HOUGH v. LUCAS et al. (Supreme Court of Colorado. (230 P.) (No. 10693.) July 7, 1924. 1. Quieting title 23-Suit to determine title Suit against persons who were not alleged to have claims against plaintiff or its predecessor in title, seeking to have determined title, to or interest in property of which plaintiff did not claim to be in possession, held unauthorized by Code Civ. Proc. § 21, or section 275. 2. Waters and water courses 1562-Decree depriving owner of trust deed of water rights as security held unauthorized. Where deed of trust required that trustee of land and water company should pay all water rates and charges or holder of note might pay them, and amounts so paid should become additional secured indebtedness, decree depriving holder of note of water rights as security because trustee did not do what he had specifically agreed to do held unauthorized. 3. Receivers 135-Decree cutting off liens under trust deed directing sale of land and water rights by receiver held erroneous. others, defendant by cross-complaint set up En Banc. Error to District Court, Arapahoe County; Samuel W. Johnson, Judge. Suit by Fred L. Lucas, as receiver of the Denver Suburban Homes & Water Company, and others, against Samuel S. Hough and others. Judgment for plaintiffs, and defendant named brings error. Reversed, with directions. James W. McCreery, Donald C. McCreery, and Hubert D. Waldo, Jr., all of Greeley, for plaintiff in error. Bardwell, Hecox, McComb & Strong, L. Ward Bannister, Samuel M. January, and R. H. Walker, all of Denver, for defendants in error. TELLER, C. J. The plaintiff in error was one of some 1,500 defendants in a suit brought by the defendant in error, Lucas, Decree directing sale by receiver of land as receiver of the Denver Suburban Homes and water company, sale to be free from all & Water Company. Judgment having gone liens, thus cutting off liens for taxes paid by against the plaintiff in error, he brings the holder of note secured by trust deed and mak-cause here for review. ing costs of receivership payable before any part of proceeds were applied to note secured by trust deed held erroneous. 5. Receivers 178-Holder of note secured by trust deed held not necessary party to suit to determine rank of bond issues, Where deed of trust was lien on realty of land and water company when receiver for it was appointed, and lien was prior to liens of various bond issues whose rank receiver sought to determine, holder of note secured held not to be a necessary party to suit to determine rank of issues. 6. Waters and water courses 257(1)—Court unauthorized to fix water rates. The district court is unauthorized to fix water rates. 7. Judgment 18(2)-Judgment unsupported by pleadings held void. Judgment unsupported by pleadings is void, court being without jurisdiction. 8. Pleading 150-Plaintiff failing to question rights set up in defendant's cross-complaint admits them. Where, in suit by receiver of land and water company to determine rights of purchasers and The parties will be herein designated as in the trial court. The suit was brought for the purpose, as plaintiff's attorneys state, of having determined the respective rights of various parties who had purchased small tracts of land, and water rights therefor, from the Suburban Homes & Water Company, and its predecessors in interest; and to settle the question of liens between the bond issues of several companies which had successively owned the property, which bonds were secured on the land now owned by the first-named company; and to determine various other questions which the plaintiff conceived to be necessary of determination, that he might properly administer the affairs of the company of which he was the receiver. The complaint alleged the creation of an irrigation district, which included the lands in question. One of the questions raised was as to the right of this district to water for which vari ous defendants had deeds, or contracts of purchase. Inasmuch as the court found that the proceedings to form the district were not effective for the purpose, and no district was created, that question is eliminated. A general demurrer to the complaint was overruled. As the judgment must be reversed for the reasons hereinafter stated, we need not determine the sufficiency of the complaint. Defendant Hough was the holder and own For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests an be obliged to hold that the suit was improperly brought. We state this much concerning the form of action lest our silence might be supposed to indicate that we approve it. er of a note executed by one Nye, in part pay- tion one to another. Were the question of ment of the purchase price of a tract of land | joinder raised and presented to us, we should to which he took title as trustee for the Suburban Land Company. The note was secured by a deed of trust on the land, together with a water right of 945/65 cubic feet of water per second of time, from the reservoir and canals of the Denver Sugar & Land Irrigation Company, the predecessor