11 Colo. App. 166 | Colo. Ct. App. | 1898
delivered the opinion of the court. •
The general rule compels a purchaser at a tax sale who relies on the statutes of limitation to bring himself clearly within their provisions. The original source of title to the land involved was Samuel T. Thompson, who was the pat
On the first trial of the case the learned trial judge who is now the present chief justice of the supreme court, found for the plaintiff as to one forty, and for the defendants as to the other eighty, holding, as is indicated by his opinion which appears in the present record, that the deed which was produced did not show color of title within the purview of the statute. The plaintiff took a new trial as a matter of right on payment of the costs, and on the subsequent trial, which is the one under consideration, the court reversed his ruling as of necessity he must because of later decisions in the supreme court which passed on the direct question involved in the suit. This question was respecting the sufficiency of a deed void on its face to make color of title. The question is again presented to this court, and has been very gravely argued by counsel and we are asked to hold that a deed void on its face cannot make color of title sufficient to protect a person in possession under a treasurer’s deed, even though he may have paid taxes for the period prescribed by the act. It is insisted, and of course we must concede that his position is supported by a good many authorities that a deed void on its face cannot make color because its apparent invalidity necessarily destroys the good faith which is as important to furnish a basis for the application of the statute as the possession of the deed purporting to transfer the title. It is insisted with much force and learning that a void deed which will make color can only be applied to those cases where the deed is void for reasons dehors the instrument. We do not however feel at liberty to assume that the law is otherwise than as it has been declared by the supreme court. We therefore do not intend to either enter on the discussion of this question or express any opinion about it, other than to say it is the law of this jurisdiction as declared by the supreme authority that a deed even though void on its face, will make color of title as fully and as effectually as though the deed was regular on its face and void for reasons aliunde the in
If the plaintiffs in error desire a review and a reconsiderar tion of this point, they must take the case to the court which has the final right to determine such questions and obtain from it, if they may, a modification of the doctrine. We do not believe it is right or proper for this or any other court to hold otherwise than in accordance with the announcements of the supreme tribunal. This simple suggestion disposes of that contention.
We are quite ready to concede that the defense predicated on the act of 1885 is unavailable. As we look at it an earlier case in the state fully decides that a void deed cannot be used to support a plea of this particular statute. After full consideration that learned court so held. Gomer v. Chaffee, 6 Colo. 314.
But even though that case so holds and the other case disposes of' the proposition as to color of title, it still leaves the question open whether the defendants sustained their plea by proof of the facts on which its applicability depends. In other words, it was incumbent on the defendants in order to support the plea, to prove that they were in possession and that they paid taxes for five successive years which is the prescription of the act. The record is neither full nor precise and the evidence lacks the directness and definiteness which ought to characterize the proof offered in support of this plea. We have examined the original bill of exceptions, as well as the printed abstract, and we assume rather than hold that the case was tried on the theory of concessions respecting the proof which probably accounts for this lack of exactitude.
During the progress of the trial the defendants produced a statement from an abstract office, certified to by its proper officers and verified, showing the payment of the taxes by the various holders of the title. It would almost seem that this was a matter of consent for the learned judge knew as well
We do not directly determine whether this presumption can be used to uphold a case which is defective and lacks definite evidence on a matter so vital to the defense. But we do not find in the record without this abstract evidence on which
This they may be compelled to do where there is a total absence of evidence, or where the appellate tribunal is firmly satisfied that it is insufficient to uphold the decree and the judgment is radically wrong. There is no adequate evidence in the record to support the judgment. We cannot therefore accept the findings as true. We must reverse the judgment because of the introduction of that incompetent testimony, to wit: The statement from the abstract office, showing the dates, times and character of the payment of taxes for the period which the statement covered. The evidence was inadmissible and although the case was tried to the court, since there was no other evidence on which he could base his findings, it may not stand. Its admission was an error which we can clearly see prejudiced the rights of the parties.
There are some other questions suggested by the defendants in error, but since this matter is conclusive we must reverse the judgment.
This error is well laid, and the judgment will be reversed.
Reversed.