26 Colo. App. 144 | Colo. Ct. App. | 1914
Action in the lower court for possession of real property, begun April 1, 1911. Plaintiff alleged and proved title in himself. Defendant pleaded and proved, to the satisfaction of the trial court, his claim under the seven years’ statute of limitation, sec. 4089, Rev. St. 1908, and had judgment. Plaintiff brings error.
The first assignment is that the court erred in admitting the tax deed offered by defendant as color of title, over plaintiff’s objection that it was “incompetent, irrelevant, and immaterial, and not responsive to any issue raised in the cause.” The evidence was competent, relevant and material, and responsive to the issue raised by plaintiff’s replication, in the form of a general denial, to defendant’s plea, aforesaid. If plaintiff intended to attack the plea because of insufficiency, he should have filed a general demurrer to it, or, objected to the introduction of the deed on the ground that the plea did not state facts sufficient to constitute a defense. By replying to the plea he did not waive the right to object to the introduction of the evidence on the ground that the plea did not state sufficient facts to- constitute a defense; but, as the plea disclosed enough to show the statute relied upon, by replying, he thereby made the issue on the plea, and thus rendered the deed responsive to that issue. The objection therefore did not raise the question of the sufficiency of the plea, and there was no error- in overruling it, and admitting the deed. The plaintiff raises in this court for the first time this direct question as to the sufficiency of the plea aforesaid on the particular ground that it did not state facts sufficient to constitute a defense, in that it did not plead good faith, and did not state what kind of title it was that was relied upon. Although this question, generally speaking, may be raised at
This question as to the defendant’s pleading" and proof is involved in the further contention that the court erred in refusing to permit the plaintiff to prove by the defendant, on cross-examination, that he paid the taxes for the last four years of the necessary seven, under and by virtue of a different d'eed and title than for the first three years. This contention emanated when it was elicited on cross-examinaton that defendant had taken several tax deeds on sales of the land for taxes made prior to the sale under which he obtained the deed introduced in evidence as his, color of title, and also that he had purchased an outstanding tax title after he had been paying- taxes for three years under the deed introduced aforesaid. Counsel for plaintiff, after eliciting these facts, asked! him:
“Q. In 1906, when you paid the 1905 taxes, under which of these deeds did you pay it? Objected to- as incompetent, irrelevant and immaterial. Objection sustained. Exception.”
Then an offer was made by plaintiff’s counsel to prove by the witness that he paid the taxes for the last four years, 1905 to 1909, not under the deed introduced and relied upon in the proof, which was taken in 1901, as -color of title, but under the outstanding ’ tax title he had purchased in 1905.
It is with some hesitation that this Case is reversed, under the circumstances surrounding this error, 'but it is beyond the foresight or the prophecy of this court to assume or to' foretell what the witness might have answered, or what the plaintiff could! have proved by him. A reasonable probing of the defendant, on cross-examination, should have been permitted. He had failed'to allege good faith in his plea of the statute,
Reversed.