Empire Ranch & Cattle Co. v. Howell

• Decision Date: 16 December 1912
• Parties: EMPIRE RANCH & CATTLE CO. v. HOWELL.
• Court: Colorado Court of Appeals

129 P. 245

23 Colo.App. 265

EMPIRE RANCH & CATTLE CO. v. HOWELL.

Court of Appeals of Colorado

December 16, 1912

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

Action by Lardner Howell against the Empire Ranch & Cattle Company. From a judgment for plaintiff, defendant appeals. Affirmed.

R.H. Gilmore, of Denver, for appellant.

John F Mail, of Denver, for appellee.

CUNNINGHAM J.

1. This is an action in the nature of ejectment, brought to test the title to the N.W. 1/4 of section 24, township 5 N., range 48 W., in Yuma county. The plaintiff alleged ownership in fee simple, and that the defendant wrongfully withholds the land. The answer was a general denial only. To prove his title the plaintiff introduced a government patent without objection, a trust deed by the patentee, a trustee's deed based on the foreclosure of said trust deed, and a deed from the grantee named in the trustee's deed; or, rather, it was stipulated that the said grantee had conveyed the land to plaintiff Howell, appellee here. Appellant in its brief argues, against the validity of the trustee's deed, that it contains no recital that the legal holder of the note secured by the trust deed applied to the trustee or requested the trustee to advertise and sell the same. The abstract does not indicate that any such objection was offered by counsel for appellant to the admission of the trustee's deed. At least, there is no specific objection of this sort contained in the abstract. The trustee's deed is too meagerly abstracted to determine whether it does or does not contain such a recital but by reference to the original record there appears a notice of trustee's sale, containing the following "Now, therefore, at the request and direction of the legal holder and owner of said promissory bond, *** I, W.H. Lanning, trustee, do hereby give public notice" of the sale. Immediately preceding this notice of the trustee's sale, which was set out in full in the trustee's deed, appears the following by way of introduction to the aforesaid notice: "A certified copy of said advertisement is here incorporated and made a part of this deed"--meaning the trustee's deed. Moreover, reference to the bill of exceptions discloses that the trust deed provides for the sale of the land by the trustee, "in case of default of payment of said bond or any part thereof or interest thereon," and the trust deed does not appear to provide for or require that the legal holder should, as a condition precedent to the sale, make application to the trustee to make the sale. In this respect the trust deed involved in this case is unlike the trust deed before the court in Bent-Otero Improvement Co. v. Whitehead, 25 Colo. 354, 54 P. 1023, 71 Am.St.Rep. 140, cited and relied upon by the appellant. We conclude therefore that appellee's title to the land involved here was established, unless the same was extinguished by two certain tax deeds offered in evidence by appellant for the purpose of establishing title in itself.

2. The two tax deeds offered by defendant were based upon one and the same sale. The second tax deed is denominated or referred to as a correction deed, and was issued after this action was begun. The first tax deed, offered by defendant, shows upon its face that the county clerk transferred to the defendant the tax certificate upon which the said tax deed was based on April 2, 1901, said tax certificate having been originally issued to the county by the treasurer on a tax sale begun on the 5th day of October, 1896. This would invalidate the tax deed, as the county clerk possessed no authority to make the assignment of the tax certificate more than three years after its date. Lambert v. Scott (No. 7173, Sup.) 127 P. 142.

The said tax deed was also void on its face for the further reason that it nowhere appears by the recitals or on the face thereof upon what days the land had been exposed to public sale by the treasurer. It nowhere appears on the face of the deed that the treasurer passed the sale of the land because of failure of bids, from day to day until the last day of the sale. It is ruled in Charlton v. Toomey, 7 Colo.App. 304, 43 P. 454, that, before land may be legally bid in by the county, it must, after being first offered, be continually offered from day to day until the sale is concluded, and that the county can only become a purchaser of the entire tract in default of an outside bid, after the same has been offered each day. It is also held in the Charlton Case that it must appear affirmatively by the recitals of the instrument--that is, the tax deed--that every preliminary step required to divest the title of the owner was regularly taken as prescribed by law.

The second or correction tax deed offered by the defendant disposes of the matter of the assignment of the tax certificate by simply reciting that "the said county of Yuma did heretofore sell, assign, and deliver unto it, the said Empire Ranch and Cattle Company, the said certificate of purchase." Defendant having offered both tax deeds, we are at liberty, indeed it is our duty, to construe them together, and therefore we may fairly assume, from what appears in the first tax deed, that the tax certificate referred to in the second tax deed was also assigned by the clerk; nothing whatever appearing in the second tax deed to negative this presumption.

The second tax deed recites that the tax sale was begun on the 5th day of October, 1896 (in this respect the two tax deeds agree), and further that: "Said treasurer, having passed such real property from time to time until the last day of the sale, *** did bid off at said sale for and in the name of the county of Yuma *** the premises herein described." It will be noted that this recitation does not state that the treasurer passed the real property from day to day, but "from time to time and until the last day of the sale."...