Colpitts v. Fastenau

• Decision Date: 22 March 1948
• Docket Number: 15667.
• Citation: 192 P.2d 524,117 Colo. 594
• Parties: COLPITTS v. FASTENAU.
• Court: Colorado Supreme Court

192 P.2d 524

117 Colo. 594

COLPITTS v. FASTENAU.

No. 15667.

Supreme Court of Colorado, en Banc.

March 22, 1948

Rehearing Denied April 12, 1948.

Error to District Court, Washington County; Arlington Taylor Judge.

Action by N. L. Fastenau against Clarence Colpitts to determine interest in certain realty, wherein the defendant asked that his title be quieted, asserting ownership by virtue of treasurer's deed to county and a deed from county to him. To review and adverse judgment, the defendant brings error.

Reversed and remanded with instructions.

HAYS J., dissenting. [Copyrighted Material Omitted]

Richard Peete and John T. Dugan, both of Denver, for plaintiff in error.

Samuel Chutkow, Noah A. Atler and Mandel Berenbaum, all of Denver, for defendant in error.

STONE Justice.

Action was brought by defendant in error, Fastenau, as plaintiff, on April 17, 1944, to determine interests in certain real estate situate in Washington County. Therein plaintiff in error, Colpitts, defended and asked that his title be quieted, asserting ownership by virtue of a treasurer's deed to the county dated the 26th day of December, 1939, issued under tax sale in 1932, and deed from the county to him of like date as the county's deed, where under he had been in possession since its date. Defendant Colpitts here seeks reversal of unfavorable judgment below.

The issues here presented all involve construction of a tax deed. Under the early common law every presumption was against the validity of such a deed, and the burden was on the claimant there under to prove compliance with every provision of the statute in the most minute detail. The recent tendency of the courts has been to relax the strict requirements of the common law as to proof of the validity of tax sales, to regard many provisions as directory which were formerly considered mandatory, and to apply in tax proceedings, as in other public acts, the rule of evidence that a public officer is presumed to do his duty. Consolidated Motors v. Skousen, 56 Ariz. 481, 109 P.2d 41, 132 A.L.R. 1040. This court long ago noted the changing attitude, and we said in Waddingham v. Dickson, 17 Colo. 223, 29 P. 177, 180, speaking through Hayt, C.J.: 'There was a time when it was quite generally believed that all tax-titles could be overthrown, but modern legislation and the trend of recent judicial reasoning upon the subject have served to place tax-titles upon a more substantial basis. The payment of taxes is a duty which property holders owe to the government. If they neglect this duty, they have no right to expect relief from the courts on account of merely technical errors on the part of the public officers, where no substantial right has been lost or impaired, as in this case.' By section 44, Chapter 150, Laws of 1927, now section 151, chpater 40, '35 C.S.A., our legislature declared it to be the policy in this state that all laws affecting title to real property and all recorded instruments should be liberally construed with the end in view of rendering such titles absolute and free from technical defects, so that subsequent purchasers may rely on the record title, and not be defeated by technical or strict construction, and so that the record title of the party in possession shall be sustained and not defeated by technical or strict construction.

Error is first urged in the finding of the trial court that the treasurer's deed to the county, under which defendant asserts title, is void on its face, in that the acknowledgment is fatally defective. Our revenue statute at section 257, chapter 142, '35 C.S.A., provides a statutory form of treasurer's deed, followed by a long form of acknowledgment. Section 258 of the statute requires that the deed be acknowledged by the treasurer Before some officer authorized to take acknowledgments of deeds, and we assume intent that such acknowledgment be in the long form set out in section 257. In 1927, the legislature adopted an act (§ 107 et seq., c. 40, '35 C.S.A.), since amended, S.L. '37, p. 477, and S.L. '39, p. 289, as to matters not here involved. Therein there is set out a short form of acknowledgment, and it is declared that any deed or other instrument relating to or affecting title to real property, acknowledged substantially in accordance with that form, shall be prima facie evidence of the proper execution thereof. The tax deed under which defendant. Colpitts claims bore acknowledgment in the short form provided by the 1927 act as printed on the deed. Defendant's deed is valid on its face if the 1927 statutory form of acknowledgment was intended by the legislature to apply to treasurer's deeds.

