Logan v. Clough

• Decision Date: 01 February 1874
• Citation: 2 Colo. 323
• Parties: LOGAN v. CLOUGH.
• Court: Colorado Supreme Court

2 Colo. 323

LOGAN v. CLOUGH.

Supreme Court of Colorado

February, 1874

Appeal from District Court, Arapahoe County.

THE bill which was filed October 5, 1872, alleges that complainant is seized in fee of lot numbered thirty in block numbered forty-nine, in the east division of the city of Denver, the same being within the limits of the west half of section numbered thirty-four, township three, south of range sixty-eight, west, etc. That, on the 28th day of January A. D. 1868, Jacob Downing, then probate judge of the county of Arapahoe, held said lot in trust for complainant under authority of the act of congress, approved May 28, A. D 1864, for the relief of the citizens of Denver. That, in the exercise of the power in him vested by said act of congress for a valuable consideration, and for other good and sufficient consideration, the said probate judge conveyed to said complainant the title in fee simple, and that said deed was duly acknowledged and recorded. That the said complainant, for a long time prior to the execution and delivery of said deed, was thence, hitherto and now is, in the actual possession and occupation of the said lot. That the said defendant, acting as probate judge of said county and pretending that the trust as to said lot had never been executed, threatens to sell the same at public vendue, and as probate judge aforesaid, to make, execute and deliver to the highest bidder therefor, a deed purporting to convey to such purchaser the title in fee of said lot.

The prayer is for injunction and relief. A demurrer to the bill was sustained and complainant appealed.

Messrs FRANCE & ROGERS, for appellant.

Mr. M. BENEDICT, for appellee.

BELFORD J.

The appellant filed his bill in the court below to enjoin and restrain the appellee, who was probate judge, from selling lot number thirty (30) in block number forty-nine (49) in the east division of the city of Denver.

The bill alleges that the appellant is the owner in fee of said property. It is further alleged that on the 28th day of January, 1868, Jacob Downing, then probate judge of the county of Arapahoe, held said lot in trust for complainant, under authority of the act of congress, approved May 28th, 1864, for the relief of the citizens to Denver. That, in the exercise of the power in him vested by said act of congress, for a good and valuable consideration the said probate judge conveyed to said complaint the title in fee simple, and that said deed was duly acknowledged and recorded. That the said complainant, for a long time prior to the execution and delivery of said deed, was and now is in the actual possession and occupation of said lot. That the defendant, acting as probate judge of said county, and pretending that the trust as to said lot had never been executed, threatens to sell the same at public vendue, and as probate judge aforesaid, to make, execute and deliver to the highest bidder therefor, a deed purporting to convey to such purchaser the title in fee of said lot. The charging part of the bill contains these distinct averments, that the title in fee is in the complainant, and has been since the 28th day of January, 1868, and that the trust confided by the act of congress as to said lot has been fully and completely executed. The prayer is the usual one for injunction and relief. To this bill a general and special demurrer were filed. The special causes assigned are seven in number. We will simply set out those which appear to be entitled to serious consideration.

1. That the bill does not show compliance with the laws of the territory in the execution of the trust.

2. That it does not show that Downing had any title, or that his predecessors had ever entered the same, or that he became charged with the execution of the trust.

3. That it does not show that complainant was a beneficiary under the trust.

The demurrer was sustained, and the bill dismissed. Does the complaint present a prima facie case? If so, the ruling on the demurrer was erroneous. The solution of this problem may be aided by inquiring whether it is necessary to set out the several steps through which a title is perfected.

I know of no rule imposing this burden, and to exact such detail and minuteness would make questions of title exceedingly complicated. It seems to me that a simple averment that the title to the premises is vested in the plaintiff is sufficient.

Such an averment is found in this bill. Nourse v. Allen, 4 Blatchf. C. C. 378. It can hardly be claimed that the complainant loses the benefit of this positive averment by ambiguously representing the title of Downing, or stating it in a doubtful form. Nor is it perceived how, in pleading, the averment of title is made better by carrying it back a step or two farther. An abstract is no doubt unsatisfactory, if it commence at a date too recent; but an averment in pleading of the title of a party is not made more positive or certain by the statement that his ancestor, or those under whom he claims were also entitled.

When it is averred that one is seized in fee, does the averment gather any strength or weight from an additional allegation that the complainant derived his title from A, who obtained a patent from the government? Houghton v. Reynolds, 2 Hare, 267; Gibb v. Griffing, 2 Black, 519. See Wiggins v. The Mayor, etc., 9 Paige, 156.

It is conceded that in some cases, such as in actions to restrain the commission of waste, a greater degree of precision is required. The defendant then is in possession, and the party seeking to restrain him must do it on the ground of some privity of estate. It is necessary, therefore, that the complainant should set out his right with accuracy and certainty, that the court may judge of the propriety of interference. And yet, in a case of waste, where the bill alleged that the land had been conveyed to complainant by deed (naming the grantor), which deed he had accepted, it was held that the bill contained the necessary allegations of title. London v. Warfield, 5 J. J. Marsh. 197.

So also, it has been held that in bills of injunction to restrain trespass or nuisance, it is sufficient to allege that the complainant is seized in fee. Van Winkle v. Curtis, 2 Greene's Ch. 425; Hilliard on Inj. 46. If a bill for discovery were filed against one in possession to compel him to disclose his title, I apprehend that the greatest strictness would be required in setting out the complainant's rights; but this is not a bill for discovery, nor is the respondent in possession of the property. If the averment of seizure in fee is sufficient to give the court...