*1 purported majority opinion states what is to be The question I the sole statement of involved. defendant’s paragraph quote brief, from defendant’s the entire present “The sole which desire to follows: we proceeding testimony Upon this is whether or not the plaintiff’s lédger witness, Koller, sheets and slips, competent were sufficient and sales establish a against prima justify facie case defendant and to overruling entry of the motion for nonsuit and the judgment in the amount stated.” predicated primarily for nonsuit was The motion on ground wholly prove evidence failed to either cause of action for merchandise sold and deliv- ered or for an account stated. The trial court committed denying error in the motion for a nonsuit. judgment should be reversed. 14,682.
No.
Cox v. Godec. 876) P.
(108 [2d] Rehearing January 6, Decided December 1940. 1941. *2 Mr. Ben for Wendelken, S. plaintiff error. Mr. Simon, Charles J. for defendant in error. En Banc. Otto Bock delivered the opinion
court. par- action, in which detainer is an unlawful This position below. appear relative same ties here peace justice court brought originally in a It section grounded fourth subdivision on the and compliance thereto, chapter Answer 70, ’35 C.S.A. supra, chapter 70, and provisions of section with by defendant, in which complaint filed were a cross justice certify the cause to peace asked chapter provided section the district that defendant appearing answer from the C.S.A., ’35 plaintiff in himself asserted title of certified possession. adverse plaintiff, first as his court, where to the district the case legal step, remanding the cause to an order for moved ground subdivision that under on the court supra, raised and title was not Thereafter motion was denied. tried. This could be replication plaintiff to defendant’s answer filed a *3 complaint, the issues and cross answer to the an quieting defendant, in favor of made the court found so is in him. Reversal estate involved title to the real the sought error. on a of writ court com- the district contends, first, that
Plaintiff remand the to it denied the motion mitted error when argued justice peace that It is the court. the of case to de- for unlawful an action not involved when title is supra, brought which it is said 4, section under tainer is possessory solely landlord action between a is limited to by the district court to the tenant, and certification and peace action justice when the is authorized brought 4, 7, 8 or 9 of section 6, under subdivision is support his counsel cites supra. contention In of this Pac. In 184, 230 786. that Schimmel, 76 Colo. v. Wise certify, peace justice to it refused the and case necessary subsequently determine whether became alleged showing petition facts of certiorari for writ filed “dispute.” in involved to be real estate We to the title pleadings that if the not; it but stated that did held the the were sufficient not case within they would bring of which provisions chapter supra, upon for authorization certification to the district court was because this was a case in title sought, which the can be “in within the of such section. dispute” meaning In the case the present we eliminate might summarily as authority because the inapplicable to which .language is called mere dictum. In view of the attention fact, however, that Mr. Allen, the the author of goes into opinion, detail the support which proposition sustains ostensibly it plaintiff’s contention, deem ad- we visable, in the interest of here certainty of as procedure involved, to specifically settle this question.
