22 Colo. 334 | Colo. | 1896
delivered the opinion of the court.
This action was commenced by defendant in error, as plaintiff below, for the purpose of removing a cloud from the title to certain real estate, situate in Lake county, Colorado, and to obtain a decree of foreclosure of a deed of trust thereon.
In an action to remove a cloud upon a title, it is only necessary for the plaintiff to aver his possession and title, legal or equitable, coupled with a statement that the defendant claims an estate therein adverse to him. This is followed in this case by an averment that such interest, etc., is inferior, junior and subject to plaintiffs rights and equities. To constitute a defense to the action, the defendant must set up some adverse claim to or interest in the property and the nature of such claim. Wall v. Magnes, 17 Colo. 476; Amter v. Conlon, ante, p. 150.
The answer contains seven separate defenses to the plaintiff’s cause of action. These defenses might all be disposed of upon the rule that, to be available, each defense must be complete in itself, and a full answer to the cause of action to which it is interposed. Bliss on Code Pleading (3d ed.), see. 346; Pomeroy’s Remedies & Remedial Rights, secs. 716 to 719; Travelers' Ins. Co. v. Redfield, 6 Colo. App. 190.
The first, second, fifth and sixth defenses contain no averment of any interest of defendant in the property whatever, while in the third he admits that he claims an interest in the property, but fails to set forth the nature of such interest. The fourth defense contains no denial of any of the averments of the complaint. It is apparent from this statement that the first six defenses interposed are insufficient to constitute any defense to the plaintiff’s action.
This leaves for our consideration only defense No. 7, which the defendant calls a cross complaint. This pleading admits every material allegation of the complaint, and sets up a
We might properly rest the decision of this case here, but as we are satisfied by an examination of the pleadings that the defendant has no standing upon the merits of the contro-versy, it will perhaps be more satisfactory to determine the case upon its merits. It is admitted by these pleadings that at the time of the execution of the deed of trust set forth in the complaint by the Longs and Derry to Greorge R. Fisher,. the former were indebted to the Bank of Leadville in the sum of fifty thousand (50,000) dollars, and that on the 28th day of April, 1882, they executed their promissory, note for that sum, with interest at two per cent per month ; that said note was payable four months after the date thereof- and secured by this deed of trust, executed by the Longs andDerry upon this property to Greorge R. Fisher, he being at the time cashier of the bank. It further appears that in the month of October, 1882, Fisher, the trustee named in the: deed of trust, without the payment of any money to him or to the bank, without the'request of the bank, and without power and authority in the premises, released the deed of trust of record, by executing to the Longs and Derry a trustee’s release.
Where different writings relating to the same subject are executed at the same time between the same parties, a fundamental principle of construction requires that they be treated as one and the same instrument. Strong v. Barnes, 34 Am. Dec. 684; Norton v. Kearney et al., 10 Wis. 443.
Bearing in mind this rule, it is apparent that although Fisher, as the result of his unauthorized conduct, acquired the naked legal title to this property by virtue of the deed to him from the Longs and Derry, the equitable- title remained in the grantors, which equitable title, by the express contract of the parties, was only to be divested upon the happening of certain contingencies, which never took place.
The defendant Weston claims title to this property, as we have seen, as the result of his attachment proceedings against
The position of Weston is untenable for another conclusive reason, and that is Fisher was only to have title to this property upon the happening of certain contingencies, or the performance of certain conditions. These contingencies never transpired and the conditions have never been performed. Fisher’s title, therefore, never became absolute under his deed, and if it were possible to substitute the bank as his undisclosed principal, the title of the bank would be no better than his, and for this reason the merits of the controversy are with the plaintiff, and the decree of the court below should be affirmed.
Affirmed.