Bennett v. Shotwell

• Decision Date: 10 May 1948
• Docket Number: 15852.
• Citation: 194 P.2d 335,118 Colo. 206
• Parties: BENNETT v. SHOTWELL.
• Court: Colorado Supreme Court

194 P.2d 335

118 Colo. 206

BENNETT v. SHOTWELL.

No. 15852.

Supreme Court of Colorado, in Department.

May 10, 1948

Error to District Court, City and County of Denver; George A Luxford, Judge.

Action by L. D. Showell, Jr., against Jessie F. Bennett and others to quiet title to realty. Wherein defendant cross-complained. To review a judgment for plaintiff, named defendant brings error.

Affirmed.

Clarence L. Bartholic, of Denver, for plaintiff in error.

I. L Quiat and Julius F. Seeman, both of Denver, for defendant in error.

J Glenn Donaldson, Malcolm Lindsey and Abe L. Hoffman, all of Denver, amici curiae City and County of Denver.

ALTER Justice.

L. D. Shotwell, Jr., brought an action in the district court against Jessie F. Bennett and numerous other defendants to quiet title to certain vacant lots in Bonnie Brae addition to Denver. All defendants except Jessie F. Bennett permitted judgment to be entered by default. Upon trial the court entered its judgment in favor of Shotwell and against Bennett, to reverse which she brings the case here by writ of error.

We will refer to the parties herein as plaintiff and defendant as they appeared in the trial court.

The complaint contains the usual allegatons of ownership in plaintiff and possession of certain lots in Bonnie Brae addition based upon treasurer's deeds, and that defendants claim some right, title and interest therein but which claims, as is alleged, are of 'no effect, groundless, illegal and invalid, and that the claims of said defendants and each of them create a could upon the title of plaintiff and are adverse to the title of the plaintiff.' Plaintiff sought a complete adjudication of the rights of all of the parties to the litigation and a decree quieting title in him.

In defendant's answer there is an allegation denying plaintiff's ownership, and in the cross complaint there is an allegation of ownership in defendant.

In the City and County of Denver the board of equalization is authorized to perform the duties of boards of county commissioners of counties, and for convenience we shall hereinafter refer to that board as the board of county commissioners.

The various objections to plaintiff's treasurer's deeds, all as alleged in defendant's answer or cross complaint, will appear hereinafter in the discussion of the specifications of points which are argued and presented by defendant under five subdivisions, but four of which we deem it necessary to consider.

The record discloses that the twelve treasurer's deeds in question are based upon a sale of one or more lots in Bonnie Brae addition to the City and County of Denver for delinquent general and special taxes, and an assignment of the certificates of purchase by Denver to the plaintiff herein who thereafter applied for, and received, treasurers' deeds. The certificates of purchase were founded upon tax sales as herein indicated:

1. Three treasurer's deeds were based on the tax sale of 1928 for delinquent 1927 taxes.

2. Three treasurer's deeds were based on the tax sale of 1929 for delinquent 1928 taxes.

3. Two treasurer's deeds were based on the tax sale of 1931 for delinquent 1930 taxes.

4. Two treasurer's deeds were based on the tax sale of 1932 for delinquent 1931 taxes.

5. One treasurer's deed was based on the tax sale of 1935 for delinquent 1934 taxes.

6. One treasurer's deed was based on the tax sale of 1938 for delinquent 1937 taxes.

The four points covered by defendant's specifications, and which are here argued and presented, are:

The treasurer's deeds are void because:

1. The sales at which the certificates of purchase were issued by the county were not held in accordance with the statute.

2. They recite that the purchaser (plaintiff) has paid subsequent taxes on the property.

3. The board of county commissioners had no power to abate any tax without the approval of the state tax commission.

4. The board had no power to sell or dispose of certificates of purchase based upon delinquent special assessments at less than the face value or in bulk nor to a preferred purchaser.

