Clayton v. Spencer

2 Colo. 378 | Colo. | 1874

Beleord, J.

In the view I take of this case it is immaterial to inquire as to the character of Rogers’ title.

The evidence shows that Mary McLaughlin, through whom the appellee claims title, was in the actual occupancy of this property prior to, and at the date of the entry, and that her possession continued until March, 1867. The record further shows that she made her filing within the 90 days, provided by law, and upon so doing, she was entitled to a conveyance. Clayton’s title is derived through the Denver Town Company, and it does not appear that either Clayton or Ms grantors were ever in the actual occupancy of these lots. There was no way of deriving title except as pointed out by the act of congress and the act of the legislature. And neither the act of congress nor that of the territorial legislature recognizes any claim in this company..

If the Denver Town Company had no right, it could impart none. Objection is made to the deed executed by Chever, as attorney in fact of Mary and Enos McLaughlin. This letter authorized Chever to convey all the property belonging to Mary and Enos, and it is insisted that, inasmuch as lots 11 and 12 were the separate property of Mary, the attorney could not convey them under this power. The proof shows that they owned no property in common, and Enos had none in his individual right. The only property owned by either was the lots in controversy, and they belonged to Mary. There was, then, no joint estate to which the letter of attorney could apply. Such being the case, it seems clear that the intention in making the letter was to authorize Chever to convey these lots. Dodge v. Hopkins, 14 Wis. 636; Dolton v. Cain, 14 Wall. 476. According to the rule laid down in Silver v. Ladd, 7 Wall. 228, the decree is not improper in form.

The decree of the court below is

Affirmed.