Brown v. Davis

• Decision Date: 03 October 1938
• Docket Number: 14388.
• Citation: 83 P.2d 326,103 Colo. 110
• Parties: BROWN v. DAVIS.
• Court: Colorado Supreme Court

83 P.2d 326

103 Colo. 110

BROWN v. DAVIS.

No. 14388.

Supreme Court of Colorado, En Banc.

October 3, 1938

Error to District Court, Logan County; H. E. Munson, Judge.

Suit by Minnie L. Brown against E. J. Davis to quiet title to certain city lots. Decree for defendant, and plaintiff brings error.

Reversed.

BOUCK J., dissenting.

T. E Munson and C. W. Kinzie, both of Sterling, for plaintiff in error.

George E. McConley, Jr., and M. C. Leh, both of Sterling, for defendant in error.

KNOUS Justice.

By this action the plaintiff in error sought a decree quieting title in her as against the defendant in error to certain Sterling city lots. It was stipulated that she was in possession of the lots, and the record owner thereof, unless her title was divested by a tax deed issued to defendant in error. The controversy arises over alleged irregularities in the proceedings leading up to the issuance of the tax deed. It conclusively appears that at the time the application for the deed was made and prior and subsequent thereto, one Mary Lou White, as tenant from month to month of plaintiff in error was in the actual occupancy of the property. Likewise it is conceded that notice preceding the issuance of a tax deed, as prescribed by section 255, chapter 142, C.S.A. '35, although given plaintiff in error, was not served upon the tenant. Among the objections asserted, plaintiff in error contends that the failure to serve such notice upon the tenant rendered the tax deed void. Below, this contention was resolved adversely to plaintiff in error. We believe the trial court erred in this conclusion. Where the lands involved are assessed for more than $100, which is admittedly the situation here, section 255 supra with reference to notice, provides: '* * * The county treasurer shall serve or cause to be served, by personal service or by registered mail, a written or printed, or partly written and partly printed, notice of such purchase on every person in actual possession or occupancy of such lands, lot or premises, and also on the person in whose name the same was taxed or specially assessed, if upon diligent inquiry such person can be found in the county, or his residence without the county be known, and upon all persons having an interest or title of record in or to the premises, if upon diligent inquiry the residence of such persons can be learned, not more than five months, and at least three months before the time of issuance of such deed. * * * If no person is in actual possession or occupancy of such land, * * * or the residence of the person in whose name the same was taxed, * * * and the residence of none of the persons having interests or title of record in or to the premises, can, upon diligent inquiry, be learned, then the treasurer shall publish such notice * * *.' In Henrie v. Greenlees, 71 Colo. 528, 208 P. 468, and Thomas v. Grand Junction, 13 Colo.App. 80, 56 P. 665, it was determined that in lieu of word 'or' preceding the words 'the residence' in the last sentence of the above quoted section, the conjunction 'and' should be substituted.

The requirements of the foregoing section are jurisdictional. Sheesley v. Voorhees, 24 Colo.App. 428, 134 P. 1008.

The decisions of appellate courts in states having statutes similar to section 255 supra, are uniform in requiring service of the notice of redemption upon the tenant in actual possession of the property at the time notice is required to be given. In 61 C.J. 1262, it is said: A 'tenant occupying under or without a lease must be served with notice.' In support of this text are cited the cases of: Gage v. Bani, 141 U.S. 344, 12 S.Ct. 22, 35 L.Ed. 776; Gage v. Lyons, 138 Ill. 590, 28 N.E. 832; Bradley v. Brown, 75 Iowa 180, 39 N.W. 258; Pomroy v. Beattie, 139 Minn. 127, 165 N.W. 960.

In 26 R.C.L. p. 433, § 389, citing Bank of Utica v. Mersereau 3 Barb. Ch., N.Y., 528, 49 Am.Dec. 189, the rule is stated as follows: 'A tenant in actual possession of the premises or any portion thereof is clearly entitled to notice.' No authorities holding otherwise are mentioned in the foregoing texts or are cited by defendant in error. Notwithstanding, asserting that 'possession' and 'occupancy' are convertible terms, he argues that although the tenant physically occupied the lots, the owner, through the tenant, was legally 'in actual possession or occupancy of such * * * premises' within the spirit of the statute, as a consequence of which notice to the tenant would be an idle gesture. In many classes of cases relating to the possession of real estate, this statement may be substantively correct, but its application here is precluded by the statute. Under section 255, supra, the status of the property as to its actual physical occupancy, as distinguished from the constructive possession thereof, to a major degree controls the...