24 Colo. App. 537 | Colo. Ct. App. | 1913
rendered the.opinion of the court.
Action to quiet title, begun January 30, 1909, in the county court o'f Rio Grande County, culminating in a judgment in favor of plaintiff (appellant), from which an appeal was taken to the district court. Upon trial there had, defendants (appellees) secured a judgment quieting title to the premises in them. From this last judgment appellant has taken this appeal.
The usual, denials and admissions are found in the answer, which further states that defendants claim fee title in the disputed ground by mesne conveyances from the government of the United States. In plaintiff’s second amended replication to the answer his title is averred
“And whereas the treasurer of the said county did on the 15th day of December, A. D. 1898, by virtue of the authority vested in him by law, at the adjourned tax sale begun and publicly held on the 12th day of December, A. D. 1898, expose to 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, the real property above described * * * and whereas no bid was made or offered by any person at said sale for any of the lands * * * and said treasurer having passed such property over for the time, did reoffer it at the beginning of the sale next day and until he became satisfied that no more sales of any property, and particularly of the property within specifically described, so offered could be effected at such sale, thereupon said treasurer did bid off at said sale 'for and in the name of said county of Rio Grande all the lands * * * and whereas the said county of Rio Grande by its proper officers, did, on the 18th day of July, A. D. 1902, duly assign the certificate of the sale *' * * and whereas the said John George Bauer has paid subsequent taxes on said property to the amount of twelve dollars and eighty-three cents * * *, etc.”
Appellant further complains that he was seriously prejudiced hy the court’s ruling in denying his motion to file a so-called amended and supplemental complaint after the trial had been completed and both parties had rested. This contention is untenable. The-trial was conducted and completed under the pleadings 'then before the court. After the case was closed (April 26th) the court took the same under advisement, and announced that it would render its decision at the opening of court on May 23rd, and allowed plaintiff fifteen days within which to present briefs, and defendants five days thereafter to answer.
There are other reasons why the court did not err in overruling the motion to amend:
(1) Prom an inspection of the so-called amended and supplemental complaint, it appears that there were only two matters therein pleaded which had not already been pleaded before the trial, the first of which was a detailed recital of all the acts of the treasurer before and at the tax sale of 1898, which recitals conflicted with those contained in the void tax deed excluded from evidence. In Emerson v. Valdez, supra, we decided that in a case of this kind, evidence aliunde for the purpose of showing that all preliminary steps taken by revenue officers up to the time of the tax sale were valid in all respects, was not admissible to contradict.the positive recitals of a tax deed void on its face. Therefore, evidence tending to prove such recitals would'not have been admissible even-had such complaint been filed.
(2) The amended-supplemental complaint set up the statute of limitations incorporated in Section 2923, Mills’ Annotated Statutes -(Revised Supplement), which reads in part as follows:
‘ ‘ Actions brought for the recovery of any lands, tenements or hereditaments of which any person may be possessed by actual residence thereon for seven successive years, having a connected title in law or equity, deducible of record * * * shall be brought within*543 seven years next after possession-being taken as aforesaid ; but when the possessor shall acquire such title after taking such possession, the limitation shall begin to run from the time of acquiring title.”
This statute of limitations appears to be available as a plea in bar only in an action brought to recover lands against one who, at the time suit is brought, is in the possession of, and for seven successive years has actually resided upon, the disputed premises.
Three facts must exist to sustain the defense: (1) The person sued must be in possession; (2) he must have been an actual resident upon the land for seven successive years after going into possession; (3) during all this time he must have had a connected title in law or equity deducible of record. Bearing this in mind, plaintiff’s original complaint and replications show that he was not entitled to invoke this statute in bar of the fee simple title pleaded by defendants, as the only title claimed or relied upon by plaintiff was that emanating from his tax deed recorded July 22, 1902. The suit was begun January 30, 1909, being six years, six months and eight days after the recording of the tax deed. This fact makes it clear that it would have been impossible, at the trial, for plaintiff to prove that-he had been an actual resident upon the premises for seven successive years from the time the tax deed was recorded- — in other words, from the time he acquired his title to the time the suit was begun. Therefore if the court had permitted the.said complaint to be filed, plaintiff could not have proved the facts necessary to establish the defense we are considering. When this action was commenced it arrested the running of the statute of limitations now under consideration.
Section 3904, Mills’ Annotated Statutes, pleaded by plaintiff (known as the short statute of limitations), is not available in an action simply to quiet title. — Munson v. Marks, 52 Colo., 553, 124 Pac., 187; Carnahan v.
Plaintiff also pleaded the seven years statute of limitations, Section 2923e, Mills’ Annotated Statutes (Revised Supplement), based upon actual possession under claim and color of title made in good faith and payment of.all taxes for seven successive year's. This attempted defense is wholly unsupported by the evidence.
We discover no error in the court’s ruling. The judgment will be affirmed.
Judgment Affirmed.