Rael v. Taylor

Grant, Sangre de Peti- tlers of Cristo Cross-Respondents, tioners Martinez, RAEL, Apolinar Rosendo Jo Medina, Sequra, seph Daniel Gilbert E.

Medina, Loyola Medina, Zachary TAYLOR, La- Juan as Executor of Es- Taylor, Jr., Deceased, tate of T. Jack Lobato, Vigil, Coombe, Walter Bonnie Respondent and Cross-Petitioner. Rudy Montoya, Eugene Lobato, Clorin No. 92SC74. Kaber, Martinez, Adelmo Emilio Lo do Medina, bato, Alfanzo Medi Leandardo Colorado, Supreme Court of Gallegos, na, Rupert Gallegos, En Banc. Gloria Atencio, Bentura Robert Frank Sanchez 2,May 1994. Sanchez, Atencio, Roybal, Leonides S.R. Rehearing As Modified on Denial of Lobato, Maez, Henry Vernon Cruicito July Sanchez, Herrera, Billy Alire, Ruben Quin Garcia, Alire, Eppy Richard Willie

tana, Ray Montoya, Espi E. Pete Willie Raymond Maestas, Bobby

noza, Maes J. Medina,

tas, Shirley Romero, Marvin Martinez, Gardunio,

Manuel Leonardo Medina, Garcia, Orry Raymond

Toñita Lobato,

Garcia, Floyd Solan, Adolph R. J. Lobato, esentacion Elesam Santis

Pr Medina, tevan, Raymond Agatha N.

Medina, DeHerrera, Mar Hubert J. Juan

tinez, Emejido Vialpando, Vigil, P. Joe Martinez,

Larry Vigil, David Charlies J.

Jaquez, Jr., Vigil, Ervin L. Manuel Sanchez,

Maestas, Lobato, Anthony Pete DeHerrera, Lobato, F. Eu

Emilio Jose Sanchez, Sanchez,

gene Law Gerald Sanchez, Vialpando,

rence Bonnie Jose Sanchez, Espinoza, Manuel

G. Elmer Sanchez, Herrera, Robert

James Gilbert Lobato,

Romero, Andres Monto Carlos Maestas, Henry Rodriguez,

ya, Mi Bert Torres, Vigil, R. Manuel

chael J. Jose Sanchez,

Vigil, Evan Mar Solestiano

tinez, Sanchez, Valdez, Rufino Arnold Taylor, Vialpando, Martha

Caroline Martinez, Martinez,

Mark Ruben Jesse

Gallegos, Gallegos, A. Moises Galle Joe Valdez,

gos, Margarito Espinoza, Sam Sandoval, Carson, F. A.

Jose Ronald Martinez, Berggran, D.

Daniel Frances Jaquez, Jaquez,

Maria Alberto J.R. Olivas,

Quintana, Jeffrey Jaquez, Frank individually Olivas, and as

Gertrude C.

representatives of the Class of Heirs original set-

successor in interest

1212 Killmer,

Feiger, Collison & Gilbert M. Ro- man, Killmer, Miller, Darold W. David H. Denver, for amicus curiae American Civil Liberties Union Foundation of Colorado. Maes, D. Robert M. Lisa Hamilton-Field- man, Maes, Enoch, Denver, F. Lee Patti J. Jaquez, Englewood, Nora for amici curiae Ass’n, Hispanic Hispanic Natl. Bar Colorado Ass’n, Hispanic League. Bar and The Legal Rural California Assistance Founda- tion, Garcia, Rosenbaum, Stephen A. Richard Sacramento, CA, Intern. Center for Human Howland, Rights Litigation, Todd Eliot Lee Brezin, Centro, Mexico, D.F., Grossman for Rights amici curiae Bi-National Human Com’n, Council, Treaty Intern. Indian Natl. Council, Rights Human Chicano and Comi- sión De Derechos Humanos De Seminario De, Permanente Estudios Chícanos Y De Fronteras. Fulton, P.C., Fulton, Larry

Karsh & C. Karsh, Denver, Seymour Joseph, Alan E. for amicus curiae Land Title Ass’n of Colorado. Justice KIRSHBAUM delivered the Opinion of the Court. (Colo. Taylor,

In Rael v. 832 P.2d 1011 App.1991), appeals the court of affirmed a judgment County entered the Costilla respondent, District Court favor of the Zachary Taylor, executor of the estate of Jr.,1 Taylor, petitioners, Jack T. persons claiming usufructuary rights in a parcel consisting approximately of land 77,500 County, acres located in Costilla Colo (the Tract”).2 rado “Mountain The trial alia, held, court inter view of the Goldstein, Dodge, Jeffrey Goldstein and A. pro decision in a federal court Torrens Act Elkind, Stern, Stern and Kenneth H. Sander (the ceeding by Taylor in filed Hiller, P.C., Karp, N. Don & Watson W. action), petitioners’ claims were Galleher, Denver, petitioners for and cross- judicata barred doctrine of res respondents. certain statutes of limitation.3 The court of Slatkin, Wolf, P.C., appeals Wolf & Albert B. Den- also affirmed the trial court’s denial ver, respondent cross-petitioner. Taylor’s attorney request Hav fees. Jr., Taylor, during pendency caption appeals' 1. Jack T. died of the court of decision lists 100 proceedings. the trial court He and his executor persons appellants. as "Taylor” throughout will be referred to as opinion. trial, respondent 3.At asserted as defenses grounds entry summary judg- for the (hereafter complaint 2. The second amended "the complaint”) petitioners. lists 110 among hereby ters are distributed the said granted to review court of ing certiorari Luis, of San inhabitants of town part, we affirm in reverse appeals’ judgment, Vega, those the other whose side to the court of part, and remand case vicinity lands and cannot be lie appeals with directions. irrigated Rio by the water of the Culebra. measuring acres in After off three front Church, hereby I which are donated it, Vega shall for the use Stephen Narciseo Beaubien of this and of the others inhabitants town (the Sangre grant Lee a land Luis received Vallejos up [unintelligible] Creek Grant) gov- then Mexican also of those who de Cristo benefit future, Gregorio Martin Mexico, settle on the approximately ernor New (San Francisco) down Creek from road 1,000,000 large to a acres of land located It understood that the the narrows. portion central southern extent West, varas, and lots shall run East and Lee After Beaubien and were Colorado. and and no one shall never North South 1847, father, killed in Narciseo Beaubien’s they thought, to right might have as have a Carlos, one-half his son’s undivided inherited place any inter- obstacles or hindrances to purchased property interest and rights regula- fere others. The with the remaining estate. Lee’s tions to roads shall be also observed so as every to his as to allow one to have access War, Mexican-American Following the Also, water, using farm care lands. Hidalgo Treaty Guadalupe trans- damage shall taken not to cause be Sangre de Chris- sovereignty ferred over the one. States. property to Grant United All the inhabitants shall the use Congress of the United States wood, water, timber pasture, and and by the United adopted recommendation been shall remain mills that have erected Surveyor General to confirm Car- States are, interfering with the where land, and Carlos los Beaubien owned rights shall be allowed of others. No stock patent issued a for Beaubien was lands, except pur- in said for household poses. those come as settlers All regu- by abide the rules and agree to shall had Beaubien sold Prior Carlos help, good as and lations and shall citizens parcels land to numerous of the various small necessary weapons provided be with the 11, 1863, May executed and On he settlers. of the settlement. for the defense Spanish recorded document written (Signed) Carlos TWO WITNESSES alia, described, language usufruc- inter Beaubien water, wood, timber, tuary. rights and April in 1863. On Beaubien died Carlos of certain towns pasture the residents 1864, pursuant agreement to an Carlos oral proper- of the located within the boundaries death, prior his his heirs Beaubien made translated, document, provides in ty. The Sangre conveyed de Christo all the unsold part pertinent as follows: Gilpin. The in- to William property Grant conveyance the follow- contained strument of Culebra, May Town of Luis of the San ing condition”: “express 1, Page 256 1863 Book [Cjertain rights before then settlement the Rito It has decided that Seco been resi- Beaubien to said Charles conceded uncultivated for the use lands shall remain Costilla, settlements of Cule- dents of the Luis, of San San Pablo residents Trinchera, Tract includ- within said bra & Vallejos, other inhabitants said ed, by said confirmed William shall towns, community him, the said pastures Gilpin made Charles as occupancy during his [sic] Beaubien his Rito Seco wa- grounds, etc. And that the 38-41-108, (1982); § ment, alia, 16A 16A C.R.S. was barred inter action and/or 38-36-132, 38-41-101, (1982); § C.R.S. C.R.S. 16A agreed year subsequent years, for the said Tract and as understood and 1960 and settlers, leases, existing any. if him said and between conveyance sale & and title be made to the 1, 1960, September shortly pur- On after parties lawfully, and title thereto on com- Tract, chasing Taylor the Mountain filed a pliance part on their with the terms petition in the United District States Court into, parties them entered of which so enti- register for the District of Colorado4 to accompanying .A. tled list marked provided in this land Colorado’s agreement and is annexed to and made a Act, Registration 1953 Torrens Title sections agree- part hereof Now therefor this [sic]. (1953).5 -102, Taylor 118-10-1 to 5 C.R.S. intent, obligation ment and full mean- its (D.Colo. Jaquez, Action No. 6904 Oct. ing object & and under the liabilities as- 1965). listed over 300 indi- agreements in sumed in the covenance and parties viduals as interested and referred to contained, the same is made to secure the estate, “having claiming any other specific performance obligations equity posses- & interest claim in law or sion, remainder, expectancy reversion or liabilities of the said Charles Beaubien on land,” said as follows: part Gilpin of said William and to perfect right said entitled persons similarly [A]ll other situated who with the aforesaid accordance conditions claim rights certain settlement under into, of the said Charles Beaubien entered by certain instrument executed Carlos hereby all and of which are said William 1, page Beaubien and recorded Book Gilpin recognized and confirmed. County pur- Costilla Records and porting grant people unto the of San 1960, Gilpin Between 1864 and and his Luis, Ballejos, Pablo dwelling San and the successors interest sold most of the re- pasture rights and on the lands of the Rito 1960, maining property. Taylor pur- Seco, persons claiming and also all under a remaining large par- chased one of the few certain deed executed Frederick Miller Tract,” cels. Known as “the Mountain and Jesus Abreau as executors under the 77,500 parcel consisted of some acres of undi- Will of Carlos Beaubien wherein certain vided and unfenced land located Costilla rights settlement were confirmed Wil- Colorado, Luis, County, southwest of San Gilpin, thereunder, purchaser liam said Colorado, timber, containing significant graz- referring deed to the settlements of Costil- water, ing, Taylor’s la, wildlife resources. Trinchera, Culebra and and the settlers deed to the Tract Mountain contains the rights to whom such accrued were named following pertinent purportedly in a “A” provisions: list marked attached to said deed but which said list has never hereby conveyed being All of the land sub- been found and settlers remain unidenti-

