Smith v. Smith

• Decision Date: 07 July 1924
• Docket Number: 10746.
• Citation: 76 Colo. 119,230 P. 597
• Parties: SMITH v. SMITH.
• Court: Colorado Supreme Court

230 P. 597

76 Colo. 119

SMITH v. SMITH.

No. 10746.

Supreme Court of Colorado

July 7, 1924

Rehearing Denied Nov. 10, 1924.

Department 2.

Error to District Court, City and County of Denver; Charles C Butler, Judge.

Action by William H. Smith against Thurston H. U. Smith. From a judgment for the defendant, plaintiff brings error.

Reversed and remanded, with directions.

John Hipp and Joseph N. Baxter, both of Denver for plaintiff in error.

Carle Whitehead and Albert L. Vogl, both of Denver, for defendant in error.

WHITFORD J.

This is an action for unlawful detainer brought by the plaintiff in error in the justice court. The allegation of title in the plaintiff was put in issue by the verified answer of the defendant, and the case was certified to the district court where the trial, without a jury, resulted in a judgment for the defendant. Plaintiff below brings the case here for review.

Mary A Smith, who died intestate November 1, 1919, was the wife of plaintiff and the mother of defendant. She homesteaded the premises in controversy in 1913. The defendant, the plaintiff's son, married in 1911, and made his home with his parents on the premises now in controversy. In 1917, without the knowledge of the plaintiff, the mother conveyed the premises to the defendant, but he did not place the deed of record until after the death of the grantor. On September 7, 1920, the defendant made a formal entry of a homestead on the margin of the record of the deed to him from his mother. The plaintiff thereafter brought suit against the defendant and his wife to cancel the deed from Mary A. Smith to the defendant, on the ground that the instrument was testamentary in character and void, because the homestead entry of Mary A. Smith, his wife, inured to his benefit under the statute, and also to cancel the homestead entry made by the defendant on the margin of the deed of his mother to him. In that suit the defendant filed no answer. The court entered a decree, finding that W. H. Smith, the plaintiff, and the defendant Thurston H. U. Smith, were the sole and only heirs at law of Mary A. Smith, deceased, and that each of them were owners of an undivided one-half interest in the property. And the court further found and decreed:

'That the alleged homestead entry of said property by the defendant on the records of said city and county of Denver, made on the 7th day of September, 1920, is also null and void and ought to be canceled of record, and it is therefore considered, adjudged

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