Empire Ranch & Cattle Co. v. Lanning

• Decision Date: 03 June 1912
• Citation: 53 Colo. 151,124 P. 579
• Parties: EMPIRE RANCH & CATTLE CO. v. LANNING.
• Court: Colorado Supreme Court

124 P. 579

53 Colo. 151

EMPIRE RANCH & CATTLE CO. v. LANNING.

Supreme Court of Colorado, En Banc

June 3, 1912

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

Action by W. H. Lanning against the Empire Ranch & Cattle Company. Judgment for plaintiff, and defendant appeals. Partly affirmed and partly reversed.

R. H Gilmore and J. C. Gunter, both of Denver, for appellant.

John F Mail, of Denver, for appellee.

Isaac Pelton, of Akron, and E. T. Wells, of Denver, amici curiae.

BAILEY, J.

There were two suits numbered 163 and 172, respectively consolidated for trial, entitled W. H. Lanning against the Empire Ranch & Cattle Company, in the district court of Washington county, to quiet title, on complaints in the usual form. In cause No. 163 the land involved was the southeast quarter of section 1, township 5 south, range 49, formerly in old Arapahoe county, but at the beginning of the suit in Washington county. Five quarter sections of land are involved in cause No. 172. The answers, with amendments, set up several defenses, including general denials. In cause No. 163 the defendant claimed title to the land on tax deed for taxes of 1895, sale in 1896. The assignment of the certificate of purchase was by the county clerk, more than three years after its issuance. The treasurer's deed was made and filed for record Feburary 13, 1901. By supplemental answer the defendant alleged the issuance of a later tax deed, conveying the same land, based on the same sale. By replication the allegations of the answer, and amendments thereto, are denied. Replying specially to the supplemental answer, it is alleged that the later tax deed is void, because no affidavit of publication was filed, as by law required, and that no affidavit by the treasurer was ever filed showing the posting of notices and lists.

Of the lands described in cause No. 172, four quarter sections are situate in the northern part of Washington county, and one in the southern portion thereof, the latter having been formerly in the old county of Arapahoe. The answer in this suit, as to the land formerly in Arapahoe county, is substantially the same as the answer to the complaint in cause No. 163 defendant relying upon the same tax deed as in that case.

The answer as to the four tracts in the northern part of Washington county claims title in defendant, through tax deeds on sale for taxes in that county in October, 1896, all filed for record January 20, 1901. Also a later deed, based upon the same tax sale, dated April 4, 1906, and recorded April 10, 1906, from the county treasurer, conveying these lands, is relied upon to establish title in defendant.

On the trial, to prove title to the quarter section involved in cause No. 163, to wit, the southeast quarter of section 1, township 5 south, range 49, plaintiff offered a receiver's receipt, without proof of the genuineness of the signature of that government official, to Squire Busenbark; a trust deed, Busenbark to Lanning, trustee, for the use of Carnahan, dated May 1, 1889; trustee's deed, Lanning to Carnahan, dated July 11, 1898; and a quitclaim deed from Carnahan to Lanning, conveying that land and about 20 other quarter sections. Attempted proof of title to the southeast quarter of section 25, township 2 north, range 52, rests on a like offer, and the same is also true respecting offer of proof of title to the northwest quarter of section 30, township 5 south, range 49. These receivers' receipts were rejected by the court because not proven to be genuine.

To prove title to the northeast quarter of section 2, township 4 north, range 49, plaintiff offered United States patent to William Walker Head; trust deed from Head to Lanning; trustee's deed from Lanning, trustee, to Carnahan; and a quitclaim deed from Carnahan to Lanning. To prove title to the southeast quarter of section 2, township 3 north, range 51, plaintiff offered United States patent to Edward H. Nims; warranty deed from Nims to Carnahan, dated September 23, 1896; and a quitclaim deed from Carnahan to Lanning. To prove title to the southwest quarter of section 24, township 1 north, range 52, plaintiff offered United States patent to Nick Zeimens; warranty deed from Zeimens to Carnahan, dated March 10, 1894; and quitchaim deed from Carnahan to Lanning.

The defendant, to sustain its allegations of title to two of the tracts, relied upon a tax deed issued by the treasurer of the old county of Arapahoe, conveying the southeast quarter of section 1, township 5 south, range 49, and the northwest quarter of section 30, township 5 south, range 49. This deed is the only one offered in evidence to show title to these two quarter sections; though a later deed from the treasurer of the city and county of Denver was pleaded, it was not in fact produced or offered in evidence. The deed offered was objected to because it showed on its face an assignment of the tax sale certificate, by the county clerk to the defendant, more than three years after its issuance, and this objection was sustained.

To sustain its claim of title to the southeast quarter of section 2, township 3 north, range 51, the southwest quarter of section 24, township 1 north, range 52, the northeast quarter of section 2, township 4 north, range 49, and the southeast quarter of section 25, township 2 north, range 52, the defendant offered in evidence four separate tax deeds, from the treasurer of Washington county, marked Exhibits 1a, 1b, 1c and 1d, respectively, all filed for record February 21, 1901; also a later tax deed executed by the treasurer of that county, dated April 4, 1906, recorded April 10, 1906, for all four of said tracts of land. This deed was made after the treasurer had, by order of the board of county commissioners, made an assignment to the defendant of the tax sale certificates. Plaintiff objected to the first deeds, which were offered to show color of title, date of sale, date of deed, amount of purchase and the like, for the reason that the tax sale certificates had been assigned by the county clerk after three years had run, which objection was sustained. To impeach the last tax deed, plaintiff offered in evidence the tax sale records of Washington county, showing that the sale of the land in question to the county was made on the first day of the general tax sale.

Judgment and decree for the plaintiff, quieting title to all of the land involved, on payment of all taxes, interest and penalties due defendant. Defendant brings the case here for review on appeal.

Defendant's claim of title to the two quarter sections described as follows: The northwest quarter of section 30, township 5 south, range 49 west, and the southeast quarter of section 1, township 5 south, range 49 west, rests wholly upon the deed from the treasurer of old Arapahoe county dated January 31, 1901, which the court below excluded as being void on its face. The...