Empire Ranch & Cattle Co. v. Coldren

Decision Date05 June 1911
Citation117 P. 1005,51 Colo. 115
PartiesEMPIRE RANCH & CATTLE CO. v. COLDREN.
CourtColorado Supreme Court

Rehearing Denied Oct. 2, 1911.

Appeal from Washington County Court; C. W. Ballard, Judge.

Action by Bert Coldren against the Empire Ranch & Cattle Company, a corporation. From a judgment for plaintiff, defendant appeals. Affirmed.

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

Isaac Pelton and E. T. Wells, for appellee.

BAILEY J.

This is a suit to remove cloud from title, wherein appellee was plaintiff and appellant was defendant. The complaint alleges that the plaintiff is the owner in fee of the land in dispute and entitled to possession; that defendant wrongfully claims to be to owner, under a treasurer's deed executed on February 20, 1901, and filed for record in the office of the county clerk of Washington county on the following day; that the deed was void because the land was stricken off to the county on the first day of the sale, although the sale continued long thereafter; and also because the certificate of purchase thereof was assigned to the defendant by the county clerk, on the 23d day of January, 1901, more than four years after its issuance and delivery. The complaint also sets forth that on the 2d day of July, 1902, the defendant falsely and fraudulently procured the entry of a judgment in the county court of that county decreeing it to be the owner and in possession of the land and adjudging the plaintiff to have no title, estate or claim thereto; that service of summons in that action was attempted to be secured by publication; that plaintiff was not informed of the pendency thereof until several years after the rendition of the decree, nor until within sixty days before the filing of this suit; that plaintiff had a meritorious defense to the action; that he was then and still is the owner in fee of the land; that defendant had no title to, or interest in, the land, save and except as herein set forth; that the affidavit, upon which the order permitting service of summons by publication issued, contained no statement that the defendant resided out of the state, or that the post-office address of the defendant was unknown, or any statement relating to his post-office address; that said affidavit was wholly insufficient, under the statute, upon which to base an order for publication; and that the pretended judgment and decree, assuming to quiet title in the defendant to the land, was void and of no force or effect.

The first defense put in issue plaintiff's claim of ownership to the land and right of exclusive or any possession thereof; admits that it claims title to the premises by virtue of the tax deed and decree mentioned in the complaint, but denies the invalidity of that tax deed and all allegations of fact tending to show it invalid; also denies all allegations of fraud, irregularity and illegality, in connection with the suit, in the affidavit for service of summons by publication, or in the proceedings leading up to the decree, and the invalidity of the decree itself.

The second defense is that plaintiff failed, before suit commenced or at all, to tender the taxes due and paid by it, for which the lands were sold, upon which sale the tax deed in question issued.

For a third defense, it is answered that the county of Washington, Colo., is a body corporate and politic, with power to purchase and hold real estate for the use of the county, and to sell and convey and real or personal estate owned by the county, to make orders respecting the same, and to make all contracts and do all other acts in relation to its property and concerns necessary to the exercise of corporate or administrative powers. That on the 26th day of October, 1896, at the tax sale of property held for the collection of taxes for 1895, the premises described in the complaint were bid off by the treasurer for the county of Washington, after having been offered for sale the first day and reoffered on the next day, until the treasurer was satisfied that no sale thereof could be made, and a tax sale certificate of purchase was issued therefor to said county; that thereafter, in January, 1901, opon application of defendant to purchase the said certificate, the county sold it to the defendant and authorized the county clerk to make an assignment thereof; and that thereafter a treasurer's tax deed, executed in manner and form as provided by law, was made and delivered to the defendant, and the same was on the 21st day of February, 1901, filed for record in the office of the county clerk and recorder. Also in this defense it was alleged, 'that on the 21st day of July, 1902, a decree was entered in the county court of Washington county, Colorado, quieting in the defendant its title to the said premises under the foregoing deed.'

Demurrers were filed to each the second and third defense, which were sustained. The cause went to trial upon the issues made by the complaint and the first defense. Plaintiff had judgment, canceling defendant's alleged tax title, and vacating, setting aside and holding for naught the decree of the county court purporting to quiet title in it. The defendant brings the cause here for review on appeal.

