43 Colo. 329 | Colo. | 1908
delivered the opinion of the court:
This was an action of unlawful detainer, originally brought before a justice of the peace by appellees as plaintiffs against appellants, for the possession of certain described buildings. The complaint alleged that plaintiffs were' the lessees of two certain tracts of land situate near the town of South Platte, -in Jefferson county; that on the first day of January, A. D. 1902, John B. Blush and John D. Blush and Fred Blush then composed the copartnership known as “The Klondike Ice Company” and were the lessees of these two tracts of land, and that they sublet to the defendants certain buildings known as “the hotel, barn and postoffice buildings,” and also a dwelling house to be thereafter furnished and provided by the plaintiffs for the defendants; that subsequently the house was so provided upon a portion of the property above mentioned. This lease was for a year, and at the expiration of the year the firm as it then stood agreed to continue the term for another year. After this extension the membership of the firm was changed, John B. Blush and John D. Blush dropping out, and their places being filled by
Defendants answered the complaint and denied the copartnership, denied the title of plaintiffs, admitted that they leased the property from the Klondike Ice Company as it was composed January, 1902, but denied that their lessors were in fact copartners, and denied that the houses which were leased by them were situate upon the property described in the complaint; they admitted that the term of the lease was extended for one year, but averred that the extension was in writing; admitted that they paid the rent for the full period of two years, and averred that they paid $6.97 as partial payment for the rent of the premises for the month of January, 1905; and they alleged that the plaintiffs had failed to file the affidavit of copartnership required to be filed by the Session Laws of 1897.
Upon these issues they went to trial before a jury in the justice court, and a verdict was rendered for plaintiffs. Defendants then took an appeal to the county court, the matter was tried to the court without a. jury, and the judgment was again for the plaintiffs. Defendants appeal to this court.
At the time of the trial the defendants objected to the swearing of witnesses and the taking of testimony on the ground that the court was without jurisdiction to try the case, because of the failure of plaintiffs to file the affidavits required by the Session Laws of 1897, page 248. This objection was overruled, and is the first assignment of error which is discussed.
“In default of filing for record such affidavits as aforesaid, such persons, partnerships and associations so trading and doing business as aforesaid shall not be permitted to prosecute any suits for the .collection of their debts until such affidavits shall be filed. ’ ’
This is a penal statute and will not be construed as embracing any penalty except that provided by the terms of the act, which is that the firm ‘ ‘ shall not be permitted to prosecute any suits for the collection of their debts.” An action to recover possession of real property cannot be said by any reasonable construction to be an action for the collection of a debt. This action not being of the character mentioned in the statute, the filing of • the affidavit is not a condition precedent to the prosecution of the action.
The plaintiffs proved that they had the lease to the property mentioned in the complaint, that they sublet the property to the defendants in 1902, and renewed the lease until December 31st, 1904, and served notice at that time of their intention to terminate the tenancy, and the refusal of the defendants to vacate. Defendants offered to prove that the “property in question is government property”; that the plaintiffs and their grantor had no title and that the defendants about a year before the action was commenced made a homestead filing upon it; all of which proof was rejected by the court and judgment rendered for the plaintiffs.
As we understand the contention of the appellants, it is not that the land described in the complaint was government land, but that the buildings leased to the defendants were situate upon the public domain and not upon the subdivisions described in
It is said in 24 Cyc. 941:
“It is no objection to the estoppel to deny title that the landlord had no title at the time the relationship was created. The fact that the property leased by a private person is public property does not prevent the operation of the estoppel.”
So long as the title of the landlord is the same as it was at the time the tenancy was created and the tenant is not disturbed in his possession, it is immaterial whether the title of the landlord was valid or not. Before the tenant can be heard to dispute the title of his landlord he must surrender the possession of the property and place his landlord in the same position, so far as possession is concerned,, that he was at the time that the relationship of landlord and tenant was instituted.
There seems to be some contention in the brief of appellants that the judgment was erroneous because the partnership relation of defendants was not proven. The plaintiffs dealt with it as a partnership, taking the lease and, after the change in the membership óf the firm was made, continued to so deal with it as it was reconstructed, by the payment of rent even up to a short time before the filing of the complaint in this action, and they cannot be heard to say now that the partnership relation did not exist, even if such a defense could be available in an action of this character, which we do not determine.
Perceiving no error in the record, the judgment will be affirmed. Affirmed.
Chief Justice Steele and Mr. Justice Goddard concur.