34 Colo. 278 | Colo. | 1905
delivered the opinion of the court.
From a casual inspection of the complaint it might not be easy, because of its prolixity, ambiguity and repetitions, to characterize this action; but a careful examination of its contents discloses the object of the pleader to be to state a cause of action to quiet title to real estate which, as against a general demurrer, we think is sufficiently manifested. There are in the complaint express allegations which, in connection with the necessary implications therefrom, show that plaintiff is the owner and in possession of real estate of which she claims the fee, and that defendants assert a hostile title thereto, which the plaintiff demands that defendants shall set forth and have the title quieted. Plaintiff goes beyond the necessities required in a case of this kind and, anticipating the defense, assumes to set forth the character of defendants’ title, and proceeds to point out various defects therein which, if true, would make it invalid.
To this complaint a demurrer was interposed upon the grounds: A cause of action is not stated therein; a former suit pending; a nonjoinder of parties plaintiff and misjoinder of parties defendant; and that the same is ambiguous, unintelligible and uncertain. All of the special grounds of demurrer must be disregarded, for there is an entire failure to point out what are the alleged defects. The point that the complaint on its face shows a former suit pending is not good. It appears therefrom that a
This demurrer in its entirety was properly overruled by the court. Time was then given defendants to answer, and having neglected to do so, their default was entered, and the court proceeded to hear evidence of the plaintiff, and having found therefrom that all of the material allegations of the complaint were sustained, rendered judgment quieting title to the property in her.
"We think there is no merit whatever in this appeal. The only point worthy of consideration is' insufficiency of the complaint, but the foregoing sufficiently shows that it is good as against that attack.
It is contended, however, upon oral argument that the record shows a tender of a certain amount of money to the defendants by the plaintiff, and that it was error for the court not to render judgment in defendants’ favor for the sum thereby admitted to be due. The abstract does not disclose the nature of the tender, but by referring to the transcript we find that it was conditional, was made before suit and refused by defendants, and the condition was never accepted or complied with, and therefore it would have been improper to render judgment in-favor of the defendants therefor.
Chief Justice Gabbert and Mr. Justice Steele concur.