Charlton v. Kelly

• Decision Date: 15 November 1897
• Citation: 24 Colo. 273,50 P. 1042
• Parties: CHARLTON v. KELLY.
• Court: Colorado Supreme Court

50 P. 1042

24 Colo. 273

CHARLTON v. KELLY.

Supreme Court of Colorado

November 15, 1897

Error to court of appeals.

Action by Mary Kelly against Edward Charlton. From a judgment of the court of appeals (43 P. 455) affirming a judgment for plaintiff, defendant brings error. Reversed.

William Young, for plaintiff in error.

CAMPBELL J.

This is an action by appellee (plaintiff below) to remove a cloud from the title to a town lot in the town of Aspen. The cloud consists of a tax deed executed by the county treasurer of Pitkin county to the defendant (appellant) Charlton, who is the assignee of the county for whom the treasurer bid off the property. Upon the trial it was admitted that the plaintiff was the owner of the lot unless the tax deed divested her of her title, and vested it in the defendant. If the tax deed is void, the judgment below (which was for the plaintiff) should stand. The pleadings are so framed that the issue as to the validity of that instrument is properly raised. The judgment of the county court was affirmed by the court of appeals, and the defendant appeals to this court. $The county court specifically found that the deed is void because the treasurer bid off the property for the county without first offering and reoffering the same to private bidders, and giving them an opportunity to buy; and this was the ground of affirmance in the court of appeals. Mills' Ann. St.§ 3888 (Gen. St. 1883, § 2918). The county court also held the deed void for other reasons not specifying them. The record is not entirely clear as to this point, but we think the facts are as stated by the court of appeals (7 Colo.App. 301, 43 P. 455), and that its conclusion of law is correct.

1. But for another and altogether conclusive reason, we are of the opinion that the tax deed is void. No affidavit of publication of the notice of sale in a newspaper was made or filed in the proper office. This was held to be requisite in Morris v. Bank, 17 Colo. 231, 29 P. 803. In that case there was an abortive attempt to show compliance with the statute by the production of an affidavit of publication in a newspaper, but it was held entirely insufficient under our statute. In the case at bar it appeared that no affidavit at all was ever made; at least, that, by diligent search, it was not to be found in the office of the county clerk, where it should be lodged and preserved. The showing by the plaintiff in that behalf was sufficient to overcome the prima facie presumption that a proper affidavit was made and filed which, under the statute in relation thereto, the execution of the tax deed furnishes. But it is said that at the trial the plaintiff admitted that the notice of sale was published in a newspaper for four weeks prior to the day of the sale. This is true, but in connection with such admission was the objection that the only evidence of that fact was the production of the affidavit itself, or satisfactory proof of its loss, and evidence of its contents. This was held to be the requirement in the Morris Case, supra, and also in the case of Rustin v. Tunnel Co., 23 Colo. 351, 47 P. 300, the opinion in which was handed down since the briefs in the pending case were prepared. The doctrine of these two cases, as his argument virtually concedes, would unquestionably settle the contention here against appellant, were it not for the admission by the plaintiff of the fact of publication, which, however, the appellant insists, does away with proof, by way of the production of the affidavit or otherwise. This claim might be granted as a general proposition, but it does not apply here; for, when we turn to the statute (Mills' Ann. St. § 3884; Gen. St. 1883, § 2914), we find that the affidavit required must, inter alia, state 'that copies of each number of said paper, in which said notice and list were published, were delivered by carriers or transmitted by mail to each of the subscribers of said paper, according to the accustomed mode of business in this office.' Now, it is too apparent for argument that an admission or proof merely that the notice of sale appeared for four weeks in a newspaper (which was all that the admission of the plaintiff in this case was) falls far short of being equivalent to proof of the fact of delivery of copies of the newspaper which the statute makes imperative.

2. Before the trial, the county court, at the instance of the plaintiff, dismissed the action against the other two defendants, without taxing against plaintiff the costs incurred in making them parties to the action; and included in the decree was an order taxing against the defendant...