Empire Ranch & Cattle Co. v. Gibson

• Decision Date: 13 January 1913
• Citation: 129 P. 520,23 Colo.App. 344
• Parties: EMPIRE RANCH & CATTLE CO. v. GIBSON.
• Court: Colorado Court of Appeals

129 P. 520

23 Colo.App. 344

EMPIRE RANCH & CATTLE CO. v. GIBSON.

Court of Appeals of Colorado

January 13, 1913

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

Action by Charles E. Gibson 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.

Action by Charles E. Gibson, appellee, in the nature of ejectment to recover possession (1) of the N.E. 1/4 of section 11, (2) the S. 1/2 of the S.W. 1/4 and the S. 1/2 of the S.E. 1/4 of section 8, all in township 5 north, range 46 west, in Yuma county, Colo. Appellant's answer consisted of four separate defenses: (1) a general denial; (2) as to the S. 1/2 of the S.W. 1/4, section 8, aforesaid, an allegation of ownership in fee simple and right to possession under certain treasurer's deeds issued upon tax sales, and judgment and decree of the county court of Yuma county quieting title in a proceeding wherein appellant was plaintiff and one Henry A Bartholomew was defendant; (3) same allegations as to the S 1/2 of the S.E. 1/4 of section 8, as alleged in the second defense; (4) as to the N.E. 1/4 of section 11, aforesaid, an allegation of ownership in fee simple and right to possession under certain treasurer's tax deeds and judgment of the county court of Yuma county, quieting title, in an action wherein appellant was plaintiff and Charles A. Thompson and others were defendants, also a certain correction tax deed. The replication put in issue the title under the tax deeds and the decrees, alleging the tax deeds to be void on the face thereof, denying the due making and entry of said decrees, and alleging that they were void. Plaintiff deraigned title from the patentee, and such title is not disputed, except as it is claimed to have been divested by appellant's treasurer's tax deeds, and by the decrees quieting title.

Each and every of the tax deeds offered was void on its face for either or all of the following reasons: That it appeared that several noncontiguous tracts of land were sold en masse for a gross sum, or that the certificate of sale issued to the county was assigned by the county clerk more than three years after the date of issuance, or failed to show that such lands were offered from day to day until the last day of the sale.

As to the N.E. 1/4 of section 11, defendant offered in evidence Exhibit 4, a decree of the county court of Yuma county quieting title in the defendant, dated July 10, 1902, in an action then pending wherein the Empire Ranch & Cattle Company was plaintiff and Charles A. Thompson and others were defendants. The judgment roll in said cause was not offered in evidence, and plaintiff's objection to the offer of the decree, as incompetent for the reason that no foundation had been made for the offer by first introducing the judgment roll, was sustained, and the decree excluded as evidence. Inasmuch as this decree was offered as an estoppel and to establish title in the defendant, it was not admissible, when unaccompanied by the judgment roll, showing the service of process on which the court acquired jurisdiction. McLaughlin v. Reichenbach (Sup.) 122 P. 47; Empire Ranch & Cattle Co. v. Gibson (No. 3,482) 128 P. 473, and Terry v. Gibson (No. 3,560) 128 P. 1127 not yet officially...