Schlageter v. Gude
| Decision Date | 06 October 1902 |
| Parties | SCHLAGETER v. GUDE. |
| Court | Colorado Supreme Court |
Error to district court, Lake county.
Action by Wilhelmina Gude against Joseph M. Schlageter. Judgment for plaintiff, and defendant brings error. Affirmed.
Defendant in error, as plaintiff, brought an action in the court below against plaintiff in error, as defendant, to quiet title to a lot. In her complaint she alleged, in substance, that she was the owner and in possession of the premises in question, and that the defendant claimed an estate or interest therein adverse to her, but had none. The defendant answered admitting the possession of plaintiff, and set up title in himself. To this answer plaintiff filed a replication, which so far as necessary to notice, averred, in substance, that she and her grantor had been in the undisputed, peaceable possession of such premises in good faith, under color of title based upon conveyances, for more than seven successive years, and during that period had paid all taxes assessed against the same. The defendant moved to strike this reply for the reason that it stated matters which should have been set out in the complaint, and could not be pleaded in a reply. This motion was denied. Over the objection of defendant that the complaint did not state a cause of action plaintiff introduced a deed conveying the lot to her grantor and also a deed for such premises from her grantor to herself. She also introduced testimony which established that she and her grantor had been in the actual, undisputed, and peaceable possession of such premises under such conveyances for more than seven successive years, and during that period had paid all taxes assessed against such premises. This testimony was undisputed. On behalf of defendant, testimony was introduced from which it appeared that the naked legal title to the premises was vested in him. From a decree in favor of plaintiff, the defendant brings the case here for review on error.
A. J. Sterling and A. Lynch, for plaintiff in error.
L. M. Goddard and S.C. Warner, for defendant in error.
GABBERT J. (after stating the facts).
The main questions presented by counsel for defendant can be determined by a discussion of the following propositions: (1) Does the complaint state a cause of action? (2) Did the court err in overruling the motion to strike the replication? (3) Should the objection to the introduction of plaintiff's testimony have been sustained? (4) Did plaintiff establish a color of title based upon conveyances?
1. In an action to quiet title, it is sufficient to allege substantially in the complaint that the plaintiff is the owner and in possession of the premises the title to which is sought to be quieted, and that the party made defendant claims an interest or estate therein adverse to the plaintiff, which is without any foundation or right whatever. These are the ultimate facts which the plaintiff in such an action is required to state, and it is unnecessary in the complaint to deraign the title relied upon. Neither is it necessary to set out specifically the character of the adverse claim of the defendant. That is a matter for the latter to plead. The plaintiff may not know upon what title the defendant asserts his claim to the premises in dispute, but, even if he did, the defendant would not be bound by any alleged title which the plaintiff set up for him, because it is his privilege alone to plead the title upon which he relies to establish his rights. The complaint was sufficient. Amter v. Conlon, 3 Colo.App. 185, 32 P. 721, affirmed in 22 Colo. 150, 43 P. 1002; Mining Co. v. Marsano, 10 Nev. 370; Rough v. Simmons, 65 Cal. 227, 3 P. 804; Ely v. Railroad Co., 129 U.S. 291, 9 S.Ct. 293, 32 L.Ed. 688.
2. The very nature and object of an action to quiet title, under our Code provisions on the subject (section 255), is to enable the owner in possession of real property to bring into court one who asserts an adverse claim or interest therein, in order that such claim may be determined. When a complaint states a cause of action having for its object this purpose the party made defendant must appear and plead his title, if he intends to assert one against the plaintiff. Wall v. Magnes, 17 Colo. 476, 30 P. 476; Amter v. Conlon, 22 Colo. 150, 43 P. 1002; Mining Co. v. Marsano, supra. This was what the defendant did in the case at bar, by pleading that the title was vested in him. Then, and not until then, was plaintiff advised of the nature of defendant's claim, or that he would in fact...
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