Runyan v. Snyder

• Decision Date: 01 March 1909
• Citation: 100 P. 420,45 Colo. 156
• Parties: RUNYAN et al. v. SNYDER.
• Court: Colorado Supreme Court

100 P. 420

45 Colo. 156

RUNYAN et al. v. SNYDER.

Supreme Court of Colorado

March 1, 1909

Appeal from District Court, Weld County; James E. Garrigues, Judge.

Action by David Snyder against William Runyan and another. From a judgment for plaintiff, defendants appeal. Affirmed.

Thompson & Hatch and William Hall Thompson, for appellants.

Elbert C. Smith, for appellee.

CAMPBELL J.

The complaint has two causes of action; the object of the first being the recovery of possession of real estate of which plaintiff alleges ownership, and the second the recovery of damages for past, and to restrain threatened future, wrongful removal of improvements therefrom. As originally drawn the complaint named only William Runyan as a defendant. Before issues were joined, upon a proper showing by plaintiff, the court ordered Asa Runyan, the son of William, to be made a party defendant. Asa was duly served with process and appeared generally. William filed an answer, in which his defense to the first cause of action is in the nature of, and is treated by the parties themselves as, a disclaimer; but he also denies the material allegations of the first, and, in a separate defense, those of the second, cause of action. In entering his general appearance, Asa, the new defendant, filed a demurrer to the complaint, the same not having been amended after Asa was brought in, because of its insufficiency, and upon the special ground that it was ambiguous unintelligible, and uncertain. This demurrer was overruled and Asa filed an answer; the first defense consisting of a general denial of all the allegations of the complaint, and the second defense merely stating that the complaint does not state facts sufficient to constitute a cause of action as to him. Upon the issues thus framed there was a trial to the court, without a jury, which found for plaintiff upon both causes of action and entered a judgment establishing in plaintiff ownership of the real estate awarding him nominal damages for the ouster, and a judgment for $50 against both defendants for the value of the improvements which they had removed from the premises. Defendants appealed.

1. Defendants' counsel say that the court improperly overruled the demurrer of Asa to the complaint. After Asa was made a party defendant, the complaint was not amended so as to make its allegations specifically applicable to him, as counsel say good practice requires. The authorities are not in accord as to whether a complaint, after a new party defendant is brought in, should be so amended, or whether the court's order making him a defendant is to be taken as the equivalent of an amendment to the complaint making its allegations apply to him as well as the original defendant. In 1 Enc. P. & P. p. 543, the authors say that, 'where a new defendant is brought in by order of court, the complaint must be amended, or another complaint filed as to him, unless he waives his right by answering the original complaint.' In 15 Enc. P. & P. p. 701, citing McGregor v. McGregor, 21 Iowa 441, it is said that 'an order of court and service of notice making a person a party defendant to an equity action are as effective as if there had been an amendment of the petition making such person a party and repeating its averments as against such persons.' We know of no reason why this principle is not equally applicable to a legal action under our Code; but, whichever is the better rule, the authorities agree that a party, thus brought in, may waive his right, if any, to have the original complaint amended, by voluntarily answering the same. Here Asa, by answering, treated the original complaint as though its averments were directed against him. He thus put in issue its allegations and thereby cured the irregularity, if any, on the part of plaintiff, in not filing a new or amended complaint. An objection to a complaint that it does not state facts sufficient to constitute a cause of action may be raised for the first time upon an appeal, but that rule has nothing to do with this case. When Asa filed his demurrer to the complaint, he elected to regard himself as an original party defendant, and when he answered, by putting in issue its averments, he waived his right, if any, to demand that it be amended. If Asa had been named in the complaint as a defendant when the initial pleading was filed, there is no doubt that it would state a good cause of action against him. Certainly, after findings for plaintiff, the objection here made will be treated as cured or waived.

2. Plaintiff Snyder deraigns title through the foreclosure of a trust deed which was given by William Runyan. William filed upon this land under the homestead laws of the United States and before receipt of patent, or a receiver's receipt upon final proof, he gave this trust deed upon the land to secure money to pay the necessary expenses of proving up and the purchase price of the land. Defendants contend that an entryman upon lands of the United States, either a homesteader or a pre-emption claimant, may not, in advance of obtaining patent or a receiver's receipt, alien or incumber the same. Sections 2290-2296, Rev. St. U.S. (U. S. Comp. St. 1901, pp. 1389-1398), are the pertinent provisions. They have been construed as preventing an entryman from contracting, or agreeing in advance, to do anything which when done would, or might, pass the title in whole or in part to another. Early decisions like Brewster v. Madden, 15 Kan. 249, and McCue v. Smith, 9 Minn. 252 (Gil. 237), 86 Am.Dec. 100, favor defendants' contention; but the later cases, determined after the decision of Mr. Teller as Secretary of the Interior in Larson v. Weisbecker, 1 Land Dec. Dep. Int. 422, are the other way. This court, in Wilcox v. John, 21 Colo. 367, 40 P. 880, 52 Am.St.Rep. 246, and our court of Appeals in Hubbard v. Mulligan, 13 Colo.App. 116, 57 P. 738, following the ruling of the secretary, decided that the foregoing acts of Congress do not prohibit a pre-emptioner or homesteader from giving a mortgage or trust deed upon the entered lands in advance of patent or receiver's receipt, unless, of course, it should be made to appear that the...