Whitehead v. Callahan

• Decision Date: 11 November 1908
• Citation: 99 P. 57,44 Colo. 396
• Parties: WHITEHEAD v. CALLAHAN.
• Court: Colorado Supreme Court

99 P. 57

44 Colo. 396

WHITEHEAD v. CALLAHAN.

Supreme Court of Colorado

November 11, 1908

Appeal from District Court, El Paso County; Louis W. Cunningham Judge.

Action by A. P. Callahan against W. H. Whitehead. Judgment for plaintiff, and defendant appeals. Affirmed.

Murat Masterson, for appellant.

A. F Woodruff, for appellee.

CAMPBELL J.

Action for the recovery of the possession of real property under section 265 of Mills' Annotated Code. The complaint alleges that plaintiff is the fee owner and entitled to the possession of certain real property in El Paso county, from which defendant wrongfully ousted him, and possession of which he retains. It also states the monthly rental value of the land and asks as damages the value of the use during the time defendant held it. The only defense of the answer necessary to notice is the one in which defendant asserts title based upon a treasurer's tax deed, since solely upon that he relies. In the replication plaintiff sets up various particulars in which this tax deed is void. On trial to the court without a jury, the issues generally were found for plaintiff, and the tax deed held void on several grounds stated in the opinion. On these findings judgment went in plaintiff's favor, awarding him possession of the property and the sum of $230.97, which was the rental value less the amount of taxes, interest, and penalties to which the tax purchaser is entitled under our revenue law. The decree also canceled and held for naught the tax deed. From this judgment and decree defendant has appealed, assigning numerous errors, which we take up in their order.

1. With apparent earnestness defendant argues that in this form of action, which is the Code substitute for the common-law action of ejectment, only the legal title can be investigated, and that the replication attacking the validity of the tax title, which he himself, in his answer, pleads and relies upon to defeat plaintiff's recovery, is a departure from the cause of action stated in the complaint. The learged author of Pomeroy's Remedies and Remedial Rights (sections 98-106) says that equitable ownership is a good basis for ejectment. That question, however, is not important here, for plaintiff relies upon his legal title. If, however, if can be said that a replication attacking defendant's tax title introduces into the case an equitable issue which was not tendered by the complaint, but which, nevertheless, the court determined, defendant himself is responsible for it by setting up in his answer such title as the basis of his right. Certainly he cannot complain that the plaintiff assailed that title in his replication, or that the court determined it; but, if it were otherwise, it scarcely needs argument to show that this replication does not constitute a departure from the complaint or introduce a new cause of action. It is entirely consistent with, and fortifies, the complaint. The matters alleged in the replication were rendered necessary by the answer, if plaintiff wanted to question the validity of the tax deed. 6 Enc. of Plead. & Prac. p. 463 et seq., and authorities cited; Insurance Company v. Friedenthal, 1 Colo.App. 5, 27 P. 88.

Two cases quite in point in our own court are squarely against this contention that the replication is a departure from the complaint. Schlageter v. Gude, 30 Colo. 310, 70 P. 428, was an action to quiet title. The complaint alleged ownership in plaintiff, and the defendant's answer set up title in himself. To this answer plaintiff filed a replication relying upon a title based upon the statute of limitations. Defendant moved to strike this reply upon the ground that it stated matters which should have been set out in the complaint and could not be pleaded in the reply, but the court held that the replication did not depart from the cause of action or the case as originally pleaded. Mitchell v. Titus, 33 Colo. 385, 80 P. 1042, was also a Code action to quiet title. The answer, as in the case at bar, alleged an adverse claim under a tax deed. The replication traversed this new matter in the answer, setting up the invalidity of the tax deed. The court held that this did not constitute a departure from the complaint. Though these two cases were equitable actions, the principle, so far as the question of pleading is concerned, is precisely the same as in a legal action to recover possession. See, also, Lebanon M. Co. of New York v. Rogers, 8 Colo. 34, 5 P. 661.

2. Defendant maintains that under the issues there could be no recovery of rents and profits. Our Code expressly permits such a recovery, and our decisions have repeatedly recognized the practice. Mills' Ann. Code, §§ 267, 269; Ghost v. Shuman, 4 Colo.App. 88, 34 P. 733. In Sedgwick & Wait on Trial of Title to Land, at section 61, the author says that 'damages and mesne profits are generally made by statute part of the recovery in the ejectment suit.' Whatever the rule may be elsewhere, our statute expressly authorizes such recovery. Defendant further contends that plaintiff was not entitled to recover any damages, because he entered into possession under a tax deed, and under the laws of this state a tax deed gave him the right of possession, and, having thus the right of possession, he was entitled to the rents and profits. It is true that under section 435, Mills' Ann. St., all conveyances of real estate duly executed and delivered are held to carry with them the right to immediate possession of the premises, unless a future day for possession is therein specified. This statute, however, does not mean that, if the deed of conveyance is a void deed, the grantee thereunder is entitled to possession. If this tax deed was void, especially if it was void upon its face, as the court found it was, which holding we have elsewhere herein affirmed, defendant's occupancy of the land in controversy under it was a trespass. Williams v. Conroy et al., 35 Colo. 117, 83 P. 959. Defendant also maintains that the court committed error in computing the time for which an award of rents and profits was made. We have examined this record with care, and are satisfied that the allowance is...