No. 3620 | Colo. Ct. App. | Apr 15, 1913
Rehearing
On petition for rehearing:
Plaintiff in this action brought her suit in the nature of ejectment (under Section 266, Civil Code) to recover possession of cértain real estate, alleging her title and right of possession, and that defendants wrongfully withheld said premises from, the plaintiff, and exercised acts of ownership on and over the same. For answer to this complaint defendants denied plaintiff’s title and right of possession, and alleged that they were the owners in fee simple, in possession and entitled to possession of said premises. They also made cross-complaint in which they alleged their ownership in fee and possession of the land described in the complaint; that plaintiff claims some interest therein adverse to the defendants, which was without foundation or right, and asked that- plaintiff he required to set out the nature of her title or claim and that the same be adjudged invalid, and that defendants’ title be quieted. To this cross-complaint plaintiff an
1. The case was first and separately tried as an equity case upon defendants’ cross-complaint to quiet title, at which time the court granted non-suit as to defendants’ cause of action set forth in their cross-complaint, holding that the tax deed set out in defendants’ replication was fair on its face, and therefore said five-year .statute of limitations barred defendants from introducing evidence to establish the invalidity of the deed for matters not appearing upon its face. Thereafter the cause came on for trial before another judge upon plaintiff’s cause of action in ejectment. As the only proof of her title plaintiff offered in evidence a quit-claim deed from Mary E. G-rosvenor and two others as sole heirs of Margaret G-. Palmer, to Edgar P. Long; quit-claim deed from Edgar P. Long to plaintiff, both said deeds conveying the lands herein in litigation; a court order reciting
2. Appellants contend that by reason of the failure of appellee to offer the tax deed in evidence, and support it by proof of compliance with certain statutory requisites to its validity, she wholly failed to establish prima facie title; while appellee contends that the defendants, by setting out the tax deed ipsissimis verbis in their reply, obviated the necessity on the part of plaintiff, not only of offering the deed in evidence in support of her title, but also of the offer of any proof with regard thereto. We think, under the facts of this case and the form of the deed pleaded by defendants, plaintiff’s contention cannot be sustained. Before a tax deed can become prima facie evidence of title in the courts of this state it must affirmatively appear by the recitals of the deed that every preliminary step to divest the title of the patent owner was regularly taken as prescribed by law. — Charlton v. Toomey, 7 Colo. App., 304" court="Colo. Ct. App." date_filed="1896-01-15" href="https://app.midpage.ai/document/charlton-v-toomey-7833765?utm_source=webapp" opinion_id="7833765">7 Colo. App., 304, 43 Pac., 454; Empire Co. v. Howell, 23 Colo. App., 265" court="Colo. Ct. App." date_filed="1912-11-11" href="https://app.midpage.ai/document/empire-ranch--cattle-co-v-howell-7836737?utm_source=webapp" opinion_id="7836737">23 Colo. App., 265, 268, 129 Pac., 245. If this rule be adhered to it necessarily follows that this deed, which fails to recite compliance with the provisions of the statute making it obligatory to give notice of intention to take out the deed, and make due proof thereof, as a condition precedent to the power of the treasurer to execute it, or that the assessed valuation of the land was such that notice was not required, is not even prima facie evi
Appellants also contend that the deed, if regarded as offered in evidence, is void on its face, and therefore not sufficient to support the plaintiff’s plea of the short statute of limitations. While plaintiff contends that, by this deed, defendants’ title derived from the government was extinguished after five years and before the commencement of this action, and relies on decisions of the supreme court in Williams v. Conroy, 35 Colo., 117" court="Colo." date_filed="1905-09-15" href="https://app.midpage.ai/document/williams-v-conroy-6563875?utm_source=webapp" opinion_id="6563875">35 Colo., 117, 83 Pac., 959; Wood v. McCombe, 37 Colo., 174" court="Colo." date_filed="1906-04-15" href="https://app.midpage.ai/document/wood-v-mccombe-6564028?utm_source=webapp" opinion_id="6564028">37 Colo., 174, 86 Pac., 319, 119 Am. St., 269; Halbouer v. Cuenin, 45 Colo., 507" court="Colo." date_filed="1909-04-15" href="https://app.midpage.ai/document/halbouer-v-cuenin-6564709?utm_source=webapp" opinion_id="6564709">45 Colo., 507, 101 Pac., 763. We think those cases are not decisive of the instant case in favor of the plaintiff under the facts here shown. In Williams v. Conroy it was admitted by both the plaintiff and the defendant that the tax deeds relied upon were regular and fair on their face in all respects; and in neither of the three cases was the question raised or considered that it was not shown by the recitals of the deed, or by evidence cdiunde, that due notice of intention to take out the deed had not been given, or that the assessed valuation of the land was such as to make it unnecessary. Although the first statute, requiring notice as a condition precedent to the taking out of a tax deed in case the assessed valuation exceeded a certain sum, was in effect at the time the decisions in said three cases were rendered, it is shown by the record in each case that the tax deed there under consideration was executed and
If it be conceded that the tax deed was not void on its face because of any affirmative allegations .showing a failure to comply with the statutory prerequisites, nevertheless, for its failure to recite the jurisdictional requirement which goes to the power of the treasurer to issue the deed, it was not prima facie evidence of title, and could not set the short statute of limitations in operation. — Black on Tax Titles, sec. 498; Knox v. Cleveland, supra. If not held to be void, it must be held to be insufficient for lack of essential proof. The petition for rehearing is denied. But on account of modifications incorporated herein which are deemed justifiable and appropriate under the law and the facts of this case, the former opinion will be withdrawn. The judgment of the trial court is reversed and the cause remanded.
Lead Opinion
delivered the opinion of the court.