Clark v. Huff

• Decision Date: 05 December 1910
• Parties: CLARK et al. v. HUFF.
• Court: Colorado Supreme Court

112 P. 542

49 Colo. 197

CLARK et al. v. HUFF.

Supreme Court of Colorado

December 5, 1910

Appeal from District Court, Kiowa County; John H. Voorhees, Judge.

Suit to quiet title by J. D. Huff against A. M. Clark and another. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

John F. Mail and W. F. Zumbrunn, for appellants.

John H Voorhees, Crane & Patrick, and Robert W. Cowles, for appellee.

GABBERT J.

Appellee Huff, plaintiff below, brought suit against one Cones, as defendant, to quiet title to a quarter section of land. The complaint was the ordinary one under section 255 of the Civil Code. Before answer, Clark and Morey were made defendants, as successors to the right and interest of the original defendant, Cones. Thereafter they filed their answer, in which they denied the possession and ownership of plaintiff and alleged that they were the owners in fee by title from the United States. They also alleged that plaintiff claimed under a tax deed issued to the estate of Robert Young, and that this deed was void on its face. To this answer plaintiff filed a replication, denying its affirmative averments, and alleging that the tax title under which he claimed was purchased from the heirs of Robert Young. He also alleged that this deed had been of record more than five years, and pleaded the statute of limitations on the subject of recording tax deeds. At the trial plaintiff proved possession, and offered in evidence the tax deed mentioned in the pleadings of the parties, which was admitted over the objection of the defendants. Other evidence of title was also admitted against the objection of defendants, which is not material, if the court erred in admitting the tax deed, as such evidence was merely for the purpose of establishing the chain of title, which had its inception in the tax deed. Plaintiff then rested, and defendants moved for a nonsuit, and that the complaint be dismissed, because plaintiff had not shown title to the land in controversy. This was denied, and, defendants not offering any testimony, judgment was rendered for plaintiff quieting title in him, from which the defendants have appealed.

One objection urged to the tax deed is that it shows a sale en masse of a number of noncontiguous tracts of land for a gross sum. This deed recites: 'That whereas, the following described real property, viz.' Then follows a description of a great number of noncontiguous tracts embracing the one in controversy, interspersed in an area 25 by 50 miles in dimensions, and continues (so far as material to consider) 'situated in the county of Kiowa, and state of Colorado, was subject to taxation for the year A. D. 1892; and whereas, the taxes assessed upon said real property for the year aforesaid remained due and unpaid at the date of sale hereinafter named; and whereas, the treasurer of said county did, on the second day of October, A. D. 1893, by virtue of the authority vested in him by law at (an adjourned sale) the sale begun and publicly held on the second day of October, A. D. 1893, expose to public sale, at the office of the treasurer, in the county aforesaid, in substantial conformity with the requirements of the statute in such case made and provided, the real property above described, for the payment of taxes, interest and costs then due and remaining unpaid on said property; and whereas, at the time and place aforesaid, Robert Young, of the county of Douglas, and state of Kansas, having offered to pay the sum of thirteen hundered and twenty-six dollars and forty-seven cents, being the whole amount of tax, interest and costs then due and remaining unpaid on said property for the whole of each tract or parcel of the above described property, which was the least quantity bid for, and payment of said sum having been made by him to the said treasurer, the said property was stricken off to him at that price.' We think it clear from these recitals that each tract was assessed separately; that the aggregate of such taxes was the sum of $1,326.47; and that all the property upon which this aggregate sum was assessed, as described in the deed, was offered for sale and sold en masse for the gross sum made up of the several amounts assessed against each piece separately.

This court has repeatedly decided in circumstances similar to those in the case at bar that a tax deed the recitals of which show a sale en masse for a gross sum of noncontiguous tracts of acre land separately assessed is void. Emerson v Shannon, 23 Colo. 274, 47 P. 302, 58 Am.St.Rep. 232; Webber v. Wannemaker, 39 Colo. 425, 89 P. 780; Whitehead v. Callahan, 44 Colo. 396, 99 P. 57; Page v. Gillett, 47 Colo. 289, 107 P. 290. The tax deed being void upon...