Central Realty Co. v. Frost

• Decision Date: 05 January 1925
• Docket Number: 11086.
• Citation: 232 P. 1111,76 Colo. 413
• Parties: CENTRAL REALTY CO. v. FROST.
• Court: Colorado Supreme Court

232 P. 1111

76 Colo. 413

CENTRAL REALTY CO. v. FROST.

No. 11086.

Supreme Court of Colorado

January 5, 1925

Department 3.

Error to District Court, Gilpin County; Samuel W. Johnson, Judge.

Action by Charles A. Frost against the Central Realty Company. Judgment for plaintiff, and the defendant brings error, and applies for a supersedeas.

Application for supersedeas denied, and judgment affirmed.

Ernest Morris and John F. Mail, both of Denver for plaintiff in error.

Harry S. Class, of Brighton, for defendant in error.

ALLEN J.

This is an action in ejectment. Plaintiff below was the holder of a tax deed which, it is assumed on both sides, was invalid. He relied for his right to possession upon no other title than that given by the tax deed. The judgment of the court was 'that the plaintiff shall be let into possession of the property * * *; provided, that if the defendant * * * shall pay to the plaintiff the sum of $1,626.45, together with interest thereon at the rate of 8 per cent. from the date of the deed, * * * then and in that event the above entitled action may be dismissed with costs to the plaintiff and against the defendant.' The defendant has sued out this writ of error, and applies for a supersedeas.

The plaintiff in error, defendant below, contends that the judgment is contrary to law; that the only judgment that could be rendered is either that the plaintiff recover possession, or that the defendant go hence and recover its costs.

The defendant in error, plaintiff below, contends that the judgment is authorized by section 7429, C. L. 1921, which section, so far as now material, reads as follows:

'No action for the recovery of land sold for taxes shall lie, unless the same be brought within five years after the execution and delivery of the deed therefor by the treasurer * * * Provided, always, that * * * when the recovery is effected in all cases, * * * all taxes paid after the sale thereof, with interest thereon at the rate of fifteen per cent. per annum, shall be * * * paid by the person or persons recovering the same, before he, she or they shall obtain possession of the land so recovered.'

With the first clause of the statute, as above quoted, we are not now concerned. It is necessary, however, to find what is meant by the terms 'recovery,' 'recovering,' and 'obtain possession,' as used in the subsequent clauses. These terms mean not merely the regaining of possession which has been once lost, or the obtaining of possession not theretofore had, but also the retention of possession already had and which has not been disturbed....