Fuschino v. Lutin, 16545

• Decision Date: 25 June 1951
• Docket Number: No. 16545,16545
• Citation: 234 P.2d 906,124 Colo. 42
• Parties: FUSCHINO v. LUTIN et al.
• Court: Colorado Supreme Court

Page 906

234 P.2d 906

124 Colo. 42

FUSCHINO v. LUTIN et al.

No. 16545.

Supreme Court of Colorado, in Department.

June 25, 1951.

John W. Elwell, Pueblo, for plaintiff in error.

Seavy & Seavy, Pueblo, for defendants in error.

STONE, Justice.

Fuschino brought action on December 11, 1947, in the form of a quiet-title suit, to determine interests in certain land. Lutin, by her answer, alleged possession under a treasurer's deed and set up the bar of the short statute of limitations, section 262, chapter 142, '35 C.S.A., and the seven-year statute, section 143, chapter 40 '35 C.S.A. Fuschino denied Lutin's possession under the tax deed and asserted that the deed was void on its face for the reasons, (1) that the deed fails to state the amount of subsequent taxes paid by the assigness to the county where the lands involved were stricken off at a tax sale to the county for want of bids, and the county's certificate of sale was thereafter assigned to Lutin, to whom the tax deed was issued, and (2) that the grantee in said deed did not pay such sum as the board of county commissioners authorized at any regular meeting as consideration for said deed. Defendant prevailed and had judgment for costs.

As to the deed, statement of the amount of subsequent taxes paid or that any subsequent taxes were paid was not essential to its validity. Bennett v. Shotwell, 118 Colo. 206, 194 P.2d 335. Whether in fact a resolution was passed by the county commissioners authorizing any sum which was paid for said certificate is not a matter which is required to be shown on a treasurer's deed and, even if such resolution be necessary in fact, the want of it would not make the deed void on its face.

As to possession under the tax deed, the evidence discloses that the property involved was operated during the period here concerned as a rooming house. It contained some 40 rooms. Lutin's tax deed was issued and recorded December 22, 1933. Fuschino continued to live in three rooms, but Lutin thereafter collected all of the rents except for the rooms so occupied, and some time after the recording of her deed purchased from Fuschino the furniture in the building, withholding the sum of $85 which she testified was for the purpose of covering the amount of rent which was due her from Fuschino at that time. The retention of this amount was admitted by the latter, but he denied that it was in payment of, and accepted as, rent. On such evidence the trial court found that Lutin was, and had been, in possession, with the knowledge and acquiescence of Fuschino, since December 11, 1933, or for fourteen years prior to the commencement of the action now before us. By virture of such...