39 Colo. 425 | Colo. | 1907
delivered the opinion of the court:
Action to quiet title. Complaint in the usual form. The answer of defendant denies the possession and title of the plaintiff and asserts title in himself, setting forth same. He also files a cross-complaint to have his own title quieted, to which plaintiff files replication setting up her title, and further attempts by the replication to plead one of the statutes of limitations as follows: “Plaintiff further recites that she and her antecedent grantor have been in quiet and peaceable possession of the property under color of title, and have paid the taxes thereon for more than seven years last past before the commencement of this action, by reason whereof the defendant is debarred and estopped from claiming any interest in said land. ’ ’ The plaintiff further recites in her replication that at the time the defendant procured the quit-claim deed, mentioned in his answer, he was acting for the plaintiff’s immediate grantor in securing said deed, and was attorney for and agent of the grantor in procuring same, and that
The title of the plaintiff rests upon two tax deeds, mentioned in the record and bill of exceptions as the Dollison deed and the Jones; deed. The former was dated November 22d, 1880, and was issued pursuant to a certificate of the sale for taxes upon certain lands for the year 1874, the sale being had upon the 20th day of May, 1875. This deed was void upon its face and is admitted to be void by the plaintiff. It omits the description of any property in the granting clause, and purports to convey lands sold for delinquent taxes en masse for a gross sum. It appears, furthermore, upon the face of the deed, that these tracts were not contiguous and that they were not valued and assessed separately. Under our statutes, with certain exceptions not applicable here, lots or parcels of land must be valued and assessed separately. This rule is mandatory to the end that a lien may be created upon each separate tract for the amount of the taxes assessed and levied thereon, and because our statute further provides that the property shall be sold to the highest bidder, who is defined to be “the person offering to pay the amount due on any parcel of land or the smallest portion of the same.” This court held such deeds void, and not admissible to support a title, in Emerson v. Shannon, 23 Colo. 275.
This deed was admitted in evidence over the objection of the defendant, upon the theory that it was admissible under the allegations of the replication as supporting color of title, and sufficient to set in motion the statute of limitation. The so-called Jones deed was also admitted in evidence over the objection of the defendant that the same was void on its face, and other objections; this Jones deed was
As a matter of defense, the defendant attempted to defeat the Jones deed by showing that it was based upon void proceedings preceding its issue, and sought to prove the illegalities and infirmities of the steps leading up to the issuance of the deed under his denial. The trial court rejected such evidence and offers of proof, for the reason that the same was not pleaded, and could not be received under the' denials. In this ruling the trial court was correct. In this state, under the then-existing statutes, tax deeds were made prima facie evidence of all the steps necessary and required to be taken in the assessment and levy and sale for taxes previous to its issue. If the defendant desired to avail himself of facts not appearing on the face of the deed to show its invalidity, it was necessary to have pleaded the same as new matter. The defendant could not put plaintiff upon proof of his possession and title by denial. Under the statutory proceedings to quiet title in this state, “when defendant has shown by his answer that he asserts such an adverse interest, legal or equitable, as, if sustained by proof, might entitle him to relief in connection with the property, then, and not till then, is he in position under the statute to try the issue of plaintiff’s possession and ownership.” “The statutory proceeding is in this respect unlike an action of ejectment.”— Wall v. Magues, 17 Colo. 478, 479.
When this ruling was made at the trial, the de
In Gould v. Thompson, supra, tke court says: “Tkis authority to execute a second deed is conferred upon tke treasurer in order to correct errors committed in tke first, to tke end that tke tax deed may conform, in its recitals, conditions and descriptions to tke tax records and tke facts of tke case, wkick should appear in tke instrument. The authority does not exist for tke perversion of truth; it .is not conferred to enable tke officer to overthrow, by false recitals in a deed, tke records upon wkick it is
The law will not lend its support to a claim founded upon its violation. — Oscanvan v. Arms Co., 103 U. S. 261. If the recitals of the Dollison deed were in accord with the proceedings leading up to its issue, certainly the recitals of the Jones deed were incorrect and misstated the facts. The court did not consider this deed as evidence in support of the allegations of the complaint, if we may judge from its findings, which are to the effect that by the Jones deed and mesne conveyances plaintiff secured color of title for said land, and has ever since been, and now is, in the open, quiet and peaceable and adverse possession thereof, and has paid all taxes thereon, save and except for the year 1900, paid by the defendant on January 7th, 1901, voluntarily and with full knowledge of the plaintiff’s title. The other findings upon which the judgment in this case is based, are to the effect that the plaintiff secured color of title by the Dollison deed, and remained in possession and paid the taxes the necessary statutory period, and also that the title of defendant was held in trust for the plaintiff. In short, it appears from the findings that this ease was tried upon the answer and replication.
Under our practice the statute of limitations must be specially pleaded, or the defense will be considered waived.—Chivington v. Colo. Springs Co.,
The counsel for appellee (plaintiff below), claims in his brief that this case is covered by § 2923, Mills’ Ann. Stats., rather than by the amendment to that statute, § 2923e, 3 Mills’ (Rev.) Stats. We do not think his position tenable so far as it relates to the Jones deed. The allegation is that the plaintiff and her antecedent grantors have- been in the possession under color of title and paid taxes thereon for more than seven years last past before the commencement of this action, all of which time is covered by the amendment, § 2923e. There are no allegations in plaintiff’s pleading that she is entitled to recovery in this action by virtue of the provisions of § 2923, Mills ’ Ann. Stats. She is restricted by the pleading to the possession and payment of taxes, under color of title given by either deed, to the seven
Referring now to the Dollison deed, it is not very clear when the exclusive possession was taken, if at all, under that deed. The evidence shows that the twenty-five acres in controversy were fenced, in the first instance, in common with fifty-five acres of other land belonging to persons other than the plaintiff or- her grantors; that thereafter the fence was taken away. This is not evidence in support of adverse possession. It is not actual and exclusive possession, but a possession in conjunction with other land owners and it falls far short of that kind of adverse possession which deprives the true owner of his title.— Ward v. Cochrane, 150 U, S. 608; 1 Am.
Disregarding the pleadings for the moment, we do not find any evidence that the plaintiff and her grantors were in possession under and by virtue of the Dollison deed, and paid taxes continuously for the requisite number of years to perfect her title under the limitation statute. It is undisputed that the property was sold for taxes in the year 1893, and afterwards redeemed. Redemption from sale does not constitute payment of taxes as contemplated by our statute of limitations to sustain a title. The finding of the trial court, then, in respect to the title of the- plaintiff under the* Dollison deed, was erroneous.
We do not think the record of this case sustains the finding of the court that the defendant held this title as trustee for the plaintiff, nor do we think this question was properly before the court. There was no allegation concerning the fraud and wrong of the defendant in the original complaint. The allegations in the replication in respect to this matter are insufficient to constitute any cause of action. If they had been sufficient, they were such a departure* from the original cause* of action, as stated in the complaint, that no testimony should have been received in support of them. The complaint alleges that the defendant has no estate, right, title or interest whatever
The judgment is reversed and the cause remanded with leave to parties, plaintiff and defendant, hereto to amend their pleadings as they may be advised. Reversed■ cmd remanded.
Chief Justice Steele and Mr. Justice Maxwell concur. _