Pascoe v. Green

• Citation: 32 P. 824,18 Colo. 326
• Parties: PASCOE v. GREEN. [1]
• Decision Date: 20 February 1893
• Court: Colorado Supreme Court

32 P. 824

18 Colo. 326

PASCOE v. GREEN. ^[1]

Supreme Court of Colorado

February 20, 1893

Error to district court, Pitkin county.

Action by Thomas P. Green against Samuel R. Pascoe to determine the right to a conveyance of lots in the town site of Aspen. There was a judgment that neither party is so entitled, and defendant brings error. Affirmed.

Statement by the court:

This action was brought in the district court of Pitkin county under section 3283, p. 953, of the General Statutes, to determine the right to a conveyance of lots F, G, H, and I in block 86, in the town site of Aspen. It appears that the town site was entered June 2, 1881, by J. W. Dean, the then county judge of Pitkin county; that the entry was suspended and the issuance of the patent thereby delayed, until the 3d day of March, 1885, when a patent was issued to Dean and his successors in trust, for the Aspen town site; that, in 1887 M. G. Miller, then county judge, as successor in trust, gave the notice required by law, and within the 90 days these parties filed their statements setting forth their respective claims to the lots in controversy. The court below found, among other things, as follows: 'Tenth. That, at the time of the entry of the town site of Aspen, neither the plaintiff nor the defendant nor their grantors were possessed of or entitled to the possession or occupancy of lots F, G, H, and I, in block 86 of the town site of Aspen;' and adjudged and decreed that at the commencement of this action neither the plaintiff nor the defendant had the prior and paramount right to the possession and occupancy of said lots under and by virtue of the entry of the town site. Pascoe, the defendant below, brings the case here for review, and assigns as error that the tenth finding of fact, and the judgment dismissing the action, are against the evidence and contrary to law.

W. W. Cooley, for plaintiff in error.

Aaron Heims and W. O'Brien, for defendant in error.

PER CURIAM.

By the letter of the town-site act and the decisions of this court 'the trust closed upon the entry of the town site.' (Cook v. Rice, 2 Colo. 131; Clayton v. Spencer, Id 378; Adams v. Binkley, 4 Colo. 247,) and the rights of the respective parties as beneficiaries thereunder must be determined as of that date. It is clear that the defendant in error shows no right based upon an equity existing at the time of entry. The plaintiff in error derives his right,...