French v. Golston, 14602.

• Decision Date: 04 March 1940
• Docket Number: 14602.
• Citation: 100 P.2d 581,105 Colo. 578
• Parties: FRENCH et ux. v. GOLSTON.
• Court: Colorado Supreme Court

100 P.2d 581

105 Colo. 578

FRENCH et ux. v. GOLSTON.

No. 14602.

Supreme Court of Colorado, En Banc.

March 4, 1940

Error to District Court, Hinsdale County; George W. Bruce, Judge.

Action in ejectment by Roy D. Golston against F. C. French and wife. To review an adverse judgment, defendants bring error.

Reversed with directions.

Paul L. Littler, of Montrose, for plaintiffs in error.

Moynihan-Hughes of Montrose, for defendant in error.

BURKE, Justice.

Plaintiffs in error are husband and wife. F. C. French is hereinafter referred to as French, defendant in error as Golston, the Roxy Lynn Mining Company as the company, and the property in question (the Roxy Lode Mining Claim U.S. Survey No. 11588 Lake Mining District, 1,500 feet in length and containing approximately six acres) as the Roxy Lode.

December 6, 1937, Golston, alleging fee title in himself, brought ejectment against the Frenches to recover possession of the Roxy Lode. The Frenches answering admitted their possession otherwise they denied. Furthermore they asserted title in French, (a) by eighteen years' adverse possession, (b) by seven years' claim and color of title with payment of taxes, and (c) by assignment of a squatter's right. The reply denied all new matter.

Trial was to the court, which found generally for Golston, held that the tax deed under which he claimed conveyed the fee that the defenses were without merit, and entered a decree in Golston's favor for possession. To review that judgment the Frenches bring error and ask that the writ be made a supersedeas. We have elected to finally dispose of the cause on that application. Of the ten assignments the first goes to the admission of Golston's tax deed, the others amount simply to one, i. e., that the judgment is unsupported by the evidence.

The following history of this title appears from the undisputed evidence: In 1896 the company filed a location certificate on the Roxy Lode and in 1897 it executed a lease to Mary Croft for 'that certain tract or parcel of land now enclosed by * * * (her) to-wit: Being a one story house * * * together with the log stable in the rear of said dwelling house. To have and to hold the same during her ownership or occupancy of said house and stable.' In 1898 the company received a patent to the Roxy Lode. In 1917 Brown and Stringfellow took out a tax deed on the property and the same year transferred it to Hume, Brown and Turner by warranty deed. The last mentioned grantees still hold title unless divested by tax sales and deeds hereinafter referred to. September 19, 1917, Mary Croft quit-claimed to French 'all the buildings and improvements * * * (leased by the company to Mary Croft as above) * * * running for the term of ninety-nine years from date * * * together with all the rights and privileges of the grantor (Croft) above named under and by virtue of the above mentioned and described lease.' The land involved and the improvements thereon were sometimes separately assessed. March 1, 1924, the improvements were sold for the tax of 1922 and struck off to the county for lack of bidders, and certificate No. 5005 issued therefor. December 3, 1930, the land was sold for the tax of 1929, struck off to the county for the same reason, and certificate No. 6227 issued therefor. Here the matter rested until December 7, 1936, when the board of county commissioners passed a resolution authorizing the county treasurer 'to make assignment of tax sale certificate No. 5005 covering (improvements) and tax sale certificate No. 6227 covering (land) upon which a part of the improvements * * * stands for a minimum sum of not less than $500.' August 10, 1937, one John McGowan, holder of a prior tax sale certificate, acting through Dorothy French, daughter of plaintiffs in error, as it is claimed, redeemed in McGowan's name from the sale evidence by said certificate No. 6227 and received from the county treasurer a redemption certificate to that effect. August 17, following, the treasurer wrote McGowan that this redemption certificate 'Was erroneously issued as only owners can redeem. I hold the money you paid for the certificate and ask that you call for same.' McGowan never did. The following day the treasurer issued to Golston the tax deed under which the latter here claims. It is based solely upon said certificate No. 6227 and specifies only the price appearing on the face thereof, i. e., $19.56, plus subsequent taxes, $16.44. There were other tax sale certificates on this property with which we are not here concerned. All the above mentioned muniments of title were of record. The Frenches had been in possession of some of the improvements on this property for more than eighteen years under some kind of claim, and had themselves, since taking possession, erected improvements thereon costing approximately $20,000. They had never paid any taxes on the land and had paid no taxes on the improvements since 1925.

It is fundamental that a plaintiff in ejectement must recover, if at all, on the strength of his own title and not upon the weakness of that of his adversary. 19 C.J. § 11, p. 1035; Horn v. Hurwitz, 78 Colo. 343, 241 P. 727; Bokel v. Zitnik, 93 Colo. 565, 27 P.2d 753.

Title in a third person is therefore generally a good defense. 19 C.J. § 68 p. 1076.

Possession implies ownership until the contrary is shown and prior possession is sufficient against a mere intruder. Sears v. Taylor, 4 Colo. 38.

The defense of title in a third person is not available to a mere intruder. 19 C.J. § 71 p. 1078.

Seven reasons are urged against the validity of Goston's tax deed, two of which we think sound: (a) One Turner held a treasurer's deed to one-third of this property, dated January 6, 1922, and duly recorded. Turner was not notified and no sufficient reason appears for that failure. The statute requires notice to all persons 'having an interest or title of record.' Sec. 1, chap. 227, p. 1053, Laws 1937; Brown v. Davis, 103 Colo. 110, 83 P.2d 326. (b) The very certificate upon which Golston's deed was issued had been redeemed by McGowan, holder of a former certificate. He probably had a right to redeem. Sec. 264, chap. 142, '35 C.S.A.; 61 C.J. § 1690 p. 1245. Neff v. Gray, 157 Okl. 207, 11 P.2d 755.

We need not here determine whether Dorothy French was in fact acting for McGowan, or whether, as is claimed, his name was used as a 'dummy' for French. He obtained a redemption certificate by payment of the face thereof, plus $183.77 subsequent taxes. While...