The proofs fix in plaintiff the fee-simple title to the land. His ownership and right of exclusive possession are not debatable, unless, by virtue either of the tax deed or the former decree of the county court, defendant has drawn to itself title to, and right of possession of, the land.

The demurrer to the second defense, which alleged failure by plaintiff to tender the taxes paid by defendant, was properly sustained. That question is not an open one. It is settled by this court in the cases of Empire Ranch & Cattle Company v. Lanning, 113 P. 491, and Empire Rancy & Cattle Company v. Bender, 113 P. 494.

The third defense was wholly insufficient, and the demurrer was properly sustained to it. The defense shows affirmatively that the tax deed therein set out was issued on a certificate of sale to the county for land which was only offered on the first and second days of the general tax sale, namely, on the 19th and 20th days of October, 1896, and struck off to the county on the 26th of that month. There is no averment that it was offered on the intervening days of the sale, or that the day upon which it was struck off was the last days of the sale. In absence of such showing, a compliance with the requirements of the statute is not made out. The defense for these reasons was therefore hopelessly defective, and other matters raised thereby need not be considered. Charlton v. Kelly, 7 Colo.App. 301, 43 P. 455; Charlton v. Kelly, 24 Colo. 273, 50 pac. 1042; Charlton v. Toomey, 7 Colo.App. 304, 43 P. 454; Bryant v. Miller, 48 Colo. 192, 109 P. 959.

In connection with the third defense it was further alleged: 'That thereafter, to wit, on the 2d day of July, 1902, a decree was entered in the said county court, quieting in defendant its title to the said premises under said deed.' These matters may all be accepted as true, and still sufficient is not stated in this plea to affect the rights of plaintiff or put him to answer. It does not even appear therefrom that the plaintiff, or any one through whom he claims, was a party to that suit.

The two remaining questions are: First. Is the tax deed, upon which the defendant relies for title, good on its face? Second. Of what force and effect is the decree of July 2, 1902, of the county court, in favor of defendant, which attempts to quiet its title as against the plaintiff upon alleged service of summons by publication?

The tax deed shows the sale of the land to the county to have occurred October 26, 1896, and that the county clerk assigned the certificate to the defendant on January 23, 1901, more than four years after the sale and after the issuance of the certificate. It is the duty of the treasurer to make the certificate at the conclusion of the sale, and in the absence of a showing to the contrary it will be presumed that that officer did his duty. The clerk had no authority to assign the certificate after the lapse of three years, and the assignment was void. An assignment was essential to issuance of deed. A deed executed upon a void assignment is itself void and conveys no title. The tax deed is, therefore, upon its face, a nullity. Lovelace v. Tabor M. & M. Co., 29 Colo. 62, 66 P. 892; and Carnahan v. Sieber Cattle Co., 34 Colo. 257, 82 P. 592.

The decree of the county court of Washington county, purporting to quiet title in the defendant to the land in question, was entered on an attempted service of summons by publication. To obtain an order for such service an affidavit to that end must show, among other things, that the defendant resides out of the state, or that he has departed from the state without intention of returning, or conceals himself to avoid service of process; it must also give his post-office address, if known, or if unknown, show that fact. The affidavit is barren of any direct statement of nonresidence, and is silent on the question of the departure of the defendant from the state without intention of returning, or of his concealment to avoid service of process, and the matter of post-office address is not mentioned. The law is settled that to give the court jurisdiction the requirements of the statute must be strictly complied with. It must contain the showing required by statute, and nothing excuses omissions or insufficient statement. 1 Black on Judgments (2d Ed.) § 232; Trowbridge v. Allen, 48 Colo. 419, 110 P. 193; Clayton v. Clayton, 4 Colo. 410; Israel v. Arthur, 7 Colo. 5, 1 P. 438; Brown v. Tucker, 7 Colo. 30, 1 P. 221; O'Rear v. Lazarus, 8 Colo. 608, 9 P. 621; Beckett v. Cuenin, 15 Colo. 281, 25...

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