ject rights way of record and all fied. rights way heretofore located and now following also contained the over, on, through, maintained and used averments: same; subject across the and also claims people prescription of the local or oth- persons listed under [S]aid instru- wood, right pasture, erwise to and lum- rights ments above have no because said rights ber and [sic] so-called settlements instruments refer to the of the Rito lands in, land, subject upon to and said but not [sic], Seco which lands are not within the rights granted by party of the first further, petitioner’s boundaries of land and part predecessors or its from and after since no list of settlers has ever been 1, 1900; found, January subject Gilpin to taxes and also said confirmation William resident, Taylor currently §§ 4. Because was a Carolina 5. The Act North is codified at 38- diversity jurisdiction -198, (1982 the federal had over court Supp.). 36-101 to 16AC.R.S. & 1993 pursuant this state-law-based action to Title 28 Taylor, U.SiC. 1332. 736 377 F.2d Sanchez (10th Cir.1967). of persons no it runs to no ascertain- names the list are names is of effect since persons. only possible able whose The Moun tain Tract would be as landowners in Cos- of the Tor- Pursuant to section 38-36-113 claiming rights County pas tilla Act, appointed rens the trial court W.W. solely ture and because are such wood ultimately of titles. Platt Platt examiner landowners[7] Opinion on Title to filed “Certificate following Mountain Tract” contained 22, 1960, receiving after On December pertinent statements: report Taylor’s pro- Platt’s election to alleged pas The same Claims to these ceed, the court ordered the of the court clerk rights ture and wood have been asserted named to issue summonses defendants quiet adjoining an action to title to publish and to non-resident defen- “ pending now District Court of Cos- persons ‘all such unknown dants County. attorneys I tilla am one of Press, parties’ newspaper the 'Free Attorney E.E. plaintiff this action. published in general circulation Costilla Mexico, Taos, appears as Romero of New Colorado, County, once in week for six each attorney principal the defendants consecutive weeks.” him I have to learn from therein. tried attorneys Tay- January On Sam who claim these names claims, ap- he lor and Eliu E. Romero entered their rights the extent of such but get he tried pearance has told me that has on behalf of all the named defen- his but been information from clients has May dants. On an answer was filed recently I asked which, terms, unable to do so. “by according to its was filed Vigil, very active Mr. Amadeo signed the two the defendants” of the above mentioned affairs attorneys attorneys “for defendants.” for a of these claimants list Association[6] The answer asserted that defendants he me no such list has and has told that usufructuary rights and possessed rights the claims are ever been made but Tract. prescription in lands the Mountain made on of all owners of land behalf 14,1962, Taylor February mailed inter- On County. Paragraph [sic] Sixth Costilla rogatories defen- to each the then-named per in this the Petition action names 316 Taylor Eliu E. Attorneys Sam T. and dants. claiming in this interests sons appear- their subsequently entered Romero appear names Only land. 47 of these title, of an 133 defen- attorneys ances on behalf additional the abstract of 5, 1962, dants, March the trial court and on petitioner inform me that other gave opin- Albert Moses an report as "an Mr. L. describes this association organization unincorporated called 'Associa- Valdez Mr. J.E. Sanchez ion to Mr. J.J. ” Rights.’ of Civic tion who in the Grant that the owners through originally those obtained their Taylor at the time indicates that 7. The record go right upon settling to land have the action, the names of some filed his Torrens there- portions of the Grant take timbered appeared the tax rolls for landowners on necessary wood for their own from the fire Pedro, Luis, Cha- San towns San Pueblo/San necessary use personal timber -for uses and Acacio, to the the towns closest ma and San Mountain Tract. which own with the land deposition No- in connection In a taken in case, attorney sale), (but right an in the instant have the vember retained not for likewise filing Taylor prior animals, the 1960 to the pasture not own domestic attempted "[w]e have Torrens action stated by permitting herding upon the land but them any ever everybody had asserted to name graze them to thereon. Taylor rights land.” these claim and that is the case We still believe this did remember attorney that he indicated stop anyone who right you would have persons specifical- names of the or know how the ly rights. these interferes with selected, that no but stated identified were deposition that the attorney in his stated property attempt all of the made name was was "Vega” piece a of land that refers term January County. On owners Costilla Luis” adjacent town San to the "either near or to "The attorney a addressed wrote letter tim- pasture not used for was but Lands,” used Vega which contained residents of bering. following statements: Taylor interrogatories government, continuously paid mail can have ordered these additional defendants. the taxes on said land and have maintained occupation sole and exclusive use and 9, 1962, May Taylor On filed motion to thereof. require all to answer the inter- defendants thirty days. rogatories within The motion The trial court denied the with motion 19, 1962, granted. Taylor On June respect to the claims asserted the defen- entry moved for of default all named rights prescription, dants for individual defendants who had not filed answers to the granted respect but the motion with interrogatories. hearing, After the trial usufructuary defendants’ claims of common answering coui’t extended the deadline for rights in the Mountain Tract. After a bench 20,1962. July interrogatories On that trial, the trial court determined that the de- date, attorney Alfred Craddock entered an prescriptive rights Tay- fendants owned no appearance per- of nine additional on behalf property lor’s and entered a “Final Decree requested permitting an sons and order Registration” on Confirmation of Title and Tay- to answer these additional defendants pursuant to section 38-36-130 of the Torrens interrogatories. lor’s Act. 31, 1962, July On the trial court entered appeal, Ap- On the Tenth Circuit Court of judgments against default 369 named defen- peals congressional held that the 1860 confir- timely dants for failure to file answers to Sangre mation of the de Cristo Grant extin- Taylor’s interrogatories. The court’s order guished “any conflicting rights prior to the stated that answers had been received from confirmatory might Act of 1860 which granted 103 defendants and the nine defen- original arisen or existed reason of the represented by dants Craddock extension Mexico, grant light considered interroga- of time within which to answer the Treaty Guadalupe- Mexican law and the ” tories. Those nine file defendants did such Hidalgo.... Taylor, Sanchez v. 377 F.2d answers. (10th Cir.1967). 733, 737 The court further 14, 1963, held that January Taylor neither the Beaubien document nor On filed a motion agreement Gilpin between his heirs summary judgment against the 112 de- recog- evidenced clear intent to establish or interrogato- fendants who had answered his usufructuary “privi- nize a “dedication” of the following ries.8 The motion contained the ' leges” sought the defendants to establish.9 statement: Id., at 737-38. The court affirmed the trial owner, [Taylor] by purchase, is the of such court’s determination that none of the indi- 15, 1960; February land under deed dated prescriptive rights vidual defendants owned by purchase virtue of such and mesne con- judg- the Mountain Tract and affirmed the veyance original patentee, from the he is confirming Taylor’s ment title thereto. Id. simple the owner of the fee absolute title at 738-39. [Taylor] predecessors in thereof. and his posses- title have maintained continuous II subject sion of the land and have exercised 2, 1981, complete petitioners dominion over it since the is- March On filed this original grant County suance of the from the Mexi- civil action in the Costilla District request entry judgment apportioned 8. The did motion of said creek shall be between the County named defendant Board of Com- inhabitants of the said town of San Luis and County. missioners of Costilla vega those on the other side of the who have adjoining vega, lands and close to said 9. The translation of Beaubien document rec- irrigated since said lands are not with the ognized by Appeals the Tenth Circuit Court of for waters of the Culebra River.... purposes analysis following of its contained the right, All the inhabitants shall have the with language: arrangement, enjoy convenient benefits (decreed) It has been ordered that the lands lands, water, timber, grazing of the wood ahd of the Rito remain Seco uncultivated for always being prejudice careful not to be [sic] Luis, people benefit of the of the town of San with one another. Ballejos San Pablo and Los and the other towns, Sanchez, purpose 377 F.2d at 735 n. 1. inhabitants of these ingress for pasture, that and etc. and the water of wood, [Taylor’s] for grazing, Tract Use of land quiet title to the Mountain Court to timber, gathering, hunting, fishing, and, Taylor [sic] damages.10 alternatively, guaranteed and is recreational uses entities are and over 240 other and [petitioners] and them class law alleges complaint named as defendants. The Spain, people Mexico and customs of the are petitioners, all but four whom area, by grant express and dedication Colorado, County, “were residents of Costilla implied, guaranteed [pe- heirs or successors interest Treaty Guadalupe under the titioners] original Sangre settlers of the de Cristo Hidalgo perpetuity. Luis, near San Grant at or the towns of San is on The third claim based sections 38-36- Francisco, Pablo, Acacio, Chama, San San Act, provi- which -188 Torrens Mexico, Valle, territory of Re- and La New recovery damages from an sions authorize Mexico, County within the public of now by persons assurance fund otherwise barred Costilla, complaint State of Colorado.” seeking recovery Act by the Torrens alleges “brought also that the case is complaint interest land therein. and successors behalf of heirs alia, Taylor alleges, improperly that inter original Sangre de to the settlers of the join necessary failed to and ascertainable Grant”;11 Tract Mountain Cristo parties named as defendants.12 subject “historically has been commu- 1, 1985, April Taylor On filed “MOTION nity [petitioners] for rights and uses of the THE PLEADINGS FOR JUDGMENT ON lumber, fire, water, wood, pasturing, grazing, JUDGMENT,” OR FOR SUMMARY which uses”; hunting and and that the recreational attorney request fees. motion included decree issued in the 1960 Torrens action Taylor argued petitioners’ claims void it obtained violation of because was judicata, by the res wei’e barred doctrines of petitioners’ rights constitutional Taylor estoppel. and collateral stare decisis law. process of argued further that the claims were barred Act, by the C.R.C.P. complaint contains three claims abandonment, several possession, adverse alleges relief. The first claim that the Moun- Tay- laches. statutes of limitations13 “community grant under tain Tract is a argues also the trial court lacked lor Spain, the custom of the laws of Mexico subject jurisdiction petition- over the matter area, by people grant and dedica- ers’ claims. guaranteed express implied, and as tion Treaty plaintiffs under Guadalu- granted Taylor’s motion.14 The trial court pe Hidalgo perpetuity.” The second claim It held that the claims asserted defen- were “the following allegations: dants the 1960 Torrens action contains the improper; requested were complaint an order declar- conduct of the Examiner Titles 10. The also ing quiet a state entry judgments against void a title decree entered in defen- that the of default affecting proceeding to another tract court improper trial court and dants was because the Tract, land, grounds the Salazár on of consti- attorney Taylor’s have known knew or should petitioner tutionally As the insufficient notice. represent- fact that defendants were those argument, only acknowledged lating re- at oral issues attorneys; attorneys Tay- by any Sam ed that T. the Tor- the Tract and to Mountain incompetent; E. Romero were and lor Eliu this record rens action are court. The before failing the court erred to conduct that trial petitioners were of the indicates that some hearing adequacy Taylor’s the to determine action, in the 1960 Torrens named defendants by publication. proposed service filed an- that of those named defendants some Taylor's interrogatories, the and that swers others interrogatories supra. failed to answer the See 13. Note judgments. suffered default that assumed all the The trial court stated it 14. peti- has not determined the 11. The trial court alleged petitioners to be true for facts certify request a class the case as tioners’ action. However, ruling. the trial court purposes itsof disputes significant factual that no also stated alleged improprieties occurred 12. Other existed. during action of the 1960 Torrens course qualifications and include assertions that same [petitioners] claims asserted Because it deemed its resolution of the res case”; usage judicata this that dispositive, “[t]he federal issue ap- the court of usage case peals was same as the here assert- did not address of the other issues ed”; petitioners’ and that petitioners contentions raised appeal. in their concerning rights the status of their appeals had The court of also affirmed the trial rejected been considered judgment the 1960 denying Taylor’s court’s request Tay- Torrens action. The trial court attorney denied fees. request attorney

