Empire Ranch & Cattle Co. v. Howell

• Decision Date: 04 October 1915
• Docket Number: 7957.
• Citation: 60 Colo. 192,152 P. 1177
• Court: Colorado Supreme Court
• Parties: EMPIRE RANCH & CATTLE CO. v. HOWELL.

152 P. 1177

60 Colo. 192

EMPIRE RANCH & CATTLE CO. v. HOWELL.

No. 7957.

Supreme Court of Colorado, En Banc.

October 4, 1915

On Petition for Rehearing, November 1, 1915.

Error to Court of Appeals.

Action by Lardner Howell against the Empire Ranch & Cattle Company. Judgment for plaintiff was affirmed (22 Colo.App. 584, 126 P 1096) by the Court of Appeals, and defendant brings error. Reversed in part, and remanded for new trial.

R. H Gilmore, of Denver, for plaintiff in error.

John F Mail, of Denver, for defendant in error.

GABBERT C.J.

Defendant in error as plaintiff brought an action in ejectment against plaintiff in error as defendant, in the district court of Washington county. Judgment was for plaintiff. The defendant appealed to this court. The case was transferred to the Court of Appeals, where the judgment was affirmed. Empire Co. v Howell, 22 Colo.App. 584, 126 P. 1096. The defendant brings the case here on error.

From the record it appears that if the trustees' deeds introduced by plaintiff, to which we will later refer, were admissible, then he established title to several of the tracts involved, subject to certain deeds of trust.

He alleged in his complaint that he was the owner of the premises in fee simple, and it is urged on behalf of defendant that having proved a title subject to deeds of trust, he failed to make a case which entitled him to judgment. The owner of premises subject to a deed of trust is prima facie entitled to possession. Ejectment is a possessory action, and proof of title which entitled plaintiff to the possession of the premises described in the several trustees' deeds was sufficient in the first instance. The defendant offered in evidence a tax deed, designated in brief of counsel as tax deed to south townships, which was objected to upon the ground that it shows a sale to the county of the property therein described on the first day it was offered. The objection was sustained, and this ruling was affirmed by the Court of Appeals. The deed was not subject to the objection interposed. See Imperial Securities Co. v. Morris, 57 Colo. 194, 141 P. 1160, where the same question was presented and ruled upon.

It is next claimed that before the trustees' deeds were admissible it was necessary for plaintiff to prove the truth of the recitals therein. This question was determined in the preceding case of the Empire Ranch & Cattle Co. v. Howell No. 7902, 152 P. 1175, where it was ruled that under the pleadings the question was not presented. In the case at bar the answer is the same in that it does not assert a title in defendant independent from, or alien to, that which plaintiff established by the evidence introduced on its part. So far as advised from the record and briefs of counsel, the tax deed is valid, and should have been admitted in evidence, as thereby the title to the premises therein described was vested in the defendant and it would have been entitled to the possession thereof, unless the tax deed was successfully impeached. The objection now urged to its validity is that it was issued by the treasurer of Washington county. The premises embraced in this deed were located in Arapahoe county at the time they were sold for taxes, and were bid off for that county. After the time for redemption expired, the defendant petitioned the commissioners of Arapahoe county to instruct the county clerk of that county to assign the certificates to it for their face value. This petition was granted and a tax deed issued to defendant by the treasurer of Arapahoe county. That deed is not copied in the bill of exceptions, but this is of no moment as defendant does not claim title under it. Subsequently the part of Arapahoe county in which the lands are located because a part of Adams county. Laws 1901, p. 133. By that act Arapahoe county was required to deliver to Adams county a transcript of the records of Arapahoe county pertaining to the county of Adams. Later the territory embracing the lands involved became a part of Washington county. Laws 1903, p. 169. This act required the commissioners of Adams county to deliver to the county clerk of Washington county a certified transcript of records of title and liens thereon of all property located in the territory within ...