Smith v. Pipe

• Decision Date: 01 April 1877
• Citation: 3 Colo. 187
• Parties: SMITH v. PIPE.
• Court: Colorado Supreme Court

3 Colo. 187

SMITH v. PIPE.

Supreme Court of Colorado

April, 1877

Appeal from District Court of Jefferson County.

THIS was an action of ejectment commenced by appellant, against the appellee, in the Jefferson county district court, on the 19th day of May, A. D. 1873, for the recovery of the possession of lots one, two, three, four, five and six in block nine in Bush & Fisher's Addition to Golden City, in Jefferson county.

The declaration was in the usual form claiming the premises in fee. Plea of not guilty. On the trial the appellant offered in evidence a patent of the United States, dated September 1st, A. D. 1866, properly executed to Henry Altman, probate judge of Jefferson county, which, after reciting the fact that certain land warrants had been assigned to Henry Altman probate judge of Jefferson county, Colorado Territory, in trust for the several use and benefit of the occupants of Golden City town site, according to their respective interests, under the town site act of congress, approved 23d May, 1844, and which had been located upon the following described land, to wit: 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 of range seventy west, in the district of land formerly subject to sale at Golden City-now Denver City Colorado Territory-containing one hundred and sixty acres according to official survey, said patent further says 'Now, know ye, that there is therefore granted by the United States unto the said Henry Altman, judge as aforesaid in trust for the several use and benefit of the occupants of Golden City town site, according to their respective interests under said act of 23d May, 1844, as assignee as aforesaid, and to his successors and assigns in trust as aforesaid, the tract of land above described, to have and to hold the said tract of land, with the appurtenances thereof, unto the said Henry Altman, judge as aforesaid, in trust for the several use and benefit of the occupants of Golden City town site, according to their respective interests under said act of 23d May, 1844, as assignee aforesaid, and to his successors and assigns in trust as aforesaid, which said patent is properly executed and recorded.' To the introduction of this evidence the appellee objected, but the objection was overruled and appellee excepted.

The appellant also offered in evidence a deed purporting to be executed by Henry Altman to him, which deed is as follows: 'This indenture made and entered into this 18th day of February, A. D. 1873, between Henry Altman, formerly of the county of Jefferson, and Territory of Colorado, now of London, in the kingdom of Great Britain, party of the first part, and Ensign B. Smith, of the county f Jefferson, and Territory of Colorado, U.S. A., party of the second part, witnesseth: That, whereas, the said party of the first part did on the 18th day of February, A. D. 1864, then being probate judge of the county of Jefferson, Territory of Colorado, enter under the town site act of the congress of the United States, approved May 23, 1844, entitled an act for the relief of citizens of towns upon the lands of the United States under certain circumstances, the following described lands, being the town of Golden City, and situated in the county of Jefferson, Territory of Colorado, to wit: the west half of the south-west quarter of section twenty-seven, the east half of the south-east quarter of section twenty-eight, 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, in township three, south of range seventh west, of the sixth principal meridian, the same being then subject to entry at the United States land office, situated at Golden City, but now at the City of Denver, in said Territory; and, whereas, on the 1st day of September, A. D. 1866, patents were issued by the government of the United States of America to the said party of the first part, conveying to the said party of the first part the hereinbefore described lands; and, whereas, on the 11th day of October, A. D. 1869, one Joseph Mann, a successor of the said party of the first part, in the office of probate judge of said Jefferson county, after hearing the allegations and proofs of the claimants of the hereinafter described land, being a portion of the lands hereinbefore described, made a deed in fee simple to the hereinafter described lands to the said party of the second part, which said deed is duly recorded on page 231 of book P of records of said Jefferson county; and, whereas, said party of the first part has never conveyed the legal title to the hereinafter described tract of land to any person, whomsoever; and, whereas, it is desirable to vest the title to the hereinafter described tract of land in the said party of the second part, as the occupant thereof, as provided by the said act of congress of the United States: Now, therefore, in consideration of the premises and the sum of one dollar, lawful money of the United States of America, to the said party of the first part in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, hath granted, bargained and sold, and by these presents doth grant, bargain and sell, convey and confirm unto the said party of the second part, his heirs and assigns, the following described tract or parcel of land, situated in the county of Jefferson and Territory of Colorado, to wit: Commencing at the north-east corner of the north-west quarter of the south-west quarter of section twenty-seven, in township three, south of range seventy west, of the sixth principal meridian, running thence west twenty chains, thence south two chains, thence south, 34~ 30', twenty-three and a quarter chains, thence east seven chains, and thence north twenty chains to the place of beginning, containing 28 and 30/100 acres, the same being on the east side of East street, and a portion of the north-west quarter of the south-west quarter of section twenty-seven, township three, south of range seventy west, to have and to hold the same, together with all and singular the privileges and appurtenances thereunto belonging, unto the said party of the second part, his heirs and assigns forever.

In testimony whereof, I have hereunto set my hand and seal, the day and year first above written.

HENRY ALTMAN.

A Stamped

[SEAL.]

Wafer.

CONSULATE GENERAL OF THE UNITED STATES, LONDON.

On the 19th day of February, A. D. 1873, at London, before me, Joshua Nunn, Vice and Deputy Consul General of the United States of America for Great Britain and Ireland, residing at London, duly commissioned-the consul general being absent on official duty-personally appeared Henry Altman, known to me to be the person of that name described in, and who, in my presence, executed the foregoing conveyance or instrument of writing, and then acknowledged to me that he executed the same freely and voluntarily for the uses and purposes therein contained.

In testimony whereof, I have hereunto set my hand and affixed the seal of the consulate general of the United States of America, at London, aforesaid, the day and year last above written.

[United States Consulate General's SEAL. London.]

J. NUNN,

Vice Deputy Consul General U.S. A., London.'

Which said deed was duly recorded in the records of said Jefferson county, on the 30th day of April, A. D. 1873.

To the reception of the deed in evidence with the indorsements thereon, the appellee objected and assigned the following reasons for his objection:

1. Said deed purports to be executed by Henry Altman, not as probate judge, but as an individual.

2. Said deed was executed after the expiration of Altman's term of office of probate judge of Jefferson county.

3. The legal title in fee is not in Altman, individually, but in his successor in office.

4. The deed is not executed and acknowledged according to law.

5. The deed conveys more land than the act of congress authorizes. The act of congress only authorizes the probate judge to deed lots to occupants at the time of entry.

6. Their entry of services not proven.

7. There is no proof that Smith was an occupant at the time of entry.

8. There is no proof that Smith complied with the provisions of the act of the legislature, or the act of congress, in such cases made and provided.

C. C. Carpenter was called as a witness by the appellant, who testified-the deed of Altman to Smith having been shown witness-'I have seen Henry Altman write, and I know his handwriting. The signature to this deed is his and in his handwriting.' Thereupon the court overruled the objections of the defendant and admitted the deed in evidence, and appellee excepted.

The appellant then offered in evidence a deed purporting to be made by Joseph Mann, probate judge of Jefferson county Colorado, to the appellant, dated the 11th day of October, A. D. 1869, executed by said Joseph Mann to Ensign B. Smith, and acknowledged in the usual form, before D. C. Crawford, county clerk, conveying to said Smith the same land as described in the deed of Altman, which said deed contains the following statement: 'This deed made between Joseph Mann, probate judge of Jefferson county, Territory of Colorado, party of the first part, and Ensign B. Smith of the second part, witnesseth: That the said party of the first part, for and in consideration of $35.37, to him in hand paid, and for the fulfillment of the trust 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 doth remise, release and quit-claim unto the said party of the...