Murray v. Hobson

• Decision Date: 18 May 1887
• Parties: MURRAY v. HOBSON.
• Court: Colorado Supreme Court

13 P. 921

10 Colo. 66

MURRAY v. HOBSON.

Supreme Court of Colorado

May 18, 1887

Appeal from district court, Pueblo county.

J. C. Elwell, Stone & Anderson, and Vincent D. Markham, for appellant.

Chas. E. Gast and John M. Waldron, for appellee.

BECK C.J.

The first, second, and third errors assigned involve the merits of this controversy, and raise all the material questions affecting the proceedings and judgment.

The first alleged error complained of is the sustaining of the plaintiff's (appellee's) demurrer to the defendant's cross-complaint. The disposition of this ground of error will fix the equitable status of the appellant with respect to the subject-matter of this controversy, on which depend the pertinency and materiality of many of the questions presented by this voluminous record. It is a settled question that, when a defendant in ejectment files a cross-complaint, assuming to set up equities entitling him to affirmative relief, the facts relied upon therefor must be as fully stated as required to be in an original bill praying affirmative relief. The primary question, then, raised by the demurrer, is, does the cross-complaint state facts which entitle the defendant to affirmative relief?

The basis of the defendant's equitable claim to relief is substantially as follows: The lot in controversy, in 1869 comprised a portion of the town-site of the town of Pueblo, in the county of Pueblo. Mark G. Bradford was then county judge of said county, and in that capacity he entered the town-site, and received the government patent therefor, under and by virtue of the act of congress of March 2, 1867, entitled an 'Act for the relief of the inhabitants of cities and towns upon the public domain.' This act of congress vested the title of the lands so entered in patentee, and his successors in office, in trust for the several use and benefit of the occupants thereof, according to their respective interests. On December 5, 1870, a deed was executed by George W. Hepburn, the county judge of Pueblo county, to one James G. Robinson, of 12 acres, parcel of the tract patented to Bradford, and, by subsequent intermediate conveyances, the plaintiff succeeded to Robinson's title to the portion thereof now in controversy.

Defendant alleges that the deed from County Judge Hepburn to Robinson was void by reason of Robinson's failure to perform certain preliminary steps required by law, and necessary to authorize a conveyance by the trustee. It is further alleged as a result of Robinson's omission to perform these preliminary requirements, that the title to the land attempted to be conveyed by said deed remained in the said trustee, and his successors in office, until March 1, 1881, when, by virtue of an act of the state legislature, of that date, the legal title vested in the city of Pueblo, in trust for the community at large, and that it is still in said city.

The cross-complaint sets up no title under the patent of the United States, and no claim as a beneficiary of the trust vested in the county judge and his successors in office. The equitable right claimed by the defendant is the right to purchase the lot in controversy when it shall be appraised and offered for sale by the city of Pueblo, under the provisions of the statute of March 1, 1881. The right to so purchase is based upon the defendant's entry into possession of the property prior to the passage of the said last-mentioned act, and the continuance of said possession ever since, together with the making of valuable improvements thereon. There is no allegations that the city of Pueblo has taken any steps to set aside the conveyance of the trustee to Robinson, or that it claims any rights in the lands described in that deed. Whether the title was rightfully conveyed to Robinson is a question for the town of Pueblo, and not for the defendant. The demurrer to the cross-complaint was therefore properly sustained. City of Denver v. Kent, 1 Colo. 337, 345; Cook v. Rice, 2 Colo. 136, 137; Smith v. Pipe, 3 Colo. 187, 198; Le Roy v. Cunningham, 44 Cal. 600; Naglee v. Palmer, 50 Cal. 642; McCreery v. Sawyer, 52 Cal. 257; Palmer v. Galvin, 13 P. 476.

