22 Colo. App. 617 | Colo. Ct. App. | 1912
Action by appellee (plaintiff below) against appellant (defendant), under § 265, Mills’ Annotated Code, to recover possession of lands in Washington county. Complaint is in usual form. The answer denies plaintiff’s title, and pleads title and possession in defendant, also the seven-year statute of limitations applicable to vacant and unoccupied land (§ 2924, Mills’ Annotated Statutes). Supplemental answer was filed July 1st, 1908, after suit commenced, alleging that defendant had paid the taxes on the lands for ,the year 1907, after suit brought. Replication was filed, putting in issue all matters alleged in the answer. Judgment for plaintiff, from which defendant appeals.
After plaintiff had rested his case, defendant, in support of its title, offered in evidence a number of treasurer’s deeds, certified copies of proceedings of county commissioners of Washington county respecting the lands in issue, and various petitions to, and tax certificates issued by, the board of county commissioners of Washington county, to all of which plaintiff objected. The court "sustained such objections, except as to the tax deeds being offered as color of title only, and documents showing amount of taxes paid.
One of the objections made by plaintiff to each of the treasurer’s deeds was that it was void on its face, for the reason “that it showed that the land was never offered for sale except on the 31st day of October, 1896, and was stricken off to the county on that day, it being the first, last and only time it was ever offered at the sale”.
On examining the record in case No. 3406, The Empire Ranch & Cattle Co. v. Lardner Howell, decided by this court June 10th, 1912, we discover that the identical deed here considered was there before the court for consideration, and the court, speaking through Judge Cunningham, held the tax deed to be void on its face, which holding involved the determination of the same question here raised by appellant. We therefore hold under the authority of
Appellant also insists that the year 1900 should be included in the term of seven successive years respecting the payment of taxes on vacant and unoccupied land under color of title. It appears from the record that its tax deed was recorded February 20, 1901, and that the defendant thereafter paid all the taxes on the land until the time suit- was commenced. Under the decisions of our supreme court, the date the deed was recorded fixes- the time the defendant acquired color of title, and whether the term of seven years begins to run from the recording of the deed or from the time of the first-payment' of taxes is immaterial in this case, for whichever theory be adopted the full term of seven successive years had not expired when this action was begun, hence the plea of the statute of limitations invoked was not sustained by the proofs. Empire Ranch & Cattle Co. v. Lardner Howell, decided at this term of the court (No. 3411).
Defendant also showed at the trial, under supplemental answer, that in 1908, after the action had commenced, it paid the taxes for the year 1.907, and contends for a construction of the statute authorizing this to be done, regardless of the time suit is begun. We think this position is untenable. The authorities are almost a unit to the effect that the beginning of an action arrests the running of the statute of limitations against the subject matter of the suit. Lougee v. Beeney, decided at this term of the court; Converse v. Dunn, 166 Ill. 25.
The last point to be noticed is that concerning alleged errors predicated upon the refusal of the
The judgment is affirmed.
Affirmed.