Empire Ranch & Cattle Co. v. Coleman

• Decision Date: 13 January 1913
• Court: Colorado Court of Appeals
• Parties: EMPIRE RANCH & CATTLE CO. v. COLEMAN.

129 P. 522

23 Colo.App. 351

EMPIRE RANCH & CATTLE CO. v. COLEMAN.

Court of Appeals of Colorado

January 13, 1913

Appeal from District Court, Yuma County; H.P. Burke, Judge.

Action by Clara G. Coleman against the Empire Ranch & Cattle Company. From a judgment for plaintiff, defendant appeals. Affirmed.

R.H Gilmore, of Denver, for appellant.

John F Mail, of Denver, for appellee.

KING J.

This was an action in the nature of ejectment. The judgment was in favor of plaintiff, adjudging that she was the owner in fee simple and entitled to possession of the N.W. 1/4 of section 13, township 5 north, range 48 west, in Yuma county, Colo and that defendant had no right, title, or interest in the lands. It further adjudged that defendant's tax deed recorded in Book 28 at page 163 of the records of said county, conveyed no title; that a certain decree of the county court, recorded in Book 29 at page 121 of said records, was null and void; and that the said treasurer's deed and the said decree be set aside, annulled, and for naught held forever. Plaintiff deraigned title from the United States. Her title depended upon a trustee's deed executed by a substituted trustee pursuant to the terms of a deed of trust given by the patentee of said lands. The deed of trust, the appointment of a substitute trustee or successor in trust, the trustee's deed, and the objections thereto are substantially the same as considered in Empire Ranch & Cattle Co. v. Howell, 125 P. 592, and in Empire Ranch & Cattle Co. v. Stratton, 126 P. 1094, not yet officially reported, and the reason and authorities sustaining the sufficiency of such trustee's deed, in the absence of evidence overthrowing its prima facie showing, are there given and collated by Judge Cunningham, and no good purpose would be served by repeating them here. Defendant, as evidence of its paramount title, offered two treasurer's tax deeds, the first dated January 20, 1902, and the second, a correction tax deed, dated June 25, 1908, more than seven months after the beginning of the suit.

The first tax deed was void on its face, as it showed a sale of several noncontiguous tracts of land en masse for a gross sum and the assignment of the certificate of purchase by the county clerk more than three years after the issuance of said certificate, and failed to show that the land was offered from day to day until the last day of the sale before being stricken off to the county. The correction deed was also void for some, though not all, of the reasons hereinbefore mentioned as applying to the first.

Defendant offered in evidence, presumably as an adjudication of the subject-matter and as an estoppel, a decree of the county court purporting to quiet title in the said defendant. The judgment roll was not offered as a foundation for, or in support of, the said decree, and upon objection the decree was excluded. The exclusion of the decree upon plaintiff's objection is sustained by the authority of McLaughlin v. Reichenbach (Sup.) 122 P. 47....