53 Colo. 318 | Colo. | 1912
delivered the opinion of the court:
D. Carnahan, as owner in fee, brought suit, on December 31st, 1907, against defendant Albert C. Hughes, to quiet title to the northeast quarter of section 8-, township 9 south, range 44 west, in Kit Carson county, alleging that the defendant claims an adverse interest therein, which is unfounded and without legal right. The defendant for answer alleges that he is the owner in fee and in possession; denies all averments of the complaint, except as to his claim of ownership; and sets up four separate defenses, the second, third, fourth and fifth, respectively, under various limitation statutes. Also by cross-complaint reliance is had upon the same pleas of limitation, and also upon title under tax deed of date October 22nd, 1898, recorded on the 27th of November, 190T, praying to have his title quieted. Plaintiff replied, denying the allegations of the second, third, fourth and fifth defenses, and of the cross-complaint, except that he claimed an interest in the land. He also alleges that the tax deed is void for reasons appearing on its face, in that it shows a sale of the premises for taxes to Kit Carson county on the first day of the general tax sale, and also of non-contiguous tracts of land en masse for a gross sum. At the trial it was stipulated that for ten years prior thereto, and at the -commencement of the action, the land was,- and yet is, vacant and unoccupied.
Upon the facts, both the limitation pleas, under our respective statutes, of claim and color of title and possession, with payment of taxes for the required time, were insufficient, because, during the entire period, the land was admittedly vacant and unoccupied.
The tax deed upon which the defendant relied is plainly void on its face for both reasons assigned: First. It shows a sale to the county for taxes on' the first day of the general tax sale; and second. It shows the sale of numerous non-contigouos tracts en masse for a gross sum. — Page v. Gillett, 47 Colo. 289; Empire R. & C. Co. v. Lanning, 49 Colo. 458, 462; Hughes v. Webster, 52 Colo. 475; 122 Pac. 789; and Clark v. Huff, 49 Colo. 197. Since this deed is void on its face, the five-year statute of limitation, sec. 5733, Revised Statutes, 1908, was unavailable.1 — Sayre v. Sage, 47 Colo. 559; Clark v. Huff, supra; Page v. Gillett, supra; and Hughes v. Webster, supra. Nor is that statute a defense to an action such as this, brought merely to quiet title. — Munson v. Marks, 52 Colo. 553.
No defense pleaded was established by proof, and the finding and decree for the defendant are without legal warrant. The judgment is reversed and the cause remanded, with instructions to enter judgment for plaintiff.
Reversed and Remanded with instructions.
Reversed and remanded with instructions.