Dussart v. M. Abdo Mercantile Co.

• Decision Date: 04 May 1914
• Docket Number: 8,060.
• Citation: 140 P. 806,57 Colo. 423
• Parties: DUSSART et al. v. M. ABDO MERCANTILE CO.
• Court: Colorado Supreme Court

140 P. 806

57 Colo. 423

DUSSART et al. v. M. ABDO MERCANTILE CO.

No. 8,060.

Supreme Court of Colorado

May 4, 1914

Error to District Court, Las Animas County; A. Watson McHendrie Judge.

Action by Catherine Dussart and others against the M. Abdo Mercantile Company, a corporation. There was a judgment for three of the plaintiffs and for defendant against all others and Catherine Dussart and others, the unsuccessful plaintiffs, bring error. Reversed.

McGlashan & Gow, of Trinidad, and W. G. Hines, for plaintiffs in error.

McChesney & McChesney, of Trinidad, for defendant in error.

SCOTT J.

This is an action to cancel a tax deed and to quiet title in the plaintiffs below, to the premises involved. Louis Dussart died on the 4th day of July, 1896, intestate, and at the time of his death was the owner and in possession of lot 9, block 10, in Romeroe's addition to the town of Aguilar in Law Animas county. He left as his heirs, a wife and six children all of whom were the plaintiffs below in this case. The defendant claims under a tax deed dated January 29, 1902 based upon a sale of the premises to the county on the 23d day of March, 1896, for taxes due for the year 1894, recorded February 24, 1902, and under the seven-year statute of limitation, as being in open, notorious, continuous and actual possession of the lots involved for a period of more than seven years prior to the commencement of this action under claim and color of title made in good faith, and the payment of all the subsequent taxes legally assessed against said lot. The cause was tried partially upon an agreed statement of facts, in which it is agreed, in addition to what has been said, that three of the plaintiffs were at the time of the execution of the tax deed, minors, and did not attain their majority in time to come within the statute of limitations so pleaded; that in 1894 the property was assessed at the value of $5, and the tax levied was 12 cents; that the certificate, based upon which the deed was executed, described the premises as lot 9, block 10, of the town or city of Romeroe's; that no valid affidavit of publishing and posting the notice of tax sale was filed with the county clerk and treasurer; that the said tax certificate was assigned by the county treasurer to A. I. Lindsey and Fred Rustedt, and that the tax deed described the property as lot 9, block 10 in Romeroe's addition to Aguilar, Las Animas county, Colo.; that the property was afterward by mesne conveyances, conveyed to the defendant in error. It is further stipulated that the said tax deed is void on its face, in that the property therein purporing to be conveyed was sold to the county of Las Animas on the first day of the treasurer's sale, and that said deed is not attested by the official seal of the county treasurer of Las Animas county; and that all subsequent taxes were paid by the defendant and its grantors when due. It was admitted during the trial that it was the custom of the county assessor in the year 1894 to assess the property in Romeroe's addition to the town of Aguilar as being a certain lot and block, Romeroe's, and that it was intended thereby to mean Romeroe's addition to Augilar. But the plaintiffs' rights are not controlled by a custom of county officials. They are entitled to their rights under the law. The court found that the tax deed was void upon its face, and that the defendant and its predecessors claimed the title under the tax deed, having been in the actual, open, and notorious possession of said lot under claim and color of title made in good faith, and have paid all taxes legally assessed and levied thereon for a period of seven years immediately preceding the commencement of the action, that the seven-year statute of limitation cannot and does not apply to the three plaintiffs, who were minors at the time, and the judgment, in so far as these three of the plaintiffs are concerned, canceled and annulled said tax deed, and quieted title in a one-twelfth interest in said premises in and to each of the three defendant minors, and adjudged the defendant to be the owner in fee simple of the remaining three-fourths interest, and quieted title in the defendant for such interest in the premises. This judgment is before us for review.

While there are many apparent valid objections to the validity of the tax deed, we will consider only the following: (a) That the deed is not attested by the official seal of the county treasurer of Las Animas county. (b) That the property was assessed and described in the certificate of tax sale as follows: Lot 9, block 10, Romeroe's, while in the deed the premises are described as lot 9, block 10 in Romeroe's addition to the town of Aguilar, etc., which latter is the correct description of the premises.

Upon the hearing A. I. Lindsey, one of the grantees of the deed, testified for the defendant, and to the effect that he erected a building on the premises in the year 1903. Counsel for plaintiffs contended that this testimony was a surprise, and for such reason moved the court for a continuance to permit them to prove that this building was not erected, and that Lindsey did not take possession of the premises, until 1905, which, if true, would take the case out of the seven-year statute of limitations. This motion was overruled, and is assigned by the plaintiffs as one of the errors in the case. It would seem to be well within the discretion of the court to overrule that motion, and, as presented here, we cannot hold it to be error.

The deed upon its face shown that the property was sold to the county on the first day of the treasurer's sale. Under the repeated decisions of this court, as well as by the admission of parties, this deed was clearly void upon its face for such reason alone.

It is also agreed that the deed is void upon its face for the additional reason that it is not attested by the county treasurer's official seal. The deed in question was issued under a statute (section 184, p. 331, Laws of 1901) requiring its execution by the treasurer in his official capacity, and attestation by his official seal, and not 'official or private,' as required under the former statute.

In Empire Co. v. Bender, 49 Colo. 522, 113 P. 494, it was said 'Under the statute in force at the time of the execution of such an instrument, it was a prerequisite that the deed should be signed by the treasurer in his official capacity and attested by his official or private seal, and acknowledged, before some officer authorized to take acknowledgments of deeds; and, when substantially thus executed and recorded in the proper records of title to real estate, it vested all the right, title, interest, and estate of the former owner in and to the lands conveyed. Until the deed was thus executed, namely, signed by the treasurer in his official capacity, attested by his private or official seal, and acknowledged, it was no deed. Mills' Ann. St. §§ 3901 and 3902.' In that case, Sayre v. Sage, 47 Colo. 559, 108 P. 160, was quoted with approval wherein it was said: 'The treasurer, in executing such deed, acts under a naked statutory power, and, in order that it shall be valid, it must comply substantially with the provisions of the statute prescribing its form. That it must be attested by the official or private seal of the treasurer is a positive...