Empire Ranch & Cattle Co. v. McPherin

• Decision Date: 13 July 1914
• Docket Number: 3985
• Citation: 26 Colo.App. 225,142 P. 419
• Court: Colorado Court of Appeals
• Parties: EMPIRE RANCH & CATTLE CO. v. McPHERIN.

142 P. 419

26 Colo.App. 225

EMPIRE RANCH & CATTLE CO. v. McPHERIN.

No. 3985

Court of Appeals of Colorado

July 13, 1914

Error to District Court, Washington County; H.P. Burke, Judge.

Action by E.N. McPherin against the Empire Ranch & Cattle Company. Judgment for plaintiff, and defendant brings error. Affirmed.

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

Allen &amp Webster, of Denver, for defendant in error.

BELL J.

Action was brought in the district court of Washington county, under section 255, Mills' Ann.Code, December 30, 1908, by the defendant in error to quiet his title to the S.E. 1/4 section 25, township 5 S., range 49 W., of the sixth P.M. The case was tried to the court without a jury, and resulted in a decree quieting the title to the premises in the defendant in error upon his paying to the clerk of the court, within 60 days from the date of the decree, for the use and benefit of the defendant in error, the sum of $108.91, the amount of taxes, penalties, and interest found due it. The plaintiff in error set up and deraigned a fee-simple title in himself from the United States. The defendant in error relied upon two tax deeds, which were alleged in the replication to be void upon their faces and "show a noncompliance with the laws of the state of Colorado regarding the sale of lands for delinquent taxes, and, by reason thereof, are wholly void and form no basis for any plea of the five-year statute of limitations." The further defenses set forth in the answer were the five and seven year statutes of limitation and the laches of the defendant in error in the institution and prosecution of his action.

Plaintiff in error contends that the replication, after setting forth a general denial of the new matter contained in the answer, admits affirmatively by implication the issuance, delivery, and recording of the two tax deeds, and does not allege any fact in avoidance of them, but simply states matters which are conclusions of law, and that therefore the tax deeds were admitted without being put in issue. It is unnecessary for us to dwell upon the point thus urged, as it has been decided to the contrary in the cases of the Empire Ranch & Cattle Co. v. Patterson, 24 Colo.App. 395, 133 P. 1125 and the Empire Ranch & Cattle Co. v. Langley, 23 Colo.App. 49, 127 P. 451.

But one of the tax deeds was offered in evidence by the plaintiff in error, and was received as color of title only. This deed was issued to one H. Emerson, and recorded October 10, 1894, and is void upon its face. in that it shows that the lands therein attempted to be conveyed, together with other noncontiguous tracts, were sold en masse for a gross sum. Johnson v. Gibson, 24 Colo.App. 392, 393, 133 P. 1052; Foster v. Gray, 24 Colo.App. 247-250, 136 P. 146; and Callahan v. Reinhardt, 24 Colo.App. 199, 200, 132 P. 387.

Any rights that might have accrued under this deed did not become vested in the plaintiff in error until December 27, 1909, when, by sundry mesne conveyances, such rights were acquired by it, almost a year after this action had been commenced; and therefore the deed could not operate herein to the advantage of the plaintiff in error.

The other tax...