Hochmuth v. Norton, 12579.

• Decision Date: 28 March 1932
• Docket Number: 12579.
• Citation: 90 Colo. 453,9 P.2d 1060
• Parties: HOCHMUTH v. NORTON et al.
• Court: Colorado Supreme Court

9 P.2d 1060

90 Colo. 453

HOCHMUTH v. NORTON et al.

No. 12579.

Supreme Court of Colorado

March 28, 1932

Rehearing Denied April 11, 1932.

In Department.

Error to District Court, City and County of Denver; George F Dunklee, Judge.

Action by C. E. Hochmuth against Stephen G. Norton and another. To review a judgment of nonsuit, plaintiff brings error.

Reversed and remanded with directions.

Frank L. Hays, of Denver, for plaintiff in error.

Robert H. Kane, of Denver, for defendants in error.

BURKE J.

These parties occupied the same relative position in the trial court and are hereinafter designated as there.

But two questions deserving consideration are presented by this record: (1) Was the question of the validity of defendants' tax deed Before the trial court? (2) Was the deed void on its face?

Plaintiff brought ejectment to recover possession of two lots in Denver. By a second cause of action he demanded compensation for their retention. A demurrer for want of facts and ambiguity was overruled. The answer denied every material allegation save defendants' possession. This, it alleged was peaceful, rightful, and adverse. By cross-complaint defendants asserted ownership in fee and possession, alleged claim and color of title and payment of taxes for five years under a certain tax deed, $2,300 in improvements made on the premises, and pleaded the five-year statute of limitations. By reply and answer to the cross-complaint plaintiff put these things in issue, specifically alleging that said tax deed was void on its face for an unlawful sale. A general demurrer to this pleading was overruled. The cause was tried to the court, and at the close of plaintiff's evidence defendants' motion for nonsuit was sustained and they had judgment for their costs. To review that judgment plaintiff prosecutes this writ.

It was stipulated that a certain corporation, at the time of the expiration of its charter in 1919, had title to the lots in question. The evidence disclosed that on December 4, 1924 one Johnson was the sole surviving member of its last board of directors. On that day, as trustee for the stockholders, he quitclaimed to plaintiff. His authority to do so under section 2295, p. 757, C. L. 1921, is clear.

1. Plaintiff put in evidence, without limitation, an abstract of title to the lots. Under section 34, c. 150, p. 600, Laws 1927, this is 'prima facie evidence that the chain of title is as shown' thereby. Most of it was wholly unnecessary to plaintiff's case. But since it went in without objection and, so far as it related to his title, was cumulative, it was properly admitted. Its offer being unlimited carried with it all entries relating to 'the chain of title.' It showed defendants' tax deed dated and acknowledged March 14, 1919, recorded December 6, 1919, based upon a sale made November 30, 1915, for the taxes of 1914.

2. The tax deed itself was never offered and plaintiff's counsel specifically stated that if offered he would object to it because void on its face. The abstract entry neither mentions an 'adjourned sale' nor offers other suggestion of a reason for the sale being held November 30. Under the statute, section 7410, p. 1894, C. L. 1921, it should have been commenced on the second Monday in the month,...