Nathan v. Crouse
| Decision Date | 10 March 1913 |
| Citation | 131 P. 287,24 Colo.App. 32 |
| Parties | NATHAN v. CROUSE. |
| Court | Colorado Court of Appeals |
Error to District Court, La Plata County; Charles A. Pike, Judge.
Action by L.J. Nathan against Minnie R. Crouse. Decree for defendant, and plaintiff brings error. Reversed and remanded.
Perkins & Main, of Durango, for plaintiff in error.
Reese McCloskey, of Durango, for defendant in error.
Plaintiff in error filed his complaint stating two causes of action. The first alleged his ownership of certain real estate in the city of Durango and his right to the rents and profits thereof, and that defendant used and occupied the same for the period of one year, for which she was indebted to plaintiff, and demanded judgment for the reasonable value of such use and occupation. The second cause of action was for waste committed upon said premises during defendant's occupancy thereof. To both causes of action defendant pleaded a general denial, and as to the first alleged that the real estate had been the property and in possession of defendant's mother; that plaintiff, through fraud and misrepresentation, procured a deed to said premises from defendant's mother, and that suit to set aside said deed had been commenced by her and was undetermined at the time of her death, and was, by the administrator of her estate, continued and still pending during the time of defendant's alleged occupancy; that she had occupied the premises as a representative of said estate, and in no other capacity; and that plaintiff's claim, if any, was against said estate. For reply to the affirmative defense, plaintiff alleged a judgment in the suit mentioned in said defense against defendant's mother and administrator and in favor of the plaintiff, adjudging the plaintiff herein to be the owner and entitled to the possession of said premises, and alleged that the possession and occupancy of both defendant and her mother had been wrongful and against the will and consent of plaintiff. The cause was tried to a jury and a general verdict returned in favor of the defendant, upon which judgment was rendered, from which plaintiff took said cause to the Supreme Court for review upon writ of error. Plaintiff established legal title to the premises by certain deeds, including a quitclaim deed from defendant's mother, and by a decree of the district court adjudging the title to said premises and the right of possession to be in plaintiff.
The court refused an instruction requested by the plaintiff directing a verdict in favor of plaintiff upon the first cause of action, and, among other things, instructed the jury that if it should find from the evidence that the defendant and her mother had occupied the premises for a number of years, during which it was understood and agreed that no rent was to be paid, or was paid, for said premises, and that, upon the death of said mother, defendant continued to use and occupy the premises without any changed relationship in regard thereto, or any agreement to pay rent, or demand upon her for rent, until she voluntarily quit the premises, then she would have the right to presume that she was to continue to...
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