Empire Ranch & Cattle Co. v. Howell

• Decision Date: 08 July 1912
• Citation: 126 P. 1096,22 Colo.App. 584
• Parties: EMPIRE RANCH & CATTLE CO. v. HOWELL.
• Court: Colorado Court of Appeals

126 P. 1096

22 Colo.App. 584

EMPIRE RANCH & CATTLE CO. v. HOWELL.

Court of Appeals of Colorado

July 8, 1912

On Petition for Rehearing October 14, 1912

Appeal from District Court, Washington 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.

CUNNINGHAM J.

Appellee as plaintiff below, brought his action in ejectment in the district court, alleging that he was the owner in fee simple and entitled to the immediate possession of some 20 quarter sections of land situated in said county. Plaintiff further alleged "that the defendant wrongfully withholds the possession of the said premises from this plaintiff, and wrongfully and unlawfully continues to exercise acts of ownership thereover, and claims to own the same." By the prayer of his complaint, plaintiff asked that he be adjudged the owner in fee of the said land, and entitled to the immediate possession thereof; that he be let into possession of said lands as against the defendant, and all persons claiming or to claim by, from, or under it; for his costs and all other proper relief. The defendant company answered, denying each and every allegation of the complaint and for a second defense admitted that it was in possession of the several tracts of land; alleged that it was the owner thereof under deeds severally conveying to the defendant the said several tracts of land; that the defendant, having claim and color of title adverse to the plaintiff, made in good faith, had paid the taxes thereon for seven successive years; that no other person or persons had paid any taxes on said land during the aforesaid period; that the land was vacant and unoccupied during all of said period. In its prayer the defendant demanded judgment that it is the owner of the said several tracts of land, and entitled to the possession thereof.

1. Plaintiff's claim of title to a large number of the tracts of land involved was based upon a trustee's deed, executed by a trustee named in a second deed of trust; the owner of said land having given two trust deeds at or about the same time on these tracts of land. There was evidence introduced on the trial showing that the plaintiff was the owner and in possession of all of the notes which the first trust deeds were given to secure, and that he had the same in court, together with the trust deeds securing the same. Appellant contends that the second trust deeds, being given subject to the trust deeds preceding them, could convey nothing more than an equity of redemption, since the first trust deeds conveyed the whole legal title; hence it contends that the trustee's deeds resulting from the foreclosure of the second trust deeds could convey no more than an equity of redemption, and therefore the legal title of the land was not in the plaintiff, and his action must fail, since he alleged in his complaint that he was the owner in fee simple. In other words, appellant contends that there was a fatal variance between the pleadings and the proof. It is not seriously contended by defendant that the plaintiff might not have recovered in an action of this sort, had he pleaded and proven an equitable title. But, inasmuch as he pleaded fee-simple title and proved equitable ownership only, defendant insists he must go out of court. In this connection, the defendant complains, also, of the findings and decree of the court adjudging the plaintiff to be the owner in fee simple of the land.

