Mulford v. Rowland

• Decision Date: 01 March 1909
• Citation: 100 P. 603,45 Colo. 172
• Parties: MULFORD v. ROWLAND.
• Court: Colorado Supreme Court

100 P. 603

45 Colo. 172

MULFORD v. ROWLAND.

Supreme Court of Colorado

March 1, 1909

Error to District Court, Boulder County; James E. Garrigues, Judge.

Action by Elmer Mulford against Ebenezer Rowland. From a judgment for defendant, plaintiff brings error, and defendant assigns cross-error. Affirmed.

J. R. Allphin, for plaintiff in error.

CAMPBELL J.

This is an action to quiet title in plaintiff to an undivided two-thirds interest in the Critic lode mining claim, situate in Boulder county. The complaint is in the usual form alleging generally that plaintiff is the owner in fee, and in possession of the premises in controversy, and that defendant claims and asserts an interest therein, hostile and adverse to plaintiff, which antagonistic interest plaintiff demands defendant shall be required to set up and have judicially determined. In the amended answer the first defense is a general denial. Plaintiff in error says the second defense was regarded by the parties at the trial as a plea of our 5-year statute of limitation. Section 2923, 2 Mills' Ann. St. There is, however, coupled therewith and blended in the same statement, a defense of ownership in fee, and the facts alleged, though improperly commingled in one statement, are sufficient to constitute both defenses. For a third defense, by way of counterclaim or cross-complaint, defendant alleges ownership in fee, and actual and exclusive possession for more than 20 years immediately preceding the beginning of the action, and, after setting up what plaintiff's pretended title is, he alleges that it constitutes no title whatever which can be asserted against that of defendant. The prayer of the cross-complaint is that plaintiff be required to set forth fully and minutely the nature of his alleged claim or interest, and the court is asked to determine, upon final hearing, that plaintiff's title is void and defendant's good. The replication denies the new matters in the second defense of the answer and in the cross-complaint or counterclaim, and with particularity sets up the title on which plaintiff relies. No evidence was taken. The cause was submitted to the court for decision upon the pleadings and an agreed statement of facts. The court conceiving that three material questions are raised by the pleadings and the agreed facts, made the following findings First, that title in the defendant under the statute of limitations was not proved; second, that plaintiff was not in possession at the time of the beginning of the action, and therefore cannot maintain it; third, that plaintiff's alleged title is void, and defendant's good. Upon these findings a decree was entered quieting title in defendant. Plaintiff sued out this writ of error to reverse it.

1. To the first finding that defendant did not establish title under the statute of limitations defendant excepted, and has assigned cross-error. As defendant has not entered an appearance here, and no brief in his behalf has been filed, and for the additional reason that in our view, as will hereinafter appear, defendant's title in fee, as alleged in the counterclaim, was established, he is not hurt by the first finding, even if the same is sustained by the evidence, and we, therefore, disregard the assignment directed thereto.

2. Under chapter 22 of our Code (Mills' Ann. Code, §§ 255-264) to maintain an action to quiet title to real estate the general rule is that plaintiff must be in actual possession of the property. Our examination of the record leads to the same conclusion reached by the trial court that plaintiff was not in possession of the premises at the time he began the action. To the doctrine mentioned, however, there seems to be an exception, under which plaintiff claims this case falls, that even though plaintiff was not in possession when the suit was begun, it cannot avail a defendant where the latter files a cross-bill, thereby seeking to quiet his own title. This was ruled in Relender v. Riggs, 20 Colo.App. 423, 79 P. 328. The authorities cited in the opinion in that case seem to sustain the doctrine. But that is not material here. Each party alleged title and possession in himself, and each asked the court to say which is good. If plaintiff was in possession, he is not entitled to a decree, for, as we shall presently see, defendant's title is paramount, and plaintiff's possession under an invalid title was nothing more than a trespass. We proceed to a discussion of the only important and difficult question in the case, which is raised by the third general assignment, viz., that the court improperly decided that defendant is owner in fee.