in interest of the Denver Suburban Homes & Water Company. The last-named company was, in legal effect, the mortgagor. The complaint alleged that the deed of trust was a lien against 455 acres of said tract; that there was due on said note some thing over $45,000; and that the note was owned and held by defendant Hough. The prayer of the complaint refers to the land covered by the deed of trust only twice. It asks that the court decree whether or not those who have purchased parcels of the land subject to the trust deed are entitled to receive the land so purchased free and clear of the lien of the trust deed; and, further, that the court decree whether the Suburban Company, or the receiver, acted as agent for Nye, or his grantor Clark, in the collection of money from the purchase of land under contracts, and whether the receiver shall pay to Nye, or to the successor in interest of the Clark estate, the moneys collected as partial payments on the land contracts. There was one further prayer which may affect the defendant Hough; that is, the prayer in which the court is asked to decree the amount and priority of liens against all tracts of land mentioned in division C of the complaint, and the nature, character, and extent of the water right, if any, appurtenant to said tracts. [1] Counsel for defendant Hough urge that the bringing of the suit was not authorized by any provision of the Code; to which plaintiff's counsel answer that if the complaint states a cause of action it is sufficient; though they rely upon section 21 of the Code of Civil Procedure, which provides that an action may be brought to determine a claim made by one person against another for money or property. They further cite section 275 of the Code, which section authorizes parties in possession of property to bring suit to determine the title thereto. As the suit is against persons who are not alleged in the complaint to have made any claim against the plaintiff, or the Suburban Land Company, and seeks to have determined title to or interest in property of which plaintiff does not claim to be in possession, the suit is clearly not authorized by either of these sections. Further objection is made to it that it joins parties who have no joint interest in the properties the title to which plaintiff seeks to have determined. It is in fact a series of suits joined under one title, though [2] Inasmuch, however, as defendant, by cross-complaint, seeks to have the trust deed foreclosed, and the title to a tract of land quieted in him, we shall consider the case as though properly brought. Defendant Hough, by answer, after denying sundry allegations of the complaint not necessary now to be considered, set up, by cross-complaint, ownership of several tracts of land, with a perpetual water right of 460/65 cubic feet of water per second of time, together with some other tracts with water rights therefor, and prayed that title thereto be quieted in him. In a second crosscomplaint he set up ownership of the Nye note, the execution of the deed of trust, etc., and asked that the deed of trust be foreclosed. Plaintiff in answer to the first cross-complaint alleged that the land therein described, amounting to 245 acres, was never entitled to more than 350/65 cubic feet of water per second of time; that the right to water depended upon said lands having been included in the Castlewood irrigation district. The answer to the second cross-complaint, contains no denials of the allegations of said cross-complaint, and prays the same relief as to all matters affecting the 630 acres as was prayed for in the complaint. The decree adjudges that the contract for water claimed as security by defendant in his second cross-complaint had long been terminated. The reason for this finding, as given by the court, is that the contract and deed to Clark, Nye's grantor, were made for speculative purposes; that Clark never used any water under the contract; that he never took possession of the water or applied it to beneficial use; and that defendant Hough had not paid any water assessments, though they were required under the contract; and further that no water had ever been demanded for application to said land. The decree then specifically adjudged that Hough had no right, title, or interest in any water from the Castlewood system for the land described in his cross-complaints. This holding is particularly assigned as error. The trust deed provided that 160 acres of the land be planted to fruit trees, by the grantor, during the first year, and a like acreage during the second year, and that they be cared for during the term of the trust deed. It further provided that Nye, the trustee of the Suburban Land Company, should pay all water rates and charges; that, if not so paid, the holder of the note (230 P.) should become additional indebtedness se- contracts-$1.75 per acre was not enough. cured by the deed of trust. That being the The annual charge was therefore fixed at state of the record, the decree, in effect, gives $3 per acre. In this the court