Hoge v. Magnes, 948.

• Decision Date: 21 February 1898
• Docket Number: 948.
• Citation: 85 F. 355
• Parties: HOGE et al. v. MAGNES.
• Court: U.S. Court of Appeals — Eighth Circuit

85 F. 355

HOGE et al. v. MAGNES.

No. 948.

United States Court of Appeals, Eighth Circuit.

February 21, 1898

S. L Carpenter, for plaintiffs in error.

Hugh Butler, for defendant in error.

Before SANBORN and THAYER, Circuit Judges, and PHILIPS, District judge.

SANBORN Circuit Judge.

John Hoge and Norman S. Pettit, the plaintiffs in error, who had acquired the title from the patentee of the United States to a lot in the state of Colorado, brought an action in the nature of ejectment against Peter Magnes, the defendant in error, who was in possession of the property under a tax title. There is a statute in the state of Colorado to the effect that every person who under claim and color of title made in good faith holds possession and pays all taxes legally assessed upon land for five successive years shall be adjudged to be the legal owner thereof, according to the purport of his paper title. Mills' Ann. St. Colo. Sec 2923. The defendant in error pleaded as his sixth defense that on the 25th day of July, 1877, the treasurer of the county of Arapahoe, in which county the land was situated conveyed the premises to him pursuant to a sale thereof for delinquent taxes; that on that day he took possession of the lot in good faith, under claim and color of title; and that he held possession thereof, and paid all the taxes legally assessed thereon, for the term of five successive years thereafter. There were other defenses pleaded, and the averments in the plea of this defense were denied. The case was tried by the court, without a jury. A general finding was made, to the effect that the defendant in error had sustained this sixth defense, and judgment was entered in his favor upon that ground. The writ of error was sued out to reverse this judgment.

The alleged error relied upon in this case is that the tax deed of July 25, 1877, was improperly received in evidence because it was not the deed described in the sixth defense, and because it was void on its face, and constituted no color of title. The first objection is based upon the fact that the answer pleads a deed made pursuant to a notice of sale on July 19, 1875, first published on June 12, 1875, while the deed purports to be made pursuant to a sale on July 19, 1875, 'at (an adjourned sale) the sale begun and publicly held on the twenty-fourth day of May, A.D. 1875. ' The objection is unworthy of consideration. The parties to the deed, the year for which the tax upon which it is based was levied, and the date of the sale in the answer and in the deed correspond, and the plaintiffs in error could not have been surprised by the introduction of the deed in evidence.

The principal objection to the deed, however, is that it was void on its face, and constituted no color of title, because (1) the statute required the tax sale to be made at the office of the county clerk, while this deed recites that the sale upon which it rests was made at the office of the county treasurer, and (2) because the statute under which the sale was made required each lot or tract of land to be valued, assessed, and sold separately, while this deed recites that the sale upon which it is based was of three distinct and widely separated tracts of land for a single gross sum. Sess. Laws Colo. 1870, p. 97, Sec. 37; Id. p. 105, Sec. 63. The suggestion that the deed is void because the sale was made at the office of the county treasurer, instead of at the office of the county clerk, is deserving of no discussion, because (1) no such objection was made when the deed was offered in evidence, and the question it raises is therefore not here for determination, and (2) if it were, there is no evidence that the office of the county clerk was not also the office of the county treasurer. The deed recites that the treasurer exposed the land at public sale 'in substantial conformity with the requirements of the statute in such case made and provided,' and no court would be authorized to presume the sale to be irregular and void because it was made at the county treasurer's office instead of at the county clerk's office, in the absence of evidence that the two places were not substantially the same.

The objection that the deed discloses the sale of several distinct parcels of land for one gross sum would be worthy of serious consideration if we were considering whether or not the deed conveyed a perfect title. The question is, however whether or not this deed notwithstanding the fact that it discloses a sale unauthorized by the statute, gives color of title, under section 2923, Mills' Ann. St. Colo. These are by no means the same questions, and, upon an examination of the decisions of the supreme court of the state of Colorado, we discover that the latter is not open for our consideration. That court has expressly held that a tax deed which recites the sale and conveyance of several separate parcels of land, although void on its face, constitutes color of title under which one who acquires it in good faith, and who holds possession of the lands it...