Section in as chapter reads supra, part “If follows: in action any before a the justice peace estate, relating real shall the title appear in boundaries are dispute, shall certify cause and transmit the district court papers the same This county.” provision give enacted to effect to section legislative article of our VI, Consti tution, is pertinent which “Jus part follows: tices of shall peace have such jurisdiction may be law; conferred by but shall they not have jurisdiction * * * ** * case where title to real property shall be called in therefore, question.” Constitutionally, has jurisdiction no in case” “any in which the title to real estate is called question. This limitation is jurisdictional not affected by any pro visions chapter which is a supra, enact statutory That ment. instant case title to real estate was “called “in question” there can be dispute,” no doubt. Defendant relation *4 of landlord and tenant him between and plaintiff, title in alleged superior himself by adverse possession. Title real estate was directly involved. denial of motion to remand to the of the justice If not error. there is in contrary language Wise Schimmel, supra, or any other decisions of this
73 to the effect that under subdivision supra, of section is certification to the district required by justice peace, they court must, of the opinion. extent, to that be considered modified this holding slightest degree This does not affect estopped deny the rule that a tenant is title so the landlord’s long as the relation of landlord and tenant con- tinues, in dispute which situation there could be no as to title. In the instant case the evidence shows that relationship suggestion plain- never existed. The of alleged tiff relationship where, here, of land- by proof, lord and tenant is not sustained required satisfy dismiss action, does not statutory requirement of certification when title to real estate “in case” is called in before the peace. After such certification the district proceeds court with the respects cause “in all if originally begun they in the court to which have been certified.” next
Plaintiff contends “that the court committed sustaining error the defendant’s claim of based possession, on adverse since the was based permissive entry granted by plaintiff’s pre- a permissive grant decessors in title and that a cannot ripen ownership.” into an adverse understanding issues, a
To better we briefly facts, state the which there is no material Blaser, conflict. One Edward the fee owner being lands bounds, certain described metes and part quarter quarter northwest southwest township range south, west, -67 in El County. year conveyed Paso time in that Some he portion one John Sikola a of the land so described. Dur ing the time Sikola was the owner of said land Blaser permitted twenty easterly him to extend his fence feet alley, taking to the thus in about acre, .11 an controversy, land here in Blaser, title to which remained in thereby placing twenty-foot his land and the *5 one In a strip Blaser within enclosure. belonging Sikola, Sikola, conversation Elizabeth wife of John with he the time during twenty-foot was possession Blaser told her that after strip, for the payments land sold to Sikola had been he would completed give her the twenty-foot and “that strip question, papers would be fixed to this out later.” carry Before all pay- ments were still due —John Sikola sold being $50 made — to defendant. Defendant property received a deed for the Blaser to property conveyed by Sikola from the 1, 1907, about June using latter the same description by metes and bounds as that contained in the Blaser-Sikola deed, which did not include the twenty-foot Blaser strip. died in but shortly prior thereto had conveyed wife, Blaser, his Anna together with other lands, and it is twenty-foot strip, disputed that the Blasers the taxes always paid on land. At the time defend- ant the land from bought Sikola he obtained no ab- stract and had no survey made, but took Sikola’s word land, that all of the fenced which included the twenty- foot he was tract had strip, purchased. Blaser, liv- near ing by, made no objections to Sikola’s use of the twenty-foot first strip. change in the improvements on this title to which is in strip, was dispute, Godec when erected a garage thereon, and thereafter built chicken on coops pens the tract. He did not that he know was not paying taxes on the land in controversy, thought twenty-foot in- plot was cluded in his deed. He testified at the time that if he had not entertained this belief he would not have erected on the buildings His strip. intention was to he claim what he had thought purchased, and he felt certain always land in the enclosure be- to him until longed year before the trial, which was October 1938. November 1937, Anna Blaser conveyed twenty-foot strip plaintiff, who had some knowledge circumstances under which de- possession property claiming fendant before the was conveyed to him. twenty-foot strip That Sikola’s permissive, antagonistic and not be Blaser, seems to *6 conceded. Counsel for defendant states —and this is not disputed opinion the trial court was of the that —that required permissive it was to determine whether the entry by of Sikola was terminated the sub- entry sequent entry by of defendant. That this Godec originate possession urged was sufficient to adverse premise upon in his brief and seems to be the trial court found for defendant. the which it