acted wholly to the plaintiff, or more properly to the without authority. It has no power to fix Suburban Company, water rights of value water rates. McCracken v. Montezuma Co., because the trustee, who represented that 25 Colo. App. 280, 137 P. 903. company, did not do what he had specifically agreed to do, and which the land company had, by contract with Nye, agreed that it would do for him. There is, then, no foundation for so much of the decree as deprives the defendant of the water rights as security. [3] The decree is further erroneous in that, instead of providing for a foreclosure according to the ordinary procedure, it directs a sale by the receiver, such sale to be free of all liens, thus cutting off the lien for taxes paid by defendant; and it assesses the defendant with a share of the costs of the receivership, making the costs payable before any part of the proceeds of the sale are applied to the payment of the note. [4] The receiver performed no services in the protection of the security of defendant Hough, and the lands forming that security cannot be made subject to the lien of receiver's certificates. This is self-evident, and is in accord with our holding in Belknap Savings Bank v. Lamar L. & C. Co., 28 Colo. 326, 64 P. 212. [5] The deed of trust, by the admissions of the complaint was a lien upon the land when the receiver was appointed, and that lien was prior to the lien of various bond issues whose rank the receiver was seeking to have determined. There was therefore no reason for making Hough a party to the suit. He had a lien unquestioned to secure an indebtedness undisputed; it was for him to determine when, if at all, he would foreclose the deed of trust. The assessing against him of a proportion of the costs of the entire suit amounting to something like $80,000 which costs were incurred principally in matters in which he had no concern, was entirely without legal justification. [7] The portions of the decree above cited affect directly the owners of land and water rights under the system, and indirectly affect the defendant through their bearing upon his security. An examination of the pleadings fails to disclose anything upon which these portions of the decree can be supported. The subjects not being matters presented for adjudication, and not being within the issues made, the judgment is void so far as it concerns these parts of it. This court recently said: "Jurisdiction includes not only the power to hear and determine a cause, but to enter and enforce a judgment. If there is no right in the court to enter the particular judgment entered, the entry is without jurisdiction. People v. Tebbetts, 31 Colo. 461-473, 13 Pac. 869; People v. Burke, 72 Colo. 486, 212 Pac. 837, 844; Windsor v. McVeigh, 93 U. S. 274, 23 L. Ed. 914. In the last-named case the court points out that, if a court having jurisdiction of the parties and the subject-matter renders a judgment in which it transcends the power conferred by law, in so doing it acts without jurisdiction, and its judgment is void." Williams v. Hankins (Colo. Sup.) 225 P. 243. Defendant Hough, by his first cross-complaint, set up ownership of 245 acres of land and a water right therefor, title to which he obtained through a sheriff's deed of foreclosure in a suit begun in 1914. The decree adjudges that this water right also had been lost or abandoned, giving the same reasons for the finding as in the case of the other water right. Plaintiff's answer to the first cross-complaint did not deny the existence of the water right, nor allege its abandonment, but alleged that, since a part of the tract originally entitled to the right had been released, the water right should be reduced on a per The decree further adjudged that all contracts or deeds for the use of water from the Castlewood system were in legal effect sub-acre basis. stantially the same; that they constitute [8] Plaintiff in that answer asked that it an option to obtain water each season by be decreed that the defendant had no wapaying the maintenance and carriage fees; and that upon a failure to pay said charges the right and option terminate. There is nothing in the pleadings which sustains a finding that the water contract's were mere options. Nor is there anything to suggest that the Suburban Company was a carrier of water for hire. The findings of the decree last mentioned indicate that the court held the view that it was a carrier system. ter for the 245-acre tract in excess of 1/65 cubic foot of water per acre. This does not present the issue of abandonment of the right, but merely of its extent. Johnson, the mortgagor, got title to the land mortgaged from the Denver Sugar Land & Irrigation Company by warranty deed conveying a perpetual water right of 460/65 cubic feet per second of time. In the foreclosure proceeding, through which defendant claims title, the complaint sets out in full the mort[6] Following this conclusion that the Sub-gage, which included as a part of the seurban Company was a mere carrier, the de-curity a perpetual water right