No. 3411 | Colo. Ct. App. | Jul 8, 1912
Lead Opinion
Appellee, as plaintiff below, brought his action in ejectment in the district court, alleging that he was the owner in fee simple and entitled to the immediate possession of some twenty quarter sections .of land situated in said county. Plaintiff further .alleged “that the defendant wrongfully withholds the possession of the said premises from this plaintiff,
1. Plaintiff’s claim of title to a large number of the tracts of land involved was based upon a trustee’s deed executed by a trustee named in a second deed of trust, the owner of said land having given two trust deeds at or about the same time on these tracts of land. There was evidence introduced on the trial showing that the plaintiff was the owner and in possession of all of the notes which the first trust deeds were given to secure, and that he had the same in court, together with the trust deeds securing the same. Appellant contends that the second trust
In the case of Coe v. Waters, supra, in an able opinion on petition for rehearing, the late Judge Bissell, who wrote the opinion, speaking of variance, uses this language:
“Doubtless if the defendant had been surprised by the testimony and a totally different case had been made from that which he was called upon to answer, he would have been entitled to a continuance. He might likewise, perhaps, in the present instance, have compelled an amendment to the complaint so as to have presented a legally accurate statement of the plaintiff’s action. Taking no steps in either one of these directions, we do not regard the question of variance as so saved in the record as to call for a specific judgment respecting it. While we concede*589 tlie complaint is not so drafted as to present witli technical accuracy the cause of action, it was according to the verdict of the jury sustained by the proof. It did contain all the allegations requisite to the plaintiff’s recovery.”
2. The appellant based its claim of title to the land in question on two certain correction tax deeds issued by the treasurer of Washington County. There are certain serious, if not fatal, defects in the original tax deeds, and it is reasonable to suppose that the two correction deeds were issued for the purpose of meeting or correcting these' defects. It is not necessary in the view we take of the correction deeds to consider the defects in the original deeds. Nor is it necessary for us to determine whether the treasurer of Washington County was authorized to issue said correction deeds. The first correction deed relied upon (being Exhibit 3) contains, among other things, the following recitations, omitting unnecessary portions:
“Know all men by these presents, that whereas the following described real property (here describing a portion of the property involved in this action) situate in the county of Washington, state of Colorado, was subject to taxes for the year A. I). 1895 * * and whereas the treasurer of said county did by virtue of the authority vested in him by law, at a tax sale, the sale publicly held on the 19th day of October, A. D. 1896, severally expose at public sale at the office of the county treasurer in the county aforesaid, in substantial conformity with the requirements of the statute in such case made and provided, each tract of said property for the payment of taxes, etc. * * * and whereas no bid*590 was made or offered by any person at said sale for any of the land . * * * offered, to sale and remaining unsold at said sale, and particularly for the said above described real property, or any part of it, and said treas— lie became satisfied that no more sale of any property and particularly the real property herein specifically described, so offered, could be effected at public sale, thereupon said treasurer did bid off at said sale for and in the name of said county of Washington, all the lands,” etc.
There is a portion of a line appearing in the exhibit offered as a copy of said correction deed, reading as follows: “having passed such real property over for the time, did re-offer it until on the last day of the sale.” which has been erased, or through which a line is drawn. From the aboveoit conclusively appears that the land in question was bid in by the county on the first day that the same was offered for sale. It follows, therefore, that this correction deed was void on its face, and under repeated rulings of our supreme court.
The second correction deed relied on (being exhibit 20) embraced the remaining portion of the land involved in this action. This deed contained the-following recitals:
“Know all men by these presents, that whereas, the following described real property, to wit: (describing a certain portion of the land involved in this action) were subject to taxation for the year A. D. .1895 in the said former county of Arapahoe, and whereas the taxes separately assessed upon said real estate for the year aforesaid remained due and unpaid. at the date of the sale hereinafter named; and whereas the treasurer of said county did on the 31st*591 clay of October, A. D. 1896, by virtue of the authority vested in him by law, at an adjourned sale, the sale begun and publicly held on the 5th day- of October, 1896, severally expose to public sale * * * in substantial conformity with the requirements of the statute * * * the said several parcels of real property above described * * * and whereas, no bid was made or offered by any person at said sale for any of the land or portion thereof offered and exposed to sale and remaining unsold at said sale * * * the treasurer having passed such real property for the time, did offer and re-offer for sale from day to day until the 31st day of October, being the last day of the sale,” when, as appears, the treasurer bid the same off for the county. -It is clear that this property was not offered for sale until the 31st day of October, whereas the sale, it appears, had begun on the 5th day of October. The deed says that “the treasurer of said county did on the 31st day of October, A. D. 1896,” do certain things. And those certain things appear from the recitals following to be to expose or offer the property for sale and striking it off to the county. If the treasurer had also exposed or offered it for sale on any day between the 5th day of October, when the sale was begun, and the 31st day of October, the day when the sale was made, it would have so recited in the deed. See Bryant v. Miller, 48 Colo. 194.
