62 Colo. 477 | Colo. | 1917
delivered the opinion of the court.
This action was instituted by Ella M. Haynes as the administratrix of the estate of George Haynes, deceased, against Estafana Hieldin, David Prosser and M. J. Galligan to qiuet title to one hundred sixty acres of land and water rights, situate in Pueblo county.
The complaint sets forth the death of Haynes; that plaintiff was appointed the administratrix of his estate; that at the time of his death he was the owner in fee and in possession of said land and water; that plaintiff, as said administratrix, is the owner of, and claims title to said land and water; that defendant claims an estate or interest therein adverse to said plaintiff, and adverse to the said George Haynes, deceased, etc. The defendant Galligan filed a demurrer alleging, that the plaintiff had pp capacity to sue; that there is a defect'of parties plaintiff, and that the complaint does not state facts sufficient to constitute a cause of action. The demurrer was overruled. He thereafter answered denying plaintiff’s title, claiming ownership, and alleging that if plaintiff was in possession, it was as a tenant of his, and not otherwise. Thereafter, The Thomas S. Hayden Realty Company filed its petition, alleging that since the institution of this action it had purchased from Mrs. Haynes as the administratrix of said estate, all of her interest as adminis
It is urged that the administratrix could not, as such, maintain the action, hence the demurrer to her complaint should have been sustained, and that the substituted' plaintiff could not thereafter be placed in any better position than she was, hence its case must fall. Keeler v. Trueman, 15 Colo. 143, 25 Pac. 311, and McKee v. Howe, 17 Colo. 538, 31 Pac. 115, are relied upon as sustaining the first of these contentions. McKee v. Howe was an action to remove a cloud from title to real estate. In the absence of allegations that the estate was insolvent, or that it was necessary to sell real estate to pay debts, or that there were any debts, it was held that the complaint did not state facts sufficient to constitute a cause of action in favor of an administrator in his 'representative capacity. In this respect there can be no difference between an action to remove a cloud and an action to quiet title. This opinion adheres to the law which makes real estate descend to the heirs, subject to the payment of debts, and also held that section 7 of the act of 1885, to be found at page 395 of that year’s Session Laws, did not authorize an administrator to institute or carry on any suit or proceeding respecting real estate belonging to the decedent, other than such as might be necessary to effectuate the purposes of such statutes, which limited it to the recovery of rents, issues and profits,' etc.; but the court said “The language of that section is quite crude and imperfect. It does not empower the administrator
It is claimed that certain exhibits offered by plaintiff were erroneously considered, for the reason that they had not been received in evidence. Their alleged submissions were in each instance .preceded by counsel’s statement about as follows: “Plaintiff offers in evidence the record of said deed appearing on page 500 of said Book 118, the same being a warranty deed, etc., * * * same marked Exhibit C. ” Thereafter, certified copies appear to have been furnished, marked as exhibits, and are set out in the bill of exceptions. The trial was to the court, which considered the exhibits, as the question does not appear to have been brought to its attention. Defendant was given full opportunity to cross-examine in connection with them. Under such circumstances, we think they were sufficiently introduced to be given weight as evidence to establish the facts which they were introduced for.
Each party seeks to deraign title from a common . source. Assignments of error are made to the admission of testimony introduced by plaintiff concerning its
Perceiving no prejudicial error, the judgment is affirmed.
Affirmed.