242 P. 636 | Colo. | 1925
Lead Opinion
PLAINTIFF in error was defeated in a suit to quiet title to lots 22 and 23, block 34, Evanston Second Filing, in Denver. The court found that she had not maintained her title by her proofs, and that defendants had shown title, and gave them judgment accordingly. The court, however, specially found that defendants had not maintained their third defense which alleged fraud by plaintiff in obtaining possession and that her tenant was really their tenant The parties claim under one Hipp, a common grantor, the plaintiff in error by virtue of a trust deed made in 1890 and a trustee's deed thereunder in 1898 or 1899, which latter deed was never recorded; and the defendants in error under a quitclaim deed made in 1922. The plaintiff in error makes the point that the evidence shows no title in the defendants in error. We think that is right.
The defendant in a suit to quiet title cannot question the right of a plaintiff unless he can show title in himself.Empire Co. v. Bender,
The delivery of the trust deed we think, however, was sufficiently proved. One Johnston testified that he was purchasing a, large number of lots, including those in question, from the Evanston Company and Clark (who was practically the company); that, to perfect the title, a large amount of property was sold under trust deeds, including one of the property in question, and trustee's deeds were delivered to the Evanston Company. Since the beneficiary purchased, it was not necessary to show payment in cash. *467 Jones v. Hagler,
But the defendants claim to be innocent purchasers without notice. That they cannot be. When they purchased, the trust deed was of record, twenty-five years overdue. This was notice of the trustee's deed, Bradford v. Carpenter,
The defendants also claimed under a tax title, which, however, was found by the court to be void, with which finding we agree. The defendants pleaded that the possession of the plaintiff was not such as to support an action to quiet title, because she procured it fraudulently, and that her tenant in possession was really their tenant; but the court made a special finding against them on that point and they assigned no cross error.
It follows that the defendants have no title and judgment must go against them.
Judgment reversed with directions to enter judgment for the plaintiff. *468
MR. CHIEF JUSTICE ALLEN and MR. JUSTICE SHEAFOR concur.
On Rehearing.
Addendum
Defendants in error claim that upon the avoidance of their tax deed they are entitled to reimbursement for taxes paid and improvements made by them. That is first for the consideration of the district court. There is nothing in the opinion or decision of this court to prevent it.
Rehearing denied.