of 460/85 cubic cree holds that the company was entitled to fair compensation for the carriage of the water, and that the sum fixed by the water feet of water per second of time. The Suburban Company did not appear in the suit, and the foreclosure decree provided for a sale of the land with the water right mentioned. The Suburban Company, not having questioned the validity of the water right, must be held to have admitted it. Weese v. Barker, 7 Colo. 178, 2 P. 919. No infirmities in the title prior to the issue of the sheriff's deed in 1918 can now be successfully relied upon by the Suburban Company, or the receiver who stands in the same position as that company. People v. District Court, 74 Colo. 58, 218 P. 742. There are several other questions raised and discussed, but since the judgment must be reversed for the reasons above indicated, they will not be considered. Inasmuch as other defendants, holders of land contracts, or deeds, and water rights, have not brought the question of their rights here for review, we are not called upon to determine them, or to discuss them, except so far as we have already done so by indicating that a portion of the decree is void as to all such parties. The decree, so far as it relates to the land and water rights covered by the trust deed mentioned, and the land and water rights for the 245 acres last discussed, is reversed, with directions to enter a decree for defendant Hough foreclosing the deed of trust in the usual manner and quieting title to the land and water rights described in his first cross-complaint and for his costs. Barbara L. BURFORD, Plaintiff in Error, v. Fred L. LUCAS, as Receiver of the Denver Suburban Homes & Water Company, et al., Defendants in Error. (No. 10694.) (Supreme Court of Colorado. July 7, 1924. Rehearing Denied Nov. 10, 1924.) En Banc. The Later, this contract was canceled by mutual consent, and the property was conveyed by defendant Burford to one Hindman, who executed and delivered to Burford a mortgage to secure a balance of the purchase price. all water rights appurtenant to said land, and judgment deprived the defendant Burford of directed that the holders of the land contracts should, on making payment, receive title free and clear from the lien of the Hindman-Burford mortgage. There are numerous assignments of error, the principal ones of which are that the court erred in finding that the water rights had been lost, and that the holders of land contracts should receive conveyances free from the lien of the Burford mortgage. As to the loss of the water right, the decree is open to the same objection as was sustained in Hough v. Lucas. Counsel for defendant in error say that there is no material difference between this case and We think this statethe Hough Case, supra. ment is substantially correct. For the reasons stated in the opinion in the Hough Case, the judgment as to Barbara L. Burford is reversed, with directions to dismiss the action as to her. C. S. BURFORD, Plaintiff in Error, v. Fred L. LUCAS, as Receiver of the Denver Suburban Homes & Water Company, et al., Defendants in Error. (No. 10695.) (Supreme Court of Colorado. July 7, 1924. Rehearing Denied Nov. 10, 1924.) En Banc. Error to District Court, Arapahoe County; Samuel W. Johnson, Judge. John R. Wolff, of Boulder, for plaintiff in er ror. Bardwell, Hecox, McComb & Strong, of Denver, for defendants in error. TELLER, C. J. Plaintiff in error was a coError to District Court, Arapahoe County; defendant of Barbara L. Burford and Samuel Samuel W. Johnson, Judge. John R. Wolff, of Boulder, for plaintiff in error. Bardwell, Hecox, McComb & Strong and R. H. Walker, all of Denver, for defendants in error. TELLER, C. J. The plaintiff in error was one of the defendants in a suit in which defendant in error Lucas as receiver was the plaintiff. The judgment here attacked is the same as that which was under consideration in the recently determined case of Hough v. Lucas, 230 P. 789. This case is before us on the record and abstract in the Hough Case. Hough in a suit which is fully considered in Hough v. Lucas, 230 P. 789, and Burford v. Lucas, 230 P. 792, recently determined by this court. Defendant C. S. Burford entered into a contract with the Suburban Company for the sale to it of 25 acres of land, and a water right appurtenant thereto. This land contract was canceled previous to the appointment of the receiver The judgment, which is the same one considered in the Hough Case, included a water right for this land among those which were held to have been forfeited or abandoned. This left defendant Burford with 25 acres of land without water therefor. Plaintiff in error, hereinafter mentioned as It is conceded that this case is controlled by defendant Burford, was the owner of 240 acres the two cases last mentioned, the facts as to of land with water right therefor. In 1909 the water rights being substantially the same she entered into a contract to sell the land as in those cases. Judgment as to C. S. Burand water to the Suburban Land Company, ford is