Jackson v. Larson

• Decision Date: 14 October 1913
• Citation: 136 P. 81,24 Colo.App. 548
• Parties: JACKSON v. LARSON et al.
• Court: Colorado Court of Appeals

136 P. 81

24 Colo.App. 548

JACKSON v. LARSON et al.

Court of Appeals of Colorado

October 14, 1913

Appeal from District Court, Weld County; Neil F. Graham, Judge.

Action to quiet title by Eric Larson and another against Jerome F Culp, to which James B. Jackson was, by stipulation, made a party defendant. From a judgment for plaintiffs, the defendant Jackson appeals, Affirmed.

John T Jacobs, of Greeley, for appellant.

Delph E. Carpenter, Herbert M. Baker, and R.E. Winbourn, all of Greeley, for appellees.

BELL J.

This is an action to quiet title under section 255, Mills' Annotated Code, brought by Eric Larson and Edwin T. Larson appellees, in the district court of Weld county, against Jerome F. Culp, a former owner of the title to the west half of section 19, township 11 N. of range 61 W. of the sixth P.M., in said county, which is here in controversy.

It seems that the Union Pacific Railroad Company, the patentee from the government, transferred said property to Jerome F. Culp, above named, who neglected to pay the taxes thereon, and the treasurer of said county sold the same for the taxes so due, and the county bought it in, assigned the certificate of purchase to John Sedgwick, who, on December 17, 1901, received a treasurer's deed to all of section 19 aforesaid, and by a quitclaim deed, bearing date January 27, 1902, and acknowledged in 1904, purported to convey the west half of said section 19 to the appellees herein. The evidence shows that, in the early spring of 1902, the appellees took possession of the last-named property, and fenced the same thereafter, and, beginning July 1, 1902, paid all taxes legally assessed thereagainst for seven consecutive years, then brought this suit against Jerome F. Culp, the grantee of said railroad company. The said Culp defaulted, and made no defense to the action, and, on the 20th day of November, 1909, executed and delivered to James B. Jackson, appellant, for an expressed consideration of $100, a quitclaim deed for said west half of section 19, and, on the 16th day of December, 1909, by stipulation of the parties hereto, the said Jackson was made a party defendant, and, afterward, filed an answer, and, later, an amended answer and cross-complaint, setting up the invalidity of the treasurer's deed, and averring that said treasurer's deed was void upon its face, and the sole foundation of any claim or right the appellees had in the premises. By cross-complaint said Jackson set up his title to the premises, and asked that it be quieted in him. The appellees, in their replication, among other things, set up the two seven-year statutes of limitation.

It is admitted by counsel that the treasurer's deed is void upon its face, and, if offered in evidence to establish the paramount title to the property, that it would be inadmissible. However, in this case, it was offered merely as evidence of color of title. It was also objected to because the appellees did not show nor offer to show that the assessed value of the land was under $500, nor that notice was given to the owner of the intended demand on the treasurer for a deed. There is no evidence on these subjects from either side, and the court held that, for the purpose of proving color of title, for which the deed was offered, it was admissible; and it is our opinion that the ruling of the trial court in this respect was proper.

A color of title is a mere pretense of title, but not a valid title. It purports to be a good title, but is not so in fact.

In Lebanon Mining Co. v. Rogers, 8 Colo. 34-37, 5 P. 661, 662, the court said: "In Wright v. Mattison, 18 How. (U.S.) 56 , it is said that 'the courts have concurred, it is believed, without an exception, in defining color of title to be that which has the appearance of title, but which in reality is no title. They have equally concurred in attaching no exclusive or peculiar character or importance to the ground of invalidity of an apparent or colorable title; the inquiry with them has been whether there was an apparent or colorable title under which an entry or a claim has been made in good faith.' " It will be noticed from this decision of the United States Court, approved by our own Supreme Court, that "no importance is attached to the ground of invalidity of an apparent or colorable title."

