32 Colo. 271 | Colo. | 1904
delivered the opinion of the court.
Appellants brought an action against appellee to quiet title to real estate. From a judgment that plaintiffs take nothing by their action, and that defendant do have and recover from them the possession of the premises in controversy, the plaintiffs appeal. The complaint was. the usual one filed in actions to quiet title, except the allegation that Fremont L. and Solon McCroskey had formed a partnership which had never been dissolved. The defendant answered (1) denying or admitting certain allegations of the complaint; (2) pleaded facts from which it appeared that he had obtained title from and through Fbemont
To the second defense and cross-complaint the plaintiffs replied, denying certain allegations, and averred that Solon MeCroskey took possession in the name of MeCroskey Brothers, because the firm had an equitable title to the premises in that the property was bought with the funds of the co-partnership; that defendant had notice of this fact, and then attacked the transactions and proceedings by which the defendant claimed to have deraigned title from Fremont L. MeCroskey. To this pleading the defendant replied, setting up facts which he claimed estopped the plaintiffs from ,attacking the transactions between defendant and Fremont L. MqCroskey, as well as the proceedings based thereon, whereby defendant acquired title through Fremont L. MeCroskey to the premises in dispute. Plaintiffs moved to strike this reply. ' The motion was denied, but plaintiffs took no exception to the ruling. They also moved for judgment on the pleadings, which was denied.
■ In the brief filed by plaintiffs the first point made is, that no pleading filed by the defendant stated facts sufficient to constitute a defense. This contention is based upon the ground that defendant has not alleged that he is entitled to the possession of the premises, and has not set up the character of his estate. This is an action to quiet title, evidently brought by plaintiffs under the provisions of chap
Both the answer and the cross-complaint state facts from which it appears that the title of defendant, is superior to that of plaintiffs, so that the defendant, under previous decisions of this court, pleaded a good defense to the action instituted by the plaintiffs.- The code provisions to which counsel for plaintiffs refer, and by virtue of which they contend the defendant should have stated that he was entitled to'the possession of the premises, are found in the chapter relating to actions in ejectment. If, however,' it could be successfully claimed that because the defendant in this instance sought to recover the •possession of the premises, he should have pleaded that he was entitled to such possession, the requirements of the code to which counsel refer are fully satisfied. It is not necessary to follow the exact formula which the code prescribes. When facts are stated as the defendant has in his answer and cross-complaint, from which it appears that he is the owner and entitled to the possession of the premises, and that the plaintiffs wrongfully withhold such possession from him, there is a sufficient compliance with the code provision on the subject.
It is next contended that the court erred in failing to sustain the motion of plaintiffs for judgment on the pleadings. This motion was based upon the ground that the denials were insufficient, or, in effect, amounted to an admission of the averments of the complaint. Had it not been for the second defense and cross-complaint, the motion might have been well taken, but these defenses set up title in the
Respecting the contention of counsel for plaintiffs that their motion to strike the reply of defendant to their reply to the answer setting up title in defendant should have been sustained, it is sufficient to say that no exception was taken to the ruling denying the motion, and the question sought to be raised is not open to review. For the purposes' of this case, that reply must be treated as a pleading in the action.
The remaining questions argued by counsel for plaintiffs will not be taken up in detail, as they can best be disposed of by a brief general review of the cause upon its merits. The property, so far as the McCroskeys are concerned, always stood in the name of Fremont L. McCroskey. The theory of plaintiffs was, thai/ this property had been purchased with funds belonging to the firm of McCroskey Brothers, the members of which were Solon and Fremont L. McCroskey; that defendant had notice of this fact; that the transactions between Fremont L. McCroskey and the defendant which finally culminated in the latter securing title, were fraudulent and without consideration; and that as a member of the firm, Solon McCroskey was the owner and entitled to the possession of the premises. The claim of defendant was that Fremont L. McCroskey owned these premises; that he made and delivered certain mortgages to him; that these mortgages had been foreclosed and a sheriff’s deed issued in pursuance of such foreclosure, by virtue of which title was vested in the defendant; that the money secured by these mortgages had
The errors complained of by plaintiffs and not specifically noticed are, therefore, immaterial, for they were not prejudiced thereby. Where one party to an action establishes by competent testimony such right to the subject-matter of controversy as to entitle him to the relief granted, and the other party fails to establish any right to such subject-matter whatever, he will not be heard to complain of errors which did not prejudice him in his attempts to establish his alleged rights.
Affirmed.