3. As we understand the record, and, in the absence of an appearance by defendant in error, we have examined it with care, it was upon the court's finding under the issue raised by the counterclaim and replication that plaintiff was not, and defendant was, the owner in fee that the decree passed. The record must be explored to see if the finding is sustained. The result of that search is here given. The location certificate of the mine named M. D. Barron, Louis Barron, and Francis Bourke as locators, each owning an undivided one-third interest. Thereafter M. D. Barron sold his interest to Francis Bourke, who then became the owner of a two-thirds interest; Louis Barron retaining the one-third. Before the patent issued, Francis Bourke died, leaving as his sole heir at law James Bourke, his father, who then, and at all times since, lived in Ireland, and has never been in the United States. The patent described Louis Barron and the heirs at law of Francis Bourke as grantees. Under the laws of this state James Bourke, the father of Francis, was his sole heir at law, and title at once, upon the death of Francis, was devolved upon James, subject only to the legal debts of his ancestor. Probate of the estate of Francis Bourke was had in the probate court of Marquette county, Mich. James Bourke, heir at law, was represented in those proceedings, and in the settlement of the estate, by Edward S. Hardy, his attorney in fact, who acted throughout in that capacity. The common source of title of both plaintiff and defendant is Francis Bourke. Defendant claims title through a deed executed and delivered August 7, 1884, by Edward S. Hardy, as attorney in fact for James Bourke, which purports to convey to defendant the title which James got as the sole heir of his son Francis. Possession thereunder was at once taken by the grantee, defendant herein, who has ever since been in the actual, notorious, and exclusive adverse possession, and openly exercising ownership of the premises, and during all that time has been acknowledged and recognized as the owner by Louis Barron, owner of the remaining one-third interest, and by other persons acquainted with the property. Plaintiff' title is evidenced by a deed bearing date January 8, 1903, and executed by Dominic Bourke and Bridget Bourke, his wife, Dominic claiming to be, and declaring that he is, the brother of Francis, and the son and sole heir at law of James Bourke, theretofore deceased.

It is to be observed that, if Edward S. Hardy was the attorney in fact of James Bourke, and during the existence of the power conveyed to defendant, assuming his deed to have been properly executed by the donee, defendant has the better title, as his deed was executed and recorded, and possession thereunder taken, during the lifetime of James Bourke, and long before the execution and delivery of plaintiff's deed. The real controversy then is whether Hardy was the attorney in fact of James Bourke, whether the letter of attorney delegated to him the power to convey the premises, and whether the deed of conveyance which Hardy executed was such as to transfer the title of the donor. Such additional facts as are material and necessary to the decision will be mentioned in connection with the various objections which plaintiff makes to defendant's title.

No power of attorney from James Bourke to Edward S. Hardy was recorded in Boulder county. Section 438, 1 Mills' Ann. St. reads: 'In order that all conveyances which are executed by any attorney in fact, may be seen to be executed with the assent of the grantor, the power of attorney of the attorney in fact, duly proved or acknowledged, shall be (if it has not been) recorded in the same office in which the conveyances themselves are required to be recorded.' Plaintiff construes this section as mandatory in its character, and says that a title, depending upon a deed executed under a power of attorney, cannot be passed, unless that written instrument, duly proved and acknowledged, is actually recorded in the proper office, and that, if not so recorded, parol evidence of its execution and contents is incompetent. If this section stood alone, plaintiff's position might be correct, and the authorities from other states which he cites might be pertinent. Sections 445, 446, 1 Mills' Ann. St., upon the same subject, construed in connection with section 438, as we think should be done, leads us to a different conclusion.

These sections are:

'Sec. 445. Powers of attorney for the conveying, leasing, or releasing of any lands, tenements or hereditaments, or any interest therein, may be acknowledged or proved in the same manner as deeds.

'Sec. 446. All deeds, conveyances, agreements in writing of, or affecting title to real estate or any interest therein, and powers of attorney for the conveyance of any real estate or any interest therein, may be recorded in the office of the recorder of the county wherein such real estate is situate, and from and after the filing thereof for record in such office and not before, such deeds, bonds and agreements in writing shall take effect as to subsequent bona fide

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