Potts v. Magnes

• Decision Date: 11 April 1892
• Citation: 17 Colo. 364,30 P. 58
• Parties: POTTS v. MAGNES.
• Court: Colorado Supreme Court

30 P. 58

17 Colo. 364

POTTS v. MAGNES.

Supreme Court of Colorado

April 11, 1892

Appeal from district court, Arapahoe county.

Action by Peter Magnes against Brady Potts for forcible entry and unlawful detainer. Judgment for plaintiff. Defendant appeals. Affirmed.

Syllabus by the Court

1. In actions of forcible entry and detainer, two questions are presented, viz.: Was plaintiff at the time of the entry by defendant exercising such acts of dominion over the property as constitute actual possession in law? and did defendant forcibly deprive plaintiff of this possession?

2. The ownership of the premises is not involved, and title tried but evidence of title is sometimes received for the purpose of showing the character and extent of the plaintiff's possession or the origin of defendant's alleged right of possession.

3. The supreme court will ordinarily not interfere with the findings or judgment of the trial judge predicated upon conflicting testimony, such testimony having been received in open court.

4. M received a tax deed in pursuance of purchase at a tax sale. He paid taxes for the period of nine years thereafter. He posted a notice on the premises, advertising it for sale by himself. He made a contract of lease, first verbal afterwards written, with one V., to occupy the premises for gardening purposes. He furnished posts and wire for fencing and plowed the ground. V. set the posts and attached the wire thereto. Under this arrangement, for seven years the ground was plowed every year, three times by M. himself. M. gave a horse and pony to V. to aid in cultivating the premises. Seven years after receiving his deed he had two surveys made, and erected posts according to a new survey, putting wire on some of them. Held, that the foregoing acts showed actual possession in law. Held, also, that evidence tending to show that during the period named W., the lessor of P., deraigning title from the United States through patent and mesne conveyances, had constructed, or partly constructed, a fence around the premises, was not such an interruption of M.'s possession as to change M.'s legal status.

5. P., in collusion with others, caused a frame dwelling to be moved upon the premises occupied by the lessee of M. Nine or ten men and six teams were employed in the removal Not more than ten minutes were consumed in cutting the fence wires, digging up posts, and getting the house upon the ground from the adjacent street. V., the agent of M., objected to the proceeding. P., immediately after the removal, brought up furniture which was upon a wagon standing in a hollow near by, and took possession of the house. Held, that a forcible entry was sufficiently shown.

6. The owner of realty may maintain in his own name the action of forcible entry and detainer, though the premises are at the time occupied by an agent under a verbal arrangement to take care of the same.

Coe & Freeman and R. H. Gilmore, for appellant.

Hugh Butler, for appellee.

HELM J.

In January, 1886, appellant, Potts, took possession of the premises in controversy, and has since occupied the same. On March 25th following, appellee, Magnes, brought this action for a forcible entry and unlawful detainer. Magnes relied upon alleged possession, supported by a tax title at the time of Potts' entry. Potts defended both his entry and his possession, as tenant under a lease from one Wall. The cause being tried to the court without a jury, judgment was entered in favor of Magnes. In actions of forcible entry and detainer, the gist of the controversy depends upon possession. Two questions are primarily presented First, was plaintiff at the time of the entry by defendant exercising such acts of dominion over the property as constitute actual possession in law? and, second, did defendant deprive plaintiff of this possession in such manner as to create a statutory cause of action? The ownership of the premises is not involved, and title cannot be tried, though sometimes evidence of title is received for the purpose of showing the character and extent of the plaintiff's possession, as well as the origin of defendant's alleged right of possession. Smith v. Hoag, 45 Ill. 250; Nicholson v. Walker, 4 Ill.App. 404. Hence adjudications in this clss of actions rest largely upon questions of fact. And we proceed to consider-- First, the evidence touching Magnes' possession of the premises in dispute at the time of the alleged forcible entry; second, the proofs submitted to establish the nature of the alleged ouster. To indicate the character or extent of his possession, Magnes proved that in 1875 the property was sold to him for nonpayment of taxes assessed for the preceding year; also that on July 23, 1877, the period for redemption having expired, a treasurer's deed issued by virtue of the statute to him in pursuance of said purchase. He like wise proved the payment of taxes from the issue of the tax deed to the date of the alleged ouster. It further appears from the testimony offered by Magnes that in July, 1877, when he first took his alleged possession under the tax deed, there was an old, dilapidated story and a half dwelling house and a stable on the premises which had been unused for many years, and were not fit for use; also that there had been a board fence, but the boards and posts were carried off, so that nothing was left of the fence. The following additional facts and circumstances are testified to, chiefly by Magnes himself, viz.: That he immediately set up a sign advertising the property for sale by himself, which sign remained for two or three years; that in 1878 or 1879 he made a verbal contract with one Villette, allowing the latter to use the block for gardening purposes; that he then furnished two loads of posts and some wire for fencing, and also plowed the ground; that Villette set the posts and attached the wire thereto, thus inclosing the premises with a good three-wire fence; that the ground was plowed every year between 1878 and 1886, three times by himself; that in 1879 or 1880 he gave Villette a horse, and a couple of years afterwards a pony, to use in cultivating the premises; that the fence remained in good condition as late as 1884; that in 1881 or 1882, under legal advice, he entered into a written contract of lease with Villette for a period of five years, beginning with the 10th of February, 1879, at a yearly rental of $10, which lease he offered in evidence; that from 1877 to 1884, when the suit by Wall to quiet title (Wall v. Magnes, 30 P. 56) was begun, nobody disputed his possession; that in 1883 and in 1884 he had two surveys made of the premises because of rumors that the exact boundaries were not correctly shown by his deed; that afterwards he drew a load of posts to the ground, and set up a good many according to the new survey, putting wire on some of them; that when the written lease expired Villette continued to hold possession for him under an arrangement lasting for no difinite period, and providing neither for the performance of...