| Colo. | Jan 15, 1894
delivered the opinion of the court.
The assignments of error challenge, first, the interlocutory
1. When a demurrer is interposed the sufficiency in substance of any antecedent pleading to which the pleading demurred to relates, may be called in question, as well as the sufficiency of the pleading directly challenged. Under this rule, counsel for plaintiff asks that the demurrer to the special replications be carried back to the third and fourth defences.
2. At the threshold of this controversy it is boldly asserted that a certain statute published by authority, and accepted as valid law by the courts for the last twenty years, is null and void. The act thus challenged is familiarly known as the statute of limitations, based upon possession and payment of taxes under claim and color of title made in good faith. Session Laws 1874, p. 177; General Laws (1877), § 1694; Gen. Statutes (1883), § 2186 ; Mills’ An. Stats. (1891), § 2923.
The statute in question was undoubtedly borrowed from Illinois. The Illinois act, however, prescribes seven years as the period of limitation, instead of five, and contains the words, “ paper title,” where our statute as published contains the words, “ proper title.”
The engrossed bill on file in the office of the secretary of state, showing the introduction and passage of the bill through the territorial legislature, contains the words, “ paper title,” the same as the Illinois statute ; but the enrolled bill approved by the governor reads, “ proper title.” From this it is contended that the bill never became a law, not having been approved in the form in which it was passed. We think a different conclusion is to be drawn from the condition of the bill as well as from its subject-matter; the discrepancy appears to have been a clerical mistake, such as should not be held fatal to the existence of the statute. Considering the whole section and its manifest purpose, the words proper title in the published laws should be construed as meaning a paper title; otherwise, the statute would be of
In the circuit court of the United States, section 2186, supra, was construed as follows: “ The court interprets ‘ proper ’ title to mean ‘ paper ’ title. The word ‘ proper ’ in the statute is manifestly a mistake. By such error the word ‘ proper ’ is used for the word ‘ paper.’ That is the law under which the claim of Mr. Clifford in this case arises.”. See Latta v. Clifford, 47 Fed. Rep. 618.
3. The view above expressed as to the meaning of the phrase, color of title, is confined to the statute under consideration. We are aware that in Lebanon Mining Co. v. Rogers, 8 Colo. 37, it was intimated that color of title may exist without a writing; but that was not the point decided in respect to the statute in question. The color of title relied on in that case was based “ entirely upon instruments of writing,” so says the opinion; and the decision was against appellant because it appeared that its possession was not under claim of title in good faith for the statutory period. In that case it was also said that the plea of the statute is an affirmative defence. So it is; possession and payment of taxes must, of course, be affirmatively shown by evidence in the first instance ; and so also the acquisition of the paper title. But when such evidence does not disclose bad faith on the
In passing upon the demurrers in this case the following are to be taken as the admitted facts: Plaintiff was a married woman and owned the property in controversy in her own right at the time of the alleged conveyance, September 23, 1872; and the deed of that date to Marriott was then executed and delivered by her for a valuable consideration, as stated in the 3d and 4th defences. The question then arises : Was such deed valid and effectual to convey her estate under the then existing statute of conveyances ?
4. Counsel for plaintiff contends that the deed of September 23, 1872, mentioned in the 3d and 4th defences of the answer, was and is void, and does not give color of title.
For the last twenty years it has been the settled law in Colorado that, “ Any woman, while married, may bargain, sell, and convey her real and personal property, and enter into any contract in reference to the same, as if she were sole.” See act of Feb. 12, 1874, Gen. Stats. § 2278; Wells v. Caywood, 3 Colo. 493. But the deed in controversy was executed in 1872; and at that time a married woman could not convey her real estate except by substantial compliance
By section 17 just cited it was provided that to convey her lands a married woman should unite with her husband in making the conveyance; that she should acknowledge the same, separate and apart from her husband; that the officer hearing the acknowledgment should certify that the same was made upon examination separate, apart from, and out of the presence of her husband; and that the contents, meaning and effect of such deed were by the officer fully explained to the wife. The certificate attached to plaintiff’s deed shows substantial compliance with all these provisions, and further that plaintiff acknowledged that she freely and voluntarily executed the deed, and relinquished her dower to the lands and tenements therein mentioned without compulsion of her husband, and that she did not wish to retract the same. In Nippel v. Hammond, 4 Colo. 215, a certificate substantially like the one in this case was held to be sufficient, though the notary in that case certified expressly that the wife was personally known to him ; this point will be noticed hereafter. There is some surplusage in the certificate, but that does not invalidate the conveyance. Chester v. Rumsey, 26 Ill. 98.