We have held that the treasurer in executing deeds acts under a naked statutory power; that he must comply substantially with the statutory provisions; that the form of treasurer's deed is a special one, and that it will not be assumed that the legislature intended to modify it in any way by subsequent statute unless the intention to do so clearly appears. Sayre v. Sage, 47 Colo. 559, 108 P. 160.

The 1927 statute is sufficiently broad in its title to include treasurer's deeds. It is entitled, 'An act concerning real property and to render titles to real property and to interests and estates therein, more safe, secure and marketable,' and it is declared to be the policy in this state that this act shall be liberally construed. The act itself declares that any deed or other instrument relating to or affecting title to real property acknowledged substantially in accordance with the form there prescribed Before a proper official shall be prima facie evidence of the proper execution thereof. The act further specifically provides that the form of acknowledgment therein prescribed shall be prima facie evidence, 'If the acknowledgment be by a person in a representative or official capacity, that the person acknowledging the instrument acknowledged it to be his free and voluntary act in such capacity * * *.' The specific reference to acknowledgment by a person in an 'official capacity' further indicates intent to have it apply to instruments executed by a county treasurer in his official capacity as such.

The purpose of acknowledgment 'is to prove the execution of the conveyance, so as to insure its authenticity when presented for registration, and to enable it to be used in evidence without further proof of its execution by the grantor. * * * The certificate is simply evidence of the execution of the deed supplying the place of direct proof, and, like all other evidence, should receive a reasonable construction.' 1 Devlin on Real Estate, 3d Ed., p. 814, § 464. No reason appears for further insurance of authenticity of a county treasurer's signature than that of any other grantor. In fact, there would appear to be less reason for fear of forgery of an official deed, and in at least one jurisdiction a tax deed does not require acknowledgment, seal or witnesses. Smith v. Dwight, 80 Ore. 1, 156 P. 573, Ann.Cas.1918D, 563. Both from the wording and purpose of the 1927 statute, we believe the form of acknowledgment therein set out was intended to apply to treasurer's deeds.

Any doubt as to such intent has now been removed by Section 1, chapter 158, Laws of 1947, which provides: 'Any tax deed heretofore or hereafter executed by a County Treasurer, pursuant to Section 257 of Chapter 142, 1935 Colorado Statutes Annotated, if acknowledged in conformity with the provisions of Section 107, Chapter 40, 1935 Colorado Statutes Annotated, as amended, shall be, and shall be considered for any and all purposes as having been, properly acknowledged; and such acknowledgment shall carry with it the presumptions provided for by said Section 107 of said Chapter 40, as amended.' To hold that statute merely amendatory of the prior statute would be to make ineffective the words 'heretofore or,' while to hold it declaratory of the legislative intent in the former statute follows the cardinal rule of construction that effect must be given, if possible, to the whole statute and every part of it. We conclude that the treasurer's deed was not void on its face, and the trial court erred in so finding.

The trial court, although basing its decision on the finding that the deed was void on its face, made further finding that the deed was void for four separate defects or omissions in the proceedings preliminary to its issuance, which we shall discuss in the order briefed by defendant in error, keeping in mind that as to such matters the deed itself is prima facie evidence of regularity (Imperial Securities Co. v. Morris, 57 Colo. 194, 141 P. 1160; Richardson v. Halbekann, 97 Colo. 175, 48 P.2d 1014), and that the burden was on the plaintiff to overcome that presumption, but that on findings of fact by the trial court in favor of plaintiff, reversal may be had only where such findings are due to error of law or failure of support by substantial evidence.

A. The court found that the treasurer's affidavit of posting was defective. This finding is based upon plaintiff's contentions: (1) that the affidavit shows that the time of posting was insufficient, (2) that the affidavit does not show posting of notice but only of list of properties, and (3) that the affidavit does not show posting in the place required by statute.

(1) The sale was held on the 12th day of December. The statute required posting for not less than four weeks Before the sale. The affidavit of posting, when offered in evidence, recited that it had been posted on the 17th day of November. However, the county treasurer, who made the affidavit, testified that when he made and filed the affidavit, the date of posting as shown therein was November 10; that the numeral 10 had been subsequently changed to 17 that...