30 Colo. 310 | Colo. | 1902
delivered the opinion of the court.
The main questions presented by counsel for defendant can be determined by a discussion of the following propositions: (1) Does the complaint state a cause of action? (2) Did the court err in overruling the motion to strike the replication? (3) Should the objection to the introduction of plaintiff’s testimony have been sustained? (4) Did plaintiff establish a color of title based upon conveyances ?
1. In an action to quiet title it is sufficient to allege, substantially, in the complaint that the plaintiff is the owner and in possession of the premises the title to which is sought to be quieted, and that the party made defendant claims an interest or estate
2. The very nature and object of an action to quiet title under our code provisions on the subject-sec. 255 — is to enable the owner in possession of real property'to bring into court one who asserts an adverse claim or interest therein, in order that such claim may be determined. When a complaint states a cause of action having for its object this purpose, the party made defendant must appear and plead his title, if he intends to assert one against the plaintiff. Wall v. Magnes, 17 Colo., 476; Amter v. Conlon, 22 Colo., 150; The Scorpion S. M. Co. v. Marsano, supra.
This was what the defendant did in the case at bar by pleading that the title was vested in him. Then, and not until then, was plaintiff advised of the nature of defendant’s claim, or that he would, in fact, assert any. She could not anticipate what title he might set up, but when he did so, it was incumbent ■upon plaintiff to plead facts which would avoid his title, and establish one in her. A replication stating
3. The discussion of the preceding questions disposes of the objections urged in the court*below to the introduction of the testimony received on behalf of the plaintiff. The complaint stated a cause of •action. The replication averred the facts upon which the plaintiff relied to establish her ownership of the premises, and to defeat the title set up by the defendant. The testimony objected to was competent, because it tended directly to establish these facts.
4. A conveyance executed by a grantor to a grantee which describes the land intended to be con■veyed, and in apt words purports to convey it, though in reality no actual title is passed, gives color of title, based upon a paper title, to the lands described. DeForesta v. Gast, 20 Colo., 307; Brooks v. Bruyn, 35 Ill., 392; Fagan v. Rosier, 68 Ill., 84; Swift v. Mulkey, 21 Pac., 871; Rawson v. Fox, 65 Ill., 200; Latta v. Clifford, 47 Fed., 614.
The deeds introduced by plaintiff were sufficient upon which to base color of title. .
.Other objections to testimony admitted are. also urged, which we have not noticed for the reason that they are either manifestly without merit, or the' errors assigned thereon are not based upon the objections made in the court below. On review a consideration of the errors assigned will be limited to the grounds of error to which the attention of the trial court was directed.
The judgment of the district court is affirmed.
Affirmed.