Empire Ranch & Cattle Co. v. Langley

• Citation: 23 Colo.App. 49,127 P. 451
• Court: Court of Appeals of Colorado
• Decision Date: 14 October 1912
• Parties: EMPIRE RANCH & CATTLE CO. v. LANGLEY.

127 P. 451

23 Colo.App. 49

EMPIRE RANCH & CATTLE CO. v. LANGLEY.

Court of Appeals of Colorado

October 14, 1912

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

Action by Wilson F. Langley against the Empire Ranch & Cattle Company. Judgment for plaintiff, and defendant appeals. Affirmed.

R.H Gilmore, of Denver, for appellant.

Isaac Pelton, of Akron, for appellee.

CUNNINGHAM J.

On November 13, 1907, Wilson F. Langley, appellee here, filed his complaint in the district court of Washington county, to quiet his title to the S.W. 1/4 of section 35, township 4 N., range 50 W., Washington county. On the trial it was stipulated that the plaintiff's claim to the land in controversy is, and was at the time of the inception of this action, valid and perfect, unless the same had been divested by the tax deed--referring to the tax deed upon which appellant's claim of title is predicated. The Cattle Company answered, setting up five defenses. The first was a general denial. The second defense was based upon the tax deed involved. The third defense was what is known as the five-year statute of limitations. The fourth defense pertains to the failure of the plaintiff to tender the taxes due on the land prior to the bringing of his action, or at all. The fifth defense seeks to defeat plaintiff's claim by pleading laches. The last two defenses we need not now consider, for the reason that they have been repeatedly ruled insufficient by our Supreme Court.

1. The tax deed relied upon by the defendant was not offered in evidence; but it is alleged in the answer, as the same appears in the original record, that this deed was dated November 14, 1902, while in the printed abstract it is stated that the deed was issued November 23, 1902. We find no allegation in the answer that this deed was ever recorded. Under repeated rulings of our courts, a tax deed does not vest in the purchaser prima facie title, and does not purport to convey title to real estate, nor does it cast a cloud upon the title of the real estate in said tax deed described until such tax deed is recorded. Morris et al. v. Bank, 17 Colo 239, 29 P. 802; Sayre v. Sage, 47 Colo. 568, 108 P. 160; Wason v. Major, 10 Colo.App. 181, 50 P. 741.

The replication, by implication, at least, admits the issuing of the tax deed, but does not admit that it was recorded. Counsel for defendant contends that, the issuing of the deed having been admitted...