Emerson v. Valdez

• Decision Date: 15 September 1913
• Citation: 135 P. 137,24 Colo.App. 458
• Parties: EMERSON v. VALDEZ.
• Court: Colorado Court of Appeals

135 P. 137

24 Colo.App. 458

EMERSON v. VALDEZ.

Court of Appeals of Colorado

September 15, 1913

Appeal from District Court, Rio Grande County; Chas. C. Holbrook Judge.

Action to quiet title by Francisco Valdez against Harrington Emerson. Judgment for plaintiff, and defendant appeals. Reversed.

John F Mail, of Denver, for appellant.

Ira J Bloomfield and Jesse Stephenson, both of Monte Vista, for appellee.

HURLBUT J.

March 23, 1908, appellee, as plaintiff, brought an action against defendant (appellant) to quiet title to the northeast quarter of section 6, township 39 north, range 7 east of the New Mexico meridian, Rio Grande county, claiming title under certain tax deeds. Defendant answered, denying plaintiff's ownership and alleging that each of said tax deeds under which plaintiff claimed was void on its face, and also for reasons not apparent on the face thereof, and by way of cross-complaint alleged that said tax deeds constituted a cloud upon defendant's title, vested in him by sundry mesne conveyances from the government, and prayed that his title be quieted and that he recover possession of the premises which plaintiff wrongfully withheld from him. Plaintiff filed his replication, in which he denied defendant's title and, answering defendant's cross-complaint, pleaded the short statute of limitations as a bar thereto. The applicability of the statute was denied by further plea of the defendant. The pleadings are voluminous and much of the matter therein contained redundant and of no assistance in presenting the issues tried by the court. The above is probably a sufficient statement of the pleadings in order to properly understand the issues.

Although from appellee's brief it appears that four or five tax deeds were relied on by plaintiff to prove his title to the land, it will be unnecessary to consider but two thereof, to wit: Exhibit No. 1, a tax deed executed and delivered December 18, 1901, and recorded the following day, based on a sale of the land December 15, 1898, for the taxes of 1897; and Exhibit No. 12, a tax deed dated October 26, 1908, based upon the same sale and the same certificates of purchase which is alleged to have been executed to correct the defects appearing on the face of Exhibit No. 1. These instruments are the only ones which plaintiff relies upon to confirm his right and title to the disputed premises. With the exception of a certain special warranty deed, he has expressly excluded all others by statements in his brief to the effect that he claims nothing by reason of any other deeds. Plaintiff admits that defendant holds title by sundry mesne conveyances from the government. Judgment was rendered for plaintiff, adjudging him to be the owner in fee simple of the premises and quieting title in him as against defendant. The special warranty deed above mentioned is dated April 21, 1900, and was executed by Thomas A. Good to Francisco Valdez for the controverted ground and nearly 18 months before the deed of December 18, 1901. The record so clearly shows that at the time Good gave this special warranty deed he had no title to the premises that we will not further notice it. It is earnestly insisted by appellant that the tax deeds in question, Exhibits 1 and 12, are void.

Under the decisions of the Supreme Court as well as this court, there can be no question but that each of said deeds is void on its face. Exhibit No. 1 is void on its face for the following reasons:

(1) The property was offered for the first time on December 15, 1908, and sold on that day to the county at a public sale begun on December 12th of the same month. Vandermeulen v. Burwell, 22 Colo.App. 486, 125 P. 131; Lambert v. Murray, 52 Colo. 156, 120 P. 415; Vanderpan v. Pelton, 22 Colo.App. 357, 123 P. 960: Bryant v. Miller, 48 Colo. 192, 109 P. 959; Newcomb v. Henderson, 22 Colo.App. 167, 122 P. 1125; Empire Co. v. Howell, 22 Colo.App. 389, 125 P. 592; Empire Co. v. Gibson, 23 Colo.App. 344, 129 P. 520; Empire Co. v. Howell, 23 Colo.App. 348, 129 P. 521; Empire Co. v. Coleman, 23 Colo.App. 351, 129 P. 522; Charlton v. Toomey, 7 Colo.App. 304, 43 P. 454.

(2) It is also void on its face for failure to state what officer made the assignment of the certificate. Foster v. Clark, 21 Colo.App. 192, 121 P. 130; Empire Co. v. Smith, 23 Colo.App. 53, 127 P. 449.

The tax deed, Exhibit No. 12, alleged to have been issued to correct irregularities and ambiguities in Exhibit No. 1, heretofore discussed, is void on its face for the following reasons:

(a) Because it does not recite the date of the sale. Foster v. Clark, supra; Vanderpan v. Pelton, supra.

(b) It fails to show what officer made the assignment. Foster v. Clark, supra; Empire Co. v. Smith, supra. The recital in this respect is as follows: "And whereas the said county of Rio Grande, by its proper officers, did on the 26th day of October, A.D.1908, duly assign the certificate of the sale of the property as aforesaid," etc.

The statute specifically defines the official who has authority to make the assignment of the certificate of sale, and it must affirmatively appear from the deed that such officer acted. The recital that "the said county of Rio Grande by its proper officers, did *** duly assign the certificate," fails to comply with this...