lor’s fees. granted petitioners’ We application for cer- tiorari on following two issues: whether petitioners appealed the trial court’s adequate provided notice was in the 1960 judgment dismissing their claims to the court Torrens action and ap- whether the court of appeals, Taylor cross-appealed on the peals erred determining question attorney issue of appeals fees. The court of judicata res addressing without first affirmed. question adequate grant- notice. We also respect petitioners’ appeal, With to the Taylor’s ed cross-petition for certiorari re- appeals court of affirmed the trial court’s view of the trial Taylor’s court’s denial of judgment single ground peti on the request attorney fees. tioners’ claims were barred the doctrine judicata. Taylor, res Rael v. 832 P.2d Ill (Colo.App.1991). Citing Newby v. Bock, 120 Colo. 210 P. 985 inquiry Our initial on propriety focuses court observed that the applicable doctrine is appeals’ of the court of determination of the prior when the identity action “involved an applicability of judicata the doctrine of res subject matter; identity of cause of ac the circumstances of this case without first tion; identity parties action; to the considering petitioners’ process chal- identity capacity parties for whom lenge adequacy to the of notice in the 1960 Rael, whom the claim is made.” petitioners Torrens action. The in essence 832 P.2d at 1013. if, The court argue contend, concluded that they publica- subject matter and cause of action com tion in the 1960 Torrens action was constitu- ponents Newby of the standard defective, were satis tionally the decree entered therein capacity fied and that the is void as to them and the doctrine of res not at respect issue. With require judicata inapplicable is to them. Although identity parties, ment of the court de Taylor’s brief filed before this court does not petitioners’ position scribed the issue, as follows: address this amicus Land Title Associ- ation of argues Colorado the court argue [Petitioners] were not appeals question did address the of notice. named, served, privity par- with the previous actions, therefore, ties to the previously noted, As we opinion, its they are not litigating barred from appeals court of petition- does describe the present claim. ers’ contention that the 1960 Torrens action decree is void because the Rael, 832 P.2d at Relying Pomeroy procedures adopted by Taylor violated due Waitkus, 183 Colo. 517 P.2d 396 process standards. The court also notes that (1973); Co., Green v. Ditch 150 Colo. Chaffee (1962); argument germane prong to one 371 P.2d 775 Valley and Brian v. judicata res question test: the identity Ranch, Inc., View Cattle Colo.App. 35 parties However, of privies. or their the 535 P.2d 237 appeals the court of held court then peti- concludes that because the petitioners’ that the claims are based on their tioners’ claims were based on their status as status as successors in interest to the defen- in successors to the Torrens action that, in dants the 1960 Torrens action and defendants, requirement identity the of of therefore, the decree entered in that action is parties was satisfied. binding petitioners on the parties as in privi- Rael, ty with those analysis defendants. 832 P.2d at This directly does not address the 1014. petitioners’ argument publication that notice registration adopted during systems of title constitutionally inadequate and the 1960 early to late nineteenth and twentieth cen- the Torrens action decree is therefore void them. in other states.17 These stat- predecessors in interest and turies various their issue, prevail on the petitioners If this were modeled after a South Australian the utes judicata bar their registration system by of res cannot in doctrine devised prede- nor their claims because neither simplify process the of Robert Torrens Sir parties interest can be deemed cessors conveyancing patented of land titles to land. 1960 Torrens action. Thus determina- the Laugesen, The Torrens Richard W. Title See of res applicability tion of the of the doctrine (1962). Colorado, System 39 Dicta 40 judicata depends a determina- this case registration systems were devel- Similar land process challenge to tion the the suffi- of Europe oped implemented in and the ciency the century. during British the nineteenth Isles Assuming, arguendo, that Torrens action. Sheldon, Registration Theodore Land See determine, appeals sub silen- the court of did Illinois, (1901). 112-14 All of these acts tio, adopted in publication notice certainty titles estab- seek enhance pro- action did not violate due 1960 Torrens lishing all adverse mechanisms resolve requirements, that rec- we conclude cess proceeding. property real in one claims to inadequate permit determina- ord is such See, Fischer, Sterling e.g., Bank National applicable standards tion view (1924) 371, 373, 226 P. 75 Colo. thereto. “escape (purpose of Act was to old estate”); governing transfer of real rules IV (Minn. Carlson, Reed v. 95 N.W. 303-304 1903) (the ad- parties amici have “Legislature sought While to attain in vigorous arguments respecting the vanced reliable certain- the transfer lands more usufructuary authenticity scope of previously ty than had been and confidence petitioners, is- rights claimed those known, purchaser of estate that a real so Taylor asserts that sues are not before us. registered be assured the last trans- could extinguished by the rights were apparent title was record fer in the decree issued 1960 Torrens action owner.”). Tiffany, T. The See also Herbert petitioners’ by the claims are barred (3d at Property, 109-110 Law Real judicata. petitioners ar- doctrine of res The Supp.); Introduction to Wil- 1939 & 1994 ed. gue Tor- that the decree issued Beers, Jr., System F. The Torrens liam disposi- action is void and therefore rens Realty In contrast to other Titles publi- tive of their claims because the system systems, the Torrens is recording by Taylor procedure adopted in that cation principle once title to land on the based deprived process of law.15 them of due action statutory proce- pursuant to registered is validity central to of that decree is thus The court, is a certificate issued dures and parties’ arguments here. purchasers subsequent good faith for value relating to the all matters ascertain

A validity certificate alone. the title from the Rohan, Patrick J. Act, in Richard R. Powell & originally enacted The Torrens ¶7, 908[2], 83-4- incorporating Property, Vol. 1903,16 Law Real to statutes similar improperly were deemed un- petitioners’ arguments appear sors in interest at times 15.The that action. self-contradictory. petitioners known assert All of original rights beneficiaries traceable 1-99, 139, §§ However,' Registration, relationship ch. 16. Land Titles Beaubien Grant. 311-52. petitioners categories 1903 Colo.Sess.Laws to various rights property the 1960 were affected whose Beers, Jr., Torrens Preface petitioners at William F. action is uncertain. (1907). According Realty System author, Titles point that some of them or indicate one Massachusetts, California, Illinois, were defendants predecessors in interest named although Minnesota, action, Oregon, Territory Hawaii the of and trial the in the 1960 Torrens However, during period. adopted legislation Id. contrary. peti- such the found to the court predeces- suggest at iii-iv. also or tioners (1993 (i)In Supp.). system in- & 1994 This is case it is desired settle or es- lines, the boundary tended to eliminate need to search rec- tablish the names and ords in a office to determine the recorder’s post-office all the of addresses of owners title, required status of a under traditional as adjoining may affected, the lands that be addition, recording systems. Id. Torrens thereby, applicant so far as the is able system legislation typically contains some upon diligent inquiry to ascertain the provision form of indemnification under same; registrants

which pay fee into a fund from persons wrongfully which interests whose (k) any place When the of residence of registration may affected the of the land person required whose residence is to be ¶ compensation. seek Id. at 83-36. 909[10] unknown, may given is it be if so stated pattern. The Act reflects this An applicant upon diligent the also states that applicant register seeking patented title to inquiry he has been unable to ascertain the property under the Torrens Act file an must same. application registration together for such (1982). 38-36-104, § 16A C.R.S. with an of abstract title with the district Immediately filing after the of the abstract county court in which is title, required appoint the court is 38-36-108, 116, §§ located. 16A C.R.S. titles, examiner whose duties are de- (1982).18 application The content of the scribed follows: part in prescribed pertinent as follows: proceed [The examiner] shall to examine application writing shall be in and into the title and signed shall into truth of the be and verified oath of applicant application, matters set forth in person acting or the in and his particularly substantially: occupied; behalf. It set forth whether the land is shall occupation occupied,

the nature of the if and, right, and what also as to all (e) persons parties of all names or judgments against applicant or those title, appear any of record to have title, through whom he claims which lien, claim, estate, or interest the lands upon a lien the lands described in the application registra- described application. He shall search the records tion; investigate brought and the facts his (f) occupied Whether the land is or notice, report and file in the case there- any unoccupied, occupied by if and other on, including a opinion certificate his person applicant, than the the name and upon the title. post-office occupant address each 38-36-118, (1982). § what estate interest or he has or claims in 16A If C.R.S. the ex- land; report applicant’s aminer’s is favorable to the title, court, upon claim of the clerk (g) subject any Whether the land is filing report, issue a encumbrance, must summons. and, any, lien or if the na- 38-36-119, (1982). § 16A C.R.S. Section same, 38- ture if and amount re- 36-120 defines the to be corded, included in record, page the book the summons as follows: post-office the name address each thereof; holder plaintiff Parties and defendant —un- (h) any person any applicant Whether other has known claimants. The shall be any land, estate or plaintiff. claims interest known summons possession, remainder, equity, law or application All in the named or reversion, and, expectancy, any, if report found examiner as post-office every being possession premises name and address of or as person lien, encumbrance, nature having and the of his estate or of record claim; title, land, right, and all 38-36-117, applicant copy portion must also file a certified thereof is located. 16A county with the clerk record- C.R.S. county major er of the which the land or judge The sum- any “All thereof direct. persons designated as follows: other expense at of the claiming mons shall be served persons or unknown other in, title, estate, lien, proof of the service thereof applicant, and right, or interest any proof in be made of service is now to, shall upon the real estate described or herein”, in civil made other actions. application shall be defendants. (1982). 38-36-122, (1982). § 16A C.R.S. 38-36-120,

