Wilcox v. John

• Decision Date: 01 July 1895
• Citation: 21 Colo. 367,40 P. 880
• Parties: WILCOX et al. v. JOHN.
• Court: Colorado Supreme Court

40 P. 880

21 Colo. 367

WILCOX et al. v. JOHN.

Supreme Court of Colorado

July 1, 1895

Appeal from district court, Las Animas county.

Action by James M. John against James Wilcox and others for possession of land. From a judgment for plaintiff, defendants appeal. Affirmed.

This is an action in the nature of an action of ejectment, brought by appellee, James M. John, as plaintiff, to recover from appellants, James Wilcox and William Moad, a quarter section of land situate in Las Animas county. There is no dispute as to the facts, which are as follows: One James Hunt was the patentee of the land in question, and each of the parties to this suit deraign title through said Hunt. On the 18th day of November, 1886, the title to the land then being in the United State, Hunt was residing upon the same, claiming title thereto under the pre-emption laws of the United States. At that date, and while so residing upon and claiming the land as a pre-emptor, Hunt executed a deed of trust, in which he attempted to convey said quarter section to one A. C McChesney, as trustee, for the use of one W. F. Hall. This trust deed was executed for the purpose of securing the payment of $204, which Hunt at that time borrowed from Hall for the purpose of paying the expense of proving up and purchasing the land from the government. It it admitted however, that no part of the money borrowed by Hunt was ever used to pay for the land. In fact, he did not at that time make final proof and entry, but soon thereafter caused the greater part of the money to be paid to A. C. McChesney, the trustee, who returned $140 of it to William Hall, to be applied in part to the satisfaction of the Hunt note. Hunt continued to reside upon the land, holding and claiming the same as a pre-emption, and on the 20th day of June, 1888 made final proof in regular form, and received his certificate of purchase therefor. On March 16, 1888, S. A Pauley and Henry George obtained a judgment against Hunt for the sum of $427. This judgment was rendered by the district court of Las Animas county, and the plaintiffs claimed a lien on the real estate then owned by the defendant, or which he might thereafter acquire, but no transcript of the docket entry of this judgment was ever filed with the clerk and recorder. Execution was, however, issued, and delivered to the sheriff; and, after Hunt obtained title to the land, this execution was levied upon the premises in question, and the same were sold and deeded by the sheriff to the plaintiff in this action. This levy and sale were made subsequent to the conveyance to Wilcox and the filing of the same for record, as hereinafter detailed. On the 26th day of June, 1888, Hunt executed a warranty deed to the defendant James Wilcox, which deed was immediately filed for record and duly recorded in the office of the county clerk and recorder of Las Animas county. The deed describes the land as located in range 23, and adds the following words: 'Being the same land as acquired from the government by virtue of receiver's receipt No. 5,018.' In this deed the range is incorrectly given; it should be 63 instead of 23. Upon these facts, the district court entered judgment for the plaintiff. The defendants bring the case here by appeal.

Northcutt & Franks, for appellants.

James H. John, for appellee.

HAYT C.J. (after stating the facts).

Appellee claims title through two sources, viz.: First, a purchase made under the trust deed of the...