It is true that the deed recites that the treasurer passed the property and did offer and re-offer it for sale from day to day until the 31st day of October, but if he offered it for the first time on the 31st day of October, he could not have passed it from day to day, and this recitation is manifest^ untrue. If he*592 offered it on days previous to October 31st, it would have been an easy matter to have recited on what days it was so offered. It is said in Charlton v. Toomey, 7 Colo. App. 304" court="Colo. Ct. App." date_filed="1896-01-15" href="https://app.midpage.ai/document/charlton-v-toomey-7833765?utm_source=webapp" opinion_id="7833765">7 Colo. App. 304, that every preliminary step required to divest the owner of title must affirmatively appear in the recitals of the tax deed to have been regularly taken as required by law. It is also said in the same case that when the property has been reached on the tax sale: “It must be offered, and if no outside bid is made it must be offered on the next, and each succeeding day until the close of the sale. * * * After being’ first offered it must be continuously offered from day to day until the sale is concluded; all efforts to affect a sale must be exhausted; and the treasurer can exercise no previous discretion; and the county can only become a purchaser of the entire tract in default of an outside bidder, after an opportunity had been offered each day. ’ ’
While, as we have said before, the deed does recite that the treasurer “did offer and re-offer it (meaning the land) for sale from day to day until the 31st day of October, being the last day of the sale,” it nowhere appears when he first offered the land, or on what day or days he offered it, unless, as we construe the recitals of the deed, it was offered on the 31st day of October, being the last day of the sale, and the day the land was sold. In other words, the land was offered, for the first time, and sold, on October 3.1st, the last day of the sale, or else we have no information whatever as to how many times the land was offered for sale or on what days it had been previously offered for sale. Hence, we have no basis for determining whether the treasurer acted arbi
This deed is substantially, if not precisely, the same in form as the one before us in the case of Empire Ranch & Cattle Co. v. Howell, No. 3406, decided by this court recently, and which we held to be void on its face.
We think clearly that under the rule laid down in Bryant v. Miller, supra, and Charlton v. Toomey, supra, this deed is void on its face for the reasons already pointed out. Hence, it is not necessary to consider other alleged defects therein.
3. Appellant further insists that even if the' tax deeds under which its claim of title to the land in controversy is made be void on their face, still it has title by virtue of compliance with Section 4090 B. S. This contention is ably and elaborately presented by counsel for appellants in their briefs, certain phases of the statute of limitations being discussed which we do not find it necessary to consider or pass upon. The-record shows that the tax deeds upon which appellant relies had not been of record seven years at the time appellee instituted his action. In Sayre v. Sage, 47 Colo, 568, our supreme court ruled:
*594 “As it appears the defendant was not in possession of the lode mining claim in controversy for the period of seven years between the date his tax deed was filed for record and the commencement of the action ag’ainst him,” [and such is the situation in the case under consideration] “and that five years had not elapsed after his tax deed was recorded before plaintiff instituted the suit * * * neither of the sections relating to limitations was available as a defense.”
In the Sayre case all the various statutes of limitation applicable to real property had been plead and relied upon by the defendant. Therefore, under the authority of the Sayre case, assuming, but not deciding, that the seven-year statute of limitations was properly plead'by the defendant in the case at bar,’ still it was not available as a defense.
The judgment of the trial court is affirmed.
Affirmed.
Supplemental opinion filed Oct. 14, 1912.
Rehearing
ON PETITION FOR REHEARING.