§ 38- 16A C.R.S. Section and manner of describes the content 36-121 interest, claiming an Any person whether as follows: service of the summons not, may appear or in the summons named peri- specified directed to the and file an answer within time The summons shall be (1982).19 38-36-125, appear § If require and them to ods. 16A C.R.S. defendants filed, twenty may issue a application within no answer is the court and answer summons, confirming title and applicant’s decree days after the service of thereof, day ordering registration The Sim- effect of exclusive of the service. provided be as is the which decree is described as follows: mons shall served for in civil actions summons, service summons description in “all By the state, except as other- court in this unknown, district claiming any persons other provided in article. The sum- in, to, wise title, estate, lien, right, or interest or upon shall be served nonresident mons appli- in the upon the real estate described upon and “all such unknown herein”, defendants par- all are made cation the world defendant, by publish- persons parties”, or shall concluded ties defendant and be newspaper gener- ing summons in a said default, order, and decree. printed published al circulation and (1982). 38-36-126, § 16A C.R.S. filed, county application is once where the filed, court must con- If an answer weeks, for three consecutive each week 38-36-127, hearing. § 16A C.R.S. duct a shall be and such service (1982 However, Supp.). in such cir- & 1993 twenty- complete at the end of the deemed court shall first enter de- cumstances the day publi- including the first first persons all who did fault and order any If defendant assents cation. named Upon Id. the conclusion not file an answer. for, prayed writing registration as hearing, the shall enter a decree court upon be endorsed which assent shall registration if it of confirmation duly or therewith and be application filed applicant proper has title determines the acknowledged, then all witnessed 38-36-130, registration. § 16A C.R.S. upon no service of summons such cases (1982). is estab- The effect of such a decree necessary. shall be said defendant as follows: lished section 38-36-130 (1982) 38-36-121, (emphasis § 16A C.R.S. Every registration shall bind the decree added). thereto, except as quiet the title pro- Act article, Section 38-36-122 provided in this and shall otherwise mail clerk of court shall vides that the upon binding and conclusive be forever copies published notice defendants by name in persons, whether mentioned whose of Colorado who are non-residents application included “all other or applica- known or stated addresses are claiming any persons parties unknown or appearances have not entered lien, in, to, tion and who title, estate, or or right, personally not served with summons. and are appli- described upon the real estate for additional provides Act herein”, The Torrens also and such decree shall not cation service, absence, as follows: opened reason of the infan- disability any person affect- cy, or other or further notice of

Other thereby, proceeding nor at law ed given in man- registration may be such reversing judgments equity as the court or persons ner being persons ability not in and for all other provides protection of the for the Act 19. The also yet appear an interest in the land.” 38- to have and those minor children interests of 36-124, (1982). Spelts, Gerbig v. born, guardian 16A C.R.S. See ad through appointment of 201, 205, 300 P. Colo. dis- other under "for litem minors 1222

decrees, except provided especially foregoing synopsis as in The demonstrates the may significance appeal requirements section An be 38-36-131. tak- of the provided by en A as law and the Colorado Torrens Act. basic distinction drawn appellate within rules the same time and between known and unknown assert- notice, terms, upon ing property. like and conditions as interests real affected provided taking appeals are for the from The former class must named as be defen- court appellate personally the district court in dants and pursuant ap- served plicable procedure. civil actions. of civil rules The latter by publication. class served be The 38-36-130, (1982). § 16A C.R.S. Section 38- Supreme United States Court and this court 36-131(1) provides Torrens Act that recognized guar- have that the constitutional any having person the land process provide antees of law mini- actually process with was not served or determining mum standards for whether in application may notified of the file an answer particular proceedings publication in rem no- ninety days within after person tice deprive is sufficient to of an decree, entry such and not afterwards. alleged right. property question initial The 38-36-131(2) persons ag- Section authorizes posed by petitioners in this case is grieved by a decree to tort file a action and Taylor whether satisfied those constitutional indemnity pursuant to file an action standards the 1960 Torrens action. section 38-36-187. Section 38-36-186 estab- lishes an assurance in the fund event of Y indemnity claims. Section 38-36-132 limits collateral attacks decrees as follows: petitioners argue Taylor’s that failure comply applicable provisions with then person any No shall proceeding commence 4(h), C.R.S.1953,20 of Rule renders decree interest, recovery of lands entered in the 1960 Torrens action void.21 lien,

right, upon demand therein or They argue also their names or the same adverse the title or interest as predecessor names of their in interest were registra- found or decreed decree Taylor or should been known at the ninety days tion within unless after the application. reject time he his filed We entry of the order or This decree. section argument. respect former With to the latter giving shall right be construed as such argument, disputes we conclude that of mate- only not, person action to such as shall rial fact at remain resolution the trial irregularity, insufficiency, because of some level before the issue can be resolved. cause, or for some other be bound and by such concluded order or decree. A (1982). 38-36-132,

§ 16A C.R.S Claims general the assurance fund must ap- Colorado Rules of Civil Procedure years ply be made six equity within time the to all civil actions in law or filed in right bring “except action first accrues. district court as stated Rule 81.” (1982). 1(a) 38-36-190, § provides 16A C.R.S. Rule C.R.C.P. 81 1, 4, Plummer, 460, 1136, 20. Our references to Rules and 81 in the Hanna v. 380 U.S. 85 S.Ct. (1965), opinion are references to the Rules of Civil Pro- Tomp- 14 L.Ed.2d with 8 Erie R.R. Co. v. 1960, they kins, 64, 817, cedure were formulated when 304 58 U.S. S.Ct 82 L.Ed. 1188 Taylor (1938); filed his 1960 action. The rele- Torrens Ragan v. Merchants & Ware- Transfer provisions Co., Inc., 530, vant of those 1233, earlier rules substan- house 337 U.S. 69 S.Ct. 93 tially counterparts to their in our (1949); similar current L.Ed. 1520 v. Walker Arinco Steel Colorado of Civil Procedure. 1978, Rules Corp., 446 U.S. S.Ct. 64 L.Ed.2d (1980). suggest question do not adequacy It is not clear whether some named answered-by action should ref- petitioners premise their claims on asserted di- erence 4 of the Federal Rules of Civil to Rule personal Co., rect interests in Compare Mountain Tract land or v. Procedure. Sibbach Wilson & (1941); petitioners premise whether all of the named 312 U.S. 61 S.Ct. 85 L.Ed. 479 Publishing Corp. Murphree, prede- their Mississippi claims on interests owned U.S. S.Ct. 90 L.Ed. 185 cessors interest. information, including and ad- spe- specific names apply procedure do rules of civil potential categories of de- proceedings dresses. of various statutory “insofar cial 38-36-104, proce- 16A or in conflict with the fendants. C.R.S. are inconsistent by applicable must practice provided court-appointed A examiner of titles dure and 4(h) Rule establishes C.R.C.P. 81. averments contained statute.” the truth of the assess by on procedure publication service application, in determine whether persons, records, as follows: unknown occupied, investi- is search (h) party desiring atten- gate brought to the examiner’s Publication. facts by publication tion, file a shall clerk of the court a process service of and file with the party opinion the oath of motion verified includes a certificate of report 38-36-118, in his for an order or of some one behalf upon § 16A the title.to the land. autho- publication. (1982). It shall state the facts Ultimately, is- summons is C.R.S. service, shall show the rizing such court, by order of sued the clerk efforts, any, made to (1982). if been 38-36-119, § 16A the court. C.R.S. personal service within this state obtain provides that The Torrens Act service address, known give the or last and shall shall and unknown defendants non-residents address, person to be served or of each through publication of the accomplished be last known shall state that his address and 38-36-121,16A for three weeks. summons unknown. The court shall address are C.R.S. and, parte if hear the motion ex satisfied diligence has been used to obtain that due readily apparent that the Tor It is personal this state or that service within identifying persons to be Act rens scheme been the same would have efforts obtain from the by publication served notice differs avail, publication of the to no shall order 4(h). comparable requirements of C.R.C.P. process newspaper published a filing require Act does The Torrens pending. county in which the action steps appli specifying what a motion publication made for four Such shall be identify interests in persons with cant took to days 15 after the order the weeks. Within 4(h) subject requires the property. Rule process copy clerk shall mail a Act In the Torrens filing of such motion. known person whose address or last each applica reviews the proceeding an examiner in the motion. has been stated address of the information truth tion determine complete day of the shall be on the Service 4(h) re provided by applicant. Rule pub- publication. newspaper If last no party’s quires a motion the court review county, desig- court shall lished a publication on the basis of adjoining county. nate one some Act re The Torrens diligence standard. party A in a civil action filed only per for those quires personal service to serve district court who wishes Colorado per other sons named persons by publication file a must unknown Publication by the examiner. sons named alleging suffi with court verified motion 4(h) continue pursuant to Rule must party facts to establish that the used cient weeks; comparable for four consecutive diligence” personal obtain service “due specifies period of provision Act ser or that efforts to obtain such Colorado view of weeks.22 In only three consecutive been to no avail.” Id. vice “would have differences, that, pursuant we conclude these only upon a notice is available Publication provisions of the Torrens to C.R.C.P. order, judicial subsequent to examina court process in this case. govern service of Act In the absence tion of the motion. Bank, 383 Nat’l Brainerd See Petition of thereof, ser and court review verified motion (rules (Minn.1986) of civil N.W.2d parties is not by publication vice on unnamed proceed apply to Torrens procedure do not 4(h). C.R.C.P. possible under conflict or in if are inconsistent ings the rules Kimball, Dewey v. provisions); the Act’s proceeding with applicant in a Torrens Act An Surety, & v. National Bond et al. application containing Same a verified must submit weeks. publication for six consecutive action ordered court in the 1960 Torrens 22. The trial (Minn.1903) (provisions any inquiry N.W. of Tor- The contours of into the consti- provide Act are exclusive and sufficiency rens mode tutional of service upon and manner service affecting property rights non-residents civil actions defendants). shaped and unknown the decision of the United States

