Opinion
No. 19,172.
Decided August 21, 1961.
Action to quiet title to portion of vacated street. Judgment for plaintiffs.
Reversed.
1. QUIETING TILE — Evidence — Burden of Proof. In an action to quiet title the plaintiff must rely on the strength of his own title rather than on the weakness or lack of title in defendant.
2. HIGHWAYS — Vacation — Abutting Owner — Conveyance — Deed. A deed, drawn subsequent to the vacation of a street, which describes certain lots by number and nothing more and so drawn as to express the true intention of the parties, does not serve to divest the owner of area of vacated street, no part of which is described in the deed.
3. DEEDS — Property — Description — Intent of Parties — Remedy — Reformation. If the description of land conveyed by deed to real property does not express the intention of the parties, reformation is the proper remedy.
4. QUIETING TITLE — Cross-complaint — Defendant — Service of Process. Where defendant in quiet title action entered cross-complaint against his grantor a co-defendant for reformation of his deed, and such defendant had been duly served as to quiet title action of plaintiffs but defaulted thereon and had no notice of counter-claim of defendant for reformation, the court was without jurisdiction to enter a valid judgment for reformation.
Error to the District Court of Arapahoe County. Hon. Harold H. Harrison, Judge.
Mr. WILLIAM H. SCOFIELD, Mr. CHARLES A. MURDOCK, for plaintiff in error.
Miss COLLEEN G. VAN NOCKER, for defendants in error.
The parties appear here in reverse order to their appearance in trial court. Herein we refer to defendant in error as plaintiffs and to the plaintiff in error as defendant or Morrissey.
On February 21, 1958, plaintiffs filed their complaint in which they named Morrissey and other named persons as defendants; also named as defendants were the State of Colorado, and all unknown persons who might claim any interest in the property described in the complaint as amended, specifically:
"1/2 of the vacated street known as Artic [Arctic] Place adjacent to and contiguous to Lots 7-10, inclusive Block 16, Chamberlin's University Terrace East, Budlong's Resubdivision."
The complaint is in usual form — alleges that plaintiffs are the owners of and in possession of the property described; that some one or more or all of the defendants claim some interest in the property and that any such claims are without foundation or right.
Plaintiffs pray that the defendants be required to appear and set forth the nature of their claims, if any, and that it be decreed that the plaintiffs are the owners of the property in fee simple and that their title thereto be quieted.
Only the defendant Morrissey appeared. Default was entered against the other defendants.
Morrissey filed an answer in which he put in issue plaintiffs' allegation of ownership and possession. He also filed a cross-complaint against the plaintiffs and the named defendants, except the State of Colorado, wherein he alleged that he owns the lands involved, having previously acquired said land together with Lots 6-10, Block 16, Chamberlin's University Terrace East, Budlong's Resubdivision, by warranty deed from Sarah Burns, one of the named defendants, and that due to mutual mistake the property described in plaintiff's complaint was omitted from said deed. He prayed that said deed be reformed to include said property and that he be decreed the owner thereof.
There is nothing in the record to indicate that the defendant Sarah Burns, against whom Morrissey sought reformation, was ever served with process or notice requiring her to defend against this cross-complaint seeking reformation.
Upon trial to the court it appears from the record that the plaintiffs offered as proof of their ownership a warranty deed dated June 29, 1956, whereby defendant Morrissey conveyed to plaintiffs:
"Lots Six (6), Seven (7), Eight (8), Nine (9) and Ten (10), Block Sixteen (16), Budlongs Resubdivision of Chamberlin's University Terrace East."
That is the only paper title on which plaintiffs seek to be decreed the owners of the property described in the complaint.
The record is clear that from 1887 until July 8, 1937, Arctic Place and Budlong's Resubdivision of Block 16, Chamberlin's University Terrace East was a part of Arapahoe County and not within the confines of any city or town; that on July 8, 1937, Arctic Place was vacated and at that time one Stella Kate Cullen was the owner of the aforesaid Lots 6-10, Block 16.