In its petition on rehearing appellant vigorously insists upon the contention made in its behalf in the original brief that its title had been perfected under and by virtue of sec. 4090 R. S. In the original opinion we ruled against this contention on the authority of Sayre v. Sage, 47 Colo. 568. Counsel for appellant, in his brief on rehearing, insists that the Sayre case is not authority, contending that that case turned upon original sec. 6 of the Act of 1893, or
The defendant, The Empire Ranch and Cattle Company, on January 23rd, 1901, took an assignment from the county of Washington of a tax certificate to certain lands, which certificate had theretofore and some time during October, 1896, been issued to the county by the county treasurer upon the sale of lands for delinquent taxes for the year 1895. This tax certificate having been assigned to it by the county clerk (apparently in virtue of a resolution adopted by the board of county commissioners who were attempting to proceed under sec. 3926i M. A. S., (Vol. 3), the defendant presented the same to the county treasurer on the 18th day of February, 1901, and received a tax deed for the land' embraced in the certificate, and the deed was recorded on February 19, 1901. We thus have in the record the date of the assignment of the tax certificate and the name of the officer assigning the same, viz., the county clerk. This officer appears to have assigned the certificate more than three years after the date of its issue. The resolution of the board of county commissioners, which appellant introduced in evidence, nowhere authorizes or empowers the county clerk to
1. We may not have stated the facts with absolute accuracy, but we think the statement, even if inaccurate, is not at all prejudicial to either party, and serves the purpose of bringing clearly into view the question presented for our determination, viz., can the first payment made by the defendant after it had recorded its tax deed, that is, the taxes for the year 1900, (which were paid in February, 1901, after the recording of the deed) be considered and counted as one of the seven payments provided for in Sec. 4090 R. S. This section reads as follows: “Whenever a person having color of title, made in
Defendant’s contention, which we shall state substantially in the language employed by its counsel in his original brief, is that under said Sec. 4090r “the payment of taxes is the leading feature, and the statute says whenever that is done seven successive times by a party ‘having color of title’ then the bar of the statute is complete.
Deferring to the preceding section, 4089, which applies to the payment of taxes for seven years by one in actual possession under claim and color of title made in good faith, and which we need not quote, counsel for the defendant says in his brief:
“The idea of a period, or term, pervades the first section. The idea of repetition of the payment of taxes assessed is prominent in the other. In the first section the bar of the statute is complete at the*598 end of the period when ‘possession and payment’ shall have continued concurrently seven years, while, in the second section (4090 here under consideration) the bar is complete whenever the seventh payment is made. * * * In the second section the payments are several distinct entities producing results ‘whenever’ the last one is completed.”
And further, counsel says: “Being vacant and unoccupied, the payment of taxes was the only visible assertion of ownership. Seven successive times in that number of years the party having color of title by the payment of taxes thereon, notified the previous owner in a manner which could be ascertained, that he claimed that land, ’ ’ meaning the land in controversy.
We find this further statement in counsel’s brief: “The legislature entirely omitted in the second section all references to possession, or any period of time.”
We have attempted to state fully the contention of counsel for the defendant, using, as nearly as practicable, his own language, and we shall now proceed to a consideration of the same.
As we have seen, defendant’s tax deed was recorded in February, 1901. This action was begun on July 10, 1907, hence, at the time of the institution of this action, defendant had had color of title for considerably less than seven years. We cannot accept counsel’s view of sec. 409C), for, as we read it, the legislature did not omit all references to “any period of time”. In the last sentence of the section it is provided that “if any person having a better paper title to said vacant and unoccupied land shall cluring■ the said term of seven years, pay the taxes
That seven full years must elapse between the date of the first payment of taxes and the commencement of the suit is sustained by a long line of decisions made by the supreme court of Illinois, from 'which we borrowed our statute. Knight v. Lawrence, 19 Colo. 431.
The following Illinois cases were decided before 1893, the date of the enactment by our own legislature of Section 4090: Stearns v. Gittings, 23 Ill. 387" court="Ill." date_filed="1860-01-15" href="https://app.midpage.ai/document/stearns-v-gittings-6949778?utm_source=webapp" opinion_id="6949778">23 Ill. 387; Dickinson v, Breeden, 30 Ill. 279" court="Ill." date_filed="1863-01-15" href="https://app.midpage.ai/document/dickenson-v-breeden-6950883?utm_source=webapp" opinion_id="6950883">30 Ill. 279; Clark v. Lyon, 45 Ill. 388" court="Ill." date_filed="1867-09-15" href="https://app.midpage.ai/document/clark-v-lyon-6952715?utm_source=webapp" opinion_id="6952715">45 Ill. 388; McConnel v. Konepel, 46 Ill. 519" court="Ill." date_filed="1868-01-15" href="https://app.midpage.ai/document/mcconnel-v-konepel-6952868?utm_source=webapp" opinion_id="6952868">46 Ill. 519; Lyman v. Smilie, 87 Ill. 259" court="Ill." date_filed="1877-09-15" href="https://app.midpage.ai/document/lyman-v-smilie-6959870?utm_source=webapp" opinion_id="6959870">87 Ill. 259; Holbrook v. Debo, 94 Ill. 327; Iberg v. Webb, 96 Ill. 415" court="Ill." date_filed="1880-06-14" href="https://app.midpage.ai/document/iberg-v-webb-6961036?utm_source=webapp" opinion_id="6961036">96 Ill. 415; Smith v. Prall, 133 Ill. 308" court="Ill." date_filed="1890-05-14" href="https://app.midpage.ai/document/smith-v-prall-6964417?utm_source=webapp" opinion_id="6964417">133 Ill. 308.