Supreme Court in Mullane v. Hano- Central Co., B ver & Bank Trust 70 S.Ct. U.S. (1950).23 Mullane, 94 L.Ed. petitioners also assert that ser question Court addressed the of whether the by publication personal vice than rather beneficiaries of certain constituent entities predecessors service on them or their comprising a common trust fund enti- were interest the 1960 Torrens action was con tled periodic to individual notice of account- stitutionally deficient and renders the decree which, ing challenged, binding if not became designed the Act void. While Torrens is to all conclusive on hav- entities confirmation, eliminate attacks on of decrees ing an interest in the common With fund. challenges efficacy the to of such decrees regard question, to this the Court stated as alleged on based constitutional deficiencies of follows: . notice are not foreclosed. See Petition of Bank, 284, Brainerd Nat’l 383 N.W.2d 287 n. elementary require An and fundamental (Minn.1986) 2 (citing previous cases where any ment of process proceeding due Torrens decrees were set aside for constitu finality which is to be accorded notice is defects); Pearson, Riley tional v. 139 N.W. calculated, reasonably under cir all the (Minn.1913) (if 361, 366 claimants known to cumstances, apprise to interested applicant or named examiner are not pendency of of the the action afford parties, named as the binding- decree is not an opportunity present them their ob on such claimants and be attacked col jections .... pos “The criterion is not the laterally; contrary a conclusion would raise sibility just of injury, conceivable but the concerns). generally constitutional See Rich require reasonable character Rohan, ard R. Powell & Patrick J. The Law ments, having subject reference to with ¶ (1993 7, 909[4], Property Real Vol. 83-24 which statute deals.” American Land Supp.). & 1994 v. Zeiss, 47, 200, Co. [31 219 U.S. 67 S.Ct. 207, [1911],... 82] 55 L.Ed. successful, challenge, Such a if does not render due, the confirmation void person’s decree for But when pro- notice is a purposes, contrary petitioners’ all sug to the gesture cess which is a mere is not gestion. Only person adequate process. denied no employed The means must be may attempt person’s tice to establish actually that such as one informing desirous of subject property. Riley, might reasonably 139 adopt absentee Spelts, at Gerbig N.W. 366. See v. 89 accomplish Colo. it. reasonableness and (1931). 201, 206, 606, 300 P. 608 validity hence the constitutional Although gener- progeny registration system, Mullane and its are previously had ally recognized articulating the current due been held constitutional the California Su- process determining efficacy standards preme Court in Title Document Restoration Co. v. involving prop- civil actions 289, Kerrigan, 150 Cal. 88 P. 356 interests, erty recog- the Court had previously Supreme Court that held the statute satisfied due process principles require plain- nized that due process imposed criteria it because quiet diligent tiffs title actions make efforts "duty person seeking quiet [on title] adequate potential to ensure notice to all defen- diligent inquiry make to ascertain the names of Zeiss, In dants. American Land Co. v. 219 U.S. claimants,” provision which demonstrated 66, 200, 206-07, (1911) 31 55 82 S.Ct. L.Ed. purpose legislature provide "the careful of the constitutionality the Court reviewed of a every safeguard protection reasonable for the response 1906 California statute enacted in rights give of the unknown claimants and to the "conditions caused in San Francisco such notice as under circumstances be would great calamity earthquake "pro- and fire” to reasonably likely bring pen- fact quieting vide the establishment and of title to dency purpose proceeding and the property real public in case loss or destruction of 48-49, Id. attention of records.” at 31 at those interested." American Land S.Ct. 200- statute, Co., incorporated 01. The which features of U.S. at S.Ct. at 207. giving party whether the notice had exer- may be defended on the chosen method ground reasonably diligence in itself cer- that it is cised due to ascertain identities or, ... to inform those affected where parties. tain of interested reasonably permit such conditions do not Hutchinson, In Walker v. U.S. notice, is substan- the form chosen (1956), 200, 1 L.Ed.2d 178 the Court S.Ct. bring than tially likely to home notice less require per- criteria to applied the Mullane customary substi- other of the feasible by a property owners affected sonal notice to tutes. city’s widening of a street whose names and pretend publica- would idle to It city were contained records. addresses here, prescribed alone as is reliable tion York, City New Schroeder U.S. parties of acquainting interested means Court 9 L.Ed.2d 255 88 S.Ct. rights before the fact that by post- publication and held that notice It not an courts. accident vicinity proper- ing general trees greater reaching this number of cases ty by a landowner who claimed usu- owned question adequacy of no- Court on fructuary rights in a and who resided stream actions tice have been concerned with twenty-five a mu- upstream miles from new constructively process served founded nicipal project inadequate was for diversion through newspapers. local Chance alone process respect to that purposes due with brings to the attention of even a local In Board Mis- landowner. Mennonite type an advertisement in small resident of Adams, 791, 2706, v. 462 U.S. 103 S.Ct. sions pages newspaper, in the back of a inserted (1983), that 180 the Court held if he makes home outside the area 77 L.Ed.2d his a newspaper’s mortgagees property normal circulation the sold at tax sale reach that the information will never knowledge per- odds to without their were entitled large him are indeed. notice. sonal Mullane, 314-15, at 70 at 658 339 U.S. S.Ct. recently, Most in Tulsa Col- Professional (citations omitted). Applying this broad 478, Services, Pope, v. 485 U.S. lection Inc. it, circumstances standard to the before (1988), 1340, 99 L.Ed.2d 565 108 S.Ct. Supreme concluded that service Court constitutional sufficien- Court considered the persons publication was sufficient notice provision of publication an cy of a notice “missing .... interests or or unknown whose Citing statute. exten- Oklahoma nonclaim diligence could not with due be whereabouts Midlane, publi- sively held that the Court 317, 70 at 659. ascertained.” Id. at S.Ct. reasonably ascertainable cation notice However, respect present to “known with might of debtor’s be unaware a creditors who residence,” place of of known beneficiaries While process standards. death violated due the court concluded as follows: quickly interest in acknowledging state’s necessity Exceptions in the name of do not terminating proceedings, the Court probate away sweep the rule that within the limits all requiring notice mail to concluded that such as is practicability notice must be reasonably creditors known or ascertainable reasonably to reach interested calculated conflict with this of the decedent did not post parties. names and office Where the 489-90, Tulsa, 108 at purpose. 485 U.S. proceed- affected a addresses those remanded 1347-48. Court S.Ct. at hand, disappear ing are at reasons of whether case for determination likely than than the resort to means less plaintiffs identity a creditor was reason- pendency. of its apprise mails to them 491, at ably Id. at 108 S.Ct. ascertainable. 318, 70 659. Id. at S.Ct. at stan thus established a dual Mullane recognized has This court evaluating adequacy publica dard diligent inquiry and title actions quiet all the circum tion notice: whether under apprise interested reasonably calculated reasonably stances the means selected affecting pending proceeding parties of a parties and to reach interested calculated 1226 required.24 duty diligence

