Fleming v. Howell

• Decision Date: 10 June 1912
• Parties: FLEMING v. HOWELL.
• Court: Colorado Court of Appeals

125 P. 551

22 Colo.App. 382

FLEMING v. HOWELL.

Court of Appeals of Colorado

June 10, 1912

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

Action by Lardner Howell against J.V. Fleming. Judgment for plaintiff, and defendant appeals. Affirmed.

Thomas B. Stuart and Charles A. Murray, both of Denver, for appellant.

R.H Gilmore, of Denver, amicus curiae.

John F Mail, of Denver, for appellee.

KING J.

Appellee as plaintiff, brought this action in the nature of ejectment to recover from the defendant four certain parcels of land situate in Washington county, alleging his title in fee simple and right to immediate possession, and that defendant wrongfully withheld possession thereof. The defendant, among other defenses, pleaded title in himself by virtue of several tax deeds, also color of title under one of said deeds, and invoked the bar of the statute of limitations, pleading and relying upon both the short statute as applied to actions for recovery of land sold for taxes (Rev.St.1908, § 5733; Mills' Ann.St. § 3904) and the seven-year statute, alleging his actual possession under claim and color of title made in good faith, with payment of all taxes legally assessed, for the full period required by said statute (Rev.St.1908, § 4089).

Plaintiff deraigned title from the original patentee through several mesne conveyances. No serious objection was made to plaintiff's title, except that it was defeated by the several tax deeds and the statutes of limitation as hereinbefore set forth.

Defendant's several tax deeds were refused admission as evidence of title, but admitted for the purpose of showing color of title. Each was void on its face. The first deed, because it showed the sale to the county of several noncontiguous tracts of land, en masse, for a gross sum, and that the certificate of purchase, upon which the deed was based, had been assigned by the county clerk more than three years after the tax sale and issuance of said certificate. Emerson v. Shannon, 23 Colo. 274, 47 P. 302, 58 Am.St.Rep. 232; Page v. Gillett, 47 Colo. 289, 107 P. 290; Hughes v. Webster, 122 P. 789, 790; Carnahan v. Sieber Cattle Co., 34 Colo. 257, 82 P. 592; Empire Ranch & Cattle Co. v. Coldren, 117 P. 1005; McLaughlin v.

Reichenbach, 122 P. 47. The second deed was made pursuant to the same tax sale as the first, upon an assignment of the certificate made by the county treasurer, by authority of the board of county commissioners, but was void on its face because of the recital therein of the sale of noncontiguous tracts en masse, as in the first.

The other two deeds omitted certain material recitations required by the statute to be made in the form prescribed for treasurer's deeds, to wit, that the property had not been redeemed from tax sale as provided by law. The deeds were therefore inadmissible as evidence for the purpose of showing title.

Seven years and four months had elapsed after the first tax deed had been recorded, before suit was brought, and all taxes assessed upon said lands during that time had been paid by the defendant; but the deed, being void on its face, did not operate to set the five-year statute of limitations in motion. Gomer v. Chaffee, 6 Colo. 314; Page v. Gillett, supra; Sayre v. Sage, 47 Colo. 559, 108 P. 160; Hughes v. Webster, supra.

The tax deed relied upon by the defendant gave him color of title from the date of its record. Morris & Thombs v. St. Louis National Bank, 17 Colo. 231, 29 P. 802; Sayre v. Sage, supra; Hughes v. Webster, supra. But it is not necessary to decide whether the bar of the seven-year statute of limitations began to run from the date of such record, or...