It is contended that the certificate of the notary does not show compliance with the provisions of section 14 of the statute of conveyances. This was not essential to the validity of the deed as a conveyance. A deed duty executed by a person sui juris may be valid as a conveyance though not acknowledged and certified as provided by section 14. Holladay v. Dailey, 1 Colo. 467" court="Colo." date_filed="1872-02-15" href="https://app.midpage.ai/document/murphy-v-cunningham-6560520?utm_source=webapp" opinion_id="6560520">1 Colo. 467, affirmed by U. S. Sup. Ct., 19 Wall. 606" court="SCOTUS" date_filed="1874-04-18" href="https://app.midpage.ai/document/holladay-v-daily-88907?utm_source=webapp" opinion_id="88907">19 Wall. 606. The advantage of having a deed acknowledged and certified is that it may be read in evidence, without, in the first instance, additional proof of the execution thereof.” See §§ 19 and 20, Statute of Conveyances; R. S. 1868, p. 112; also, Gen Stats. 8§ 216, 217; 1 Mills An. Stats. §§ 447, 448.
Section 17 provided that section 15 should not apply to conveyances by married women, but did not provide that
This view of the statute is altogether reasonable. The certificate required by section 17 provided for the identification of married women with all reasonable certainty. For example, in the present case, the officer certified that Henry J. Knight was personally known to him ; he further certified that he examined Elizabeth J. Knight, wife of said Henry J. Knight, apart from her husband, etc. It is obvious that he could not have made such further certificate unless he knew Elizabeth J. Knight to be the wife of Henry J. Knight.
Some of the Illinois decisions cited are not applicable to this question, the statute of that state being different in respect to conveyances by married women. See Cooke & Co.’s Ed. Ill. Stats. (1858), vol. 2, p. 963. The dissenting opinion by Chief Justice Breese in Lindley v. Smith, 46 Ill. 529, is certainly applicable to the Colorado statute, and fully sustains the reasoning of the foregoing example.
The origin of the statutory requirements heretofore existing concerning conveyances by married women, is readily traceable. By the ancient common law the method of conveying a married woman’s lands was for her to unite with her husband in levying a fine. This was a formal proceeding
The requirement that a married woman, in order to convey her real estate, must execute and acknowledge her deed before an officer by whom she was to be first examined and informed of the meaning and effect of the deed separate and apart from her husband, preserved the essentials of the common law method. The certificate of the officer making the examination and taking the acknowledgment corresponded to the record proof made by the levying of a fine. Hence, under such statutes the decisions have been uniform that a married woman’s deed could not be proved in the first instance by parol, but only by the certificate of ‘the officer. Both the statutory and the common law methods of conveying the estates of married women are practically obsolete in Colorado at the present time. The married woman is in law deemed capable of managing her own affairs; she has the power as well as the right to convey her real estate without let or hindrance from any one; she requires no protection, and she suffers no restraints, in such matters.
The case of Gomer v. Chaffee, 6 Colo. 314" court="Colo." date_filed="1882-12-15" href="https://app.midpage.ai/document/gomer-v-chaffee-6561086?utm_source=webapp" opinion_id="6561086">6 Colo. 314, is not in point in this case. It is true, in that case it was said, “ It is difficult to see how the statute of limitations can avail a defendant holding a void deed; ” but the statute then under consideration was a very different statute from the one now relied on. Gen. Laws 1887, § 2335. The question of possession and payment of taxes under claim and color of- title,
5. Upon the admitted facts, the deed of plaintiff to Marriott, including the certificate of acknowledgment, must be held valid and effectual to convey plaintiff’s estate in fee simple to the grantee named therein. It is scarcely necessary to add that such a deed, however invalid it may be shown to be by evidence aliunde, nevertheless constitutes color of title under the statute of limitations in question. See Sedgwick & Waite on Land Titles, § 780; Mount v. Kesterson, supra; Griffen v. Stamper, 17 Ga. 108" court="Ga." date_filed="1855-01-15" href="https://app.midpage.ai/document/griffin-v-stamper-5552211?utm_source=webapp" opinion_id="5552211">17 Ga. 108. The third and fourth defences must each be held sufficient in law as an answer to the complaint.
The first special replication to the third and fourth defences is ¡a plea of non est factum; in substance it denies that plaintiff executed the deed in controversy; and as defendant by his third defence relies upon a valid title in himself by virtue of such deed, such denial is a sufficient answer to such defence. The first special replication must also be regarded as a sufficient answer to the fourth defence, for though it does not traverse the averment of possession and payment of taxes by defendant under claim and color of title, it does allege that Marriott and those denying title under him, including defendant, from the time they and each of them claim to have derived title respectively, well knew that the deed in controversy was not the deed of plaintiff; such allegation challenges and puts in issue the good faith of defendant’s claim of title. There are also other replications putting in issue material allegations of each of the affirmative defences, including the third and fourth; so that each affirmative defence was in one or more substantial particulars sufficiently replied to, and the plaintiff was entitled to a trial upon the issues thus formed.
The second special replication to the third and fourth defences is not sufficient in law as an answer to either of said defences, and the demurrer thereto was properly sustained. There was error, however, in sustaining the demurrer to the
Reversed.