ERROR TO THE SUPREME COURT OF THE STATE OF COLORADO.
MR. CHIEF JUSTICE FULLER delivered the opinion of the court.
Charles G. Chever brought an action of ejectment against Horner and Rogers to recover the possession of lot ten, block 176, in the east division of the city of Denver, claiming ownership in fee simple. The case is stated, in substance, by counsel for plaintiff in error thus: The lot in dispute constituted a part of the original site of Denver, entered by James Hall, probate judge of Arapahoe County, Colorado, May 6, 1865. This entry was made under and by virtue of an act of Congress approved May 23, 1844, entitled "An act for the relief of the citizens of towns upon the lands of the United
States, under certain circumstances;" 5 Stat. 657, c. 17, and an act approved May 28, 1864, entitled "An act for the relief of the citizens of Denver, in the Territory of Colorado." 13 Stat. 94, c. 99.
In conformity with the provisions of the first act the legislature of Colorado Territory passed an act, approved March 11, 1864, prescribing rules and regulations for the execution of the trust arising under the provisions of said acts of Congress. Sess. Laws, Colorado, 1864, 139, 149; Rev. Stats. Colorado, 1868, 619, 629. This act became applicable to the Denver town site when entered by the probate judge under and by virtue of the act of Congress of May 28, 1864.
Chever and Horner, both deraign title to the lot in dispute under the entry above mentioned, by virtue of the foregoing acts of Congress and the act of the legislature of Colorado Territory.
Upon the trial of the cause by the District Court of Arapahoe County, a jury being waived by the parties, Chever, the plaintiff, in support of his title, proved that he had filed upon the lot in question, in the office of the probate judge, on the 7th of August, 1865, in conformity with section 4 of said act of the legislature of Colorado Territory, approved March 11, 1864. And he adduced evidence tending to show his rights of possession and occupancy under the provisions of the acts of Congress above mentioned. In further support of his title, the patent from the United States to James Hall, probate judge of Arapahoe County, as trustee, was put in evidence; also deeds conveying the unexecuted portions of the trust from Hall to Kent, his successor in office; from Kent to Downing, his successor; from Downing to Clough, his successor; from Clough to Kingsley, his successor, and also a deed for the lot in question from William C. Kingsley, probate judge of Arapahoe County, Colorado, to him, dated May 7, 1875. Plaintiff also offered in evidence a book kept by probate judge Hall of the filings of claimants to the lots in the Denver town site for the purpose of showing who filed claims for said lots under section 4 of the act of the territorial legislature, and who did not, to which objection was made and sustained by the court, and plaintiff excepted.
The defendants admitted ouster and that the lot in dispute was a portion of the Denver town-site entry.
Defendant Horner, in support of his title to the lot, introduced in evidence a deed from probate judge Dowining to John Hughes, dated October 24, 1867; also a deed from Hughes to himself for an undivided half of said lot, and a decree of the District Court of Arapahoe County in partition proceedings, vesting in him the other undivided half of the lot. To the introduction of this evidence plaintiff objected and reserved an exception.
In rebuttal, plaintiff offered evidence tending to show that John Hughes, to whom probate judge Downing conveyed the lot in dispute, never filed upon the same as required by section four of the territorial act of 1864; that at the time of the execution of the deed to Hughes, there were two filings upon said lot undetermined, one by plaintiff and the other by one Veasey; that Hughes was not a beneficiary under the acts of Congress creating the trust; and that he was not an occupant or entitled to the possession of said lot, and had no improvements thereon. Plaintiff also offered to prove that on or prior to May 23, 1873, he was in possession of said lot and had a fence around the same; and that on or about the 30th of May, 1873, defendant Horner broke through the fence, moved a frame house on the lot, took possession of it, and ousted plaintiff therefrom. These offers were objected to by defendants and the objections sustained, and plaintiff excepted.
The court found for the defendants. A motion for a new trial was interposed and denied, and judgment rendered on the finding. The cause was then taken to the Supreme Court of Colorado by appeal. The Supreme Court held: First, That the deed executed by probate judge Downing, as trustee, to John Hughes, dated October 24, 1867, by virtue of which the defendant Horner derived title, was analogous to the granting of a patent by the Land Department of the government; that the same presumptions in favor of the regularity of such deed existed as in the case of a patent ...