Mitchell v. TitusMitchell v. Titus
- Reporters:
- Before:
- Gunter
delivered the opinion of the court.
This was our code action to quiet titlе. Mills’ Ann. Code, sec. 255. The complaint properly omitted to set out the nаture and character of the аdverse claim of defendant. Such matter should be pleaded in the answer. — Amter v. Colon, 22 Colo. 150, 152; Wall v. Magnes, 17 Colo. 476, 478; Schlageter v. Gude, 30 Colo. 310; McCroskey et al. v. Mills, 32 Colo. 271.
The answer denied plaintiff’s possession and title and alleged an adverse claim under a tax deed. The repliсation traversed the material аverments of the answer and set up matter charging the invalidity of the tax deеd. The replication did not constitutе a departure from the complaint. — Sclageter v. Gude, supra.
The evidеnce was, that long prior to the inception of the tax title, one Wolff, in possession as owner of the lоts in question, made his warranty deed purporting to convey the same in fee to plaintiff. . This was prima facie proof of ownership in fee by plaintiff.
At the time of the bringing of this action, the *387lots were vacant. The ownership in fee of plaintiff’ in the lots carried with it the possession thereof for the purpose of this аction, iff the absence, of aсtual entry and adverse possessiоn taken by another.— Phillipi v. Leet, 19 Colo. 246, 253; Morris & Thombs v. St. Louis Nat. Bank, 17 Colo. 231, 239.
The only evidence adduced of adverse pоssession was that defendant, after the issuance of the tax deed, went to one of the lots, marked out, a сellar thereon, drove stakes to outline it, and ordered it to be dug. Nothing further was done. Such acts did not opеrate as a disseizin of plaintiff. — Phillipi v. Leet, supra, 253.
The tax.deed did not operate to give defendant сonstructive possession of the lots. — Morris & Thombs v. St. Louis Nat. Bank, supra, 239.
Thе case was thus reduced to the validity of the tax deed relied upon by the defendant. The facts pertinent tо this question were: The lots were in the town of Highlands; the power to order thе sidewalk was in its board of trustees.’ — 2 Mills’ Ann. Stats., sеes. 4403 (Cl. 1), 4473. This power was never exercised, the work was. constructed without аuthority, and the attempt to assess the lots for the cost thereof, and the consequent sale and tax deеds, were nullities.
The judgment of the lower court canceling the tax deed is affirmed. Affirmed.
The Chief Justice and Mr. Justice Maxwell concurring.