Pipe v. Smith

• Decision Date: 01 December 1878
• Citation: 4 Colo. 444
• Parties: PIPE v. SMITH.
• Court: Colorado Supreme Court

4 Colo. 444

PIPE v. SMITH.

Supreme Court of Colorado

December, 1878

Appeal from District Court of Jefferson County.

ENSIGN B. SMITH, the appellee, commenced an action of ejectment in the district court of Jefferson county against Pipe, the appellant, at the May term, 1873. The plaintiff claimed title in fee to lots numbered one to six, inclusive, in block numbered nine in Bush and Fisher's addition to the town of Golden. The defendant appeared and pleaded the general issue. Upon the trial, as appears by the bill of exceptions the plaintiff offered in evidence: First, a patent from the government of the United States to Henry Altman, probate judge of Jefferson county and Territory of Colorado, and his successors and assigns, in trust, etc., to the east half of the south-east quarter of section twenty-eight, and the west half of the south-west quarter of section twenty-seven, in township three south, range seventy west, in pursuance of the town site entry of Golden City, under the act of Congress approved May 23, 1844, entitled, 'An act for the relief of the citizens of towns upon the lands of the United States under certain circumstances,' which patent bears date the first day of September, A. D. 1866. Second, a deed duly acknowledged and recorded from Joseph Mann, probate judge, to him, plaintiff; to the introduction of which defendant objected, because there was no evidence that Judge Mann, who was then acting in the capacity of a trustee, had complied with the law in the execution of such deed; second, because there was no evidence to show that the said E. B. Smith grantee in said deed, or any person under whom he claimed had filed or presented any claim in writing before the probate judge to the property mentioned in said deed, within the time required by law, or that the said Smith ever filed any such statement or claim in writing for said premises before said probate judge; third, because there was no evidence to show that the said Smith was in the occupation of said property at the time the town site of Golden City was entered or at any other time, or that he was in the possession of said property at any time. The court overruled the objections and allowed the deed to be read in evidence, to which ruling the defendant then and there excepted. It was here admitted that the said Joseph Mann was probate judge at the time the said deed was executed. The deed is in the words and figures following, to wit: 'This deed, made this eleventh day of October, in the year of our Lord one thousand eight hundred and sixty-nine, between Joseph Mann, probate judge, in and for the county of Jefferson and Territory of Colorado, party of the first part, and Ensign B. Smith, of said county, of the second part, witnesseth: that the said party of the first part, for and in consideration of thirty-five dollars and thirty-seven cents, to him in hand paid, and for the fulfillment of the trusts in the probate judge reposed, in the entry of the town site of Golden City at the United States land office, hath remised, released and quit claimed and by these presents do remise, release and quit-claim unto the said party of the second part and to his heirs and assigns forever, all the following described land, situate in the county of Jefferson, and Territory of Colorado, to wit: Commencing at the northeast corner of the north west quarter of the south-west quarter of section No. (27) twenty-seven, in twon (3) three south, range (70) seventy west, running thence west (20) twenty chains, thence south (2) two chains, thence south (34~>> 30') thirty-four degrees and thirty minutes, (23¹) twenty-three and one-quarter chains, thence east (7) seven chains, thence north (20) twenty chains, to the place of beginning, containing 28 30-100 acres, the same being on the east side of East street in the town of Golden City; and a portion of the north-west quarter of the south-west quarter of section 27, township 3 south, range 70 west, together with all the estate, right, title, interest, property, possession, claim and demand whatsoever, as well in law as in equity, of the said party of the first part, of, in or to the abovedescribed premises, and every part and parcel thereof, with the appurtenances; to have and to hold all and singular the above-mentioned and described premises, together with the appurtenances, unto said party of the second part, his heirs and assigns, forever.

In witness whereof the said party of the first part has hereunto set his hand and seal the day and year first above written.

(Signed,)

JOSEPH MANN,

Probate Judge.'

[SEAL]

The defendant admitted 'that the lots in dispute in this case are a part of the land described in the said deed from Joseph Mann, probate judge, to Ensign B. Smith, just read in evidence, and that the defendant was at the date of the commencement of this suit, and still is, in possession of said lots.'

