in fee and that plaintiff is in possession under an adverse title that is void which would make her possession wrongful. Defendants pray for affirmative relief. If a court would grant the specific affirmative relief prayed for, it would necessarily award the possession to defendants under their prayer for general relief. It follows, therefore, that this pleading is in fact, what it purports to be in name, a cross-complaint and the action is for the recovery of land sold for taxes. Whether such a pleading, if attacked, is proper, or whether it is necessary, in such a case, need not be considered, for the plaintiff did not object to it. She filed a reply, consisting of admissions and denials, and alleging that the plaintiff and her grantor were in possession of said premises from the time the tax deed was executed, paid all taxes thereon, and placed improvements thereon of the value of $1,000. The...