George Elder v. Tingley Wood

• Decision Date: 27 January 1908
• Docket Number: No. 95,95
• Citation: 52 L.Ed. 464,208 U.S. 226,28 S.Ct. 263
• Parties: GEORGE R. ELDER, Successor in Interest to Samuel McMillen, Deceased; Alice J. McCombe, Administratrix of John McCombe, Deceased; and Rowena E. McCombe, by Alice J. McCombe, Her Next Friend, Plffs. in Err., v. TINGLEY S. WOOD, Impleaded with Mary M. Bullard, Anna L. Finnerty, and Cecelia L. Wahrer, Defts. in Err
• Court: U.S. Supreme Court

208 U.S. 226

28 S.Ct. 263

52 L.Ed. 464

GEORGE R. ELDER, Successor in Interest to Samuel McMillen, Deceased; Alice J. McCombe, Administratrix of John McCombe, Deceased; and Rowena E. McCombe, by Alice J. McCombe, Her Next Friend, Plffs. in Err.,

v TINGLEY S. WOOD, Impleaded with Mary M. Bullard, Anna L. Finnerty, and Cecelia L. Wahrer, Defts. in Err.

No. 95.

Argued January 9, 1908.

Decided January 27, 1908.

Mr. George R. Elder for plaintiffs in error.

[Argument of Counsel from pages 226-228 intentionally omitted]

[228]

Messrs. A. B.Browne, Charles Cavender, and Alxexander Britton for defendants in error.

[Argument of Counsel from pages 228-230 intentionally omitted] Mr. Justice Moody delivered the opinion of the court:

The plaintiffs in error brought this action in a district court of the state of Colorado to recover from the defendants in error the possession of an undivided interest in the Comstock lode mining claim, situated in that state. Both parties claimed title under Wilhelmina Gude, who was agreed to have been the owner of the interest in dispute; the defendants under a sale for taxes assessed upon her interest, made August 5, 1889, and a deed in pursuance of the sale, made August 8, 1892, and recorded August 11, 1892; the plaintiffs under a quitclaim deed of her interest, made April 5, 1894, and duly recorded. The tax title was the earlier, and possession of the interest in dispute was held by those claiming under that title for more than five years, which is the period of the statute of limitations of Colorado applicable to such a case. The plaintiffs, however, insisted that the tax title was void, and the judge of the trial court so found, and entered judgment for the plaintiffs, which was reversed by the supreme court of the state and judgment for the defendants ordered. The case is here upon writ of error to the latter court.

The plaintiffs' contention is that the taxtitle was void for two reasons: First, because the property was not subject to state taxation, as the title to the land was in the United States, and therefore the levy of the tax was a nullity; second, because the notice of the sale for taxes was published only in a Sunday newspaper, and therefore the sale was a nullity. The further contention is then made that the tax deed, for these reasons, was void, and did not afford color of title sufficient for the purpose of the statute of limitations.

The judgment under review, however, determined that the interest of Wilhelmina Gude was liable to taxation under the laws of the state, although the land on which it was located had not been patented to her or entered for patent by her; that the possession was the subject of the assessment, and that the right of possession passed by the tax sale; that a tax deed was, by a state statute, prima facie evidence inter alia 'that the property was duly and lawfully advertised for sale;' that the tax deed was not void upon its face, and that it constituted a sufficient color of title to satisfy the statute of limitations; and, finally, that, as this action was not brought within five years after the delivery of the tax deed, it was barred by that statute, which provided that 'no action for the recovery of land sold for taxes shall lie unless the same be brought within five years after the execution and delivery of the deed therefor by the treasurer.'

The question for decision here is only whether this judgment denied to the plaintiffs any Federal rights duly claimed by them in the state court, and we have no right to inquire further.

1. The title to the land on which this mining claim was located was in the United States. It was a part of the public lands, and although proceedings had been begun by the owners of the claim for the acquisition of the title to the land by patent, they were not concluded at the time of the assessment of the tax, and apparently no patent has ever been issued. Obviously the land was not taxable as the property of Wilhelmina Gude. The act by which the people of the territory of Colorado were enabled to form a state (§ 4 of act approved March 3, 1875, 18 Stat. at L. 474,...