CHAPTER XLII.

THE ACTION FOR THE RECOVERY OF REAL PROPERTY IN THE SEVERAL STATES THE PRACTICE IN COLORADO, OREGON AND CALIFORNIA.

In the prospective, and as yet unorganized state of Colorado, the practice in actions for the recovery of real property, is quite similar to that in Illinois; although the two codes are not entirely identical. The statute of Colorado provides that no person shall recover in ejectment unless he has at the time of commencing the action a valid subsisting interest in the premises claimed, and a right to recover the same, or to recover the possession thereof, or of some share, interest or portion thereof, to be established on the trial. If the preinises for which the action is brought, are actually occupied by any person, such actual occupant must be named defendant in the declaration; if they are not so occupied, the action must be brought against some person exercising acts of ownership on the premises claimed, or claiming title thereto or some interest therein, at the commencement of the suit. (R. S. ch. 27, §§ 3, 4.)

The action of ejectment in Colorado, is commenced by the filing of a declaration in the office of the district court of the proper county, whereupon a summons is issued directed to the sheriff for service as in other cases. And in all cases in ejectment where the summons shall be served ten days before the first day of the term of court to which the said summons is returnable, the defendant or defendants are required to plead, and the cause will be set down for trial as is provided in other cases. The sheriff is required to serve the summons by reading to the defendant, or, in case the defendant cannot be found in the county, then by delivering a copy of such summons to some person of the family of the defendant of the age of ten years or upward, who shall be found residing at the dwelling-house of said defendant. (R. S. ch. 27, § 5.)

The use of fictitious names of plaintiffs or defendants, and of the names of any other than the real claimants and the real defendants, and the statement of any lease or demise to the plaintiff, and of an ejectment by an actual or nominal ejector, are abolished. (R. S. ch. 27, § 6.)

It is sufficient for the plaintiff to aver in his declaration, that on same day therein to be specified, and which must be after his title. accrued, he was possessed of the premises in question, describing them with convenient certainty, so that from such description, possession of the premises claimed may be delivered, and being so possessed thereof, that the defendant afterward (on some day to be stated) entered into such premises, and that he unlawfully withholds from the plaintiff the possession thereof, to his damage, any nominal sum the plaintiff may think proper to state; and if the plaintiff claims any undivided share or interest in any premises, he must state the same particularly, in his declaration. The plaintiff must also in every case state in his declaration whether he claims in fee, or whether he claims for his own life or the life of another, or for a term of years, specifying such life or the duration of such term; or if the plaintiff claims the right to occupy and possess the premises, under the local laws of any mining dis trict or otherwise, the declaration must contain a brief statement of such claim, and whether the same be by pre-emption or purchase. In any case the declaration may contain several counts, and several parties may be joined as plaintiffs, jointly in one count, and separately in others. (R. S. ch. 27, §§ 7, 8, 9.)

A defendant in ejectment may, at any time before pleading, apply to the court, or any judge thereof in vacation, to compel the attorney for the plaintiff to produce to such court or officer, his authority for commencing the action in the name of any plaintiff therein; the application must be accompanied by an affidavit of the defendant, that he has not been served with proof, in any way, of the authority of the attorney to use the name of the plaintiff stated in the declaration. The order granted in the application is in all respects similar to the one provided for in the like cases in the state of New York, and if the defendant is made liable for the costs of the application, the same may be enforced by attachment as in other cases of costs given by order of court. (R. S. ch. 27, §§ 10, 11, 12.)

The defendant may demur to the declaration, as in personal actions, or he is required to plead the general issue only, which is, that the defendant is not guilty of unlawfully withholding the premises claimed by the plaintiff, as alleged in the declaration; and the filing of such plea or demurrer is deemed an appearance by the code; and upon such plea, the defendant may give the same

matter in evidence, and the same proceedings must be had as upon the plea of not guilty, in the ordinary action of ejectment at common law, with certain exceptions hereinafter specified; and the defendant may likewise give in evidence any matter which, if pleaded in the writ of ejectment, would bar the action of the plaintiff. (R. S. ch. 27, § 13.)

The old consent rule at common law is abolished; but it is not necessary for the plaintiff in the action of ejectment to prove an actual entry under title, nor the actual receipt of any of the profits of the premises demanded; he is only required to show a right to the possession of the premises at the time of the commencement of the suit, as heir, devisee, purchaser or otherwise, and it is not necessary on the trial, for the defendant to confess, nor for the plaintiff to prove lease and ouster, or either of them; except that if the action be brought by one or more tenants in common, or joint tenants against their co-tenants, the plaintiff is required to give the usual additional evidence on the trial of the cause, that the defendant actually ousted such plaintiff, or did some other act amounting to a total denial of his right as such co-tenant. (R. S. ch. 27, § 14, 15, 16, 17.)

