Chivington v. Colorado Springs Co.

| Colo. | Dec 15, 1886

Helm, J.

The court committed no error in refusing a ■default for want of answer. Within the period allowed for pleading, defendant filed its motion to quash the sheriff’s return to the summons, and when the application for default was submitted, this motion was still pending. Section 149 of the Civil Code must be construed in connection with the provisions of that instrument that relate to the time of answering. Under this section, as amended in 1881, no default could be entered while the motion to quash remained undetermined.

We shall decline to reverse the judgment because the ■court required plaintiff, before filing his replication, to pay the $10 previously awarded to defendant. The judgment for that sum was entered against plaintiff under section 57 of the code, upon the denial of his demurrer and motion. With the alleged unreasonableness of this statute we have nothing to do. It was framed upon the theory of compensation to the successful party, for extra and unnecessary expense occasioned by the demurrer of motion overruled, and is, in this respect, analogous to laws providing for the recovery of costs. It may also have been intended to secure greater caution by parties and counsel, and to prevent the filing of sham and frivolous pleadings of the kind mentioned. We are not prepared to hold the statute unconstitutional, and it clearly warranted the ruling in question.

Nor did the court err in denying plaintiff’s motion to strike from the answer, as “immaterial, irrelevant and redundant,” certain defenses therein averred. Chapter 27 ■of the Eevised Statutes, on the subject of ejectment, was repealed in 1877, and the “general issue” no longer performs the office therein assigned to it. Chapter 23 of the code applies to this class of actions the general rules of pleading specified elsewhere in that instrument; besides, it expressly allows defendant to set up affirmatively the character of the estate, or right of possession' or occupancy through which he claims. Section 2189 of the General Statutes, referring to the limitation of actions, prescribes a rule of pleading. It was originally framed with reference to the existing law which inhibited in ejectment all pleas save the “general issue only.” It did not then, nor does it now, preclude the defendant in ejectment from availing himself of this defense. But, as a rule of pleading, it is modified by the subsequent provisions of the code above mentioned. Under the present practice, the statute of limitations must be specially pleaded in this as well.as other actions, or the defense will be considered waived.

For the purposes of this case, it is a matter of no importance whether the defendant company and its immediate grantors were, at the time of the conveyances to them, capable of taking title to real estate in Colorado. There were intermediate deeds between them and plaintiff to other parties whose capacity in this respect is not questioned. The action is in the nature of ejectment, and, except as modified by statute, the common law principles pertaining to ejectment are applicable. Neither mines nor mining claims are in controversy, and the verdict must be for defendant unless plaintiff makes out a case; moreover, the latter must recover, if at all, upon the strength of his own title or right to possess and occupy; if he has legally parted with both he cannot maintain the action, even though defendant’s paper title be fatally defective.

We proceed now to consider the main question presented, viz.: Did Chivington part with his title to the property by valid and binding conveyances?

He asserts that the power of attorney from himself to Pollock, offered in evidence, is a forgery. But when • upon the witness stand he contented himself with the declaration that he did not sign the paper or authorize •any one else to attach his name thereto. He did not fairly question the bona fieles of his acknowledgment appended to the instrument, nor did he deny that he authorized the delivery thereof. It is strange, indeed, if in truth the acknowledgment is also forged, and if no delivery was authorized by him, that when testifying he failed to specifically mention these two important matters. It is also a circumstance of sufficient significance to be noticed, that the notary public who made the certificate of acknowledgment, and who was present at the 1 trial in the employ of plaintiff, was not called upon to offer any explanation touching the same. Testimony by him admitting that he made this certificate, but asserting that it was untrue, would be entitled to little consideration. Wilson v. S. P. Com’rs, 70 Ill. 46" court="Ill." date_filed="1873-09-15" href="https://app.midpage.ai/document/wilson-v-south-park-commissioners-6956962?utm_source=webapp" opinion_id="6956962">70 Ill. 46. But his sworn declaration that the certificate itself was a forgery might be very important.

Whether plaintiff actually signed or previously directed another to sign his name to the instrument may be a matter of no importance. Admitting for the purposes of the argument that his testimony in this regard is true, the power of attorney is still not necessarily void. If he duly acknowledged the instrument and authorized its delivery, he thereby recognized and adopted the signature and seal, making them his own for the purposes of the conveyance. Clough v. Clough, 73 Maine, 487; Kerr v. Bussell, 69 Ill. 666" court="Ill." date_filed="1873-09-15" href="https://app.midpage.ai/document/kerr-v-russell-6956949?utm_source=webapp" opinion_id="6956949">69 Ill. 666.

We have not overlooked the fact that while giving his testimony plaintiff was asked when he first saw the power of attorney, and answered “Yesterday.” This question and answer were preliminary to the statement that his signature was forged. The good faith of the certificate of acknowledgment was not spoken of; but if we assume that their effect is indirectly to challenge this certificate, and hence admit that plaintiff did, in this equivocal way, dispute its validity, he is yet in no better attitude, for “the unsuported testimony of a party to a deed, that he did not execute it, shall not prevail over the official certificate of the officer taking the acknowledgment.” Kerr v. Russell, supra; Lickmon v. Harding, 65 Ill. 505" court="Ill." date_filed="1872-09-15" href="https://app.midpage.ai/document/lickmon-v-harding-6956269?utm_source=webapp" opinion_id="6956269">65 Ill. 505.

