Foster v. Clark

• Decision Date: 08 January 1912
• Citation: 121 P. 130,21 Colo.App. 192
• Parties: FOSTER v. CLARK et al.
• Court: Colorado Court of Appeals

121 P. 130

21 Colo.App. 192

FOSTER v. CLARK et al.

Court of Appeals of Colorado

January 8, 1912

Appeal from District Court, Kiowa County; J.E. Rizer, Judge.

Action by George S. Foster against A.N. Clark and another. From a judgment of nonsuit, plaintiff appeals. Affirmed.

Crane &amp Patrick, for appellant.

W.F Zumbrunn and John F. Mail, for appellees.

CUNNINGHAM J.

Appellant as plaintiff below, brought his action to quiet title to a large quantity of land, comprising many tracts, situate in Kiowa county. From a judgment of nonsuit in favor of appellees, defendants below, A.N. Clark and C.S Morey, who had, on their motion, been joined as defendants with a large number of original defendants, all of whom suffered judgment by default to go against them, appellant brings this cause here for review.

Appellant's claim of title to all the land in question was based on four tax deeds, which were identified as Exhibits A, B, C, and D, respectively, and offered in evidence. The trial court, upon objections made by appellees, excluded all of the aforesaid exhibits. Each and all of the tax deeds were void on their face for one reason or another, which reasons we will now proceed to point out:

Exhibit A is void on its face for at least two reasons: (1) The sale of the land was made to the county on the first day of the tax sale. (2) The deed purports to be based upon a certificate of purchase originally issued to the county and thereafter assigned by it; but it nowhere appears on the face of the deed by what officer or by what authority said certificate was assigned. Charlton v. Toomey, 7 Colo.App. 304-305, 43 P. 454.

Exhibit B is void on its face, because the land therein described was offered for sale and sold en masse for a gross sum, notwithstanding the two tracts were noncontiguous quarter sections, lying two miles apart.

Exhibit C is void on its face, because sold to the county on the first day of the tax sale, and (probably) because the assignment of the certificate of purchase was irregular in two particulars: (a) The assignment does not show by what officer it was executed; and (b) it is not stated in the deed that the assignee paid all the accrued taxes, costs, penalties, etc., but only recites that he had paid subsequent taxes, giving the amount of the subsequent taxes so paid.

Exhibit D is void on its face: (1) Because the day and date of the tax sale is indefinite, and the property was not reoffered for sale as provided by statute, nor does it appear that the treasurer was satisfied that no sale of the property could be made to private persons; the sale having been made to the county. (2) The certificate of purchase was assigned by the county more than three years after the date of the tax sale. See Empire Ranch & Cattle Company v. Caldron, supra. Each and all of the aforesaid imperfections to which we have called attention are apparent on the face of the deeds themselves.

The tax deeds relied on by appellant being void on their face, the statute of limitations pleaded by appellant and urged here can avail him nothing; appellant having failed to prove title in himself, the trial court properly granted appellees' motion for nonsuit. Clark et al. v. Huff, 49 Colo. 197-200 et seq., 112 P. 542.

The title of appellees was predicated, in part, upon certain trust deeds and notes secured thereby, which notes had been for more than six years past due. Appellant contends that, since he pleaded the statute of limitations against said trust deeds and notes, they should have been excluded. This contention has been overthrown in the cases of Holmquist v. Gilbert, 41 Colo. 113, 92 P. 232, 14 L.R.A. (N.S.) 479; Foote v. Burr, 41 Colo. 192, 92 P. 236, 13 L.R.A. (N.S.) 120. See, also, Ordway v. Cowles, 45 Kan. 493-499, 25 P. 862.

Appellant cites and quotes from the Foote Case in support of the contention he...