It is further contended by the appellant that nothing but possession was involved in this case, and the decree ought not to have gone beyond the determination of that single question. Both by the prayer of the complaint and the prayer of the answer, it will be seen that each of the parties to the action sought to have the question of title determined by the court. The defendant's title was predicated entirely upon tax deeds. If these tax deeds were sufficient, they constituted paramount title, and the case must be reversed; if they were void, then the decree of the court, adjudging the plaintiff to be the owner in fee simple of the land, is not prejudicial to appellant, even granting that the language of the decree goes beyond what the evidence warrants; and it cannot bind or affect one not a party to the action. Should a judgment, if otherwise just and regular, be set aside because the plaintiff alleged title in fee, and on the trial proved equitable title? The answer must, we apprehend, depend upon the nature of the action and the substantial rights of the defendant. The legislative and judicial branches of our state government have frequently declared against reversing the decrees of trial courts for errors not affecting the substantial rights of the losing party. The following are a few of the many cases so holding: Salazar v. Taylor, 18 Colo. 547, 33 P. 369; Miller v. Williams, 27 Colo. 39, 59 P. 740; Doland v. Grand Valley Irr. Co., 28 Colo. 154, 63 P. 300; Geiger v. Kiser, 47 Colo. 301, 107 P. 267; Coe v. Waters, 7 Colo.App. 207-209, 43 P. 156; Burchinell v. Koon, 8 Colo.App. 470, 46 P. 932; Roberts v. Handasyde, 122 P. 60; Denver City Tram. Co. v. Armstrong (No. 3,302) 123 P. 136. In the case of Coe v. Waters, supra, in an able opinion on petition for rehearing, the late Judge Bissell, who wrote the opinion, speaking of variance, uses this language: "Doubtless, if the defendant had been surprised by the testimony, and a totally different case had been made from that which he was called upon to answer, he would have been entitled to a continuance. He might likewise, perhaps, in the present instance, have compelled an amendment to the complaint, so as to have presented a legally accurate statement of the plaintiff's action. Taking no steps in either one of these directions, we do not regard the question of variance as so saved in the record as to call for a specific judgment respecting it. While we concede the complaint is not so drafted as to present with technical accuracy the cause of action, it was, according to the verdict of the jury, sustained by the proof. It did contain all the allegations requisite to the plaintiff's recovery."

2. The appellant based its claim of title to the land in question on two certain correction tax deeds issued by the treasurer of Washington county. There are certain serious, if not fatal, defects in the original tax deeds; and it is reasonable to suppose that the two correction deeds were issued for the purpose of meeting or correcting these defects. It is not necessary, in the view we take of the correction deeds, to consider the defects in the original deeds. Nor is it necessary for us to determine whether the treasurer of Washington county was authorized to issue said correction deeds. The first correction deed relied upon (being Exhibit 3) contains, among other things, the following recitations, omitting unnecessary portions: "Know all men by these presents, that whereas, the following described real property [here describing a portion of the property involved in this action], situate in the county of Washington, state of Colorado, was subject to taxes for the year A.D.1895; *** and whereas, the treasurer of said county did, by virtue of the authority vested in him by law, at a tax sale, the sale publicly held on the 19th day of October, A.D.1896, severally expose at public sale at the office of the county treasurer in the county aforesaid, in substantial conformity with the requirements of the statute in such case made and provided, each tract of said property for the payment of taxes, etc.; *** and whereas, no bid was made or offered by any person at said sale for any of the land *** offered to sale and remaining unsold at said sale, and particularly for the said above-described real property, or any part of it, and said treasurer became satisfied that no more sale of any property, and particularly the real property herein specifically described, so offered, could be effected at public sale, thereupon said treasurer did bid off at said sale, for and in the name of said county of Washington, all the lands," etc. There is a portion of a line appearing in the exhibit offered as a copy of said correction deed reading as follows, "having passed such real property over for the time, did reoffer it until on the last day of the sale," which has been erased, or through which a line is drawn. From the above it conclusively appears that the land in question was bid in by the county on the first day that the same was offered for sale. It follows, therefore, that this correction deed was void on its face, under repeated rulings of our Supreme Court.

The second correction deed relied on (being Exhibit 20) embraced the remaining portion of the land involved in this action. This deed contained the following recitals: "Know all men by these presents, that whereas, the following described real property, to wit [describing a certain portion of the land involved in this action], was subject to taxation for the year A.D.1895 in the said former county of Arapahoe; and whereas, the taxes separately assessed upon said real estate for the year aforesaid remained due and unpaid at the date of the sale hereinafter named; and whereas, the treasurer of said county did on the 31st day of October, A.D.1896, by virtue of the authority vested in him by law, at an adjourned sale, the sale begun and publicly held on the 5th day of October, 1896, severally expose to public sale *** in substantial conformity with the requirements of the statute *** the said several parcels of real property above described; *** and whereas, no bid was made or offered by any person at...