While the certificate of the officer may in some cases be impeached for fraud, duress, or gross concurrent mistake, the proof to sustain the charge “is required to be of the clearest and strongest, and of the most convincing character, and by disinterested witnesses.” Kerr v. Russell, supra; Baird v. Johnson, 98 Ill. 78.

The reasons for these rules are obvious and satisfactory. They are essential to the security of titles. If the solemn deed of a party to real estate, duly attested by a public officer and recorded according to law, may be avoided by the grantor’s individual oath or by anything short of clear and convincing evidence, the efficacy of recording statutes is largely destroyed, and. the title to such property is precarious indeed. Public policy, as well as individual security, require that the ownership and peaceful possession of land should be subjected to no such hazard.

Let us illustrate the force of these conclusions by the case at bar. The instrument in question was regular in form, it was duly recorded, the certificate of acknowledgment complied with the law in all essential particulars, and there was absolutely nothing to advise parties dealing with the property of the alleged forgery. There is no claim or pretense that defendant is not an innocent purchaser for valuable consideration, without notice of any such defect. Por sixteen years plaintiff paid no taxes, and neither exercised nor attempted to exercise any of the rights of ownership over the property. Ever since its purchase in 1872, defendant and parties holding title through defendant have been in undisputed possession, and have discharged the burden of taxation. Without one word of objection from plaintiff, they have been permitted to expend large sums of money in the erection of buildings, and placing of other permanent improvements upon the premises, such improvements comprising a large part of the town of Mamtou. Under these circumstances, and at the end of the sixteen years, plaintiff returns to the state, and by his individual oath, substantially unaided, undertakes to destroy the force and effect of an official certificate, and to undermine the apparently perfect title to this valuable property. The acknowledging officer, who is present and is friendly to plaintiff, i& not called upon to say that the certificate, is a forgery, while plaintiff himself avoids giving any direct evidence to this effect. The negative testimony of certain wit- " nesses as to plaintiff’s presence in Colorado, on the 1st of February, 1867, wheh the acknowledgment purports to-have been taken, is entitled to but little weight. He himself admits that in November or December preceding he was here, but asserts that he then, left and went to Cheyenne. Had the bona fides of the certificate in question been submitted to a jury upon all the evidence, with a proper instruction, and by them resolved for plaintiff, it would have been the court’s unquestioned duty to vacate the special finding. Plaintiff failed, both in the quantum and kind of proof, to establish his charge of' forgery. See Kerr v. Russell, supra, and cases cited; Harkins v. Forsyth, 11 Leigh (Va.), 294.

We do not rest our decision as to the power of attorney upon the rule cited, that ‘ ‘ in favor of innocent purchasers for valuable consideration, without notice, it (the certificate of acknowledgment) is conclusive as to all matters which it is the duty of the acknowledging officer to certify, jf he has jurisdiction.” Whart. Ev. sec. 1052, and cases. Had -plaintiff clearly and convincingly established the fact that both his signature and acknowledgment were forgex-ies, this rule would have no application, even though defendant is a purchaser of the kind described.

The deed to Palmer, executed by Pollock under the power of attorney above mentioned, which conveys eighty acres including the specific lots and parcels of land in the complaint referred to, is valid. Counsel for plaintiff asserts that the certificate of acknowledgment thereto attached is defective, but he makes no other or further x-eference to the subject in argument. We ax-e not advised of the particular defect upon which he relies. While this acknowledgment is somewhat informal, we think there is a substantial compliance with the statute of 1861, which was in force when the conveyance-was executed.

It is our opinion that the title of plaintiff, and whatever possessory rights he held in the premises, passed to Palmer through these instruments. If this conclusion ' be correct, it follows that plaintiff could not recover.

The assignments of error relating to the admission of evidence and to the giving and refuging of instructions need not be considered. Appellant could in no way be prejudiced by the expert testimony concerning his signature; the matter being, by virtue of the law, as we have already seen, wholly immaterial. Under our views above expressed there was no necessity for submitting any question of fact to the jury, and the instruction to return a verdict for defendant was in order.

Plaintiff admits the due execution and delivery to Pollock, in 1867, of an absolute deed, referring to the identical eighty-acre tract above mentioned. This title, such as it was, also passed by deed to Palmer and through him to defendant. But plaintiff now undertakes to avoid the effect of -this line of conveyances, on the ground that there was a patent ambiguity in the description, which renders inoperative the deeds to Pollock, and from Pollock as grantor to Palmer. Whether these deeds be valid, or, as plaintiff claims, void for uncertainty, is a matter we deem it unnecessary to discuss, for if valid, the title to the premises therein described passed to Palmer; and if void, a like.result followed, as we have seen, through the power of attorney and deed from Pollock, as attorney in fact, to Palmer.

The foregoing conclusions being decisive of the case, we shall decline to lengthen this opinion by a discussion of the defense resting upon the statute of limitations.

The judgment is affirmed. Affirmed.