Foster v. Gray

• Decision Date: 10 June 1913
• Citation: 133 P. 146,24 Colo.App. 247
• Parties: FOSTER v. GRAY.
• Court: Colorado Court of Appeals

133 P. 146

24 Colo.App. 247

FOSTER v. GRAY.

Court of Appeals of Colorado

June 10, 1913

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

Action by George S. Foster against Alexander Gray, in which defendant filed a cross-complaint. From a decree for defendant, plaintiff appeals. Affirmed.

Crane & Patrick, of Pueblo, for appellant.

HURLBUT J.

Code action to quiet title commenced September 27, 1906, by appellant (plaintiff below) against appellee. The cross-complaint included in the answer asserts title in defendant to the disputed premises by virtue of a government patent, and further pleads that the title of plaintiff is based upon a tax deed recorded June 6, 1900, in the clerk's office of Kiowa county, but alleges the same to be absolutely void and a cloud on defendant's title. Replication denies defendant's title and possession denies that the tax deed mentioned is void on its face or otherwise; and pleads the five-year statute of limitations. Decree was rendered in favor of defendant, quieting title in him, from which this appeal was taken.

At the trial defendant established title in himself by introducing in evidence without objection patent from the government of the United States, therein conveying to him the premises in issue. Plaintiff offered in evidence treasurer's deed for the premises, dated March 7, 1900, filed for record June 6 1900, the grantee therein being S.R. Smith, from whom plaintiff deraigned title. Defendant objected to the introduction of the deed in evidence, alleging as reasons (a) That the deed shows the sale of noncontiguous tracts of land en masse for a gross sum; (b) that it shows the county bid off the premises on the first day of sale, and fails to show that the same were offered on the first day of sale and from day to day thereafter until the last day of sale, the last day being the only time the county was authorized to purchase the property; (c) that it does not show what portion of the lands was sold or that any lands were sold by the treasurer, in that no lands were described or referred to by apt words in the space provided for in the statutory form; and lastly, (d) the acknowledgment was fatally defective. The court sustained the objection and excluded the deed from evidence. There was no error in this ruling. The tax deed reads in part as follows: "Know all Men by these Presents, That, whereas the following described real property, viz.: [Noncontiguous tracts here described] situated in the county of Kiowa and state of Colorado, was subject to taxation; *** and, whereas, the treasurer of the said county did, on the 22d day of December, 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 22d day of December, A.D.1896, expose to public sale at the office of the Treasurer in the county aforesaid, in substantial conformity with the requirements of the statute in such case made and provided, the real property above described, for the payment of the taxes, interest and costs then due, and remaining unpaid on said property; and, whereas, at the time and place aforesaid Kiowa county, of the county of Kiowa, and state of Colorado, having offered to pay the sum of one hundred and twenty-five dollars and eighty-five cents, being the whole amount of taxes, interest and costs then due, and remaining unpaid on said property, for the year 1895, which was the least quantity bid for, and payment of said sum having been made by Kiowa county to the said treasurer, the said property was stricken off to Kiowa county at that price," etc.

Under the first objection to the admission of the deed, it will be seen that the deed was void on its face for the reason that it shows a tax sale en masse of noncontiguous tracts for a gross sum. Page et al. v. Gillett, 47 Colo. 289, 107 P. 290; Empire R. & C. Co. v. Coleman, 129 P. 522. The second objection is also well taken.

It will also be seen that the deed is void on its face, for the reason that it shows the land sold was struck off to the county on the first day of the sale, and fails to show...