such interests are Weber v. to exercise reasonable Williams, 269, 275-76, reasonably 137 Colo. identifying per- 324 P.2d ascertainable (1958) 365, (quoting Coppinger Cop v. 368 sons who claim property interests 175, (1954)); pinger, 130 Colo. 274 P.2d 328 personal are thus entitled service. Bray Company, v. Germain Investment 105 upholding Other courts the constitutionali- 407, 993, 995 Colo. 98 P.2d See ty publication provisions of Torrens Mortgage Corp. also Federal Farm v. system acknowledged ap- statutes have Schmidt, 467, 470-71, 109 Colo. 126 P.2d plicants diligence use must due to ascertain (1942) (mortgagee’s failure to persons identities interested to be state in affidavit notice filed in personally served in proceedings register action mortga foreclosure the addresses of See, e.g., property. title to Follette v. Pacific gors sought to be served or state Light Corp., & Power P. Cal. information was unknown to the affiant ren (1927) (statutory provision 298-99 which invalid). dered decree While these cases re imposes duty on applicants inquiry toas quired application diligence stan persons the names and residences of all 4(h) contexts, dard C.R.C.P. various claim adverse interest and which they recognize importance supplying permit applicants willfully does pending litigation official notice of in rem “ negligently eyes close their ‘to the means of persons whose interest will res knowledge by publi- and thus secure a decree proceedings. affected those White alone, posting cation and Ainstvorth, Colo. P. identity [they] might whose have learned upheld constitutionality this court ” effort,’ process); the use of due satisfies due publication provisions notice of the Torrens Kerrigan, Robinson 151 Cal. 90 P. applicable Act as out-of-state residents. (1907) (statutory provision allowing pub- arguments In rejecting provisions that such lication persons “unknown” held process rights violated due of such non- constitutional requires personal because it Colorado residents and that the confirmation reasonably service to all ascertainable claim- by fraud, decree was obtained we declined to ants). Guilberi, See also State v. 56 Ohio St. argument address an to the effect that the (Torrens (1897) 575, 47 N.E. 551 statute that persons decree invalid as be require applicant personally did not serve applicant’s cause the failure to include them reasonably all ascertainable claimants held as named defendants the Torrens action process). unconstitutional for lack due Id., constituted actual or constructive fraud. suggest by These cases 520-24, the standard which at 163 P. at In 962-63. Mills v. Co., (D.Colo. petitioners’ process measure the due Denver & R.G.R. 198 F. 137 1912) proceed- claims in this In (injunction suspended case. Torrens Act and case re (8th manded), Cir.1912), ings, actions, as other rem 199 F. notice must but (8th Cir.1915), reasonably reaffd, 222 all F. 481 calculated under relevant the court by par- held service in a circumstances to ensure that interested proceeding process Act ties made proceedings. stan are aware of the In satisfied respect sharp dards notice with to a view of the by railroad distinction drawn company’s right way claim of respect over the Torrens Act with to named defen- property. The court noted that at the time personally dants who must be served proceedings persons the Torrens Act were com unknown who be served record, nothing publication, menced “there was applicants or must with act reason- upon ground, [applicant] diligence to advise the or able to ascertain the per- names of examiner of ... [railroad titles that the com an property sons who claim interest in pany] subject proceedings. claimed interest therein.” 198 F. to the The test of rea- at recognize diligence, 141-42. These cases sonable as established Mullane general applicants objective rule that progeny, Torrens Act is an its test: procedure, including applicable quiet proceedings. 24. The of civil rules 4(h), publication provisions of C.R.C.P. any person residence is whose reasonably prudent .applicant of residence conduct a required to all circumstances the terms of the Torrens Act undertake under would reasonably ap- together, these discoverable When construed known be listed. filed to application Assembly’s at plicant the time in- disclose the General sections be identi- interested will ensure that reason- require applicants to exercise tent to defendants. fied and served named ascertaining names and diligence in able persons having any addresses language the Torrens The structure and required subject property therefore previously supports conclusion. As Act personally to be listed noted, Torrens Act section 38-36-104 of the contrary of these served. A construction appli- of the verified prescribes the contents statutory provisions would render the Tor- 38-36-104(l)(g) requires an cation. Section constitutionally suspect.25 and addresses of rens Act applicant to list names to have an persons appear of record all who sum, applicant an for decree subject Section property. interest in the 38- property pursu register title to confirm 36-104(l)(h) requires applicant an to list the reason the Torrens Act must exercise ant to any person names and addresses diligence under all the circumstances able land, in law or “any interest claims who claim the names of ascertain remainder, reversion, equity, possession, subject pro to the property interests in the are silent expectancy.” These sections determining reason ceeding. The test for applicant an respect to what efforts with objective con diligence is an test: able required informa- must make obtain reasonably applicant would prudent duct 36—104(1)(i) However, ex- tion. section 38— known or under circumstances undertake requires applicant to make “dili- pressly applicant at reasonably discoverable inquiry” the names and gent to ascertain application is filed to ensure the time the adjoining if addresses of owners parties are identified and that all interested relating issues proceedings include The Due named defendants.26 served as property or establishment of settlement Consti 36—104(l)(k) of the United States Furthermore, Process Clause section lines. 38— adopted by the Torrens Act applicant has tution and requires an averment Assembly require no less.27 place inquiry” ascertain the General “diligent made person ren- requirement interested as defendant recognized a name known 25.Other courts invalid). diligent inquiry identity ders decree of all reason into ably under their states' ascertainable claimants See, e.g., Moakley Ange v. Los Torrens statutes. applicants pro- recognize in Torrens We 26. 883, 74, Co., Cal.App. Ry. 277 P. 884- les Pac. 99 ceedings generally extend their search need not (failure (1929) person petition 85 to name reasonably pertaining ascer- for information easily from ab was ascertainable beyond whose interest parties information tainable interested requirements); statutory violated notice by diligent inquiry stract relevant into discoverable 442, case, Couey Corp., 188 petitioners’ v. Estates 183 Ga. Talalah public In this records. (1936) 822, (due required process 826-28 arguably S.E. recorded in the were asserted interests records, reasonably Taylor’s personal County service to ascertainable to in referred Costilla claimant); Darley, Chicago Gilpin agreement, Co. v. Title & Trust referenced deed and the (under 197, 846, (1936) Taylor's report, N.E.2d 849 363 Ill. 1 examiner’s and noted title statute, claiming having person "a application. own land, and address whose name interest in upon diligent is or can be ascertained known is limited to consid- in this case Our decision party as 'all whom it inquiry, be made a cannot provided in the the notice eration of whether 540, ”); Spindler, Ill. may v. 339 concern.’ constitutionally was suffi- Sheaff action 1960 Torrens 632, (1936) (Torrens statute 638-39 171 N.E. explained, provisions au- we have cient. As whose requires to all claimants individual notice par- to "unknown” thorizing publication notice through diligent inqui 4(h), be ascertained provisions names can which C.R.C.P. ties contained in Kimball, 454, ry); Dewey 95 N.W. quiet proceeding v. 89 Minn. require petitioner in a title a 317, (1903) (Torrens applicant’s stating disre 319-20 what efforts motion submit a verified reasonably report gard identify examiner’s ascer- of information title all have been made applicable diligence persons, not and renders were a lack of due interested constitutes tainable examiner). petitioner person A named to the 1960 Torrens action. void as to decree Martin, 197, complies with the quiet proceeding who Minn. 108 N.W. also Baart v. 99 See 4(h) provides the (1906) (intentional in effect failing requirement of Rule fraud in 947 C To- Taylor’s the extent is motion summary judgment, deemed motion for case, In petitioners’ complaint ini- petitioners’ response ques thereto raised the tially process. made claims of denial of due adequacy tion of the constitutional of the Taylor’s judgment plead- motion for oti the publication the 1960 Torrens action. ings summary judgment or for asserted Summary judgment remedy drastic petitioners’ against claims him were granted genuine not be if issues judicata. barred the doctrine of res material Cung fact remain resolution. petitioners again process asserted their due Co., v. La State Farm Auto. Ins. 830 P.2d Taylor’s response claims motion. (Colo.1992); Civil Service motion, granting In the trial did court Pinder, (Colo. Comm’n v. P.2d apply not the test enunciated above to deter- 1991); 56(c). C.R.C.P. The limited record mine whether the confirmation decree must before us discloses numerous issues dis be deemed invalid as to or all some puted fact material to the resolution of the petitioners because the petitioners’ process claim. Whether constitutionally with respect ineffective Taylor’s ascertaining conduct in named de affirming to them. In judg- the trial court’s personal fendants who were entitled to ser ment, appeals the court of did indicate vice the 1960 Torrens action satisfied the applied claims, the test it in rejecting those requisite standard cannot be determined assuming that such claims were considered of a disputed absence resolution of such by that court. necessary facts. The factual determinations In may ap- some circumstances this court appropriate legal ply appropriate legal standard to the principles to those determinations must presented by factual circumstances rec- performed by made and the trial court. questions ord and resolve of law not ad- improperly dressed or in earlier resolved However, VI proceedings. the record in this case forecloses this avenue. Taylor cross-appealed has the denial observed,

As the trial court inso the trial appeals court and the court Taylor’s far as can request motion be deemed a mo attorney his fees. Section 13-17- (1978 judgment pleadings, tion for allega on the Supp.), C.R.S.1973 authorizes complaint tions of the must be attorney considered trial courts to award fees Trinity true. See Broadcasting bring Westmin or maintain “frivolous ster, (Colo.1993). 848 P.2d groundless” The com actions.28 Western United plaint (Colo. allegations Taylor’s Isaacs, contains Realty, of of lack Inc. v. 679 P.2d 1063 1984), diligence reasonable that are to sufficient we that held a claim is “frivolous” any overcome for judgment purposes motion on the of the “if proponent statute the can pleadings respect with present to the argument constitutional no rational based on the ” adequacy publication of the in notice the 1960 in support evidence or law of that claim.... Torrens action. Id. at 1069. We also held that a claim is Tract, presumptively trial court with evidence establish- required Mountain as he would been have ing diligence 4(h) that the due standard of notice has by quiet proceeding, Rule to do in a this Taylor’s suggestion accep- been satisfied. that litigation might by have been foreclosed direct petitioners' tance of tire are contention that judicata. of the of doctrine res appropriate adjudication entitled to an of their constitutionally adequate based claim of of lack notes, 13-17-101, Taylor § As 6 C.R.S.1973 notice of the 1960 will Torrens action affect the (1978 Supp.), repealed and reenacted as certainty quiet title decrees entered in state 13-17-102, (1987), during § pen- 6A C.R.S. quiet title court actions is thus without founda- dency proceedings. of the trial Ch. sec. addition, proving tion. the burden of lack of 13-17-102, § 1984 CoIo.Sess.Laws 460. The adequate any challenge notice in to a Torrens provisions authorizing attorney awards of fees persons challenging decree on rests those 13-17-102, set forth in 6A Taylor C.R.S. are notice. Had certified in the 1960 Torrens identify applicable Taylor's attorney reasonably action on his efforts to all claim for fees ascer- appeal.

tainable with identifiable interests in materially groundless” “if do not differ statute “groundless” purposes 13-17-101, counterparts in complaint, while their section allegations in the suffi- (1978 Supp.). For the reasons to dismiss for fail- C.R.S.1973 cient survive a motion claim, petition- supporting that the supported our conclusions ure state a are ground- are nor any trial.” Id. In this ers’ claims neither frivolous evidence at credible less, appeal the action we that their decision to case trial court concluded that conclude ground- judgment the trial court’s adverse was nei- petitioners filed was neither frivolous, observing substantially nor substantially that there is ther frivolous less nor Furthermore, petitioners’ legal authority support groundless. some of the issues petitioners. process challenge publication The court of no- asserted due procedure determina- tice utilized in the 1960 Torrens appeals affirmed the trial court’s adjudicated. action has never been Given tion. circumstances, petitioners’ ap- this these directly to the stan- Taylor does not refer substantially We peal is not vexatious. con- argues He we articulated Isaacs. dards err appeals did not clude that the court appeals that the trial court and court Taylor’s affirming the trial court’s denial analyze al- failing certain issues erred attorney request for fees. legal au- legedly unsupported factual petitioners provided thority; that have authority deny Taylor’s VII

no defenses based limitations; that statutes of various reasons, foregoing judgment For the ju- litigated time-barred petitioners it appeals is affirmed insofar as the court of issues, dicially which conduct determined Taylor’s upheld trial court’s denial of presumption peti- that the should establish attorney request for and reversed inso- fees frivolous, groundless, and tioners’ claims petitioners’ claims barred far as it held the vexatious. judicata. by the doctrine of res Whether persuasive. Taylor’s arguments are not plaintiffs ultimately meet their burden fundamental claim—that petitioners’ establishing decree that 1960 Torrens used the 1960 Torrens only binding as them can be decided is not process action violated standards adequacy of after determination law, as to rendering the decree invalid some per- given reasonably ascertainable predecessors their in interest —is or all of in the Moun- with identifiable interests sons authority. argument supported by rational ac- property the 1960 Torrens tain Tract contains that the record We have concluded to the court of tion. The case is remanded claim, support that credible evidence to some conduct further appeals directions to with au- petitioners have cited l’elevant and the conformity with proceedings herein arguments. We con- thority support peti- opinion, including consideration and the court the trial court clude trial court erred arguments tioners’ peti- appeals holding did not err concluding their claims are barred nor neither frivolous claims were tioners’ limitations.29 various statutes of groundless. dissents, 13-17-101, (1987), au- and Chief VOLLACK 6A C.R.S. Justice Section attorney when and Justice ERICKSON fees Justice ROVIRA thorizes courts award action, part join or there- dissent. “bringing the ... of an the have been substan- of ... is determined to dissenting: Justice VOLLACK frivolous, tially substantially groundless, or summary judg- majority the The reverses substantially vexatious.” We determined court Talco, Ltd., to the trial and remands P.2d ment order Application In re of Taylor, appli- (Colo.1989), of whether Jack of the issue that the standards 476-77 action, exercised Torrens “substantially cant the 1960 “substantially and frivolous” portions lenges limitations judicata prong of of statutes the res it affirmed Because summary judgment, the court of the trial court’s thereof. petitioners' chal- appeals did not address diligence identify parties majority page reasonable who Act. As the notes on of personally opinion, Taylor’s should have been named its listed 316 should of defendants, have received direct notice the suit potential individuals as even through personal disagree. service. I The though forty-seven only ap- of those names statute, required by by notice found the fed- peared in the abstract of title. The remain- eral court to been district “met and ing names on the list were those landowners fulfilled,” by Circuit, and affirmed the Tenth county might usufructuary claim requirements process. satisfied the of I rights pasture Attorneys and timber. plaintiffs believe that the are barred res potential claimants added additional judicata relitigating from the issues of the 142 names to the list. my opinion, reopening In case. Act, In accordance with the Torrens question rights in property of determined appointed federal court district title exam- thirty ago years public over is counter to the iner, report who submitted a to the court. policy of this state because it creates uncer- According report, to his the examiner studied tainty in quiet conclusiveness personally abstract title and investi- keep decisions fails to title secure and gated occupancy reasons, of the Mountain Tract. marketable. For these I dissent. inquiry county