Illinois has repeatedly, since 1893, the date of the adoption of our statute, reaffirmed her earlier rulings, but it is not necessary to cite all the later cases.
Washington, having a similar, if not an identical statute, in Tremmel v. Mess, 89 Pac. 842, follows the decisions in Illinois, as does also South Dakota, in Bennett v. Moore, 99 N.W. 855" court="S.D." date_filed="1904-06-01" href="https://app.midpage.ai/document/bennett-v-moore-6686420?utm_source=webapp" opinion_id="6686420">99 N. W. 855.
In the Bennett case, the South Dakota supremo court uses this language:
“The statute in effect provides for a forfeiture of the property of the former owner * •• and*601 should therefore be strictly construed. It would seem essential that the party paying the taxes and claiming the benefit of the statute should have color of title in good faith during all of the ten years in which the taxes are being assessed and paid, and that the two must exist together.”
The italics are ours. The only distinction observable between the South Dakota statute and our own is that the period in South Dakota is ten years instead of seven. See also Sibley v. England (Ark.), 11 S. W. 820; Gaither v. Gage (Ark.), 100 S.W. 80" court="Ark." date_filed="1907-02-25" href="https://app.midpage.ai/document/gaither-v-gage-6546258?utm_source=webapp" opinion_id="6546258">100 S. W. 80.
2. On rehearing counsel for appellant again with much vigor renews his contention that no title passes by a second deed of trust given subject to a prior deed of trust, and that only a bare right to redeem is conveyed by a trustee’s deed based on the foreclosure of such second deed of trust. To support this contention much reliance is placed on Stephens v. Clay, 17 Colo. 489" court="Colo." date_filed="1892-04-15" href="https://app.midpage.ai/document/stephens-v-clay-6562258?utm_source=webapp" opinion_id="6562258">17 Colo. 489. A casual reading of the opinion in the Stephens case discloses that Judge Helm, who wrote the same, made no distinction between the right to redeem, the equity of redemption and the equitable title, and specifically states that the equitable title remains in the trustor until divested by sale under foreclosure proceedings regularly brought. Mr. Warvelle in his late work on ejectment, (1905, § 142) thus defines the relation of the mortgagor to the title of the land on which he has given a mortgage:
“Notwithstanding that by the common law the legal title and estate in the mortgaged lands passed to and became vested in the mortgagee upon the execution of the mortgage, the principle was early announced in the American cases, that as to all the*602 world, except the mortgagee, the freehold remained in the mortgagor in the same condition in which it was prior to the mortgage. Being thus clothed with all his rights as a freeholder, as to all persons other than the mortgagee or his assigns, it followed that he might maintain any action, for an injury to the inheritance or possession, and the mere fact that the legal title was in the mortgagee could not be urged as a defense. Where, as is generally the case, the mortgage is regarded as a mere lien, the right to recover possession from a stranger cannot be questioned, as this is one of the attributes of ownership and is an inseparable right of property.”
In the case of Adams v. Shirk, 117 F. 801" court="7th Cir." date_filed="1902-05-06" href="https://app.midpage.ai/document/adams-v-shirk-8748402?utm_source=webapp" opinion_id="8748402">117 Fed. 801-5, this language appears:
“The legal title of the mortgagee is recognized only for the benefit of the holder of the mortgage debt. Against all other persons the mortgagor is the legal owner of the estate.”
See also Lewis v. Hamilton, 26 Colo. 263" court="Colo." date_filed="1899-04-15" href="https://app.midpage.ai/document/lewis-v-hamilton-6563108?utm_source=webapp" opinion_id="6563108">26 Colo. 263.
In this respect there appears to be no distinction between a trustor and a mortgagor. McGovney v. Gwillim, 16 Colo. App. 284" court="Colo. Ct. App." date_filed="1901-04-15" href="https://app.midpage.ai/document/mcgovney-v-gwillim-7835383?utm_source=webapp" opinion_id="7835383">16 Colo. App. 284-5; Seaman v. Bisbee, 163 Ill. 91" court="Ill." date_filed="1896-06-13" href="https://app.midpage.ai/document/seaman-v-bisbee-6966913?utm_source=webapp" opinion_id="6966913">163 Ill. 91.
It appears that several of the tax deeds offered in evidence by appellant described tracts of land not in any way involved in this suit. The judgment of the trial court declared all of the aforesaid deeds void and decreed.their cancelation. The trial court was without authority to extend the effect of its decree beyond the lands described in the complaint, and to the extent it attempted so to do, its decree is hereby modified.
Discovering no reason other than that last above
Rehearing denied.
Morgan, Judge, not participating.