Chapter 26 - § 26.2 • EJECTMENT

• Jurisdiction: Colorado

§ 26.2 • EJECTMENT

The common-law action of ejectment has been supplanted in Colorado by the modern action for forcible entry and detainer,³⁹ or by an action under Rule 105 to recover possession.⁴⁰

In ejectment, possession was prima facie evidence of ownership in fee.⁴¹ A prima facie title was shown by a grant from someone in possession. A sheriff's deed, regular on its face, was sufficient title to support an action of ejectment. It was as effective as a grant of the debtor's interest in the land as a deed would have been from the debtor himself. Thus, where the plaintiff claimed under a sheriff's deed of the interest of the defendant in possession, the plaintiff was prima facie entitled to recover.⁴² Plaintiff must have prevailed on the strength of his or her own title.⁴³ Title in a third person was therefore generally a good defense.⁴⁴ Neither the plaintiff nor the defendant was required to prove title back beyond a common source of title.⁴⁵

If the defendant filed or made any other answer or defense than a disclaimer of title or right of possession, it was not necessary for the plaintiff to prove that the defendant was in possession at the time of the commencement of the action, or at any time.⁴⁶

A plaintiff could not recover possession where there was no conflict between the lands claimed by him and the lands claimed by the defendant.⁴⁷

An action in ejectment by a landlord against a tenant was an irrevocable election to declare the lease terminated.⁴⁸

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Notes:

^[39] Baumgartner v. Schey, 353 P.2d 375 (Colo. 1960); Husar v. Larimer County Court, 629 P.2d 1104 (Colo. App. 1981).

^[40] Canady v. Shelden, 683 P.2d 1205 (Colo. App. 1983) (18-year statute of limitations applicable). See Davis v. Holbrook, 55 P. 730 (Colo. 1898).

^[41] Milsap v. Stone, 2 Colo. 137 (1873); Sears v. Taylor, 4 Colo. 38 (1877); McCracken v. Citizens' Nat'l Bank of Akron, 249 P. 652 (Colo. 1926); French v. Golston, 100 P.2d 581 (Colo. 1940).

^[42] McCracken v. Citizens' Nat'l Bank of Akron, 249 P. 652 (Colo. 1926).

^[43] Bothwell v. Denver Union Stockyards Co., 90 P. 1127 (Colo. 1907); Horn v. Hurwitz, 241 P. 727 (Colo. 1925); Bokel v. Zitnik, 27 P.2d 753 (Colo. 1933); Cowen v. Driscoll Constr. Co., 47 P.2d 390 (Colo. 1935); French v. Golston, 100 P.2d 581 (Colo. 1940).

^[44] French v. Golston, 100 P.2d 581 (Colo. 1940) (defense of title in a third person unavailable to a mere intruder).

^[45] Bay State Mining & Townsite Co. v. Jackson, 60 P. 573 (Colo. 1900); Service v. West, 153 P...