He also made with the trea- surer, assessor, county persons other I. identify potential familiar with the land to agree I with the trial court the court report defendants action. His indicat- appeals plaintiffs are barred persons rights ed that “various claim to take judicata bringing res from this suit. Res pasture and from wood The Mountain Tract judicata relitigation prior bars action unincorporated and an organization called when subject the two suits share the same Rights!,]’ ‘Association Civic whose matter, action, same cause of and the members petition, are named assert Bock, parties.1 Newby same 120 Colo. rights such behalf themselves other (1949). plaintiffs P.2d 985 Because persons.” report stated that these predecessors and their in interest received rights grant were claimed under a made adequate action, they notice the 1960 were (the May Carlos Beaubien on Beau- parties process rights to it. Their due were grant), bien which was county located not violated and are barred now res land records.2 The sought title examiner judicata relitigating the same issues learn persons.” identities these “other that were thirty decided that case over He attorney contacted for several defen- years ago. similar, unrelated, dants in a but lawsuit.' specifically provides Torrens Act attorney tried to obtain the names but potential known and unknown was unsuccessful. He also talked with a 38-36-121, claimants. 16A Section C.R.S. representative of the Association of Civic known, requires that resident defen- Rights, provide any who also could spe- personally summons, dants be served awith cific names. but that non-resident defendants and “all parties” unknown be served In parties addition to the identified in the only by Act, publication. po- Under the petition examiner, pos- the title other claimants, unknown, tential known and designated “persons sible were claimants parties 38-36-126, made to the action. unknown.” These “unknown” de- 16A C.R.S. by publication fendants served were action, Taylor complied the 1960 with all newspaper summons for six weeks in a requirements general County. circulation Costilla parties” requirement 1. The privity “same parties. is satisfied if with the earlier Green v. Chaffee Co., parties (1962). privity the the second in Ditch suit are with 150 Colo. 371 P.2d 775 Many plaintiffs those of the first. in the current suit are heirs of grant the defendants from the 2. The majority Beaubien is set out interest, they 1960 suit. opinion As successors in page are in at 1213. ly by publication according to section represented served named were defendants attorneys. ap- also The court several 38-36-121. represent pointed guardian ad litem “to court, in The federal district its “Final disability and under minors other Regis- Title Decree of Confirmation of and may persons who have an inter- and all other 1965, also concluded that notice tration” of 31, 1962, proceeding.” July est in this On in given was to the defendants the properly the entered default federal district court The court noted that it had earlier case. against 369 defendants for failure to answer jurisdiction subject and the proceeded against interrogatories. The case matter, statutory requirements and that “the remaining the 112 defendants. service, publication been rights communal The defendants asserted As met fulfilled.” a collateral pasture the Tract for use Mountain prior jurisdiction, attack on a court’s “the They take based their claims wood. judgment supported by of court record law; as Spanish on Mexican beneficiaries jurisdiction that presumption the conclusive grant, in Sangre the de Cristo which under party against whom it was obtained of the granted land government the of Mexico contrary unless affirma- pronounced, was the Beaubien; Treaty Guadalupe the Narcisco Hughes tively appears the record.” signed Hidalgo; and the document on Webster, P. Colo. specifically granting usu- Beaubien Carlos no in the record of the There is indication rights. fructuary The federal district court case, court, it as is before this insofar law, that, concluded as matter federal issue, at proper that the suit was rights Sangre the the under de communal by publication not suffi- nor that notice Treaty grant Guadalupe the Cristo plaintiffs may relitigate not the cient. The extinguished when title to the Hidalgo were adequate. notice was issue of whether act land was confirmed Beaubien Congress in district court also 1860. The II. rights found that the communal established holding requires majority a Torrens applied the Beaubien document under dili- plaintiff Act “reasonable to exercise Seco,” part not “lands of the Rito which were of other- gence” to ascertain the identities grant if of Mountain Tract. Even claimants, is, that claimants wise “unknown” usufructuary rights doc- under Beaubien appeal’ do not names or interests whose valid, therefore, it did ument remained not and who are not in the record chain of title A Tract. final decree apply to Mountain not that possession of land. I do believe on 1965. The was entered October decree jurispru- duty, is such a nor there simple fee title to the Mountain Tract vested supports one. dence of other states Taylor, any free of claims all Jack The defen- persons, known and unknown. majority cites nine cases from other appealed then the decision dants jurisdictions proposition a Tor- Circuit, the district Tenth which affirmed case, Taylor in this plaintiff, rens court on issues. diligence locating reasonable must exercise potential claimants order to “unknown” plaintiffs in I the current believe that disagree with personal I interest, effect service. action, predecessors re- or their these cases. The majority’s interpretation of of the Torrens action proper notice ceived majority opinion all involve cited cases process rights were notified, were not potential claimants who They had not recorded violated. have been were known or should but who occupy They it.3 land and did not through chain of plaintiff group of “un- known to among were thus included title, records, through public because proper- potential claimants were known” extinguished by pro- rights grant under it were argued because that the Beaubien It Furthermore, Congress. those plaintiffs' the 1860 act of claim of record notice vides However, rights given under the usufructuary rights. courts also found the federal dis- found, parcel, po- grant pertained another land Beaubien court and the Tenth Circuit trict grant rely Mountain Tract. not the could not tential claimants 1232 possession

were in the land. adjoining Those courts the The court land. also found plaintiff by found that the should have exercised service on all other could be diligence notify publication. Contrary po- to find and those known to majority’s the as- sertion, by searching public tential claimants rec- no personal there is discussion of “reasonably ords which identified. were ascertainable” claim- ants, any duty placed plaintiff nor of on the by majority, the first cited case directly anyone notify specific but Light Corp., Follette v. & Power 189 Pacific parties noted above. 193, (1927), Cal. 208 P. 295 the Torrens Act plaintiff Guilbert, granted right-of-way majority a easement The next cites State v. Light Corporation. 575, (1897), Pacific & Power The 56 Ohio N.E. St. 47 551 it which grantee easement was recorded took claims held that a Torrens statute that did possession portion require of that of the land. not applicant personally an serve grantor action, then filed a Torrens all reasonably but did ascertainable claimants notify not utility company by other than lack process. unconstitutional of due publication. Subsequent prop inapposite owners of the Guilbert is because it a construed erty relied on the certificate of title very issued version of Act the Torrens different Follette, the Torrens action. a place When subse the one in in Colorado. Neither quent property, owner of impose duty learned of the does the plaintiff case on the eject sought easement utility “reasonably to seek com out ascertainable” claim pany, the court ruled certificate of ants. The at Ohio statute issue in that case original grantor provided issued to the personal only was void upon service own because, against utility company, adjacent land, upon occupant as an ers of the occupant land, question, utility upon holders of easements and company personal should received have ser inferior estates in the land. All others could vice. The utility compa court contrasted the by publication. be served The court held the ny only with those who needed to receive statute plaintiff unconstitutional because the by publication: provisions “The give required personal the was not notice to act as to notice can appli those whom he knew had adverse claims only cation property, those were not in including one who held possession occupancy premises.” or simple title in fee absolute.4 That court Id. 208 P. at 299. further reasoning by declaring buttressed its actually Torrens were in person- actions majority, next case relied on actions, actions, am in rem and thus 40, Kerrigan, Robinson v. 151 Cal. 90 P. 129 require would personal notice.5 (1907), general involved constitutional chal- lenge to Torrens majority California’s Act. The court cites additional six cases “[ojther provisions found constitutional the proposition of the act for the courts have personal parties all the recognized requirement notice to shown diligent inquiry or' identity reasonably abstract of title into the ascertain- to have an property, to the able claimants under states’ Torrens spouse petitioner, Maj. and to the op. owners of statutes.” at 1227 n. 25. Each one (Anderson legislature passed 1989). 4. The Ohio later a revised ver- Code Ann. 5309.12 Unlike requires any sion of the It however, Torrens Act. notice to legislature, legis- the Ohio the Colorado "person knowledge [who] to the or information language lature chose not to include such in its records, applicant, of the or claims or as shown has Torrens statute. lands, buildings, interest in improvements.” §§ Ohio Rev.Code Ann. 5309.- is, course, import today It of no whether the 09, (Anderson 1989). 5309.12 Unlike Colorado’s rem, personam action is in or in after v. Mullane statute, the Ohio statute mentions the Co., 306, Central & Trust Hanover Bank 339 U.S. necessity diligent inquiry potential to ascertain (1950), 70 S.Ct. 94 L.Ed. v. any persons claimants: "When the names ... Shaffer Heitner, necessary proper parties be made 97 S.Ct. U.S. 53 L.Ed.2d defen- application, dant appli- to an unknown Board Mennonite Missions research," diligent inquiry cant after Adams, those U.S. S.Ct. 77 L.Ed.2d petition are to be named in the as "un- publication. known” and notified Ohio Rev.