1. It is recited in all of the dees here in question that the sales at which the certificates of purchase were issued were conducted in substantial conformity with the requirements of the statutes, and, under the provisions of section 258, chapter 142, '35 C.S.A., these deeds are prima facie evidence in all courts of nine specified facts, among which is, 'Ninth--That the sale was conducted in the manner required by law'; consequently, the treasurer's deeds are prima facie evidence that the sales were so conducted unless the recitals therein show to the contrary. The burden of nullifying treasurer's deeds is on the party contending for their invalidity. White Cap Mining Co. v. Resurrection Mining Co., 115 Colo. 396, 174 P.2d 727.

Counsel for defendant bases his argument here upon the contention that the treasurer failed to comply with that provision of section 234, chapter 142, '35 C.S.A., in force at the time of the commencement of this action, which reads in part:

'If there shall be no bid for any tract offered, the treasurer shall pass it over for the time, and shall re-offer it at the beginning of the sale next day, until all the tracts are sold, or until the treasurer shall become satisfied that no more sales can be effected, when it shall become his duty to strike off to the * * * city and county, * * * the town lots remaining unsold, for the amount of such taxes, interest and cost thereon. When the county treasurer has so struck off any * * * town lots to the * * * city and county, * * * he shall issue to the * * * city and county, * * * a certificate of purchase as now provided by law.'

It is counsel's contention that the treasurer failed to offer and reoffer the lots here in question in accordance with the mandate of the statute. The evidence as to the offer and reoffer of the properties is not entirely satisfactory. At most of these sales there were thousands of lots and parcels of property sold for delinquent taxes. A witness called by plaintiff testified that he had been with the tax department of the City and County of Denver from 1906 to the time of the trial, with the exception of four years, and that a part of this time, at least, he was in charge of tax sales. He further testified that all of the property listed as delinquent was offered three consecutive times; that the first time he read the list of property, the description and local description, and that on 'the subsequent day they would reoffer it--read it if there was anybody there--often times there was nobody present at the sale, they would have some clerk read it off and stamp the date on the back of the sale slip, the date of the second offer.' He also testified that invariably the property which was not sold on the first day was reoffered for sale on the second and subsequent days.

A witness called by defendant testified that he was chief clerk in the treasurer's office from 1928 to 1934 and that his duties were the collection of taxes, the holding of tax sales, and related business. He also testified that he conducted the tax sales from 1928 to 1934, inclusive; that sometimes in the early years of his employment the lots and parcels were offered and reoffered each day of the sale, and he further testified that during some of the later years of his employment he did not reoffer the property, on which there were no bids on the first day, on the following and subsequent days; however, he testified that the property upon which there was no bid on the first day of the sale was reoffered daily by a clerk in the office, and he himself, on the second and subsequent mornings of the sale, would inquire whether there were any bids for any of the parcels that were offered on the preceding day.

'The requirement of the statute is only that the treasurer shall reoffer the property the next day. It does not require the formal rereading of the notice of sale or legal description of the property. Its purpose is patent--to give reasonable opportunity for all so desiring to bid, and to make sure there were no bidders present Before striking any property off to the county; and such only is its requirement. Where persons were present the deed is prima facie evidence that the requirement of statute was observed. Where no one was present, there could be no bidding, and the treasurer's customary announcement to the vacant room at the proper time, that if there was nobody present the properties would be sold to the county, was unmistakable notice that he was ready to offer the property if a bidder was there. To require formal announcement and reading of the notice of sale and each property description with none present to hear or bid, is to require a vain and useless thing, and make of the law a ritual of sacred incantations rather than a rule of common sense.

'But if we shall agree, for the purpose of the argument, that such formal reading was necessary, we still have the prima facie proof from the recitals in the deed that this was done.' Colpitts v. Fastenau, Colo., 192 P.2d 524, 530.

We note, in fairness to defendant's counsel, that the above case was decided after all briefs were filed in the instant case.

If there be a conflict in the testimony of these two witnesses one for the plaintiff and one for the defendant, it became the duty of the trial court to determine which witness was more worthy of credit and give credit accordingly. The trial court found that the allegations contained in plaintiff's complaint were true and that those in the defendant's answer and cross complaint were untrue; consequently, the trial court found that the property here involved was offered and reoffered in accordance with the...