No. 3512 | Colo. Ct. App. | Apr 15, 1912
Lead Opinion
1. Peltou brought his action in the district court of Washington county to quiet title to the southeast quarter of section twenty-eight (28), township five (5) south, range fifty-two (52) west of the sixth principal meridian, his complaint containing the ordinary allegations to support an action of that character. Defendant, Vanderpan, answered denying ownership in plaintiff, and setting up ownership in himself, based on three certain treasurer’s deeds to his grantors, and quit claim deeds from said grantors to himself, but he did not plead the statute of limitations. Plaintiff replied attacking the validity of the tax deeds and each thereof. On the trial plaintiff introduced a patent from the United States, to the land in question, running to Hamilton Potter and a trust deed from Potter to Thomas O. Moffett, dated October 1st,
2. To sustain his title, defendant introduced three tax deeds. The first of said tax deeds so offered by defendant was void upon its face for the reason that it showed the sale of several non-contiguous tracts of land en masse for a gross sum, and for the reason that the said land was bid in by the county and the certificate assigned by the county clerk more than three years after the date of the sale, no authority for said assignment appearing on the face of the deed, or otherwise. Said deed was void on its face for the further reason that it does not appear that the land was offered for sale by
3. Defendant further offered, in support of his title, a treasurer’s deed to the land in question, running to Kate Young, and based upon a tax certificate issued to one W. T. Lambert, by the treasurer of Arapahoe county in 1902, at which date the land composed a part of the then county of Arapahoe. This tax or treasurer’s deed was executed in 1907 by William J. Pine, the then treasurer of the city and county of Denver. The deed shows on its face that the land in question, after the tax sale referred to, and before the issuance of the tax deeds now under consideration, became a part “of Washington county; indeed, the record shows it had been a part of said last mentioned county almost four years prior to the execution of the treasurer’s deed by the said Pine. Under the ruling in Pollen v. Magna Charta M. & M. Co., 40 Colo. 89" court="Colo." date_filed="1907-04-15" href="https://app.midpage.ai/document/pollen-v-magna-charta-mining--milling-co-6564259?utm_source=webapp" opinion_id="6564259">40 Colo. 89, the treasurer of Washington county was the proper officer, indeed, the only officer authorized to execute the treasurer’s- deed based on the tax sale aforesaid, hence this tax deed was void on its face'. It was also void on its face for the following additional reasons: (a) it is recited that the sale of the land in question (together with several other non-contiguous tracts ..of land set forth in the deed) occurred on the 10th and 24th of November, A. D. 1902, but without specifically stating on which of the aforesaid dates the sale occurred; (b) the deed does not disclose the amount due for delinquent taxes on the particular property involved in this suit, or on any of the several non-contiguous tracts of land in-
4. The defendant next offered in evidence, to support his claim of title, a tax deed issued to Kate Young, his grantor, by the treasurer of Washington county, based upon a tax certificate issued to William Young, in December, 1903. The record discloses that the land involved in this suit was sold for taxes and bid in by the said William Young on the date aforesaid, together with ten other non-contiguous tracts of land. There is nothing appearing-on the face of the deed which enables one to determine what the amount of the delinquent tax was on the particular land here involved at the date of the sale, hence, for the reasons already stated, this deed was void on its face, and properly excluded when offered by defendant. All of the tax deeds offered by defendant being- void, the quit claim deeds to defendant from the grantees named in the various tax deeds were, of course, also properly excluded.
■5. There was no proof offered on the trial, by either the plaintiff or the defendant, as to whether the land was vacant and unoccupied, or as to whether either party was in actual possession thereof, and the defendant, in his brief, contends that in a statutory action to quiet title, the plaintiff must allege and prove possession when same is denied. As an abstract proposition, this contention is sound, and well supported by the Colorado authorities, but it
6. Although he had not plead the statute of limitations, defendant, in his answer, attempted to plead, and on the trial sought to prove laches, and it is insisted in the brief filed in his behalf, that the plaintiff and his grantors having failed for a long number of years to challenge the tax deeds, ought not in equity to be heard now to question them. It appears from the answer of the defendant that he paid $350 for the land, and from the decree it appears that if the judgment of the trial court shall be affirmed, he will receive, by way of taxes advanced and penalties, $129.00. The record discloses that the defendant first became interested in the land in 1907, only a short time before the plaintiff interested himself in it. From the small sum which the defendant paid for the land, it seems at least
There are other matters discussed in the briefs, which, in view of what has already been said, we need not consider.
The judgment of the trial court will be affirmed.
Affirmed.
King, Judge, concurs in the result.
Dissenting Opinion
dissenting.
I do not agree with so much of the third paragraph of the foregoing opinion as seems to be based upon the authority of Henry v. Danner, or with anything contained in the fourth paragraph. With these views, I do not see how I can concur in the result.