1233 cases, however, that be named and claimants examiner these involved of these Although name county the of the successor appeared in land rec- notified. whose interests records, abstract, public ords, was in the the court held in the examiner’s not were named it if plaintiff have learned she' interests the would possession, were in or whose Finally, knowledge. They do the not had notified record owner. applicant had actual Martin, notes, majority a Baart 99 majority’s contention that Tor- the v. support the 197, (1906), involved duty poten- to Minn. 108 N.W. 945 applicant has a search rens plaintiff beyond a fraud the Torrens those who have rec- intentional when tial claimants notify in failed name the record holder of property the those whose to ord interest mortgage, known a of whom he was aware. are known or should be be- interests possession of land. cause duty a imposed these nine cases None of Moakley Angeles In v. Rail- Los applicant Torrens to search for a on the Pacific Co., 74, (1929), way Cal.App. 277 P. 883 99 beyond public potential claimant records or notify not a plaintiff the Torrens did name beyond land inspecting the to ascertain cases, claimant whose easement was recorded possession. In all of the was in appeared The claim- in abstract title. was later held to be inval- Torrens certificate Corp., Coney in v. Estates 183 ant Talalah plaintiff name failed to id because the. (1936), 442, known 188 S.E. 822 was Ga. notify public was in a claimant who listed plaintiff to have an interest the Torrens majority possession. was in records or land, possession was in property, in other im- asserts that courts states adjoining an and was also landowner. posed heightened duty “diligent inquiry any of required based on these statute identity reasonably into of all ascertain- conditions, given. Chicago In but none They have I do able not. not claimants.” 197, Darley, Ill. 1 Title & Trust Co. v. 363 support this claim. believe these cases (1936), pos- claimant was N.E.2d 846 at the time the Torrens session of III. filed, farming, the land for action was used correct standard determine wheth- property, fences on the but and maintained provided process is v. er notice satisfies due no notice. still received Sheaff Swin- (1930), dler, 540, v. Central Hanover N.E. articulated Mullane Ill. 632 Co., 306, 652, Bank Trust 339 U.S. 70 S.Ct. applicant the fee sim- & failed name (1950), progeny. its “The posses- 94 L.Ed. 865 ple and the tenant owner of record provide employed notice] must be property. [to He admitted that he means sion of the actually informing possession one desirous of ownership and when knew of the adopt might reasonably to ac- In contrast to the absentee he the Torrens action. filed complish and hence majority, it. The reasonableness cases this the other cited validity “diligent chosen necessity the constitutional mention the one does however, ground may be By the court method defended inquiry.” phrase, reasonably certain inform duty to search it is in itself imposed diligent inquiry at at 70 S.Ct. 657- those affected.” Id. public for recorded interests records require not best plaintiff Deivey v. 58. Mullane does The Torrens the land. only (1903), giving Kimball, employed, means 89 Minn. N.W. at Id. at 70 S.Ct. 658- owner of most reasonable. name her failed to Mullane, personal is not service Under who was listed records the land right indispensable element party’s county and that successor auditor interest, process.6 despite the recommendation earthquake and resultant fires Land San Francisco majority on American Co.

6. The also relies Zeiss, destroyed public of land owner- records 55 L.Ed. 82 219 U.S. 31 S.Ct. notes, ship. majority correctly the Cali- support there As the contention that its interpreted statute to Supreme duty inquiry fornia Court diligent ascertain the “make holding require "diligent inquiry.” The actual That case did in- names of all claimants.” however, Zeiss, majority’s Act, tends to refute but rather a similar Cali- volve the Torrens Zeiss, support position the lessee rather than it. passed a few months after fornia law question actively Mullane involved of whether indicates that the title examiner adequate of a trust received beneficiaries sought identify potential to other claimants. disposition notice of the trust accounts. Taylor’s I conclude that 1960 action not only required The state statute only standards, process satisfied due but publication. Mullane court held that went significantly beyond process what due publication adequate only was required. if were to Even we read the stat- those “whose interests beneficiaries diligence impose not with due ute to requirement whereabouts could be of reasonable ease, In that ascertained.” Id. the trustee diligence, diligence I believe that reasonable required actual provide to notice to the was exercised. beneficiaries whose names and addresses However,

were his records. the court also IV. adequate held that notice was “those beneficiaries whose interests ... Because the interests “unknown” upon investigation, could be discovered [but] claimants represented were the 1960 ac- do not due course of business come to tion, process rights their due were not in- knowledge of the common trustee.” Id. The fringed. The indicates that record the court court further stated there was no re- appointed a guardian represent ad litem to quirement “impracticable and extended the interests of the “unknown” claimants. searches” to locate those beneficiaries whose interests Id. were remote. One is not re- Moreover, usufructuary rights because the quired “extraordinary to undertake efforts to question rights were same shared identity discover the and whereabouts of a claimants, potential all of the the fact that identity public is not in [claimant] whose most of the claimants received notice and had record.” Bd. Mennonite Missions v. opportunity participate to the suit was Adams, 791, 799 n. 462 U.S. 103 S.Ct. protect sufficient to the interests of those 2706, 2711 n. 4. reasonably who did not. certain “[N]otiee progeny, Based on and its Mullane I find reach in objecting most of those interested Taylor provided adequate Jack notice to likely all, safeguard the interests of since potential only complied claimants. He not any objection sustained would inure to the requirements with the notice of the Torrens benefit of all. think that We under such statute, par- but also named and notified 316 circumstances reasonable risks that notice ties whose names and interests were not might actually every reach [claimant] are public By found in the records. order of the court, justifiable.” Mullane, he 339 U.S. at also named notified 142 70 addi- potential tional claimants. The record S.Ct. at also 659-60. Co., property question, filed an action under Mullane v. Bank Central Hanover & Trust alleged the statute and the land that he was the owner of 339 U.S. S.Ct. L.Ed. 865 person of no Zeiss, and knew other with a differently cited majority sug- but than the However, inquiry claim he on it. made no gests. quoted proposition Mullane Zeiss for the ascertain whether adverse claim existed. In reasonable, practical that notice should be statute, compliance publish- with the notice was given every possible person but need not periodical. ed in a local Zeiss received certifi- conceivably who could have a claim: brought by cate of title. The suit was later regard practicalities But if with due for the property simple. actual in fee owners of the peculiarities of the case these conditions lower their court dismissed claim because Zeiss [i.e., interested are informed of the through had obtained title earlier action. present opportunity action and have an language reciting requiring "diligent After met, objections] reasonably arc the constitu- inquiry,” Supreme States United Court held requirements tional are satisfied. "The criteri- constitutional, the California statute to be af- possibility injury on is not conceivable dismissal, the lower court's and denied

firmed just but the and reasonable character of the property. title true owners their requirements, having subject reference to the petitioner actual result of Zeiss was that a under with which deals.” the statute proper- the California could obtain title statute Mullane, 314-15, U.S. at S.Ct. at 657 ty though inquiry beyond publi- even no he made Zeiss, 207). (quoting at 219 U.S. S.Ct. at cation notice to ascertain whether there were property. claims able, 38-34-101, §See C.R.S. claimants not less. 16A of the “unknown” The interests (1993 Supp.). represented in the 1960 action. As were “unknown” in interest those successors affecting concerning ... laws [A]U claimants, plaintiffs current bound property every therein real of that earlier decision. the results instruments, decrees, and and all recorded ... orders of courts of record shall be V. liberally the end in view of construed with attempt plaintiffs’ void the 1960 rendering The such titles absolute and free majority’s acquies- subsequent and the Torrens action from technical defects so that in rely in their attack results ... the purchasers may cence collateral record title remedy. Accord- application party of an incorrect of and that the record title so 38-36-131(1), 16A ing possession to section C.R.S. and not is sustained defeated (1982),parties position plaintiffs, in the of technical or strict constructions. they claim should have received actual directly majority opinion Id. The contradicts not, may action did notice of but prescription by allowing a legislative this ninety only days reopen the decree within time, any period reopen party, after decree, entry afterwards. after and not dispositions majority land The does title. case, not In this the final decree was entered securing system violence to state’s 5,1965. plaintiffs, The or their until October marketability irreparably title and harms interest, years five from predecessors in had majority opinion of land in this state. The original filing aware of the to become only through Tor- reaches not titles obtained they did not attack Torrens action. Because actions, also, implication, rens but all land statutory ninety days, within the the decree title ownership quiet determinations made doing so. prohibited are now provisions naming actions. The defen- 38-36-131(2), 16A C.R.S. Section quiet providing title dants in actions If, remedy. as the provides appropriate provi- them notice differ little from similar claim, Taylor’s plaintiffs sions in the Torrens Act.7 was made with fraudulent Torrens action majority’s is to The effect of decision intent, remedy a suit their correct is uncertainty in the conclusiveness of create “Any aggrieved damages. person in this state. any may pursue remedy by his decree case in the of an action of tort suit nature VII. applicant person other for fraud ” 38-36-131(2). procuring the decree.... judg majority summary The holds thirty-year-old Reopening decree inappropriate in this because ment was case Ainsworth, proper remedy. See White v. question fact as to whether remained P. 959 62 Colo. diligence in Taylor exercised reasonable who should identifying potential claimants VI. parties have named and should have been majority opinion is to The effect of the through action service received put thirty-year-old into

reopen a decision issue, posed process. The crux of ownership por- question the a considerable Taylor’s efforts majority, is whether County. of the land Costilla tion provided adequate notice that he complaint names plaintiffs’ second amended predecessors to reach only the estate heirs as defendants not majority remands plaintiffs. current Taylor, an additional 218 but Jack factual the trial court this issue to persons” who now “all unknown This is an incorrect remand determination. ownership other interests land. question of the disposition case. law, fact. not of sufficiency of notice is one of public policy of this state make It is the v. Rio Landowners Ass’n Closed Basin property more and market- title to secure 105, 10(a), 9(a)(2), C.R.C.P. 7. See Dist.,

Grande Water Conservation 734 P.2d (Colo.1987); Hamilton, Kavanagh (1912) (holding P.

Colo. that on jurisdiction

collateral attack the of a court of

record must be determined its own rec-

ord). such, graft As even if we choose to

requirement applying diligence reasonable locating unknown claimants onto the Tor- Act, Taylor

rens the decision on whether diligence ques-

exercised that is a reasonable court, question

tion of law for this not a

fact for the trial court.

VIII. plaintiffs

Because I believe that

prohibited judicata relitigating res action,

the 1960 and because notice adequate satisfy

suit process, I I agree plain-

dissent. also cannot

tiffs reopen thirty- should be allowed to

year-old determination of land title. Such

result uncertainty would introduce chaos and marketability this state. say

I am authorized to that Chief Justice join

ROVIRA Justice ERICKSON

this dissent. Colorado,

The PEOPLE of the State

Petitioner/Cross-Respondent, HAMPTON,

Russell Millard

Respondent/Cross-

Petitioner.

No. 93SC77. Colorado,

Supreme Court of

En Banc.

9, May 1994.

As Modified on Rehearing Denial of

June

Case Details

Case Name: Rael v. Taylor

Court Name: Supreme Court of Colorado

Date Published: Jul 25, 1994

Citation: 876 P.2d 1210

Docket Number: 92SC74

Court Abbreviation: Colo.