Henrie v. Greenlees

• Decision Date: 03 July 1922
• Docket Number: 10069.
• Citation: 71 Colo. 528,208 P. 468
• Parties: HENRIE et al. v. GREENLEES et al.
• Court: Colorado Supreme Court

208 P. 468

71 Colo. 528

HENRIE et al. v. GREENLEES et al.

No. 10069.

Supreme Court of Colorado, En Banc.

July 3, 1922

Error to District Court, Hinsdale County; Thomas J. Black, Judge.

Action by J. R. Greenlees, for himself and others and on behalf of the Sunflower Mining Company, against Florida Bryson Henrie and others, to recover the possession of a lode mining claim. Judgment for the plaintiff, and defendants bring error.

Reversed and remanded, with directions to dismiss the suit.

Moynihan Hughes, Knous & Fauber, of Montrose, for plaintiffs in error.

Harry C. Riddle and Richard F. Ryan, both of Denver, for defendants in error.

Boswell F. Reed and Robert W. Steele, Jr., both of Denver, amici curiae.

ALLEN J.

This is a suit in ejectment and was instituted by a stockholder of the Sunflower Mining Company, a corporation, for himself and others similarly situated and on behalf of the corporation, to recover the possession of certain lode mining claims situated in Hinsdale county Colo., and also to recover damages for an alleged severance and conversion of mining fixtures. The complaint charges that the defendants 'conspired together for the purpose of defrauding the company and obtaining possession of said mining claims and did wrongfully oust the said company through such conspiracy.'

An answer was filed by three of the defendants. They allege that one of them, Florida Bryson Henrie, obtained a tax deed to the property, and that the other two answering defendants are each her grantee as to a one-third interest in the property. The answer sets up various maters leading up to the issuance of the tax deed.

The replication charges conspiracy between the defendant Florida Bryson Henrie and certain officers of the company in connection with the procuring of the tax deed in question and alleges other matters which raise several issues of fact material in the matter of the validity of the tax deed irrespective of the alleged conspiracy.

The trial court found the issue of conspiracy in favor of plaintiff, and also held the tax deed invalid upon several grounds. There was a judgment for plaintiff. The three answering defendants, being the holder of the tax deed and her grantees, bring the cause here for review.

The defendant Florida Bryson Henrie was the assignee of a certificate of purchase of the mining claims in question at a tax sale, and as such assignee she thereafter duly made a request upon the county treasurer for a tax deed. The county treasurer published a notice of the application for tax deed in the Silver World and Lake City Times, a newspaper of Hinsdale county. It is claimed, and the trial court held, that this newspaper is not a legal newspaper within the meaning of section 3931, R. S. 1908, and that therefore the tax deed is void because the application for the same was not properly published as required, under certain circumstances, by section 5727, R. S. 1908.

Whether the newspaper in question was a legal newspaper is, however, immaterial in the instant case. A notice was served upon all interested parties, including the corporation above named, in whose name the property was taxed. A notice was sent to its agent at its home office in Phoenix, Ariz., and also to each member of its board of directors. The latter fact alone is sufficient to constitute a notice to the corporation. 7 R.C.L. 653.

All interested parties having been served with actual notice, it does not seem reasonable that publication should be required, and, moreover, it is not necessary to construe the statute so as to require publication under these circumstances.

Section 5727, R. S. 1908, contains the following clause:

'If no person is in actual possession or occupancy of such land or lot, or the residence of the person in whose name the same was taxed, * * * and the residence of none of the persons having interests or title of record in or to the premises, can, upon diligent inquiry, be learned, then the treasurer shall publish such notice in some newspaper. * * *'

The evident intent of the Legislature was to require publication only in the event that actual notice cannot be given to the owner and to persons having an interest of record in the land. Such intent would be clearly expressed if the word 'or' in the second line...