That did so also is ignored inferred from the fact that it the first act of might defendant which be considered as hostile to building garage title, Blaser’s which was strip a on the in in 1921. The any evidence does not sustain parol gift. applicable possession the law
A statement of after entry appears permissive in 2 S., 216d, C. J. in section page original 823, which reads as follows: “Where the entry on land was amicable or in subordination to the rights by permission owner, of the true as where it was by owner, or license from true virtue of a mis- boundary possessor intending to the line, take as possession to the line, claim true will, in the ab- explicit pre- of an sence disclaimer of subservience, be began; pre- sumed sumption arising continue as it and there is no possession, long from mere however many holding pre- continue, that the is adverse. The may, sumption by however, be overcome evidence that holding is adverse of which the true owner had knowledge.” notice or
In Evans Welch, Colo. 68 Pac. we had analogous us a before somewhat here, situation. As no conveyance legal twenty-foot strip title to a ever parties possession made to was in thereof; possession period approxi- which continued over a defendants, Mary One of mately thirty years. 206, Denver, Welch, lots 21 and block purchased time twenty-foot March at a which portion fence, was enclosed with said lots a also strip by a frame house thereon extended over onto partly her built Welch strip controversy. During fence, a brick on the dwelling by small land enclosed a of which feet the line and was few over part upon the land title to which was in Whether dispute. pos- by session her strip permissive predecessors or antagonistic is not the record. by Mary disclosed Welch testified when she received the deed to the that lots she believed that she was property purchasing embraced all of the tract fence, surrounded she did not ascertain the truth until demand was made her for suit possession shortly before instituted the record owners January 1898. So *7 far any her the possession by of in controversy strip was concerned, “it would seem it that a mistaken was one and not an intentional possession of not property to them.” The belonging opinion by [her] the contains Campbell 359, 361, 362, following (pp. 364): “The the legal of land in dispute standing name of John Evans the upon records and this fact shown the being heirs, to his as plaintiffs, were to entitled judgment unless the defendants showed that * * * such title was extinguished. “We have examined with much care the entire record case, that, and are entirely convinced at least until possession was taken Mrs. Welch in by there is not any evidence whatever to show the that posses- sion of of the was occupants or ad- antagonistic verse to the title of legal John Evans. The presumption of is that law of possession is in property consonance, or harmony, with the rights of the true owner, and before any rights based upon or possession occupancy can
77 among legal shown, extinguish it must be title, that antagonistic. things, that other per- long if the continued, with “Possession, however extinguish operate owner, of the true will mission ** * legal the title. upon upon relies an adverse “It is incumbent one who legal extinguish possession the title, to establish satisfactory by necessary evidence. All clear and facts legal presumptions holder, and the are favor of overcoming rests him assails burden of them with who legal title.” City Marquette Ry. Rapids See, also, v. Pere Grand Chicago, 797; Co., 248 Mich. 227 N.W. Cameron v. Ry. Co., 814; M. & St. P. 60 Minn. Mattes N.W. App. Hall, 436; v. 28 Cal. 152 Pac. Eaton v. Cates (Mo.), Peyton 950; Waters, 175 S.W. 104 Kan.
Pac. 525. holding agree the evident do not with
We conveyance defendant, under a court that when trial property in con here entered Sikola, from troversy, possession hostile and an his twenty- legal tagonistic title to the holder of the presented strip, circum hold, under foot and we to find the issues favor stances, that it was error entry upon per Where, here, land defendant. satisfactory missive, if and possession it is shown when antago of the entrant became evidence thereof hostile, nistic and with notice owner successor, thereafter such continues his required period law, can the defense ad for the verse possession prevail. *8 judgment
The is reversed and case remanded. Young Justice Hilliard, Mr. Chief Justice Mr. dissent. Bakke Mr. Justice following specially concurring opinion filed
January 22, 1941.
78 specially E. Bouck con- Chief Francis
curring. In the However, reversal I concur. view presented, showing plaintiff issues Cox was claiming to be the Godec, landlord of and under numer- previous ous court, decisions of is not here meaning 25 involved within section of article VI Constitution Colorado. The district which the had certified the case in ought the belief that the title was involved, to have remanded the case to the for trial him on the merits. Certification to the district court justified chap- was ter neither under ’35 C. S. volume A., 3, chap- 96, 12, nor under A., ’35 C. S. volume Klopfer ter 70, section 9. v. Keller, 1 410; Colo. Potts v. Magnes, 17 Colo. 30 58; Pac. Hamill v. Bank of County, Clear Creek 22 Colo. 45 411; Pac. v.Wise Schimmel, 76 Colo. 786; Pac. Judd, v.West (2d) 86 P. Colo. 1081. 14,698.
No. Simmons Simmons. (108 871) P. [2d] Rehearing January 6, Decided December 1940. 1941.