Empire Ranch & Cattle Co. v. Smith

• Decision Date: 14 October 1912
• Citation: 23 Colo.App. 53,127 P. 449
• Parties: EMPIRE RANCH & CATTLE CO. v. SMITH.
• Court: Colorado Court of Appeals

127 P. 449

23 Colo.App. 53

EMPIRE RANCH & CATTLE CO. v. SMITH.

Court of Appeals of Colorado

October 14, 1912

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

Ejectment by Felix R. Smith against the Empire Ranch & Cattle Company. Judgment for plaintiff, and defendant appeals. Affirmed.

R.H Gilmore, of Denver, for appellant.

John F Mail, of Denver, for appellee.

CUNNINGHAM J.

On November 1, 1907, Smith, as plaintiff below, filed his complaint in ejectment in the district court of Washington county, alleging title in fee simple and wrongful detention by defendant of the land involved. The answer was a general denial, and the plea of the seven-year statute of limitations, pertaining to vacant and unoccupied lands.

The plaintiff's title being a patent from the government justified the judgment in his favor, unless the tax deeds offered by the defendant were sufficient to divest his title.

1. On the trial the defendant introduced a decree of the county court of Washington county, purporting to quiet title in it to the lands claimed by the plaintiff in this suit. The decree of the county court was based on an attempted service by publication, which service was void for the reason, among other things, that the affidavit upon which the order to make service by publication was based failed to state the post office address of the defendant, and also failed to state that his post office address was unknown to affiant. Empire Ranch & Cattle Co. v. Howell (No. 3,406) 125 P. 592.

2. The complaint having been filed less than seven years after the recording of the tax deed, the statute of limitations is not available as a defense. Sayre v. Sage, 47 Colo. 559, 108 P 160.

3. The defendant offered in evidence a treasurer's deed, dated and recorded February 19, 1901. This deed was offered as color of title. It appears upon the face of this instrument that the land had been sold to the county for delinquent taxes, and the certificate of purchase was assigned to the appellant by the county clerk more than three years after the sale of the land for taxes. Defendant also introduced a second tax deed dated April 30, 1908, which had been executed, as it is stated, to correct certain errors in the deed of February 19, 1901, to which we have just referred. This second tax deed recites that: "Whereas, in consideration of the premises and in accordance with the laws of Colorado in such case made...