Empire Ranch & Cattle Co. v. Howell

• Decision Date: 13 January 1913
• Citation: 23 Colo.App. 348,129 P. 521
• Court: Colorado Court of Appeals
• Parties: EMPIRE RANCH & CATTLE CO. v. HOWELL.

129 P. 521

23 Colo.App. 348

EMPIRE RANCH & CATTLE CO. v. HOWELL.

Court of Appeals of Colorado

January 13, 1913

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. Modified and affirmed.

R.H Gilmore, of Denver, for appellant.

John F Mail, of Denver, for appellee.

KING J.

Lardner Howell, as plaintiff, brought his action in the nature of ejectment to recover possession of the N.W. 1/4 of section 19, township 1 south, range 46 west, in Yuma county, Colo., alleging ownership in fee simple and right to possession. The answer is a general denial. Judgment was rendered in favor of the plaintiff and, among other things, adjudged that a certain treasurer's deed recorded in Book 1399 at page 189 of the records of said county through which the defendant claimed title, should be "set aside and for naught held forever," and that plaintiff should pay to the clerk of the court, within 60 days from the date of said decree, a certain sum of money to reimburse the defendant for taxes, interest, and costs paid on account of said lands under its void tax deed. Plaintiff deraigned title from the United States and through a deed of trust given to secure the payment of a promissory note, and a trustee's deed executed and delivered upon a sale of said real estate pursuant to the terms of said deed of trust. Defendant objected to the deed of trust and the trustee's deed as being incompetent and irrelevant, and assigns as error the overruling of its objection.

The same questions are raised and argued in this case as to the validity of plaintiff's title under the trustee's deed as were considered and determined in Empire Ranch &amp Cattle Co. v. Howell, 125 P. 593, to wit, that the recitals in a trustee's deed are prima facie evidence of the facts therein stated, even where the deed of trust does not in terms so provide, and that, in the absence of any evidence tending to contradict or impeach the recitals in the trustee's deed, such deed will be held sufficient proof of title to put the defendant on his proof. And, upon the authority of that case, the plaintiff's title must be held good, unless divested by the alleged paramount title of the defendant under the treasurer's tax deed.

Defendant offered in evidence as paramount title, and relies on, a treasurer's tax deed from the treasurer of ...