32 Colo. 502 | Colo. | 1904
delivered the opinion of the court.
In the year 1886 Solon D. Martin was seized in fee of the southwest quarter of section 7, township 4 north, range 58 west, and executed to George F. Brownlee a bond for a deed therefor. In the year 1888, Brownlee entered the southeast quarter of the same section as a homestead. From that time until
Upon the trial there was some testimony given by the defendant tending to show an agreement between the defendant and Martin as to the division line. An issue was made as to whether there was such an agreement, and the jury found against the defendant, under proper instructions. It is at least doubtful whether the defendant’s testimony, if uncontradicted, would have sustained a verdict in his favor upon this point. On cross-examination he said:
*504 “Q. You have stated in your direct examination that Mr. Martin saw this fence there; when did you make any agreement with Mr. Martin as to where this line should be? A. In about ’89.
Q. What was the consideration for the agreement? A. There wasn’t any consideration.
Q. Did he agree to any line? A. He did.
Q. How? A. Why, by consenting to my putting the fence up.
Q. You remember your testimony six months ago, do you? Did you state at that time of his agreeing to a line? A. He agreed to the line by not objecting to my cutting hay.
Q. Mr. Brownlee, did you have a conversation with — in March or April, 1900, with Ed. Williams, when he went to see you on the place, in which you went dowp with him and his father where you live there on this southwest quarter of 7, and that you stated to them that as soon as the river went down and you could get Ed. Baker down to survey the line that wherever he would determine it that you would be willing to be governed accordingly, and that you did not want any part of the southwest quarter of 7? A. Why, providing they got a correct survey of it.
Q. Then at that time you did not claim any agreed line, did you? A. Why, I claimed it up to that fence, where I maintained my house, I did, most certainly I did. ”
The assignments of error relied on to reverse the case are numerous, but they all relate to the giving and refusing of instructions relative to the defendant’s claim of title to the twenty-eight and one-half acres by adverse possession and the payment of taxes. During the years from 1888 to 1896 Brownlee was in possession of the southwest quarter under the bond for deed from Martin, and in possession of the southeast quarter under his homestead entry.
We can find nothing in the record tending in the remotest degree to support the contention of the defendant that there was any real or supposed boundary dispute settled by this stipulation, or that, any such dispute was in existence at that time. Brownlee was to reconvey to Martin the land described in the bond for deed, and he did so. The deed recites that “Said Martin, having on the 19th day of August, 1886, made to Brownlee his bond for deed for said premises and the same having been recorded in Weld county, Colorado, December 11,1886, of which county Morgan county was then a part, in book 66 on page 71, now the purpose of this deed is to perfect the title to said premises back in Martin, to have and to hold the same, together with all the appurtenances and privileges thereunto belonging or in any wise thereunto appertaining, and all the estate, right, title, interest and claim whatsoever of the said party of the first part either in law or equity to the only proper
We tbinlc, therefore, that the period of Brown-lee ’s adverse possession was too short to be submitted to the jury as a possible defense or source of title in this case, and that the errors complained of were without prejudice to any right existing in the defendant.
For the reasons given the judgment is affirmed.
Affirmed,.