If the action be brought against several defendants, and a joint possession of all be proved, the plaintiff will be entitled to a verdict against all, whether they shall have pleaded separately or jointly; and when the action is against several defendants, if it appear on the trial that any of them occupy distinct parcels in severalty or jointly, the plaintiff must elect at the trial against which he will proceed, which election is required to be made before the testimony in the cause shall be closed, and a verdict may thereupon be rendered for the defendants not so proceeded against. (R. S. ch. 27, §§ 18, 19.)

If it be shown on the trial that all the plaintiffs have a right to recover the possession of the premises, the verdict in that respect must be for the plaintiffs generally. If it appear that one or more of the plaintiffs have a right to the possession of the premises, and that one or more have not such right, the verdict must specify for which plaintiff the jury find, and as to which plaintiff they find for the defendant. If the verdict be for any plaintiff, and there be several defendants, the verdict must be rendered against such of them as were in possession of the premises, or as claimed title thereto at the commencement of the action. If the verdict be for

all the premises claimed, as specified in the declaration, it must in that respect be for such premises generally. If the verdict be for a part of the premises described in such declaration, it must particularly specify such fact, as the same shall have been proved, with the same certainty as is required in the description of the premises claimed in the declaration. If the verdict be for an undivided share or interest in the premises claimed, it must specify such share or interest, and if for an undivided share in a part of the premises claimed, it must specify such share, and must describe such part of the premises as herein before required. The verdict must also specify the estate which shall have been established on the trial by the plaintiff in whose favor it shall be rendered, whether such estate be in fee, for his own life, or for the life of another, stating such lives, or, whether it be for a term of years, specifying the duration of such term, or whether the plaintiff has established only his right to the possession and occupancy of the premises in controversy. And, if the right or title of a plaintiff in ejectment expire after the commencement of the suit, but before trial, the verdict must be returned according to the fact, and judgment must be entered, that he recover his damages by reason of the withholding of the premises by the defendant, to be assessed, and that, as to the premises claimed, the defendant go thereof without day. (R. S. ch. 27, §§ 20, 21.)

The statute provides that the action of ejectment shall not be abated by the death of any plaintiff, or one of several defendants, after issue and before verdict and judgment, but the same proceedings may be had, as in other actions, to substitute the names of those who may succeed to the title of the plaintiff so dying, in which case the issue is tried as between the original parties; and, in case of the death of a defendant, the cause may proceed against the other defendants. (R. S. ch. 27, § 22.)

In cases where no other provision is made, the judgment in the action, if the plaintiff prevail, will be that the plaintiff recover the possession of the premises, according to the verdict of the jury, if there was such verdict; or, if the judgment be by default, according to the description thereof in the declaration, with costs to be taxed. (R. S. ch. 27, § 23.)

The plaintiff recovering judgment is entitled to a writ of possession, which the statute requires to be substantially in the following form:

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The people, etc., to the sheriff, etc.: Whereas, A B has lately, in the district court held in and for the county of , by the judgment of the said court, recovered against C D one messuage, etc. (describing the premises recovered with the like certainty as described in the verdict and judgment), which said premises have been and are still unjustly withheld from the said A B by the said C D, whereof he is convicted as appears to us of record, and his said judgment against the said C D, according to the force, form and effect of his said recovery; wherefore, we command you, that, without delay, that you deliver to the said A B possession of the premises so recovered, with the appurtenances, and that you certify to, etc., at, etc., on, etc., in what manner you shall have executed this writ. (If there be costs to be collected, the proper clause may be here inserted, or a separate execution may be issued therefor.) Witness, etc. (R. S. ch. 27, § 24.)

Every judgment in the action of ejectment, rendered upon a verdict, is made conclusive, as to the title established in the action, upon the party against whom the same is rendered, and against all persons claiming from, through or under such party, by title accruing after the commencement of such action, except that the court in which the judgment shall be rendered, at any time within one year thereafter, upon the application of the party against whom the same was rendered, his heirs or assigns, and upon the payment of all costs and damages recovered thereby, must vacate such judgment, and grant a new trial in the cause; and the court, upon subsequent application made within one year after the rendering of the second judgment in the cause, if satisfied that justice will thereby be promoted, and the rights of the parties more satisfactorily ascertained and established, may vacate the judgment and grant another new trial; but no more than two new trials can be had under these provisions. (R. S. ch. 27, §§ 25, 26.)

Every judgment in ejectment rendered by default will, from and after two years from the time of entering the same, be conclusive upon the defendant and upon all persons claiming from or through him by title accruing after the commencement of the action; but, within two years after the entering of such judgment, on the application of the defendant, his heirs or assigns, and upon the payment of all costs and damages recovered thereby, the court may vacate such judgment and grant a new trial, if such court shall be satis