The record further discloses that on December 17, 1946, Sarah Burns, successor in interest to Stella Kate Cullen, by warranty deed conveyed to the defendant Morrissey said Lots 6-10, Block 16.
From the record before us it appears without question that the warranty deed form Morrissey to plaintiffs expresses the true intent of the parties thereto at the time of the execution and delivery thereof. Neither party seeks reformation or even suggests that reformation might be proper. In that state of the record the trial court found:
"That the defendant John J. Morrissey was the record owner of the property hereinafter described [one-half vacated street known as Arctic Place adjacent to and contiguous to Lots 7-10, inclusive, Block 16, Chamberlin's University Terrace East, Budlong's Resubdivision] and was owner of said property to the 29th day of June, 1956, on which date he convey his title thereto the plaintiff." (Emphasis supplied.)
He further found that all of the allegations of Morrissey's cross-complaint "adverse to and inconsistent with plaintiff's complaint are untrue."
He decreed that plaintiffs were the owners of the lands involved and quieted plaintiffs' title thereto. He made no express disposition of Morrissey's cross-complaint.
Morrissey is here by writ of error seeking reversal with directions to the trial court to enter its decree granting him the relief prayed for in his cross-complaint, namely (1) reformation of his deed from Sarah Burns to include the property which is the subject matter of this action, and (2) a decree quieting title to said tract in Morrissey.
In action seeking to quiet title the plaintiff must rely on the strength of his own title rather than on the weakness in or lack of title in defendants. See Fastenau v. Engel, 129 Colo. 440, 270 P.2d 1019, and numerous cases cited therein.
Without discussing the question as to who owns what in dedicated streets, alleys or roadways prior to vacation, there can be no dispute that upon vacation the owners of property abutting thereon take and become the fee owners of that portion abutting their property and to the center line of the vacated area.
Thus it appears that Stella Kate Cullen, prior to July 8, 1937, was the owner of Lots 7-10, Block 16, abutting on Arctic Drive. After July 8, 1937, she owned (1) said Lots 7-10, Block 16, and (2) a rectangular area 20' X 91' contiguous to and south of said Lots 7-10, Block 16 (this is the property described in plaintiffs' complaint).
[2-3] To say, as did the trial court here, that a deed drawn subsequent to the vacation of the street which describes Lots 7-10, Block 16, and nothing more, and so drawn as to express the true intention of the parties, serves to divest the grantor of a tract 20' x 91', no part of which is included in the area described in the deed, does not have the sanction of this court. Certainly a person owning contiguous tracts of land can convey one without conveying the other. A deed which accurately and correctly describes a tract of land is not subject to construction or interpretation. If the description does not express the intention of the parties, reformation is the proper remedy. To hold otherwise would create chaos and add a new and frightening chapter to the law of conveyancing.
Contrary to the finding of the trial court, we find nothing in the record to support a finding that either Morrissey or plaintiffs were ever the record owners of the property involved
The trial court made no disposition of Morrissey's claim for reformation of his deed from Sarah Burns and was in no position to so do for the reason that Sarah Burns, though a defendant in a quiet title action, was never made a party to or notified of the fact that a codefendant was seeking relief in the nature of reformation of her warranty deed by adding thereto lands not described therein, thus making her answerable for new and additional liabilities under her warranty of title. Sarah Burns was in default as to the claim asserted by Achziger — she was not in default as to the claim of Morrissey for reformation. She had never been served with notice of this second demand, and the court was without jurisdiction to enter a valid judgment for reformation. Rule 54 Colo. R.C.P.
The judgment is reversed and the cause remanded to the trial court with directions to enter an order dismissing plaintiffs' complaint with prejudice, and a further order dismissing with prejudice Morrissey's cross complaint against the plaintiffs, and dismissing without prejudice Morrissey's cross-complaint against Sarah Burns; with the further order that the parties each pay their own costs incurred in this court and the trial court.
MR. JUSTICE DAY, MR. JUSTICE DOYLE and MR. JUSTICE McWILLIAMS dissent.