Miller v. Buyer

• Decision Date: 17 October 1927
• Docket Number: 11706.
• Citation: 261 P. 659,82 Colo. 474
• Parties: MILLER et al. v. BUYER.
• Court: Colorado Supreme Court

261 P. 659

82 Colo. 474

MILLER et al. v. BUYER.

No. 11706.

Supreme Court of Colorado

October 17, 1927

Department 1.

Error to District Court of Park County; James L. Cooper, Judge.

Action by John D. Buyer against George A. Miller and others to quiet title. To review judgment for plaintiff, defendants bring error.

Reversed and remanded, with directions.

S. Harrison White, of Denver, and John M. Boyle of Fair Play, for plaintiff in error George A. Miller.

George A. Miller and Benjamin C. Hilliard, both of Denver, for plaintiffs in error Ulus C. Miller, David K. Miller, L. C Miller, and F. Lee Miller.

H. E Churchill and I. S. Smith, both of Greeley, for defendant in error John D. Buyer.

DENISON J.

Buyer brought an action to quiet title against George A. Miller, Ulus C. Miller, David K. Miller, L. Cyril Miller, and F. Lee Miller and unknown parties, if any, claiming any interest in the property in question.

George A. Miller, a citizen of Missouri, moved for removal to the United States court, and Ulus C. and L. Cyril Miller, citizens of California, moved likewise. The motions were denied, and the case went on to trial and final judgment. The movers bring error, and this matter is one of the assigned errors.

No rights were lost by contesting the suit to judgment. Powers v. Chesapeake & Ohio Ry. Co., 169 U.S. 92, 18 S.Ct. 264, 42 L.Ed. 673; Railroad Co. v. Koontz, 104 U.S. 5, 26 L.Ed. 643; Steamship Co. v. Tugman, 106 U.S. 118, 1 S.Ct. 58, 27 L.Ed. 87.

If their interests were separable, the court should have ordered removal. Stanbrough v. Cook (C. C.) 38 F. 369, 3 L.R.A. 400; Barth v. Coler (C.C.A.) 60 F. 466; Thurber v. Miller, 67 F. 371, 14 C.C.A. 432.

A suit to quiet title is severable as to each defendant. Stanbrough v. Cook, supra; Bacon v. Felt (C. C.) 38 F. 870. Any one of the defendants could have been sued alone, and therefore the action was separable into independent suits, as required in Barth v. Coler (C.C.A.) 60 F. 466; Goldsmith v. Gilliland (C. C.) 24 F. 154; Bates v. Carpentier (C. C.) 98 F. 452.

The claim of defendant in error is that the controversy is not separable. He says that the single question is whether plaintiff owns the property. Not so. That would be so in ejectment, but to quiet title each defendant is called upon to come in and set up his claim to the property. Standbrough v. Cook, supra, p. 373. A.'s claims may be good, B.'s bad, and C.'s partly good and partly bad. D. may default, E. disclaim, and X. my intervene. Y. and Z. may join in defense. These things happen often in such actions. The rights of none are dependent on the action or right of any other. If any action is separable, and action to quiet title must be.

The defendant in error cites some of the numerous cases which hold that the question whether defendants are sued jointly or severally must be determined by the complaint; that the plaintiff may choose how to bring his action; and that different defenses could not alter his right to bring such a suit, even though they might defeat it as a joint suit (Powers v. Chesapeake & Ohio Ry. Co., 169 U.S. 92, 18 S.Ct. 264, 42 L.Ed. 673; Torrence v. Shedd, 144 U.S. 527, 12 S.Ct. 726, 36 L.Ed. 528; Hay v. May Company, 271 U.S. 318, 320, 46 S.Ct. 498, 70 L.Ed. 965); but we cannot see that that principle controls the present case.

In the present case it nowhere appears that the defendants' interests were joint. The present complaint does not show it, but, on the contrary, seems to consider the defendants as having several rights and to be sued severally. It says, 'The defendants and each of them claim some right, * * *' and again, 'The claims of said defendants and each of them are without any right whatever, * * *' and again, 'Said defendants have not nor have any of them estate. * * *' Indeed, under our statute (C L. § 4872), a joint interest in land is so rare as to be almost unknown. We must presume the tenancies are not joint till something is shown otherwise. This is made clear by Shiras, Judge, in Stanbrough v. Cook, 38 F. 369, at page 373. We do not see how defendants, in a suit to quiet title, can be shown to be sued jointly, unless it affirmatively appears that they are joint tenants of whatever interest they claim to have. Plaintiff does not claim in his briefs that this appears or that it is alleged, and, if it is not so, then, even if it were alleged to be so, that is, that the action was joint, as soon as it should appear that it was several, he must be defeated. Powers v. Chesapeake & Ohio Ry. Co., 169 U.S. 92, 96, 97, 18 S.Ct. 264, 42 L.Ed. 673; C., B. & Q. Ry. Co. v. Willard, 220 U.S. 413, 31 S.Ct. 460, 55 L.Ed. 521; Torrence v. Shedd, 144 U.S. 527, 12 S.Ct. 726, 36...