47 Colo. 289 | Colo. | 1910
delivered the opinion of the court:
Plaintiffs, appellants here, brought this action to recover 160 acres of land in Logan county, claiming to own in fee. For answer and a first defense to the complaint defendant, appellee here, admits the description of the land and possession, but denies all other allegations. Under the second, fourth, fifth and sixth separate defenses the appellee claims title to, and the right of possession of, the property
The first contention is that each of the deeds offered and received in evidence, to support the several defenses, is void on its face, because they each show that the property conveyed is noncontiguous, being located in different sections, townships and ranges, and was sold en masse for a gross sum.
The deeds established these facts. They convey sundry quarter sections of land, aggregating several hundred acres, widely separated, sold en masse for a gross sum, in which is included the one hundred and sixty acres in controversy. That the deeds are void is beyond question in this jurisdiction. In support of this conclusion we cite Emerson v. Shannon, 23 Colo. 274; Webber v. Wannamaker, 39 Colo. 425; Whitehead v. Callahan, 44 Colo. 396.
It is urged by defendant that the deed of December 11, 1901, shows the property bid in by the county, and a certificate issued to it, afterward assigned to defendant, upon which assigned certificate the deed was executed. The claim is that the county may bid in noncontiguous property en masse for a gross sum. The reason is not apparent. Such sale being void, is so without reference to who purchases, unless the statute malees some exception, and we do not find
Under the pleadings the reliance of defendant to establish his title is alone upon these tax deeds. Sincé they are void because of their own recitals, they were not competent in testimony. They should have been excluded under plaintiff’s objection.
It is further contended that, because of the following amendment to sec. 3888, vol. 2, Mills’, which was passed after the decision in Emerson v. Shannon, supra, to wit: “Where there are two or more tracts of land valued and assessed jointly, the treasurer shall sell the same jointly as assessed,” therefore it was lawful to sell land not contiguous en masse for a gross sum, and the decision above referred to is not controlling. This amendment must be considered with sec. 3822, vol. 2, Mills’, which was also in force when these assessments and sales were made. . The
The plea of the five-year limitation statute is based upon the deed offered in evidence, dated December 20,1899, because executed and delivered more than five years before the commencement of this suit, coupled with the peaceable, continuous and undisturbed possession of the premises, and the payment of all taxes legally assessed thereon during such period. A void deed does not set in motion this statute. That has been definitely settled by this court.—Gomer v. Chaffee, 6 Colo. 314; Crisman v. Johnson, 23 Colo. 264; Dimpfel v. Beam, 41 Colo. 25.
In the last named case this court, speaking through Mr. Justice Goddard, said:
‘ ‘ The tax deed shows on its face that it was made to Hinsdale county on the 10th day of October, 1893. The statute as amended was in force several months before this date. The deed-therefore was a nullity, the statute having taken away not only the right of the county to receive the deed, but also the power of the county treasurer to make a deed to the county. The deed being void, it follows that the statute of limitations if well pleaded would have constituted no bar to the relief the appellant was entitled to under the allegations of his cross-complaint, it being well*293 settled that the statute of limitations does not apply where the deed is void on its face. As was said, in Gomer v. Chaffee, supra,, it is difficult to see how the statute of limitations can well avail a defendant holding a void deed. There was nothing for the statute to operate upon; nothing for it to run in favor of or against; nothing to set it in motion. The deed was void,- it did not give constructive possession or the right of actual possession.”
This statute, which provides, among other things, that: “No action for the recovery of land sold for taxes shall lie, unless the same he brought within five years after the execution and delivery of the deed therefor by the treasurer, any law .to the contrary notwithstanding,” manifestly means a valid deed, not a void or pretended deed. The questions of color of title and possession are not involved. This particular statute is intended only for the protection of the holder of a valid tax deed. It was not intended to validate a void deed and is not set in motion by, and does not run in favor of, such an instrument. The eases cited, in this connection, for defendant, had under consideration and construed a different provision and are not in point. If the plea were under our seven-year statute, which runs in favor .of one asserting title by virtue of possession and payment of all subsequent taxes for the required period, under claim and color of title made in good faith, a different question would he presented. Under such conditions it may he the deed offered would he color of title, and set that statute running. This question, however, is not here. It was the latter statute which the court considered in the decisions in Bennett v. Northern Colo. Springs L. & I. Co., 23 Colo. 470, and in De Foresta v. Gast, 20 Colo. 307, relied upon by defendant.
Attention is directed to the rejection by the trial
The case is reversed and remanded for further proceedings, in conformity with the law as here announced. Reversed and remanded.