De Foresta v. Gast

• Decision Date: 01 October 1894
• Citation: 20 Colo. 307,38 P. 244
• Court: Colorado Supreme Court
• Parties: DE FORESTA v. GAST.

38 P. 244

20 Colo. 307

DE FORESTA v. GAST.

Supreme Court of Colorado

October 1, 1894

Appeal from district court, Pueblo county.

Action in ejectment by Charles E. Gast against Charles De Foresta defendant claiming the land in controversy under a tax deed. Plaintiff had judgment, from which defendant appeals. Reversed.

Syllabus by the Court

1. Color of title is that which in appearance is title, but which in reality is no title. While the phrase 'color of title,' in the limitation act of 1874, means a paper title, it does not mean a perfect paper title. The statute when its conditions are complied with, is intended as a protection to a person holding in good faith under a mere colorable title.

2. Where a tax deed regularly executed, in form and by apt words, purports to convey the land to the grantee by virtue of the legal authority vested in the grantor (the county treasurer), held, that the deed gives color of title, even though a person of legal learning and experience may, by a critical examination, discover defects in the instrument fatal to its validity.

3. In the absence of proof to the contrary, the fact that a person has acquired, and for a period of 11 years has held, a tax deed to land, and has during said period paid all the taxes on the land, is sufficient evidence of his good faith in the transaction.

Gerry & Rittenhouse, John T. O'Keefe, and Horace Phelps, for appellant.

Henry A. Dubbs and Charles E. Gast, for appellee.

ELLIOTT J.

On the trial, plaintiff showed title in himself to the land in controversy by patent from the United States and sundry mesne conveyances from the patentee. Defendant then produced a tax deed showing a conveyance of the property in controversy to himself from the treasurer of Pueblo county. The tax deed shows the sale to have been made on July 5, 1876, for the taxes of 1875. The deed was executed November 20, 1879, and was recorded November 29, 1879. It was admitted that the land in controversy had always been unoccupied and vacant land; also, that defendant had paid all taxes accruing thereon subsequent to the tax deed. As this suit was brought January 20, 1891, it follows that defendant had, for 11 years after receiving and recording his tax deed, paid all taxes legally assessed upon the land in controversy. Upon this ground, defendant claims the benefit of the following statute of limitations: 'Whenever a person having color of title, either by pre-emption or otherwise, as aforesaid, made in good faith to vacant and unoccupied land or mining claims, shall pay all taxes legally assessed thereon, or for improvements situate thereon, for five successive years, he or she shall be deemed and adjudged to be the legal owner of said vacant and unoccupied lands or mining claims, to the extent and according to the purport of his or her proper (paper) title or pre-emption. * * * Provided, however, that if any person having a better paper title or pre-emption to said vacant and unoccupied lands or mining claims shall during the said term of five years, pay the taxes assessed on said lands or mining claims, or improvements thereon, for any one or more years of the said term of five years, then, in that case, such taxpayer, his heirs and assigns, shall not be entitled to the benefit of this section.' Sess. Laws 1874, p. 178; Gen. Laws 1877, § 1695.

In behalf of appellee, it is contended that the tax deed is void upon its face. The argument is that the deed shows a sale and conveyance of several distinct parcels of land en masse, whereas the statute in force at that time required a separate sale and conveyance for each lot or parcel of land sold at tax sale. Various sections of the revenue laws, as published in Gen. Laws 1877, are relied on to support this view. The tax deed in this case may have been irregular, under the statute in force at the date of its execution. It may have been voidable, so that a suit for its cancellation or for the recovery of the land might have been maintained if the same had been commenced by the owner of the original title within five years from the recording of the deed. See Morris v. Bank, 17 Colo. 231, 29 P. 802, where the action was commenced within five years after the recording of the tax deed. But it is unnecessary to determine whether the deed in this case is or is not void upon its face. By its general form and recitals, it purports to show a sale and conveyance in substantial conformity with the revenue laws of the state, and its execution appears to be entirely regular. In Waddingham v. Dickson, 17 Colo. 223, 29 P. 177, a tax deed in some respects like the one now under consideration was held to be prima facie evidence of title, Chief Justice Hayt remarking in his opinion, 'There is nothing in our statute which requires separate deeds for each piece of property sold, where the purchaser of the several tracts is the same person.'

1. There has been much controversy, and not a little conflict in judicial decisions, as to the meaning of the phrase 'color of title.' In the statute now under consideration, we have held that the phrase means a paper title. Knight v. Lawrence, 19 Colo. 425, 36 P. 242. But certainly it does not mean a perfect paper title. A perfect title needs no extraneous support. The statute, when its conditions are complied with, is intended as a protection to a person holding in good faith under a mere colorable title; that is, under a title which is really no title. In Wright v. Mattison, 18 How. 56, Mr. Justice Daniel speaks of 'color of title' as 'that which in appearance is title, but which in reality is no title.' This language was used in discussing a limitation statute from which the one now under consideration was borrowed.

2. There is high authority for the proposition that 'a void deed, taken in good faith, is a sufficient color of title.' Beaver v. Taylor, 1 Wall. 641. In Hall v. Law 102 U.S. 466, Mr. Justice...