49 Colo. 522 | Colo. | 1911
delivered the opinion of the court:
This is an action to quiet title under section 255 of the code. The complaint, as amended, alleges that the plaintiff is the owner and in possession of the S. W. J of section 21, township 1 north, range 51 west, in Washington county, Colorado; that the defendant claims some right; title and interest in the land, which is without right as against the plaintiff and is a cloud upon her title. Por a first defense, the defendant denies each and every allegation of the complaint, except it admits that it claims title to the real property described therein; and for a second and separate defense sets up a tax title, praying for a judgment and decree quieting same. Plaintiff had judgment and defendant brings the case here for review on appeal.
In the defendant’s brief the question of the insufficiency of the complaint to support the action, because of its failure to allege that the title claimed by the defendant is adverse, is suggested. No such objection was made below, there is no assignment of error thereon and this matter is thus, for the first time, brought to the attention of this court, or of any court. It might well he held, under this state of facts, that this objection has never been legally raised. However, even if it be true that the complaint was obnoxious to a general demurrer, which we do not decide, it is clear that the omission from the complaint was cured by the allegations of the second defense, as it sets up an adverse title to that of plaintiff, and so supplied any supposed defect in the complaint. — Robinson Con. Min. Co. v. Johnson, 13 Colo. 258. It is to he further observed that the defendant asks for affirmative relief under, its second
“Conceding that the plaintiff was not in possession of the land, and for that reason could not maintain a suit, to quiet title, it cannot avail the appellant; for he filed a cross-bill seeking to quiet his own title, and it gave the court jurisdiction of the entire controversy.”
The evidence is that prior to the inception of the alleged tax title, one Jacob P. Eckels, in possession as owner of the land in controversy, under patent from the United States, dated November 6[ 1895, conveyed the premises in dispute, for a consideration of $1,150.00, to Sarah E.- Bender, plaintiff; and that at the time of the commencement of this action and at. the. trial the lands were vacant and unoccupied. The title in fee in plaintiff to the land carries with it presumptive possession, and entitles her to maintain this action, in the absence of actual entry and a-dverse possession by another. — Phillippi v. Leet, 19 Colo. 246; Morris et al. v. St. Louis Nat. Bank, 17 Colo. 231; Mitchell v. Titus, 33 Colo. 385; and Keener v. Wilkinson, 33 Colo. 445. Not a syllable of testimony was given or offered to show actual entry or adverse possession by another.
The offer by defendant to show by the record a trust deed upon the lands in question, made by plaintiff, after fee vested in her, to the public trustee of Washington county, for the use of the Industrial Building and Loan Association, to secure the. payment of a loan from it, without more was immaterial and properly excluded.
The moment defendant’s alleged adverse title failed, as it did when it offered in support of it a tax deed void on its face, it had no further interest in the cause, and could raise no other issue. That part of its answer denying plaintiff’s title and possession, under such condition, was in law a nullity. It is only, when a defendant has shown by his answer that he has an interest in the property adverse to plaintiff, such as will entitle him, on proper proof, to some relief in connection therewith, that he is in position to
The question of a necessity of a tender to defendant of its tax outlays, in order to entitle plaintiff to maintain this action, is settled adversely to the claim of defendant in the ease of Lanning v. The Empire Ranch and Cattle Company, decided at the present term of this court.
The fact that the deed is void on its face, because unacknowledged, makes it unnecessary to consider or discuss other questions urged by respective counsel. The judgment, appearing in all respects to be right, is affirmed. Affirmed.
Chief Justice Campbell and Mr. Justice White concur.