McCracken v. Citizens' Nat. Bank of Akron

• Decision Date: 04 October 1926
• Docket Number: 11641.
• Citation: 249 P. 652,80 Colo. 164
• Parties: McCRACKEN v. CITIZENS' NAT. BANK OF AKRON.
• Court: Colorado Supreme Court

249 P. 652

80 Colo. 164

McCRACKEN v. CITIZENS' NAT. BANK OF AKRON.

No. 11641.

Supreme Court of Colorado

October 4, 1926

Department 1.

Error to District Court, Washington County; H. E. Munson, Judge.

Action by the Citizens' National Bank of Akron against Frank McCracken. Judgment for plaintiff, and defendant brings error and asks for supersedeas.

Supersedeas denied, judgment reversed, and cause remanded.

Pelton & Chutkow, of Akron, for plaintiff in error.

Chalkley A. Wilson, of Akron, for defendant in error.

ADAMS J.

Action in ejectment by the Citizens' National Bank of Akron against Frank McCracken; trial to court, and judgment for plaintiff; defendant brings the case here on writ of error, and asks for a supersedeas.

Plaintiff bases its claim upon a sheriff's deed under an execution against one F. M. McCracken; this deed was plaintiff's only evidence; it was regular upon its face, being in conformance with C. L. 1921, § 5942, and is evidence that the law has been complied with until the contrary is shown. C. L § 5944. The contrary has not been shown in any way that we regard as sufficient to invalidate the deed; it was a sale of F. M. McCracken's interest in the land, whatever, that was.

'If the defendant in ejectment files or makes any other answer or defense than a disclaimer of title or right of possession, it shall not be necessary for the plaintiff to prove him in possession at the time of the commencement of the action or at any time. Code 1921, § 296.' Horn v. Hurwitz, 78 Colo 343, 241 P. 727.

Defendant did not disclaim title. He claimed it; so the above rule applies. He filed a cross-complaint, alleging, inter alia ownership, possession, and right of possession, and sought to quiet title against plaintiff.

In ejectment, possession is prima facie evidence of ownership in fee. Milsap v. Stone, 2 Colo. 137, 139; Sears v. Taylor, 4 Colo. 38, 41. And a prima facie title is shown by a grant from some one in possession. 9 R.C.L. 843. A valid sheriff's deed is as effective a grant of the debtor's interest in the land as a deed would be from such debtor himself. Hence, assuming the execution debtor and the defendant in the ejectment suit to be the same person, we have, in effect, a valid deed from defendant to plaintiff, both claiming from a common source, defendant's possession, thus prima facie entitling plaintiff to recover.

But we meet with a difficulty here. The defendant in the ejectment action is Frank McCracken; whereas, the execution debtor named in the sheriff's deed is F. M. McCracken. There was no proof that they are one and the same person, but plaintiff wants us to assume that they are, without any proof. It would be a dangerous precedent to establish to say that presumptively Frank and F. M. are the same. We fear that it would lead to complications in real estate titles; so we must not do it. F. M. may be Fred M., or an entirely different man, with any Christian name commencing with the letter F. We do not look...