Seymour v. Deisher

33 Colo. 349 | Colo. | 1905

Chief Justice Gabbert

delivered the opinion of the court.

From the briefs of counsel it appears that the validity of the tax deeds rests upon a determination of these two questions:

(1) Was the property sold prematurely? and

(2) Does the description in the deeds render them void?

The sale on the fifth day of February, 1895, was for the taxes of 1893, and the sale of March 16, 1896, for the taxes of 1894. At the time of these respective sales, the respective taxes for which the sales were made were delinquent, and the property subject to sale therefor. — Sec. 7, Laws 1891, p. 288. In other words, under the statute the property was subject to sale for the taxes of 1893 on and after the first Monday in October, 1894, and for the taxes of 1894 on and after the first Monday in October, 1895; so that each sale was made after the date when, according to law, the property could be sold for the delinquent taxes -of the preceding year. Each sale was, therefore, prima facie valid, and not prematurely made. — Security & Bond Co. v. Wood, 27 Colo. 218.

Gomer v. Chaffee, 6 Colo. 314, is not in point. In that case the sale for a tax was premature, because made before the date when, according to law, the property could be sold therefor.

In the complaint the property is described as the “Czar lode, survey number 2008, in Galena mining district.” The answer avers that the defendant is the owner of the same identical property described in the tax deeds as the “Czar lode, survey number 2000, in Galena mining district.” For the purposes of the demurrer, this statement in the answer stands confessed. The difference between the description in the complaint, and that contained in the deeds, is in the number of the survey. The purpose of description is designation and identification. This purpose is accomplished when the description of real property sold for taxes is such, that thereby it can be identified, either with or without extrinsic evidence, and .does not mislead the owner. — Sullivan v. Collins, 20 Colo. 528; The People v. Stahl, 101 Ill. 346; Woodside v. Wilson, 32 Pa. St. 52; Bosworth v. Danzein, 25 Cal. 296.

The description in the tax deeds points to a specific tract designated as the Czar lode. That is a certain, definite description. Except it has been patented, or entered for patent, -it would have no lot number. The number is but another designation of the same property. Plaintiff says it is one number; defendant •„ another. The plaintiff admits by his demurrer that the property described in the tax deeds is the same property which he claims under the same name. The difference in the numbers of the survey lot is, therefore, immaterial; because, according to the names and the pleadings, the property is the same, and the difference in the lot numbers must be explainable by extrinsic evidence, and the identity of the subject-matter of controversy thus definitely established by the name of the Czar lode. It does not appear that the difference in numbers could have misled the owner. The name, and not the lot number, is the description by which he would ordinarily know his property. There may be instances when a mistake in the survey lot number would be fatal to a description of a mining claim sold for taxes, but for the purposes of the demurrer in this case it is not.

The judgment of the district court is reversed and the cause remanded, with directions to overrule the demurrer to the answer.

Reversed and remanded.

Justices Gunter and Maxwell concur.