24 Colo. App. 524 | Colo. Ct. App. | 1913
delivered the opinion of the court.
The judgment under consideration on the appeal herein was rendered by the district court in and for the county of Logan in favor of plaintiffs on their complaint in the nature of bill in equity to remove cloud from, and quiet title to, a quarter-section of land in that county, of which the plaintiffs claimed to be the owners in fee simple. The defendant relied upon a treasurer’s tax deed and a decree of the county court of said county whereby the title of appellant’s grantor purported to be quieted as against the Union Pacific Railroad Company in a suit instituted and culminating in said decree after the deed under which plaintiffs ’ claim was executed and delivered, but before it was recorded. Plaintiffs claim by descent from and as heirs of James C. McClure, deceased. Neither the said James C. McClure nor any of the plaintiffs herein was a party to said suit to quiet title. The Union Pacific Railroad Company was the only party defendant thereto. ■
The tax deed was admitted to be fair on its face, but was properly held to be void for- reasons aliunde, to-wit, because the quarter-section had been assessed as an entirety, but was offered and sold in separate forty-acre
The plaintiffs herein were not bound nor affected by the decree pleaded, because they were not parties, nor was their ancestor, through whom they claimed, a party to that suit; nor does it appear that any attempt was made to secure jurisdiction and foreclose the rights of persons whose names or interests were unknown to the plaintiffs as provided for in section 50, Civ. Code, R. S., 1908, section 44, Mills’ Ann. Code; nor was it made to appear in this proceeding that the Union Pacific Railroad Company had any interest in the land at the time of the institution of said suit, or subsequent thereto. The government patent for said lands was issued to the Union Pacific Raihoay Company under date of February 26, 1897, and recorded March 27th of the same year. A deed from the Union Pacific Railway Company to James C. McClure, plaintiffs’ ancestor, dated June 12, 1894, recorded June 18, 1909, about the time of the commencement of this suit, was in evidence. Appellant contends that the Union Pacific Railroad Company acquired title to said lands by virtue of a sale under foreclosure of a sinking fund mortgage deed executed by the Union Pacific Railroad Company, dated December 18, 1873, and recorded prior to the execution of plaintiffs ’ deed from said railway company, and which was foreclosed after the execution and delivery of plaintiffs’ deed, and before its record, at which sale the Union Pacific Railroad Company was a purchaser, and its deed pursuant to such sale was recorded May 9, 1899; that said Union Pacific Railroad Company was, at the time of the institution of the suit to quiet title, the only record owner of said premises, and that neither the appellant herein nor any of his grantors had knowledge of the rights or claims of the plaintiffs herein or their ancestor. Appellant’s contention that the
It will not be amiss to call attention to the fact that appellant was permitted to amend his second defense so as to show that the Union Pacific Railroad Company, purchaser of the unsold property at the master’s sale, was the Union Pacific Railroad Company, a Utah corporation., as distinguished from the Union Pacific Railroad Company (the mortgagor), incorporated under an, act of congress. It is wholly immaterial as to the merits of the case. No such distinction is made in the decree to quiet title, relied on hy defendant. This serves to explain an apparent anomaly, as, without such explanation, it would seem that the mortgagor in the sinking fund mortgage became the purchaser at the foreclosure sale.
The appellant and his grantors, claimants under the tax title and under the decree to quiet title, were not bona fide purchasers or encumbrancers of said land within the contemplation and protection of the recording act, namely, section 694, R..S. 1908. This phase of the case is so fully and ably presented by Judge Morgan in Carroll et al. v. Kit Carson Land Co., 24 Colo. App., 217, 133 Pac., 148, as to require no further notice here.
The judgment of the lower court will be affirmed.
Affirmed.