74 Colo. 300 | Colo. | 1923
delivered the opinion of the court.
Plaintiff in error was plaintiff below. The action was to quiet title and was brought against defendant Hayman alone. The plaintiff, claiming that he was entitled to judgment on the pleadings, declined to proceed after his motion for such judgment was denied. The cause was then dismissed, and he brings the case up for review.
The judgment, so far as Hayman is concerned, was right, because there was an issue of fact whether plaintiff was owner and in possession, upon which plaintiff had the burden of proof, Wall v. Magnes, 17 Colo. 476, 30 Pac. 36; 32 Cyc. 1369, 1370. The count followed the elementary rules that when proceedings stop one side or the other is always entitled to judgment upon the record, and, if there is an issue of fact and no evidence, judgment must go against him who upon the record has the burden of proof.
The complaint was in the usual simple form as in Empire Co. v. Bender, 49 Colo. 522, 113 Pac. 494: “* * * That he is the owner in fee and in possession of the following described property * * Hayman in her answer denies plaintiff’s ownership and possession, and alleges a deed to her from one Yost and title in herself. She also set up the same title by way of counterclaim, praying that it be quieted in her, but this was later voluntarily dismissed. Plaintiff now claims that the dismissal of the counterclaim expunged the allegation of defendant’s ownership in the answer proper, leaving but a denial of plaintiff’s title and possession, which, under
These considerations make it unnecessary to consider the many other questions raised in the brief. . .
Judgment affirmed as to Hayman and reversed as to Yost with costs against Yost. Remanded as to Yost fox-proceedings not inconsistent hei*ewith.
Mr. Chief Justice Teller and Mr. Justice Whitford concur.
These cases hold that in a suit to quiet title, a denial of plaintiff’s title without assertion of title in defendant, is futile and amounts to a disclaimer.