Carnahan v. Sieber Cattle Co.

• Decision Date: 02 October 1905
• Citation: 34 Colo. 257,82 P. 592
• Parties: CARNAHAN v. SIEBER CATTLE CO. et al.
• Court: Colorado Supreme Court

82 P. 592

34 Colo. 257

CARNAHAN v. SIEBER CATTLE CO. et al.

Supreme Court of Colorado

October 2, 1905

Appeal from District Court, Mesa County; Theron Stevens, Judge.

Action by James S. Carnahan against the Sieber Cattle Company and others. From a judgment for defendants, plaintiff appeals. Affirmed.

S. M. Logan and J. S. Carnahan, for appellant.

Samuel N. Wheeler, for appellees.

CAMPBELL J.

This dispute is about lands. The appellees, in whose favor as defendants below judgment was rendered, own the same, unless their title was extinguished by a tax deed or deeds upon which appellant's claim of title entirely rests. Briefly the facts are that, the taxes upon these lands having become delinquent, they were, under our general revenue laws advertised for sale by the county treasurer. At the sale no bid was made for the property, and the county treasurer purported to bid it off for, and issued his certificate of purchase to, the county, under the authority conferred upon him by the statute. Sess. Laws 1894, pp. 46, 47, § 5; 2 Mills' Ann. St. (1st Ed.) & 3888. More than three years after the date of this certificate appellant deposited with the treasurer the amount due thereon, and the interest due and unpaid upon the same since its date whereupon the clerk of the county assigned the certificate to appellant, and thereafter the county treasurer issued and delivered to him a tax deed for the lands therein described. Apparently because he was in doubt whether the county clerk or the county treasurer should make the assignment of the certificate, appellant applied for and received from the county treasurer an assignment thereof, and based upon the certificate so assigned another and a second tax deed was executed and delivered to him by the treasurer. These deeds were the only evidence of appellant's title offered or received at the trial, and the sole question here concerns their validity. The trial court held them invalid, and found in favor of appellees.

As to the deed first offered in evidence, based upon the certificate of purchase assigned by the county clerk, there can be no doubt that the trial court was right in rejecting the offer. In Lovelace v. Tabor M. & M. Co., 29 Colo. 62, 66 P. 892, it was expressly ruled that a county clerk has no authority to assign such a certificate, except within the specified time of three years prescribed by section 3888 supra.

The only other question is whether the second tax deed issued upon the certificate assigned by the county treasurer is good. A number of objections to its validity were raised below and are renewed here, only one of which will be determined, for its resolution makes the instrument inadmissible in evidence. Appellant relies upon an act published in Sess. Laws 1893, pp. 428, 429 (2 Mills' Ann St. [1st Ed.] § 3900), which, in the particular now in question, is practically the same as our present revenue law. Sess. Laws 1902, pp. 132, 133, § 177. This section in substance provides that, whenever any land is bid in for the county at any tax sale and a certificate of purchase made to the county therefor, the treasurer may assign and deliver the same to any person who desires to purchase it, upon payment of the amount for which the property was bid in by the county, with interest and penalties which have accrued thereon from the date of sale, together with the sum of $1 for making the assignment, also the taxes assessed on the property since the date of the sale, or for such sum as the board of county commissioners at any regular meeting may decide. This second tax deed contained proper recitals of the assignment of the certificate by the county treasurer to the appellant, and that the latter had paid to the treasurer the amount for which the property was bid in by the county, together with the interest and penalties which had accrued thereon from the date of the sale to the date of assignment. There was no recital, however, expressly or by inference, that appellant had paid the taxes assessed on...