accordingly reversed, with directions that which proposed to sell the land in small tracts. the case be dismissed as to him. (230 P.) THOMAS et al. v. MAHIN. (No. 10853.) (Supreme Court of Colorado. Nov. 10, 1924.) et al. in a suit brought by him for partition. They bring the case here for review. One Alice Collins and her daughter, Rose Blue, were equal tenants in common of the realty in question-a lot and two houses thereon in Trinidad. May 31, 1914, Mrs. Collins died and Rose Blue remained in possession. She afterwards married the defendSupplemental petition in partition was part-ant W. V. Thomas (no relation of Lemuel) 1. Pleading 279(3)—Supplemental petition in partition held partly an amendment to original petition. ly an amendment to an original petition, where it was not confined to facts which occurred aft er action was commenced in view of Code, § 80. 2. Attorney and client 103-Attorney's bringing suit for partition held ratified by plaintiff. Act of plaintiff's attorney in beginning partition suit was ratified, where plaintiff subsequently conveyed his interests in the property to another and made some settlement without any step to dismiss the case. 3. Pleading 279(2)-Permitting filing of supplemental petition after judgment by default at variance therewith, without setting judgment aside, held error. In partition proceedings, after judgment by default had been entered, court erred in permitting filing of a supplemental petition containing matter at variance with, or in addition to parts of decree, without setting judgment aside. 4. Action 44-Pleading 52 (2)-Causes of action in partition petition held not joinable; causes of action in partition petition should have been separately stated. · Petition in partition by one out of possession against adverse claimants in possession amounted to a joinder of two causes of action -ejectment to recover possession of undivided interest in real estate and partition to set off in severalty-which causes of action were not joinable under Code, § 76, and C. L. § 5150, and in any event should have been separately stated. 5. Pleading 426 (3)—Error in denying separation of causes of action not waived by answer. and July 8, 1917, died, leaving her husband her only heir. July 24, 1917, W. V. Thomas was appointed administrator of her estate. He remained in possession, and, February 25, 1921, conveyed his interest to P. H. Murray. June 6, 1921, Lemuel Thomas brought this suit, claiming to be the son of Alice Collins and brother of Rose Blue Thomas and so entitled to an undivided one-fourth of the property. There have been many changes in the parties plaintiff and defendant, and many motions with reference to the pleadings which we do not find it necessary to notice. September 23, 1921, an amended petition was filed. December 14, 1921, the defendants Thomas and P. H. Murray filed a motion to separate the causes of action, and December 14th this motion was overruled. December 20th they separately demurred; January 16, 1922, the court overruled these demurrers except as to certain paragraphs thereof which attacked the complaint for seeking relief as to personal property alleged to belong to Alice Collins at her death, and to have been converted by the defendants. The court seems consistently to have kept out of the case consideration of this personal property until the supplemental complaint was filed March 8, 1922. The defendants were then ruled to answer in 10 days; they did not do so, and February 11th the plaintiff filed a præcipe for default. No entry of default appears except as recited in the decree. The decree, it is claimed by defendant in error, was rendered on February 20, 1922, but it was not filed until April 13th, and does Error in denying separation of causes of not on its face show when it was rendered. action is not waived by answer. Department 2. The record does not tell us whether it is recorded among the proceedings of that day, February 20th. We think, however, there Error to District Court, Las Animas Coun- is enough in the record to show us that it ty; A. F. Hollenbeck, Judge. Action by W. H. Mahin, substituted for Lemuel Thomas, against W. V. Thomas and others. Judgment for plaintiff and defendants bring error. Reversed, with directions. Northcutt & Northcutt, of Denver, and Samuel Freudenthal, of Trinidad, for plaintiffs in error. W. M. Mahin, of Trinidad, W. B. Morgan, of Denver, and Arthur L. Olson, of Trinidad, for defendant in error. DENISON, J. Lemuel Thomas had judgment against W. V. Thomas, P. H. Murray must be regarded as having been then ren- [1] March 8, 1922, leave was granted to file a supplemental petition, and, pursuant to that leave, a petition was filed in which additional defendants were named. This so-called supplemental petition is partly an amendment to the original because it is not confined to facts which occurred after the action was commenced. Code 1921, § 80. April 13th the decree was filed. It appointed commissioners, and on that day they re For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |