Mitchell v. Titus
| Decision Date | 01 May 1905 |
| Citation | 33 Colo. 385,80 P. 1042 |
| Parties | MITCHELL v. TITUS. |
| Court | Colorado Supreme Court |
Appeal from District Court, Arapahoe County; F. T. Johnson, Judge.
Action by S. S. Titus against W. C. Mitchell. From a judgment for plaintiff, defendant appeals. Affirmed.
George W. Taylor, for appellant.
Sylvester G. Williams, for appellee.
This was our Code action to quiet title. Mills' Ann. St. § 255. The complaint properly omitted to set out the nature and character of the adverse claim of defendant. Such matter should be pleaded in the answer. Amter v. Colon, 22 Colo 150, 152, 43 P. 1002; Wall v. Magnes, 17 Colo. 476, 478, 30 P. 56; Schlageter v. Gude (Colo. Sup.) 70 P. 428; McCroskey et al. v. Mills (Colo. Sup.) 75 P. 910.
The answer denied plaintiff's possession and title, and alleged an adverse claim under a tax deed. The replication traversed the material averments of the answer, and set up matter charging the invalidity of the tax deed. The replication did not constitute a departure from the complaint. Schlageter v. Gude, supra.
The evidence was that, long prior to the inception of the tax title, one Wolff, in possession as owner of the lots in question, made his warranty deed purporting to convey the same in fee to plaintiff. This was prima facie proof of ownership in fee by plaintiff.
At the time of the bringing of this action the lots were vacant. The ownership in fee of plaintiff in the lots carried with it the possession thereof for the purpose of this action, in the absence of actual entry and adverse possession taken by another. Phillipi v. Leet, 19 Colo. 246 253, 35 P. 540; Morris & Thombs v. St. Louis Nat. Bank, 17 Colo. 231, 239, 29 P. 802.
The only evidence adduced of adverse possession was that defendant, after the issuance of the tax deed, went to one of the lots, marked out a cellar thereon, drove stakes to outline it, and ordered it to be dug. Nothing further was done. Such acts did not operate as a disseisin of plaintiff. Phillipi v. Leet, 19 Colo. 253, 35 P. 540.
The tax deed did not operate to give defendant constructive possession of the lots. Morris & Thombs v. St. Louis Nat Bank, 17 Colo. 239, 29 P. 802.
The case was thus reduced to the validity of the tax deed relied upon by the defendant. The facts pertinent to this question were: The lots were in the town of Highlands. The power to order the sidewalk was in its board of trustees. 2 Mills' Ann. St. §§...
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