23 Colo. 470 | Colo. | 1897
delivered the opinion of the court.
The plaintiff has certainly been very negligent in asserting his claim to this land. From 1877 to 1889, a period of twelve. years, he neither paid taxes upon the property nor
The witness, Frank White, testifies that in the year 1889 he heard the plaintiff say that he was advised of the sale of the property for taxes before the time of redemptiozz had expired, but that he did not have the money necessary to redeem, and he would, therefore, have to lose his title to it. These statements are denied by plaintiff, but under the findings of the district court we must assume the statements to be established. It is shown that it was only after the land had greatly appreciated in value, and after it had passed into the hands of bona fide purchasers, who had expended large sums of money in its improvement, that plaintiff sought to assert his claim. Therefore, at the beginning of this investigation, we are confronted with the lack of equity of plaintiff’s demand.
It is claimed that as the purchaser at the tax sale (Sharratt) was at the time a tenant in common with plaintiff in this land, that the purchase inured to plaintiff’s benefit. In support of this claim the opinion of Chancellor Kent, in the case of Van Horne et al. v. Fonda, 5 Johnson’s Chancery, 388, is strongly relied upon. That case was between two devisees from a common ancestor, who were in possession of land under an imperfect title, and it was held that one of these devisees could not buy up an outstanding title for his own exclusive benefit, but that such a purchase inured to the benefit of both upon an equal payment of the expenses. In the course of the opinion the learned chancellor took occasion to state: “ I will not say, however, that one tenant in common may not, iiz any case, purchase in an outstanding title for his exclusive benefit.”
This case was reviewed in the case of Brittin et al. v. Handy, 20 Ark. 381, and the latter has for many years been considered the leading case upon the subject. It is suggested in
The general rule is that one cannot buy who is in a position of trust or confidence to the property, or upon whom a duty is cast not consistent with the character of a purchaser, and a tenant in common can only be held bound to protect the interest of his cotenant when some duty is cast upon him with reference to such interest; for instance, if it is shown to be his duty to pay all the taxes, he cannot allow the land to he sold for such taxes, and then avail himself of the tax title. Dubois v. Campau, 24 Mich. 360 ; Williamson v. Russell, 18 W. Va. 612. In the case before us the tax was levied upon undivided interests, and there was no obligation resting upon one tenant to pay the tax of his associates. The interest of each was separately assessed, and Sharratt was not disqualified from taking the tax title. Brittin v. Handy, supra; Freeman on Cotenancy and Partition, sec. 155; Blackwell on Tax Titles, sec. 578, et seq.
We will now consider the effect of the statute of limitations and the payment of five successive years’ taxes upon the interests in controversy. It is claimed that the tax deed under which the defendants claim is void and does not start
Under the decision in Crisman v. Johnson, ante, p. 264, such a tax is certainly void, but it do'es not follow that it is not sufficient to start the statute running. The phrase “ color of title ” in the statute was before this court for consideration in the case of De Foresta v. Gast, 20 Colo. 307, and that case may be cited as authority for the proposition that a u void deed, taken in good faith, may give sufficient color of title.” Under the statute it was said, in that case: “ The statute (when its conditions are complied with) is intended as a protection to a person holding in good faith under a mere colorable title—that is, under a title which is really no title.”
Applying the rule announced in that case to the case at bar, and it is apparent that the tax deed gives color of title. It is executed by the proper officer; gives a correct description of the property conveyed; alleges that the same was subject to taxation for the year 1877; that the taxes were assessed and remained due and unpaid at the date of the sale; that the sale was held by virtue of the authority vested by law in the treasurer. It states that Joseph Sharratt bid $121.55 for the property, this being the whole amount of taxes, interest and costs then due and remaining unpaid; that said sum was paid to the treasurer and the property
To show the payment of taxes for upward of five consecutive years, the defendants offered certified statements taken from the books of The El Paso County Abstract Company. These certificates show the assessment of this property and the payment of taxes thereon by Sharratt and his successors for the years 1878, 1879, 1880, 1881, 1882, 1883 and 1884. It is now claimed that this certificate of the Abstract Company was not competent evidence to prove the payment of such taxes, but we think plaintiff has waived the right to urge this objection. In reference to these certified statements, the record affirmatively shows the following: “To the introduction of which plaintiff’s counsel does not object because the tax books themselves are not introduced, but for other reasons.” If objection had been made at that time to the character of this evidence, it would undoubtedly have been excluded; but counsel having encouraged its introduction in lieu of better evidence, because it was more accessible, they cannot now be heard to complain because better evidence was not offered. The certificate of the Abstract Company, showing, as it does, the payment of the taxes upon this property for more than five consecutive years, the statute of limitations which we are considering became a bar to plaintiff’s action. The judgment of the district court must, therefore, be affirmed.
Affirmed.