Empire Ranch & Cattle Co. v. Webster

• Decision Date: 05 February 1912
• Citation: 52 Colo. 207,121 P. 171
• Court: Colorado Supreme Court
• Parties: EMPIRE RANCH & CATTLE CO. v. WEBSTER.

121 P. 171

52 Colo. 207

EMPIRE RANCH & CATTLE CO. v. WEBSTER.

Supreme Court of Colorado

February 5, 1912

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

Action by B. M. Webster against the Empire Ranch & Cattle Company to quiet title. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

R. H. Gilmore and J. C. Gunter, for appellant.

Allen &amp Webster and John F. Mail, for appellee.

BAILEY J.

This is an action to quiet title under section 255 of the Code of 1887. The complaint alleges that plaintiff, appellee, is the owner and in possession of the land in controversy; that defendant, appellant, without right against plaintiff, claims some title and interest therein, and thus casts a cloud upon his title. The answer, for a first defense, admits that the defendant claims an interest in and title to the land, and denies all other allegations of the complaint. For a second defense, the defendant sets up a tax title based on sale of 1896, for taxes of 1895, and an assignment of the tax sale certificate to it, upon which treasurer's deed issued February 20, 1901, which was recorded on the following day. For a third defense, there is a plea of the five-year statute of limitations. The fourth defense sets out a decree in favor of the defendant, quieting title to the land in question, under date July 2, 1902, in the county court of Washington county, which decree was filed for record in the recorder's office of that county on July 7, 1902. For a fifth defense, there is a plea of laches on the part of the plaintiff in instituting the suit and a failure on his part before the commencement of the suit, to pay, tender, or offer to pay, the taxes paid out, with interest and penalties.

The replication denies all new matter in the answer, except as expressly admitted; admits the land was subject to taxation as alleged, and that it was on October 19, 1896, sold by the treasurer of the county for taxes, and that a tax sale certificate issued accordingly; alleges that October 19 1896, was the first day of the sale, and the treasurer unlawfully declared said land sold to the county when the land could not legally be struck off to it on the first day of sale; admits the assignment of the certificate and execution of treasurer's tax deed more than three years after the sale, but alleges that the treasurer fraudulently issued the tax deed on February 20, 1901, to the defendant; that it was void on its face, because the certificate of sale was assigned by the county clerk more than three years after the tax sale; that the deed falsely recites that the land was sold October 26, 1896, when, as the treasurer well knew, the sale was in fact made on October 19, 1896, as averred in the answer; that the date October 26, 1896, was inserted in the deed by collusion between the treasurer and defendant, in order to make the deed appear fair on its face; and that because of such fraud, and because the land was struck off to the county on the first day of the tax sale, the deed is void. As to the decree relied on by defendant, it is averred in the replication that the same was entered without jurisdiction; that no sufficient affidavit for publication of summons was filed by plaintiff; that the summons was not published as required by law; that no jurisdiction was acquired for service of summons by publication; that the decree was void for want of jurisdiction of the parties, and also because neither the plaintiff, nor any person having a beneficial interest in the land, through the source from which plaintiff's title is derived, was made a party to the proceedings, and that the decree is, therefore, no bar to this suit of plaintiff.

The first objection is that as the complaint does not allege that the claimed title of defendant is an adverse one, it is insufficient to state a cause of action. No demurrer was interposed, but an answer was filed, setting up in fact an adverse title, and trial had. This was a waiver of that objection. Empire R. & C. Co. v. Bender, 49 Colo. 523, 113 P. 494, upon facts almost precisely like those in the case at bar, upon full consideration of this point, was ruled against a contention like the one now urged.

The necessity that plaintiff make tender in an action like this of the taxes and penalties to entitle him to maintain a suit to quiet title, which is the second point urged, has been determined in the negative in the case of Empire R. & C. Co. v. Lanning, 49 Colo. 458, 113 P. 491.

In Empire R. & C. Co. v. Coldren, 117 P. 1005, a decree quieting title upon service of summons had in manner and form as in this case, and upon an affidavit for such service substantially the same as the one now shown in the evidence, was held a nullity, and the rule laid down in that case is applicable and binding here. It follows, therefore, that the defendant acquired no title to the land in controversy under the county court decree relied upon and pleaded.

The defendant did not put his tax deed in evidence. There was no admission that the tax deed was recorded, but on the contrary, that matter was directly put in issue, and as no proof was offered to that point, there is no tax title before us for consideration, because an unrecorded tax deed conveys none.

In Morris & Thombs v. St. Louis National Bank, 17 Colo. 231, 29 P. 802, it is said:

'In the first place the tax certificate does not convey title; not can a tax deed be lawfully executed and delivered until three years after the land has been bid off by the purchaser; nor does the deed, when signed, attested, acknowledged and delivered convey title; it is only when the deed is executed and recorded as provided by the statute, that it vests in the purchaser, prima facie, the title of the owner. Mills' Ann. Stats. §§ 3900-3904.'

The defendant having shown no title whatever to the land, it is, therefore, upon the present record, entitled to no relief.

The complaint alleges that plaintiff is the owner in fee and in possession of the land in controversy. The first defense, which is separately stated, consists of denials and admissions. The second defense, also separately stated, sets up an adverse title in defendant, but contains no denials. It is contended that neither of these defenses put plaintiff to proof of title and possession. This claim is true as to the first defense, which consists merely of denials and admissions.

Litch v. Bryant, 46 Colo. 160, 103 P. 289. It is, however, not true as to the second defense. That plea, though simply asserting an adverse estate in defendant, still puts plaintiff to proof of title and possession. This has been repeatedly held in this jurisdiction. The leading case on the subject is Wall v. Magnes, 17 Colo. 476, 479, 30 P. 56, 57. In that case, it was said:

'When defendant has shown by his answer that he asserts such an adverse interest, legal or equitable, as, if sustained by proof, might entitle him to relief in connection with the property, then and not till then is he in position under the statute to try the issue of plaintiff's possession and ownership.'

This is only to say that when the defendant by his answer does aver such an adverse interest or estate, it is sufficient to put plaintiff to proof of possession and ownership. In that opinion it is also said that the statute, in effect, tells the defendant:

'You shall not put plaintiff upon proof of his possession and title unless you assert by plea an adverse interest in the premises. You have the alternative of either asserting a claim and pleading its nature, or of disclaiming or filing no answer.'

Conversely if the defendant does assert by plea an adverse interest in the premises, then plaintiff is put to proof of possession and title. No additional statement or suggestion can make the rule clearer. It is not only clear, but logical as well, and makes effective the plain purpose of the statute. The affirmative defense of title set...