Service v. West

• Decision Date: 06 December 1915
• Docket Number: 8437.
• Citation: 153 P. 446,60 Colo. 366
• Parties: SERVICE v. WEST et ux.
• Court: Colorado Supreme Court

153 P. 446

60 Colo. 366

SERVICE v. WEST et ux.

No. 8437.

Supreme Court of Colorado

December 6, 1915

Error to District Court, Larimer County; Robert G. Strong, Judge.

Action by Fremont West and another against Samuel Service. Judgment for plaintiffs, and defendant brings error. Affirmed.

Clarence A. Brandenburg, of Washington, D. C., for plaintiff in error.

E. L Clover, of Denver, for defendants in error.

TELLER J.

The defendants in error brought suit against plaintiff in error to quiet title to a tract of 40 acres in Estes Park. The parties will be mentioned herein as they were related in the trial court. The defendant by answer claimed title in fee through a conveyance from one Stiers, who was alleged in the answer to have had, at the time of the conveyance, a title in fee. The plaintiffs by replication denied that Stiers ever had any right in or title to the land, denied that they, or either of them, had ever executed any deed of the premises to Stiers, and alleged that, if any names were signed to a deed purporting to have been signed by them, such signatures were forged and made without their knowledge or consent.

On trial of the cause plaintiffs introduced in evidence the deed purporting to have been made by them to Stiers defendant's grantor, and both testified that they had no knowledge of Stiers, and never made any conveyance to him, or authorized such conveyance; that on December 27, 1910, the date on which the deed on its face purported to have been executed and acknowledged in this city, Mrs. West was in Iowa, where she had gone some weeks before, and whence she returned about January 16, 1911. They further testified that in July, 1908, they exchanged property in Iowa for the premises in question, and moved into the six-room house thereon with their household goods, and that it was still their home. It appears that a homestead exemption had been created by proper entry on the records in the county recorder's office. The defendant testified that after he had received a conveyance of the premises from Stiers, he went upon the premises in question and entered the house through the kitchen door, which was open; that he put a padlock on said door and locked it, and placed a notice on the place to the effect that he owned it; also that he pastured some stock on the land. The decree ordered the deed to Stiers canceled as a cloud on the title, and title quieted in Mrs. West. Plaintiff in error contends that plaintiffs failed to prove title or possession, and that the court erred in overruling his motion for a nonsuit.

It is not necessary to determine whether or not the motion ought at that stage of the proceeding, to have been granted, because it appeared later in the trial that the defendant claimed title solely from plaintiffs, through the Stiers deed. It is elementary that a party cannot dispute the title of the one through whom he claims to derive title. Bay State M. & T. Co. v. Jackson, 27 Colo. 139, 60 P. 573; Carson v. Dundas, 39 Neb. 503, 59 N.W. 141; 15 Cyc. 47. A grantee cannot assert that the title obtained from his grantor, or through him, is sufficient for his protection, and not available to his contestant, who claims through the same grantor. Robertson v. Pickerell, 109 U.S. 608, 3 S.Ct. 407, 27 L.Ed. 1049. The defendant in this case could not, for the reason above stated, contest the title of plaintiffs.

It further appears, both in plaintiffs' evidence and defendant's, that the defendant had several times treated with plaintiffs, as owners, for...