King v. Foster

26 Colo. App. 120

• Court: Colorado Court of Appeals
• Decided: April 15, 1914
• Docket: No. 3966
• Status: Published

Opinion

Morgan, J.

Code action for the possession of a quarter section of land. The defendant -had judgment. The plaintiff brings error.

The plaintiff alleged ownership in fee simple; the defendant denied it, admitted possession and alleged ownership in himself; pleaded the seven years’ statute of limitation, and a decree of the District Court of Kiowa County quieting his title, which decree was entered only four years before the commencement of the action herein.

Plaintiff proved fee simple title in himself and rested. The defendant offered no- evidence except the dec'ree, aforesaid, and his own testimony, that he was and had been in the actual possession of the land for a little over ten years, that it was fenced when he bought it, and had been fenced ever since, and that he had paid all taxes on it during that time.

The plaintiff objected to the introduction of the decree on the ground that it was not accompanied by the judgment roll, but it was admitted oyer the objection. It was error to admit this decree as proof of title without the judgment roll, and, as it was not made but four years before this action was commenced, it did not support the plea of the statute of limitation pleaded, even if it be considered as color of title. Actual possession for seven years and payment of taxes is insufficient to sustain the plea of the statute in the absence of proof of color of title made in good faith prior to the commencement of the seven years period.

Judgment Reversed.