Webster v. Kautz

• Decision Date: 08 April 1912
• Parties: WEBSTER v. KAUTZ et al.
• Court: Colorado Court of Appeals

123 P. 139

22 Colo.App. 111

WEBSTER v. KAUTZ et al.

Court of Appeals of Colorado

April 8, 1912

Appeal from District Court, Kit Carson County; W.S. Morris, Judge.

Action by B.M. Webster against Christopher Kautz and A.S. Disbrow. Judgment for defendants, and plaintiff appeals. Judgment against defendant Disbrow reversed, and cause remanded for new trial as to him.

Allen & Webster, of Denver, for appellant.

P.B Godsman, of Burlington, and J.E. Robinson, of Denver, for appellees.

WALLING J.

Appellant was the plaintiff in the district court in an action brought to quiet title to certain land in Kit Carson county, under chapter 22, Mills' Ann.Code. The answer of the defendant Disbrow denied plaintiff's allegations of ownership and possession, and alleged that said defendant was the owner and in possession of the land. The answer further alleged that plaintiff's claim was based upon a pretended trustee's deed, wherein T.B. Evans, as trustee, pretended to convey to plaintiff all the right, title, and interest which one William W. Carlon had in and to said land, but that at the time of the pretended sale by said pretended trustee Carlon had no estate, right, title, and interest in and to said land, and said pretended trustee's deed did not convey any right, title, and interest in and to said land whatever; and that D. Carnahan, who held the title to the land in controversy and claimed to be the owner and in actual possession thereof, on or about August 13, 1904, commenced an action, in the county court of Kit Carson county, to quiet his title against Robert M. Gourlay, Harrington Emerson trustee, the Reliance Trust Company, and James Beihl, and on the same date filed a notice of suit pending in the office of the county clerk and recorder of that county; that in that case a decree was duly and regularly entered against the defendants therein, to the effect that said Carnahan was the owner of the land, and said defendants had no interest whatsoever therein, and that said defendants and each of them were forever barred from asserting any claim to the same; and that the plaintiff in this action claims title to the land through and under the defendants in that decree. The answer prayed for a decree quieting the title of the defendant to the land in controversy, and canceling the trustee's deed under which the plaintiff claimed title.

It was adjudged by the court that the defendant Disbrow was the owner and in possession of the land in controversy, and that the plaintiff had no estate or interest therein, etc. On the trial of the cause the following facts were in evidence without dispute. On July 21, 1890, William W. Carlon was the owner in fee and in possession of the land, and on that date he executed a deed of trust conveying the land to Harrington Emerson in trust for the purpose of securing the payment of Carlon's note for the principal sum of $400 to the Reliance Trust Company, due July 1, 1895. The deed of trust gave to the trustee, or his successor in trust, upon default in the payment of the secured note power to sell the land, after 30 days' advertisement, and upon such sale to execute and deliver to the purchaser a deed of conveyance in fee of the premises sold; and it was stipulated that the recitals in such deed should be taken and accepted as prima facie evidence of the facts therein stated. It was also agreed, by the terms of the deed of trust, that "in case of the death, inability or refusal to act of the said party of the second part, at any time when action under the foregoing powers and trust may be required, then the legal holder of said note shall have the option of substituting any other person in his stead by writing duly acknowledged, and the acts and doings of said party so substituted shall be as effectual and binding as if done by the said party of the second part," including the power to make sale as therein provided. In April or May, 1903, the note, secured by the deed of trust above mentioned, was transferred, with the blank indorsement of the payee, to the appellant, who thereafter continued to be the holder and owner thereof. April 9, 1906, appellant, as the legal holder of the secured note, executed and acknowledged a writing, which, after referring to the deed of trust and the provisions thereof authorizing the substitution of a trustee, and reciting that "Harrington Emerson has been for many years last past a nonresident of the state of Colorado, and as a result is wholly unable to act in the premises," appointed T.B. Evans as substituted trustee in the place of said Harrington Emerson, "with full power to exercise and perform the powers and trusts created by the said deed of trust, including the sale of the property therein described." May 31, 1906, T.B. Evans, as substituted trustee, conveyed the land to appellant by a trustee's deed, executed pursuant to a sale made on the last-mentioned date. The trustee's deed contained recitals showing compliance with the terms of the power of sale in the deed of trust, reciting, among other things, that "Harrington Emerson is now, and for many years last past has been, a nonresident of the state of Colorado, and wholly unable to act, and that the legal holder of the note has requested the sale of the hereinafter described lands, and has appointed the undersigned substituted trustee." August 12, 1904, D. Carnahan brought an action to quiet his title against the persons named in the answer of Disbrow, as stated above, Carnahan's complaint alleging that he was the owner and in possession of the land in controversy and that the defendants therein named made some adverse claim thereto. That action resulted in a default judgment to the effect that said Carnahan was the owner of the land in controversy, and that the defendants in that action had no interest whatever in the premises, and that the defendants and each of them were forever barred from asserting any claim or title thereto. About March 1, 1905, Carnahan conveyed the land to Disbrow. The land was at the time of the commencement of the action and for 12 years before had been vacant and unoccupied. Certain tax deeds, purporting to convey the land in controversy to D. Carnahan, were offered in evidence by the defendant, and were excluded by the court upon the objection of the plaintiff.

As appellee has not assigned cross-error, the excluded tax deeds are not before us for any purpose, and are not considered in this opinion. The determination of the controversy in this court depends upon the right of the appellant under the trustee's deed, on the one hand, and the defense based on the default judgment in the action brought by D. Carnahan to quiet his title to the land on the other.

The evidence established prima facie title in the plaintiff to the land in controversy which drew to it the constructive possession. Phillippi v. Leet, 19 Colo. 246, 35 P. 540; Mitchell v. Titus, 33 Colo. 385, 80 P. 1042; Keener v. Wilkinson, 33 Colo. 445, 80 P. 1043; Mitchell v. Trowbridge, 47 Colo. 6, 105 P. 878; Hall v. Kellogg, 16 Mich. 135.

Some objections are raised on the part of the...