The plaintiff here rested his case.

The defendant then offered and read in evidence a deed of conveyance in words and figures as follows: 'This deed, made this twenty-third day of December, in the year of our Lord one thousand eight hundred and sixty-four, be tween Jonas M. Johnson, probate judge [holding lands in trust for the occupants of lots in Golden City] of the county of Jefferson and Territory of Colorado of the first part, and William A. H. Loveland [according to an agreement entered into by the settlers of said town] of the county of Jefferson and Territory of Colorado of the second part, witnesseth: That the said party of the first part, for and in consideration of the sum of five hundred dollars to the said party of the first part, in hand paid by the said party of the second part, the receipt whereof is hereby confessed, hath granted, bargained, sold and conveyed, and by these presents doth grant, bargain, sell, convey and confirm unto the said party of the second part, his heirs and assigns forever, all the following described lots or parcels of land, situate, lying and being in the county of Jefferson and Territory of Colorado, to wit: The east half of the south-east quarter of section twenty-eight, the west half of the south-west quarter of section twenty-seven, the east half of the north-east quarter of section thirty-three, and the west half of the north-west quarter of section thirty-four, township three south, range seventy west, excepting what lots has heretofore been deeded to occupants or settlers, and what now remains in litigation and the title yet undetermined by the probate judge, holding them in trust for the occupants of the town site of Golden City under the pre-emption laws of Congress, for the use of the occupants thereof; to have and to hold the same, together with all and singular the appurtenances and privileges thereunto belonging, or in anywise appeartaining, and all the estate, right, title, interest and claim whatsoever of the said party of the first part, either in law or equity, to the only proper use, benefit and behoof of the said party of the second part, his heirs and assigns forever. And the said party of the first part, the aforesaid tracts or parcel of land and premises unto the said party of the second part, his heirs and assigns, against the claim or claims of all and every person whatsoever, doth and will warrant and forever defend by these presents.

In witness whereof the said party of the first part hath hereunto set his hand and seal the day and year first above written

(Signed,)

JONAS M. JOHNSON,

Probate Judge.

[SEAL]

Signed, sealed and delivered in presence of A. O. Patterson.'

This deed had been duly acknowledged and recorded on the day of the date thereof. The defendant here introduced and read in evidence thirteen other deeds and a title bond, showing a claim of title from William A. H. Loveland to and connecting himself with such title. The defendant then offered in evidence two plats, to wit: one of Fisher's new survey of the town of Golden City, and the other the plat of Bush and Fisher's addition to Golden City, and, 'to shorten the record, the plaintiff admits that the said plats both cover the same land, and such land is that part of the south-west quarter of section twenty-seven of Golden City town site lying east of East street, and the same land described in the deed from Mann, probate judge, to Ensign B. Smith, heretofore read in evidence. And the plaintiff here further admits that the said land, as included in said Fisher's new survey, was divided off into blocks and numbered respectively, blocks 39, 40, 41, 42, 43, 44, 45, 46, 47, 48 and 49.'

And the defendant here rested.

The plaintiff, by way of rebuttal, here proved by A. D. Jameson that 'witness is county judge of Jefferson county Colorado. This book marked 'B' is one of the books of record of the probate court of said Jefferson county. The nine papers contained in this wrapper marked 'G' are records and files in the said county judge's office, or papers in the case of Hine v. Smith, formerly pending in the probate court of said county, and are all the papers witness can find belonging to said case in said office, after making diligent search for same.' Plaintiff here offered in evidence the said nine papers in said wrapper marked 'G,' referred to by witness Jameson, and which papers for convenience are designated as Nos. 1, 2, 3, 4, 5, 6, 7, 8 and 9, respectively, and paper No. 1, being a number of different papers attached together; the said different papers, composing paper No. 1, are here designated as A. B, C, D, E, F and H, to which papers and each thereof, and to each of said papers lettered as aforesaid, the defendant objected as evidence and to the same being read, for the following reasons, to wit: '1st. Because the same and each and every ...