24 Colo. App. 458 | Colo. Ct. App. | 1913
delivered tbe opinion of the court.
March 23, 1908, appellee, as plaintiff, brought" an action against defendant (appellant) to quiet title to the northeast quarter of section 6, township 39 north, range
Although from appellee’s brief it appears that four or five tax deeds were relied on by plaintiff to prove his title to the land, it will be unnecessary to consider but two thereof, to wit: Exhibit No. 1, a tax deed executed and delivered December 18, Í901, and recorded the following day, based on a sale of the land December. 15, 1898, for the taxes of 1897; and Exhibit No. 12, a tax deed dated October 26, 1908, based upon the same sale and the same certificates of purchase, which is alleged to have been executed to correct the defects appearing on the face of Exhibit No. 1. These instruments are the only ones which plaintiff relies upon to confirm his right and title to the disputed premises. "With the exception of a certain special warranty deed, he has expressly excluded. all others by statements in his brief to the effect that he claims nothing by reason of any other deeds. Plaintiff
It is earnestly insisted by appellant that the tax deeds in question, exhibits 1 and 12, are void. Under the decisions of the supreme court, as well as this court, there can be no question but that each of said deeds is void on its face. Exhibit No. 1 is'void on its face for the following reasons-
(1) The property was offered for the first time on December 15, 1908, and sold on that day to the county at a public sale begun on December 12th of the same month. —Vandermeulen v. Burwell, 22 Colo. App., 486, 125 Pac., 131; Lambert v. Murray, 52 Colo., 156, 120 Pac., 415; Vanderpan v. Pelton, 22 Colo. App., 357, 123 Pac., 960; Bryant v. Miller, 48 Colo., 192, 109 Pac., 959; Newcomb v. Henderson, 22 Colo. App., 167, 122 Pac., 1125; Empire Co. v. Howell, 22 Colo. App., 389, 122 Pac., 592; Empire Co. v. Gibson, 23 Colo. App., 344, 129 Pac., 520; Empire Co. v. Howell, 23 Colo. App., 348, 129 Pac., 521; Empire Co. v. Coleman, 23 Colo. App., 351, 129 Pac., 522; Charlton v. Toomey, 7 Colo. App., 304, 43 Pac., 454.
(2) It is also void on its face for failure to state what officer made the assignment of the certificate. — Foster v. Clark, 21 Colo. App., 192, 121 Pac., 130; Empire Co. v. Smith, 23 Colo. App., 53, 127 Pac., 449.
The tax deed, Exhibit No. 12, alleged to have been issued to correct irregularities and ambiguities in Ex-
(a) Because it does not recite the date of the sale.— Foster v. Clark, supra; Vanderpan v. Pelton, supra.
(b) It fails to show what officer made the assignment. — Foster v. Clark, supra; Empire Co. v. Smith, supra. The recital in this respect is as follows:
“And whereas the said county of Rio Grande, by its proper officers, did on the 26th day of October, A. D. 1908, duly assign the certificate of the sale of the property as aforesaid,” etc.
The statute specifically defines the official who has authority to make the assignment of the certificate of sale, and it must affirmatively appear from the deed that such officer acted. The recital that “the said county of Rio Grande, by its proper officers, did * * * duly assign the certificate,” fails to comply with this requirement, but is a palpable evasion of it.
May evidence aliunde be accepted when offered to cure the defects of a tax deed void on its face, offered as proof of title? In Page v. Gillett, 47 Colo., 289, 107 Pac., 290, it is held that outside testimony is not competent to bolster up a deed void on its face; that such proof might tend to show a valid sale, but would not mend a void deed; that the suit was not one to reform a conveyance, but, on the contrary, the conveyance was affirmatively relied on as passing good title. The case of Newsom v. Jacobs, 51 Colo., 571, 119 Pac., 623, rigidly follows the rulings laid down in the Gillett case, and reaffirms all therein decided. Bryant v. Miller, 48 Colo., 192, 109 Pac., 959, is another case which seems to sustain the view that proof aliunde cannot be accepted in support of a tax deed void on its face. The defendant, Bryant, in ah action brought against him to quiet title, pleaded a certain tax deed which appeared to be void on its face. On demurrer the supreme court held the plea bad and ordered the title
Even though evidence aliunde were held to be admissible to show compliance with the law as to the notice of sale, actual sale in 1898, and assignment of the certificate, nevertheless the plaintiff’s pleadings show that the sale itself was void, because there were no delinquent taxes at the time the land was advertised for sale. The pleadings show that at the time of the sale in 1898 a tax sale certificate to the county was outstanding, unsold, unassigned, and unredeemed, and therefore, under the statute, the taxes could not be due and payable at the time of. that tax sale. Section 3888, 3 Mills, last paragraph, viz.:
“No taxes assessed against any lands purchased by the county under the provisions of this section shall be payable until the same shall have been derived by the county from the sale or redemption of such lands.”
Other assignments of error discussed by counsel need not be noticed, as those already disposed of compel a reversal of the judgment.
Judgment Reversed.