The doctrine of this court, as established by repeated decisions, is that when a trustee, in whom are vested, under the law of congress and by patent from the United States, the lands comprising a town-site, to be held in trust for the use and benefit of the occupants thereof, has executed a deed of a parcel of such land to one claiming to be a beneficiary of the trust, the legal title of such parcel passes out of the trustee, and vests in the grantee; also that no individual, not then a beneficiary of the trust and interested in said land, is thereafter in a position to question, in his own right, the validity of such conveyance; nor can any one, by subsequent intrusion upon the possession of the holder of the legal title, under any pretense, acquire a right to inquire into and litigate the question, either at law or in equity, whether all the preliminary steps required by the local law were taken by the party whom the trustee recognized as a beneficiary under the law, and to whom he conveyed the fee. The allegations of the cross-bill afford the defendant no standing in equity, since he states no case entitling him to impeach the conveyance from the trustee to Robinson, through whom, by intermediate conveyance, the plaintiff derived his title.

The second ground of error assigned is based upon the proposition that, from the date of the issue of the government patent, August 5, 1869, up to and including that date of the county judge's deed to Robinson, December 5, 1870, the trustee named in the patent, and his successors in trust, were wholly without authority to execute the trust with which they successively became invested, in any manner or to any extent; that the act of congress of March 2, 1867, required that the local legislature should prescribe rules and regulations for carrying said act into effect; and provided that any act of the trustee not made in conformity to such regulations should be void, and that no such law had been provided.

When the plaintiff offered to introduce in evidence, on the trial below, the Robinson deed as the foundation of his title, it was objected that the instrument was void ab initio, and the foregoing reasons were urged in support of the objection. This assignment raises the question whether any territorial law was in force at the date of the conveyance to Robinson, prescribing rules and regulations for the execution of the trust, and authorizing the trustee to execute conveyances. The original town-site act, passed by congress on May 23, 1844, was repealed July 1, 1864. Prior to its repeal, to-wit, March 11, 1864, the territorial legislature passed an act providing the necessary rules for carrying into effect all trusts arising under it in the territory of Colorado. Laws 1864, p. 139. Subsequent to the passage of the congressional law of March 2, 1867, the territorial legislature, on January 10, 1868, repealed the legislative act of March 11, 1864, on the same day substituting therefor an act substantially similar in form and substance. See Rev. St. 1868, pp. 619, 620.

The latter act was in force at the time of the entry of the Pueblo town-site, at the date of the issue of the patent therefor to County Judge Bradford, and at the date of the execution of the deed by his successor in trust, County Judge Hepburn. But it is objected that this territorial law of January 10, 1868, was of no force, for the reason that it makes provision for the execution of trusts arising under the congressional act of May 23, 1844, long since repealed, and contains no allusion to the congressional act of March 2, 1867, under which the town-site in question was entered and patented. It is true, the last-mentioned act of congress is not accurately described therein; but no one can read this law without experiencing a conviction of the legislative design to make the necessary provisions for executing the trusts created under and by virtue of said congressional act. It was the only territorial law on the subject of the entry of town-sites on the public lands at the date of its passage, and, unless it can be fairly held applicable to the existing legislation on the subject, it must be treated as practically a dead letter. The latter view of a statute is never to be favored, if a more just and reasonable interpretation be admissible under well-established rules of law,--an interpretation which will not only sustain the statute, but preserve the rights which have accrued under them.

The supposed fatal objection interposed to the legislative act of January 10, 1868, consists, as we think, of a mere misdescription, or false description of the law of congress of March 2, 1867. The phraselogy employed is as follows: 'When the corporate authorities of any town, or the judge or judges of the county court for any county, in this territory, shall have entered at the proper land-office the land, or any part of the land, settled and occupied as the site of any such town, pursuant to and by virtue of the provisions of the act of congress, entitled 'An act for the relief of citizens of towns upon lands of the United States, under certain circumstances,' passed May 23 A. D. 1844, and any amendments that may be made thereto.'

The Colorado legislature has, in several instances, taken the view that the congressional statute of May 23, 1844, being the original town-site act, all subsequent acts on the same subject are amendments thereto. This was the view taken in the territorial act of March 11, 1864. It made provision for the execution of all town-site trusts arising under the act of congress approved May 23, 1844, 'and any ame...