2 Colo. 137 | Colo. | 1873
The first error assigned is the admission of the appellee as a witness in her own behalf. It is only necessary to say that no objection was made until after she was sworn. This was too late, the rule being that objection to the competency of witnesses must be made as soon as the opportunity to present it occurs, and failure to make it, at that time, must be considered as a waiver. Donaldson v. Taylor, 8 Pick. 390; Snow v. Batchellor, 8 Cush. 513; 1 Starkie on Ev., §§ 123-4.
It is further objected that the appellee’s claim of title in fee set out in the declaration is not sustained by the proof. The evidence shows that Mrs. Stone purchased this property on the 7th day of March, 1866, from Frank Ripley, and entered into the possession of the same. Although it does not appear that a patent had ever been obtained from the United States, yet we take it to be well settled that in. actions of ejectment and for injuries to the inheritance, the possession of a tract of land by a party claiming to be the owner in fee is prima facie evidence of his ownership and seizin of the inheritance, and throws upon his adversary the burden of rebutting the presumption thus raised. Richard v. Williams, 7 Wheat. 59; Keane v. Cannovan, 21 Cal. 291; Davis v. Easly, 13 Ill. 198.
It is further claimed that the deed from Ripley to the appellee was inadmissible, because it was not shown that at the time it was executed, Ripley was in possession of this property. The evidence is not very clear on this subject. It appears, however, that at a time anterior to the execution of this deed, Ripley was in possession, and in the absence of proof, we must presume that his possession continued until the making of this conveyance. The deed was properly admitted for another purpose. Where the plaintiff in ejectment relies upon prior possession as evidence of title, a deed of the premises to her from one not shown to have had, at the date of its execution, either title or possession,
It is proper to allude to an objection made in connection with the deed from Ripley to Mrs. Stone. In addition to the acknowledgment which was taken before a proper officer, the execution of the deed is attested by certain witnesses and it is claimed that these witnesses should have been called to prove its execution. There is nothing whatever in this objection. Section 19, R. S., page 212, provides for the admission in evidence of deeds acknowledged before
There are some other errors assigned, but no notice is taken of them by counsel, and we do not deem it necessary on that account to examine them.
Affirmed.