Counsel for appellant vigorously contends that a treasurer's deed, similar to the one before us, was held incompetent evidence in Richards v. Beggs, 31 Colo. 186, 72 P. 1077. There is no intimation in that case that the treasurer's deed was offered merely as a colorable title to support the possession and payment of taxes under the statutes of limitation. The court held, however, that it was incumbent upon the parties claiming real estate under a tax deed to prove, either that the statutory notice was given, or that the assessed valuation rendered it unnecessary to give such notice before the deed would be admissible in evidence. This is the undoubted rule where the treasurer's deed is offered to establish the paramount title. However, the rule is to the contrary where the deed is offered as a mere color of title. A tax deed, invalid upon its face, has been repeatedly held to be a color of title in this jurisdiction. De Foresta v. Gast, 20 Colo. 307, 38 P. 244; Hogue v. Magnes, 29 C.C.A. 564, 56 U.S. App. 500, 85 F. 357; Bennett v. N.C.S.L. & I. Co., 23 Colo. 470, 48 P. 812, 56 Am.St.Rep. 281; Brinker v. U.P.D. & G.R. Co., 11 Colo.App. 166, 55 P. 207; Williams v. Conroy, 35 Colo. 117, 83 P. 959. If it were a rule that a tax deed, void upon its face, was inadmissible in evidence to prove color of title, then such a deed could not be held good as a color of title, as there would be no way to use it beneficially.

In De Foresta v. Gast, supra, the Supreme Court said that a tax deed gives color of title, even though a person of legal learning and experience may, by a critical examination, discover defects in the instrument fatal to its validity. Counsel for appellant contends that our seven-year statutes of limitation were taken literally from those of the state of Illinois, and, when we adopted the statutes, we adopted the construction placed upon them by the courts of that state, and cites the cases of Bowman v. Wettig, 39 Ill. 416, and Dalton v. Lucas, 63 Ill. 337, as cases directly in point and decisive of the case before us.

The Illinois cases cited were unfortunately based upon the erroneous doctrine that a person who buys property at a tax sale will be presumed to be familiar with the provisions of the Constitution and statute pertaining to securing titles thereunder, and if such a purchaser secures a deed void upon its face, he is presumed to know the law, and he cannot be said to be holding the premises under color of title in good faith. Both of these holdings by the Illinois court have been repudiated by the subsequent decisions of the courts of the state of Colorado, and likewise by the courts of the state of Illinois. It was said in the case of De Foresta v. Gast, supra, that a tax deed regularly executed gives color of title, though an expert or lawyer might, by inspection, see that it was void upon its face, and, in Brinker v. U.P.D. & G.R. Co., 11 Colo.App. 166, 55 P. 207, it was held, in direct conflict with the case of Bowman v. Wettig, that a tax deed which issues before the period of limitation expires is a valid color of title. The Supreme Court of Illinois, in speaking of the doctrines announced in the Bowman-Dalton Cases, supra, said: "It is claimed that the cases of Bowman v. Wettig, 39 Ill. 416, and Dalton v. Lucas, 63 Ill. 337, establish the doctrine that defendant was bound to know the law, and to know that the verbal contract for the land could not be enforced, and that the decree for its enforcement was erroneous, and therefore he was guilty of bad faith in so acquiring the deed. Such a doctrine would abrogate the statute (of limitation), and require the party claiming its benefit to establish a valid title, and in the case of Davis v. Hall, 92 Ill. 85, it was said that the apparent teachings of the opinion in Bowman v. Wettig, supra, had not been adhered to in the later cases. The decision in Dalton v. Lucas was based on the prior case of Bowman v. Wettig; but, if given full effect, it could not influence the decision in this case." Sexson v. Barker, 172 Ill. 361-366, 50 N.E. 109. It would seem that the above and other later Illinois decisions have limited the Bowman-Dalton Cases as authority to such cases as involve a knowing and intentional omission by a purchaser at a tax sale to give the notice required by statute, and thereby keep the owner in ignorance of his rights. Sexson v. Barker, supra, 367.

In Miller v. Pence, 132 Ill. 149, 23 N.E. 1030, the court had under consideration the requisites of a notice prior to introducing the deed as evidence of color of title, and the Supreme Court of Illinois said: "The statute requires notice to be served on the person in whose name the land was taxed, *** as a condition to obtaining a deed, *** and as this requirement of the statute was not observed, the tax title cannot be held to be paramount title. But *** those deeds constituted color of title, and it appears from the evidence that appellee entered into possession of the premises in 1879, under color of title, and remained in possession for more than seven successive years, and during that period paid all taxes assessed on the premises. The color of title thus established, with proof of possession and payment of taxes, clearly brought appellee within section 2 of the act of 1839." See, also, Morrison v. Norman, 47 Ill. 477-479.

The court in the Bowman-Dalton Cases, as a presumption of law held that possession under color of title under the tax deeds...