Empire Ranch & Cattle Co. v. Saul

• Citation: 22 Colo.App. 605,127 P. 123
• Court: Court of Appeals of Colorado
• Decision Date: 08 July 1912
• Parties: EMPIRE RANCH & CATTLE CO. v. SAUL.

127 P. 123

22 Colo.App. 605

EMPIRE RANCH & CATTLE CO. v. SAUL.

Court of Appeals of Colorado

July 8, 1912

Rehearing Denied Oct. 14, 1912

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

Action by George Saul 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.

HURLBUT J.

This is an action in the nature of ejectment, under section 265 Mills' Annotated Code, and is similar in its main features to a number of other cases decided at this term of the court, in each of which the same company appears as appellant; each case involving the question of the validity of tax titles to land located in Washington county. Complaint is in usual form, and the answer, after putting in issue the allegations of the complaint, purports to plead title in defendant by virtue of the payment, for seven successive years, of all taxes assessed upon the land under claim and color of title, in good faith, the land being vacant and unoccupied, basing this plea on section 4090, Revised Statutes. There are two assignments of error relied upon in this case, either of which would be decisive of this appeal, to wit, assignments Nos. 4 and 5.

No. 4 challenges the ruling of the trial court in excluding from evidence Exhibit 4, a tax deed, dated April 30, 1908 purporting to convey the property in issue to appellant by the county of Washington. When appellant (defendant below) offered this deed in evidence, it was objected to, upon the ground that the deed was void on its face and did not show that the sale was continued from day to day until bid in by the county. In examining that exhibit, we extract the following: "Whereas the treasurer of said county did, by virtue of authority vested in him by law, at a tax sale, the tax sale publicly held on the 19th day of October, A.D.1897, severally expose to public sale, at the office of the county treasurer, in the county aforesaid, in substantial conformity with the requirements of the statute. *** Whereas no bid was made or offered by any person at said sale for any of the lands, *** and particularly for the said above-described real property or any part of it, and said treasurer having passed said real property over for the time, did reoffer it until the last day of the sale he became satisfied that no more sales of said real property, and particularly the real property herein specifically described, so offered, could be effected at such sale. Thereupon said treasurer did bid off at said sale for and in the name of said county of Washington the lands," etc.

It will be noticed here that only one date is mentioned in the deed upon which the property was offered for public sale, namely October 19th, and that the county purchased it that day. It is clearly provided by section 3888, Mills' Annotated Statutes, that on the day designated in the notice of sale the treasurer shall commence the sale of lands, and shall continue the same from day to day, Sundays excepted, until each parcel has been sold; and that if there be no bid for any tract offered the treasurer shall pass it over for the time and reoffer it at the beginning of the sale next day until all the tracts are sold, or until the treasurer shall become satisfied that no more sales can be effected, in which case it shall become his duty to bid off for the county the land remaining unsold. It will be seen from this that no legal sale of lands to the county can take place on the first day of the sale, or on the first day it is offered for sale. This exhibit, affirmatively showing that the county bought the land on the first day it was offered for sale, shows a violation of the provisions of the statute just mentioned. There was no error in the court excluding the deed from evidence. This question has been settled time and again by our appellate courts. Charlton v. Kelly, 7 Colo.App. 301, 43 P. 455; Charlton v. Kelly, 24 Colo. 273, 50 P. 1042; Tunnel Co. v. Gregory, 38 Colo. 212, 88 P. 445; Bryant v. Miller, 48 Colo. 192, 109 P. 959; Empire Ranch & Cattle Co. v. Lardner Howell (Colo.App., June 10, 1912) 125 P. 592.

The next assignment, No. 5, questions the ruling of the trial court in admitting in evidence, over defendant's objection, certified copy of the complaint, summons, and affidavit for publication in cases numbered 607 and 562 county court of Washington county, wherein, in the former, appellant was plaintiff and appellee et al. were defendants, and in the latter appellant was plaintiff and appellee was defendant. The two decrees in these cases were admitted in evidence without objection. In rebuttal plaintiff offered the affidavits for publication and other documents mentioned. The two...