Board of County Com'rs of Pitkin County v. Blanning, 70--103

• Decision Date: 01 December 1970
• Docket Number: No. 70--103,70--103
• Parties: The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF PITKIN, State of Colorado, Plaintiff in Error, v. James C. BLANNING, Jr., Defendant in Error. . I
• Court: Colorado Court of Appeals

Page 404

479 P.2d 404

29 Colo.App. 61

The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF PITKIN State of Colorado, Plaintiff in Error, v. James C. BLANNING, Jr., Defendant in Error.

No. 70--103.

Colorado Court of Appeals, Div. I.

Dec. 1, 1970.

Rehearing Denied Dec. 22, 1970.

Delaney & Balcomb, Edward Mulhall, Jr., Glenwood Springs, for plaintiff in error.

Parkison, Stewart & Stoddard, Glenwood Springs, for defendant in error.

COYTE, Judge.

The parties appear in the reverse order from their appearance at trial, but shall be referred to as they appeared at trial or by name.

Involved in this appeal is the question of title to a certain parcel of land located in Pitkin County, Colorado. At trial plaintiff was successful in an action brought under R.C.P.Colo. 105 to quiet title to the property, and defendant now brings appeal.

One William Hoag was the original grantee of the property involved. He procured a receiver's receipt in 1885 and a patent in 1911. By mesne conveyance in 1886, one Jerome B. Wheeler took title to the property. He conveyed by quit claim deed to George E. Ross Lewin, Trustee, in 1894. In the residuary clause to his will dated January 1905, signed as 'George Edward Ross-Lewin,' he left all property, both real and personal, to Elizabeth Ross-Lewin, his daughter. In 1964 Elizabeth Ross-Lewin Brackenbury died, leaving the remainder of her property, not otherwise disposed of, to the Northern Trust Company of Chicago. By quit claim deed in 1966, the Northern Trust Company conveyed the property in question to plaintiff, who also procured quit claim deeds to the property from the three grandchildren of Jerome B. Wheeler. Based upon these facts, the trial court concluded that plaintiff had established a chain of title to the property culminating in himself.

Defendant contended, however, that it had superior title to the property by reason of a Treasurer's Deed issued in 1956 as result of a tax sale. The trial court found this Treasurer's Deed fatally defective for failure to comply with certain statutory requirements. This finding is not in itself attacked, but it is urged that passage of time has cured the deed.

I.

Defendant's first contention is that the trial judge, who was county attorney from 1946 until 1951, was disqualified from serving as judge in this proceeding under R.C.P.Colo. 97, which provides for the disqualification of a judge who has been counsel for either of the parties involved.

During the period of time in which the trial judge was the county attorney, no action of any nature was taken relative to the property in question. The tax sale from which the county's title is derived did not occur until 1953, or two years after the judge had left the office of county attorney.

The intent of the rule under which a judge should disqualify himself from a case if he has served as counsel for either of the parties is to insure a fair and impartial hearing of the issue involved. Lawson v. People, 63 Colo. 270, 165 P. 771. In the absence of a valid reason for disqualification relating to the subject matter of the litigation, the trial judge has the duty of presiding over the case. Kubat v. Kubat, 124 Colo. 491, 238 P.2d 897.

In the instant case the subject matter of the litigation concerned title to certain property located in Pitkin County, Colorado. No showing has been made that in his duty as county attorney seventeen years prior to the institution of this action, the trial judge was in any manner concerned with the question of title to this property, or that the defendant's right to a fair and impartial hearing was in any manner affected by the refusal of the trial judge to disqualify himself.

The trial judge was correct in refusing to disqualify himself.

II.

Defendant's next allegation of error deals witn the refusal of the trial judge to grant defendant's motion to dismiss plaintiff's complaint at the conclusion of plaintiff's case in chief. Defendant asserts that plaintiff failed to establish a prima facie showing of rightful ownership of the property at the close of his presentation of evidence. We find this argument devoid of merit.

Under R.C.P.Colo. 105, plaintiff does not have to prove possession of the property involved in order to prevail. Siler v. Investment Securities Co., 125 Colo. 438, 244 P.2d 877. Of course, in a case where defendant is in possession, plaintiff must rely on the strength of his own title, not upon the weakness of defendant's title in order to recover. Fastenau v. Engel, 129 Colo. 440, 270 P.2d 1019.

Plaintiff's burden of proof, therefore, was to establish title to the property in question by the presentation of competent evidence. The evidence presented by plaintiff was primarily in the form of a stipulated set of facts establishing the chain of title as related above. Under these circumstances, the trial court correctly concluded that plaintiff had established a prima facie case establishing its right to ownership of the property in question. Plaintiff was entitled to relief under R.C.P.Colo. 105, unless defendant could come forward with evidence to rebut plaintiff's title to the property, which it was unable to do and is therefore not entitled to reversal of the case on this point.

III.

Defendant next urges that 1965 Perm.Supp., C.R.S.1963, 137--12--1, bars recovery by plaintiff in this action. In general, this particular statute bars an action for the recovery of land sold for taxes unless such action is filed within five years from the delivery of the Treasurer's Deed. This alleged error was not raised in the trial court. It is first urged in this court on appeal. Failure to present this issue of alleged error to the trial court by motion for new trial prevents this court from entertaining the issue on appeal. R.C.P.Colo. 59(f).

IV.

Defendant next contends that C.R.S.1963, 118--7--11, should now bar this action. In general this statute provides that no action shall be maintained against any person in possession of real property under a Treasurer's Deed unless such action shall be instituted within seven years from the recording of such an instrument. C.R.S.1963, 118--7--12, provides for a two-year extension in the case of certain legal liabilities. Defendant argues that in either event, twelve years having elapsed between the recording of this defective Treasurer's Deed and the filing of this suit, the deed should be invulnerable to attack. We disagree.

Although the statute is a powerful defense to a holder of real property under a defective Treasurer's Deed against the onslaught of former title holders, there are certain requirements which must be met in order to use this statute as a shield. In Federal Farm Mortgage Corp. v. Schmidt, 109 Colo. 467, 126 P.2d 1036, the Supreme Court interpreted C.S.A.1935, 40--146, now C.R.S.1963, 118--7--11. In its opinion, the court held that a person claiming the protection of the statute must establish that the defective deed under which title is claimed has been on record for the statutory time and that although the person claiming under the tax deed need not have been in possession for the full statutory period, he must prove that he is in actual possession of the real estate at the time of trial.

Although no dispute exists as to the fact that the Treasurer's Deed has been of record for the statutory period of time, the court in its findings correctly stated:

'Defendant has never been in possession of, nor ever exercised any dominion or control over the land which is the subject of this action, or any part thereof.'

In order to avail itself of the protection offered by C.R.S.1963, 118--7--11, defendant must not only prove that the instrument has been recorded for the statutory period of time, but also that it is in actual possession of the property in question. Failure to do so prevents defendant from raising this statute as a bar to plaintiff's action.

V.

Defendant's next assignment of error deals with the trial court's finding that plaintiff...