Cook v. Rice

| Colo. | Feb 15, 1873

Beleord, J.

The bill, in this case, was filed to set aside a deed executed by Omer O. Kent, probate judge, etc., to Alonzo Rice. Issue was joined, cause referred to a master to take proof, and on the final hearing, a decree was entered dismissing the bill. The land in controversy is a part of the Denver town site, entered by J ames Hall, for the benefit of the actual occupants, and owners of improvements thereon.

The evidence, I think, clearly establishes the following facts : First. That one John Dalton entered upon this land in 1860, erected a house or cabin, and occupied it with his family until 1863; he then conveyed it to Isaac N. Campbell, who ’ entered into occupation, and resided with his family until April, 1865. Campbell placed some additional improvements on the property, and on the 7th day of June, 1866, conveyed these lots to Rice, who, it appears, has been in possession ever since, and paid the taxes on the same. It further appears, that on the 6th day of May, 1865, Hall, probate judge, etc., entered the land, and on the 7th day of J une following, Campbell made his filing, and asked for a deed. No deed was made to Campbell; Rice, as his grantee, however, received a deed from Kent.

It appears further, that Rice has placed on this property improvements, amounting in value to the sum of $3,000. There is nothing in the record to show that the complainant ever was in the occupation of this property, or that he ever placed any improvements thereon.

The trust closed on the day the entry was made by Hall, and if the complainant, was not in the actual occupation of the property, or thé owner of the improvements thereon, at that time, he certainly cannot be regarded as a beneficiary of the trust. The only thing in the record upon which any claim in favor of the complainant could be based, is the filing he made ; but even the date of this is undisclosed. Whether it was before or after that of Campbell, is a matter of conjecture.

In his testimony he does not assert that he ever occupied the land, or erected improvements on the same. This, certainly, is a very weak showing to be made by one who asks a court to divest another of property, whose possession, through his grantors, and himself, reaches back to 1860.

Great stress is laid on certain proceedings had in the probate court, before one Jacob Downing, probate judge, wherein Edward Chase appears as complainant, and Isaac N. Campbell appears as respondent, and in which proceeding it was adjudged that Chase was the owner of this property. Prior to the election of Downing, Kent had conveyed this property to Rice; indeed, it appears that Rice had been in possession of this property for some eighteen months prior to the commencement of this action. We think that Downing had no power to adjudicate between these parties. Section 8, R. S., p. 622, seems to limit the jurisdiction of the probate judge to such lands as shall be held by him. It is clear, that at the time of this adjudication, the legal title was not in Downing. His predecessor in the administration of this trust had parted with the title to Rice, and in him the legal title was vested. We, therefore, attach no weight to these proceedings. If we look at this case outside of the conveyance made by Kent, and which the complainant, in this action, seeks to set aside, we find the equities are with the respondent. Dalton entered on this land in 1860, occupied it until 1863 ; was succeeded by Campbell, who actually occupied it until 1865, who was succeeded by Rice, whose possession has been continuous, ever since.

From the record it does not appear that the complainant ever occupied this land, or erected improvements thereon. He certainly is in no position, upon this showing, to question the title of the respondent.

Affirmed.