Wall v. Magnes

• Decision Date: 11 April 1892
• Citation: 17 Colo. 476,30 P. 56
• Parties: WALL v. MAGNES.
• Court: Colorado Supreme Court

30 P. 56

17 Colo. 476

WALL v. MAGNES.

Supreme Court of Colorado

April 11, 1892

Appeal from district court, Arapahoe county.

Action by David K. Wall against Peter Magnes to quiet title. From a decree for defendant, plaintiff appeals. Reversed.

Syllabus by the Court

1. Sections 255 and 256 of the Civil Code simply recognize the old chancery proceeding, whereby a party in possession of real property might compel one claiming an adverse estate or interest to come into court, specify its nature, and have the controversy adjudicated.

2. While plaintiff, to maintain the statutory action, must aver and prove his possession coupled with title, the duty is devolved upon defendant of asserting an adverse interest in himself, and specifying its nature; and, before defendant can put plaintiff upon proof touching his possession and title he must plead accordingly.

3. The statute in effect confers upon defendant the alternative of either asserting an adverse claim, and pleading its nature or of disclaiming or filing no answer.

Coe & Freeman and R. H. Gilmore, for appellant.

Hugh Butler, for appellee.

HELM J.

Since one of the questions presented for determination is decisive of this appeal, it alone will be considered. The action was instituted by appellant, Wall, under section 255 of the Civil Code, to quiet his title to certain premises in the town of Highlands. His complaint averred-- First, possession of the premises in dispute; second, ownership in fee thereof, and the assertion by defendant of an adverse estate or interest therein; and, third, that the alleged adverse interest of defendant was entirely devoid of legal foundation or right. To this complaint an answer was filed which-- First, traversed and put in issue plaintiff's averments of possession and ownership; and, secondly, pleaded, in two separate defenses, possession under color of title, together with the payment of taxes for the period of five years next preceding the commencement of suit. Upon demurrer, the two defenses of the answer last above mentioned were held bad. No leave to amend was prayed or granted. The trial, therefore, proceeded entirely upon the issues touching plaintiff's possession and ownership. The record shows that the decree in favor of defendant was predicated upon plaintiff's failure to sustain the issue of possession.

The position taken in this court by counsel for appellee is that the statute devolved upon plaintiff below the duty of maintaining, by averment and proof, his possession and title before defendant could be called upon to aver or prove the nature of his adverse claim or interest. This contention of defendant's counsel is not unsustained by adjudicated cases. Pennie v. Hildreth, 81 Cal. 127, 22 P. 398; Babe v Phelps, 65 Mo. 27; Blasdel v. Williams, 9 Nev. 161; Flint v. Dulany, 37 Kan. 332, 15 P. 208. The statute in question reads: 'An action may be brought by any person in possession, by himself or his tenants, of real property, against any person who claims an estate therein adverse to him, for the purpose of determining such adverse claim, estate, or interest.' 'If the defendant in such action disclaim in his answer any interest or estate in the property, or suffer judgment to be taken against him without answer, the plaintiff shall not recover costs.' Sections 255, 256, Civil Code 1887. These provisions simply recognize in statutory form the familiar chancery proceeding whereby a party in possession of real property might compel persons claiming adverse estates or interests to come into court, specify the nature of their claims, and have them fully and finally adjudicated. 'Originally, and independent of statute,' says Mr. Pomeroy, 'this particular jurisdiction of equity was only invoked when either many persons asserted titles adverse to that of the plaintiff, or when one person repeatedly asserted his title by a succession of legal actions, all of which had failed.' Pom. Rem. & Rem. Rights, § 369. The scope of the equity proceeding thus defined is broader than when first adopted. Its undoubted origin lay in the fact that parties in possession were, owing largely to fictions attending the action of ejectment, subjected to multifarious and harassing suits by the same adverse claimant. Thus its ancient use was simply to prevent the annoyance and expense of repeated legal actions having no substantial merit. Curtis v. Sutter, 15 Cal. 259. Mr. Pomeroy follows the foregoing definition with the observation that the statute obviously enlarges the functions of the modern equity proceeding. But the very essence of the enlarged statutory proceeding remains the same as it was in equity, viz., to compel one asserting an adverse interest in the property to aver and try such asserted interest. The words employed are: 'An action may be brought * * * for the purpose of determining such adverse claim, estate, or interest.' No language could more plainly or more forcibly express the leading and controlling object of this legislation. While, therefore, it is true that, in order to maintain the statutory action, plaintiff must aver and prove his possession, coupled (Stark v. Starrs, 6 Wall. 402) with title, legal or equitable, it is no less true that defendant must assert some adverse claim or interest. If defendant be not asserting an adverse claim, there is nothing to try. The language of the statute requiring plaintiff to be in possession is no more emphatic and mandatory than is that requiring the existence of an alleged conflicting interest. The statutory proceeding is in this respect unlike the action of ejectment; if defendant does not assert an adverse interest in himself, he cannot be permitted to put plaintiff upon proof of his possession and title. It is sufficient if, after pleading possession and ownership by plaintiff, the complaint aver generally that defendant claims some adverse estate or interest, and that such claim is unfounded. Ely v. Railroad Co., 129 U.S. 291, 9 S.Ct. 293. It is for defendant, if he relies upon an adverse interest, to plead its nature by answer. And plaintiff is entitled to the judgment of the court upon demurrer as to whether defendant's interest thus pleaded has any foundation in law. Railroad Co. v. Oyler, 60 Ind. 383. When defendant had...