Lines v. Digges
| Decision Date | 06 April 1908 |
| Parties | LINES v. DIGGES. |
| Court | Colorado Supreme Court |
Appeal from District Court, Montrose County; Thereon Stevens, Judge.
Action by Jennie Digges against Rosa B. Lines. From a judgment for plaintiff, defendant appeals. Affirmed.
Ross & Brown and T. J. Black, for appellant.
John Gray and John T. Mail, for appellee.
This is an action in ejectment to recover possession of 160 acres of land in Montrose county. Appellant was defendant below. Plaintiff proved title in fee, without objection. Appellant to show her title, offered in evidence a tax deed, which was objected to upon the ground, inter alia, that it was void upon its face. The court sustained the objection, and, no further evidence being offered upon behalf of appellant rendered judgment for appellee. The only question presented is the validity of the tax deed.
The defect complained of is in the recital of the sale clause in the deed offered, which is as follows: 'And, whereas, at the time and place aforesaid C. H. Rogers of the county of Montrose and state of Colorado, having offered to pay the sum of thirteen dollars and fifteen cents, being the whole amount of taxes, interest and costs then due and remaining unpaid on said property, for the year 1898 which was the least quantity bid for, and payment of said sum having been made by him to the said treasurer, the said property was stricken off to him at that price.' Section 3901, Mills' Ann. St provides that this clause of tax deeds shall be substantially in the following form: 'And whereas, at the time and place aforesaid, A_____ B_____, of the county of _____, and _____ of _____, having offered to pay the sum of _____ dollars and _____ cents, being the whole amount of taxes, interest and costs then due and remaining unpaid on said property, for [here follows the description of the property sold] which was the least quantity bid for, and payment of said sum having been made by him to the said treasurer, the said property was stricken off to him at that price.' Appellant contends: That the words and figures 'the year 1898,' inserted in the deed between the word 'for' and the words, 'which was the least quantity bid for,' are surplusage and should be disregarded, and, treating them as surplusage, the deed would read: 'Being the whole amount of taxes, interest and costs then due and remaining unpaid on said property, which was the least quantity bid for.' That it was not the intention of the Legislature in prescribing the form for a tax deed that the property should be described twice. That the well-known rules of grammatical construction applied to this deed make it perfectly plain that the words, 'said property,' occurring just before the phrase, 'which was the least quantity bid for,' refer back to the description of the property taxed contained in the first clause of the deed. That this construction makes it apparent that the deed clearly states, by reference, that 'the least quantity bid for' was the entire property taxed. That the words, 'the real property hereinbefore described,' in the granting clause of the deed by the same process, refer to the entire property taxed, and the omission of a description of the property bid for from the space provided for that purpose in the deed does not render it void under the rule of liberal construction applied by this court to tax deeds in Waddingham v. Dickson, 17 Colo. 223, 29 P. 177; Barnett v. Jaynes, 26 Colo. 279, 57 P. 703; and Bertha Gold M. & M. Co. v. Burr, 31 Colo. 264, 73 P. 36.
Appellee admits that the rule is that a substantial compliance with the form of tax deed prescribed by the statute is all that is required; but that two descriptions of the property in the tax deed are absolutely essential to its validity--one, the description of the property taxed, and the other the property bid for and sold to the purchaser--and that the omission of the latter is fatal to the deed, for the reason that it is only property bid for, sold, and struck off to the bidder which can be conveyed by a tax deed; and that the omission of the latter description renders the granting clause of the deed ineffectual, as the words therein, 'the real property last hereinbefore described,' refer to and are predicated upon nothing in the deed, and cites in support of this contention McDonough v. Merten, 53 Kan. 120, 35 P. 1117; Hale v. Sweet, 7 Kan. App. 409, 53 P. 279. An examination of the sections of the statute preceding section 3901 will aid in arriving at a solution of the question presented. Section 3893, Mills' Ann. St., provides that the county treasurer shall keep a record of tax sales in which shall be entered inter alia: Section 3894 provides: 'The person who offers to pay the amount due on any parcel of lands for the smallest portion of the same, shall be considered the highest bidder'--and then provides how the portion sold shall be set off. Section 3897 provides that the county treasurer shall make out, sign, and deliver to the purchaser of any real property sold for the nonpayment of taxes a certificate of purchase describing the property on which the taxes and costs were paid by the purchaser as the same was described in the book of tax sales; also stating how much and what part of such tract or lot...
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...statute, the courts cannot supply or cure such fatal defects," and the deed will not vest title in the grantee. Lines v. Digges, 43 Colo. 166, 172, 95 P. 341, 342-43 (1908). Where the treasurer's deed on its face shows that the sale has not been conducted in the manner required by law, the ......
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