2 Colo. 323 | Colo. | 1874
Lead Opinion
The appellant filed his bill in the court below to enjoin and restrain the appellee, who was probate judge, from selling lot number thirty (30) in block number forty-nine (49) in the east division of the city of Denver.
The bill alleges that the appellant is the owner in fee of said property. It is further alleged that on the 28th day of January, 1868, Jacob Downing, then probate judge of the county of Arapahoe, held said lot in trust for complainant, under authority of the act of congress, approved May 28th, 1864, for the relief of the citizens of Denver. That, in the exercise of the power in him vested by said act of congress,
1. That the bill does not show compliance with the laws of the territory in the execution of the trust.
2. That it does not show that Downing had any title, or that his predecessors had ever entered the same, or that he became charged with the execution of the trust.
3. That it does not show that complainant was a beneficiary under the trust.
The demurrer was sustained, and the bill dismissed. Does the complaint present a prima facie case? If so, the ruling on the demurrer was erroneous. The solution of this problem may be aided by inquiring whether it is necessary to set out the several steps through which a title is perfected.
I know of no rule imposing this burden, and to exact such detail and minuteness would make questions of title exceedingly complicated. It seems to me that a simple averment that the title to the premises is vested in the plaintiff is suf
When it is averred that one is seized in fee, does the averment gather any strength or weight from an additional allegation that the complainant derived his title from A, who obtained a patent from the government ? Houghton v. Reynolds, 2 Hare, 267; Gibb v. Griffing, 2 Black, 519. See Wiggins v. The Mayor, etc., 9 Paige, 156.
It is conceded that in some cases, such as in actions to restrain the commission of waste, a greater degree of precision is required. The defendant then is in possession, and the party seeking to restrain him must do it on the ground of some privity of estate. It is necessary, therefore, that the complainant should set out his right with accuracy and certainty, that the court may judge of the propriety of interference. And yet, in a case of waste, where the bill alleged that the land had been conveyed to complainant by deed (naming the grantor), which deed he had accepted, it was held that the bill contained the necessary allegations of title. London v. Warfield, 5 J. J. Marsh. 197.
So, also, it has been held that in bills of injunction to restrain trespass or nuisance, it is sufficient to allege that the complainant is seized in fee. Van Winkle v. Curtis, 2 Greene’s Ch. 425; Hilliard on Inj. 46. If a bill for discovery were filed against one in possession to compel him to disclose his title, I apprehend that the greatest strictness would be required in setting out the complainant’s rights ; but this is not a bill for discovery, nor is the respondent in
It is averred that Downing as probate judge held this lot in trust for the complainant, under the act of congress of May 28th, 1864, entitled “An act for the relief of the citizens of Denver,” and that Downing, as such probate judge, in execution of such trust so created, conveyed by deed to the complainant the property in question, which deed is attached to the bill and referred to for greater certainty. It seems to me that the statements upon the whole represent distinctly enough that the claim of the plaintiff is founded upon the trust created by the act of congress of May 28th, 1864, and they inform the defendant of the nature of the case against which he is required to defend himself. When it is averred that, the property was held in trust for the plaintiff under the act of congress, 'and that by virtue of such act the deed of conveyance was made, I apprehend that that averment notified the defendant that the plaintiff was claiming as a beneficiary of such trust. Champlin v. Parish, 3 Edwards’ Ch. 613. Nor am I aware of any rule which requires the pleader to state in his bill every fact which makes up the trust. The trust once alleged, the method of establishing it belongs to the domain, of evidence. It is true that a title, apparently good, may be stated in a bill, and yet the plaintiff may not really have the title he states, either because he misrepresents himself or because he suppresses some circumstances respecting his title which, if disclosed, would show either that nothing was
Whether Logan has a good title or not is not now pertinent ; it is sufficient if the bill discloses an apparently good title. I desire to be understood as expressing no opinion as to the right of Logan, if he were not in occupation of the property at the date ,of the entry, because that is a question which does not properly arise on the demurrer, and for a like reason I decline to express an opinion as to the validity of the act “To provide for the further execution of the trust relating to the town site of the city of Denver, and to regulate the same.” The bill charges that Downing held this land in trust for Logan. This is an allegation which must be established by evidence. If he were a beneficiary of the trust, Logan must show that fact. It will be time enough to decide that question when it is properly presented. The demurrer admits that Logan owned this property in fee simple, and it was manifestly wrong for the court, in the face of this admission, to dismiss this bill. Griffing v. Gibb, 2 Black, 519.
It is further statedfin the demurrer that this is not a case for the jurisdiction of a court of equity. The prayer of the bill is that the defendant be enjoined from selling the property in question, and from executing and delivering any conveyances therefor, in other words, from doing an act which will cast a cloud upon the complainant’s title. Whatever doubts may have at one time existed as to the jurisdiction of a court of equity in such cases, they are now put at rest by the modern decisions, and the relief afforded seems to be on the principle of a bill quia timet, lest the. sale to be made might embarrass the complainant in Ms rights, or the deed to be executed might cast suspicion on Ms title. Speaking on this subject, Bellows, J., in Tucker v. Kenniston, 49 N. H., says: “ The application for this species of relief is by a bill quia timet, and is addressed to the sound discretion of the chancellor upon
It is further alleged in the bill that for a long time prior to the filing of the same, the plaintiff had been in the actual occupation of this property. In some States mere occupation is regarded as sufficient to entitle one to this kind of relief. Apperson v. Ford, 23 Ark. 761; Moody v. Holcomb, 26 Texas, 714.
In the view I have taken of this case, the decree of the court below should be reversed, with directions to reinstate the case, and overrule the demurrer.
Concurrence Opinion
In the opinion delivered by Mr. Justice Belfoiid, great importance seems to be attributed to the averment of the bill, that the complainant is seized in fee of the premises which are the subject-matter of the controversy. In my judgment this allegation is not entitled to the consideration accorded to it. The complainant may have the legal estate by a conveyance executed in disregard of the conditions and instructions imposed by the statute, which assuredly would give no standing in a court of equity. The bill, however, does contain an averment that Downing, as probate judge, held the premises in trust for the complainant, which may suffice. I concur, therefore, in reversing the decree of the district court.
Reversed.