Page v. Gillett

• Court: Colorado Court of Appeals
• Writing for the Court: CUNNINGHAM, P.J.
• Citation: Page v. Gillett, 26 Colo. App. 204, 141 P. 866 (Colo. App. 1914)
• Decision Date: 08 June 1914
• Docket Number: 3972
• Parties: PAGE et al. v. GILLETT.

141 P. 866

26 Colo.App. 204

PAGE et al. v. GILLETT.

No. 3972

Court of Appeals of Colorado

June 8, 1914

Error to District Court, Logan County; H.P. Burke, Judge.

Action by Rebecca J. Page and others against L.T. Gillett. There was a judgment of nonsuit, and plaintiffs bring error. Affirmed.

John F Mail and H.C. Riddle, both of Denver, for plaintiffs in error.

Munson & Munson, of Sterling, for defendant in error.

CUNNINGHAM P.J.

The facts necessary to a proper understanding of the issues involved in this case are simple, and so far as it is necessary to recite them are substantially as follows Plaintiffs in error, claiming to be the owners in fee by mesne conveyances from the government of a certain tract of land, brought ejectment against defendant in error for the possession of the same, and introduced in evidence, as the last link in the chain connecting them with the title of said land, a trustees' deed in which they and the ancestor of certain of them were the grantees. This trustees' deed purported to be executed by two of three trustees, and recited the death of the third trustee. The only evidence of the appointment of the trustees, or the authority under which they assumed to act, or the death of the one trustee, consisted of certain recitations in the trustees' deed. Unless these recitations fall within the doctrine laid down in Carico v. Kling, 11 Colo.App. 349, 53 P. 390, and numerous later cases of our own and the Supreme Court to the effect that the recitals in a trustees' deed shall be prima facie evidence of the facts therein stated then plaintiffs in error failed to prove title, and the trial court properly granted the motion of defendant in error, who was defendant below, for a nonsuit, and its judgment in this behalf must be affirmed.

1. An examination of the authorities on this point has convinced us that recitals in an official deed, which it is no part of the officer's duty to make, are not evidence of the truth of the matters so stated; or, in other words, such recitals are prima facie evidence of the facts recited only in so far as they may be material to the execution of the trust by the trustee. Hill v. Reynolds, 93 Me. 25, 44 A. 135, 74 Am.St.Rep. 329; Devlin on Deeds, § 425. Even under statutes giving such recitals evidentiary effect, such statutes apply only to those matters which are required to be recited. 4 Encyclopedia of Evidence, 184. Our conclusion, it is believed, is not in conflict with any prior decision of the Colorado courts of last resort, in all of which the trust deed from which the trustees' deed sprang had been introduced in evidence. In Lithgow v. Pearson (Colo.App.) 135 P. 763, we approved and followed the ruling in Dyer v. Marriott, 89 Kan. 515, 131 P. 1185, 45 L.R.A. (N.S.) 93, that:

"When one attempts to derive title to land through the heirs of a former proprietor, the fact of heirship must be proved. This cannot be done by a recital, merely in the deed, especially where the deed is of recent date, which, at most, amounts to a mere claim of heirship."

In Carico v. Kling, supra, the case of Beal v. Blair, 33 Iowa 318, is cited and relied upon. But in Lawless v. Stamp, 108 Iowa, 601, 79 N.W. 365, the Iowa Supreme Court distinguishes the Beal Case, and ruled that where a deed of conveyance by the receiver of a corporation is offered in evidence, containing recitals of his appointment as receiver, an order of court of sale, and the fact of sale, and the indorsement of approval on the deed signed by the judge, these recitals were not evidence of the facts recited as against the defendant, who was a stranger to the title which the receiver's deed purported to convey. The defendant in the instant case claimed title through certain tax deeds, and was therefore a stranger to the title under which the plaintiffs claimed. The rule laid down in Carico v. Kling is believed to be against the weight of authority, and for that reason, if no other, ought not to be extended. The general rule seems to be that:

"Except by statute, the recitals in a deed by a proper officer are not primary evidence of the facts therein contained as against strangers thereto." 4 Encyclopedia of Evidence, 184.

We know of no reason for giving greater weight to recitals in a trustees' deed than in a deed of a public officer, even if it be granted that a trustee is not a public officer, or to the recitals in a warranty deed. In a warranty deed the recitals essential to a valid conveyance are prima facie evidence of the facts thus stated, but beyond this point they possess no probative value. It is stipulated in some trust deeds that the recitals made in any trustees' deed which may result from a sale under the trust deed shall be prima facie evidence of the facts therein stated; but the effect of such a stipulation in a trust deed we are not called upon to determine, since, as we have already observed, the plaintiffs introduced no trust deed or other instrument evidencing the appointment of the trustees, their immediate grantors.

2. Since the recitations by the two trustees who purported to act in this case that the third trustee had deceased is not proper evidence of that fact, it becomes necessary to determine what, if any, title was conveyed to the plaintiffs by the trustees' deed which two of the three trustees assumed to execute and deliver to them.

"In the case of a private trust, as distinguished from a public or charitable trust, where there are several trustees and all have accepted and are exercising the office, their powers interest, and authority are equal and undivided; they cannot act separately, but must act as a unit, except where authority to act is given...