| Colo. | Sep 15, 1893
delivered the opinion of the court.
It is plainly apparent from the foregoing statement of facts that counsel for plaintiff in stating her cause of action was under a misconception of the nature of her title to the property in controversy and as to the relation the defendant bears thereto; and consequently mistook the relief to which she is entitled. The allegation that she was but “ the equitable ownér,” and that the legal title to the property was vested in defendant Leet, was clearly erroneous. Yet, notwithstanding this, sufficient facts are stated to constitute a cause of action entitling her to equitable relief, as it appears therefrom that plaintiff is the owner of both the legal and equitable title and in possession of the property, and that the transaction complained of has cast a cloud upon her title.
By a decided preponderance of the evidence it is shown that the defendant Leet was the prime mover and instrumental in procuring quitclaim deeds to be made by the
Plaintiff’s rights are in no way dependent upon the agreement alleged to have been made with Gabathuler, or upon what he did in carrying it out, as she is not seeking to enforce a performance of that agreement. Hence we regard as of no moment the contention of counsel for appellee that the agreement, if made, was verbal and within the statute of frauds. The evidence that Leet had entered into such an agreement, and that plaintiff’s grantor, relying thereon, had executed his quitclaim deed, was offered by counsel for appellant under the mistaken notion that the title reconveyed by Morrison to Gabathuler had vested in Leet, and that it was necessary to show such fraud on his part as would estop him from claiming or withholding the title from plaintiff. But we regard this evidence of fraud as immaterial, as it is not necessary to invoke the rule of estoppel, because the reconveyance to Gabathuler by Morrison did not, by virtue of the statute relied on, vest in him either the legal or equitable title to the premises.
The legal and equitable title being in Morrison at the time he executed his quitclaim deed of the 29th of September, 1885, and he thereby conveying only the legal title to Gabathuler, not for the purpose of reinvesting him with any interest or estate in the property, but simply for the purpose above stated, Gabathuler became a mere conduit through which such title passed, and in so passing it could in no sense or manner inure to the benefit of Leet by reason of his former conveyance.
Our statue is but a legislative recognition of a rule of com
“ Where one conveys lands with warranty, but without title, and afterwards acquires one, his first deed works an estoppel, and passes an estate to the grantee the instant the grantor acquires his title.”
But an exception to this rule is stated in paragraph 51, as follows:
“ But if, after having made a conveyance with warranty without having title, the estate comes to him as a mere conduit in passing it from its owner through him to another person, it does not inure to the benefit of his original grantee.”
And as announced in Sinclair v. Jackson, 8 Cowen, 544,
“ A conveyance to operate as an estoppel, it is necessary that it should be in the same right with the former one. To es-top, a conveyance must be by one claiming under and in right of identically the same power and the same estate as he first conveyed.”
In Kelly v. Jenness, 50 Maine, 455, it was held that:
“ A trust estate does not, like an absoluté estate, inure to the benefit of the grantee of the trustee, when the latter made the conveyance in his individual capacity.”
It is unnecessary to multiply authorities on a proposition so manifestly just and equitable. It follows that the only title which the defendant has to any portion of the land comprised in the original conflict is to that portion only conveyed by Gabathuler’s quitclaim deed to him. This deed includes only the 5.64 foot strip, and no part of the 19.46 foot strip involved in this controversy. The legal and equitable title to the latter was in Alonzo M. Morrison, and was by him conveyed to plaintiff by his deed of June 22d, 1886.
It is further urged that the plaintiff did not have the possession which is requisite to maintain an action under section 255 of the Code of 1887. The evidence on this point was that the land was open prairie; that defendant, in the summer of 1885, had a survey made of the tract described in his conveyance from Hearon, and placed stone monuments at the
Furthermore, her possession was complete without these physical acts to evidence it. The law presumes the true owner to be in possession until adverse possession is shown to begin. The acts of Leet in placing the monuments as above described did not constitute a disseizin of plaintiff’s grantor, who at the time, as owner in fee simple, was in possession; and the plaintiff, by his conveyance to her, was placed in his status, and at the time of the commencement of the action was in possession of the land and entitled in that regard to maintain the action.
The court below clearly erred in holding that the plaintiff’s possession was not sufficient to entitle her to maintain the action, and in adjudging defendant Leet to he the equitable owner of the land in controversy and entitled to the possession thereof.
It appearing beyond dispute that the plaintiff is the legal and equitable owner of the land, and it being necessary to resort to evidence aliunde the record to explain the true nature of the transaction through which defendant Leet seemingly obtained a title adverse thereto, she is clearly entitled to have the claim of defendant Leet adjudged invalid, and any cloud cast thereby upon her title removed by a proper decree. The decree of the court below is, therefore, reversed, with direction to enter a decree in accordance with the views herein expressed.
Reversed.