Dimpfel v. Beam

• Decision Date: 07 October 1907
• Citation: 41 Colo. 25,91 P. 1107
• Parties: DIMPFEL v. BEAM.
• Court: Colorado Supreme Court

91 P. 1107

41 Colo. 25

DIMPFEL v. BEAM.

Supreme Court of Colorado

October 7, 1907

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

Suit to quiet title by Thomas L. Beam against W. O'Sullivan Dimpfel. From a decree for plaintiff, defendant appeals. Reversed and remanded.

This is an action by appellee, as plaintiff, to remove a cloud from the title to the Bourbon County lode mining claim situate in Hinsdale county, colo.; he claiming title thereto through and by virtue of a certain tax deed. The appellant, defendant below, claims title to the premises under a conveyance from the patentee of the government which vested in him the fee title to the premises. The facts disclosed by the record that are pertinent to the inquiry presented for our consideration are as follows: The property was subject to taxation for the year 1888, and the taxes assessed thereon for that year remaining due and unpaid on the 31st day of July, 1889, the county treasurer offered the property for sale, and struck the same off to the county for the amount of taxes due thereon. The property being unredeemed from such sale for more than three years, the county treasurer executed a deed to the county on the 10th day of October, 1893, reciting as a consideration therefor the tax of 1888, and the subsequent taxes on said property to the amount of $32.37. On the 15th day of January, 1902, the county commissioners, in their individual names, executed a deed to the appellee for the premises for and in consideration of the sum of $60 by him then and there paid. No taxes were assessed against this property from 1893 until the year 1902. In 1903 the appellant paid this tax, and also the tax for the year 1903. The appellee testified that he went upon the property for the first time about July or August, 1903, and took out and shipped 17,920 pounds of ore, of the value of $21.48 per ton and gathered up five or six tons more from the surface, and that he had not been on the property since. The appellee attempted in his replication to plead the five-year statute of limitation. Mills' Ann. St. § 3904.

S. S. Sherman and Ben Griffith, for appellant.

G. D Bardwell, for appellee.

GODDARD, J. (after stating the facts as above).

The controlling question is whether the tax deed issued to the county is valid, and vested the title to the premises in the county. Upon the trial below, the defendant objected to the introducion of the deed because of its invalidity for several reasons appearing upon its face, among them the want of power in the county to take or receive the same. In the view we take of this particular objection, it becomes unnecessary to consider whether the other objections were well taken or not. By the statute enacted in 1885 (Sess. Laws, p. 323; 2 Mills' Ann. St. § 3900), the issuance of a tax deed to a county was authorized upon demand of the county clerk at any time after three years from the date of sale, and in pursuance of a certificate of purchase for land bid off by the county. This statute was amended by an act approved April 8, 1893, whereby the right of a county to take a tax deed was taken away, and in lieu thereof the county treasurer was authorized to assign the tax sale certificate upon...