Lovelace v. Tabor Mines & Mills Co.

• Decision Date: 07 October 1901
• Citation: 66 P. 892,29 Colo. 62
• Parties: LOVELACE et al. v. TABOR MINES & MILLS CO.
• Court: Colorado Supreme Court

66 P. 892

29 Colo. 62

LOVELACE et al. v. TABOR MINES & MILLS CO.

Supreme Court of Colorado

October 7, 1901

Appeal from district court, Boulder county.

Action by the Tabor Mines & Mills Company against C. A. Lovelace and others. From a judgment for plaintiff, defendants appeal. Reversed.

This action was commenced by appellee, as plaintiff, against appellants, as defendants, to annul a tax sale certificate and tax deed issued thereon, to an interest in the Silver Point lode. For answer the defendants claim title to this interest under a tax deed, set out haec verba, which substantially conforms in its recitals with the requirements of section 3901, 2 Mills' Ann. St., which provides for the form of tax deeds. In this deed it is stated 'Whereas, at the time and place aforesaid, Boulder county, of the county of Boulder and state of Colorado having offered to pay the sum of two dollars and forty-three cents, being the whole amount of taxes, interest, and costs then due and remaining unpaid on said property, for all of the above-described property, which was the least quantity bid for, and payment of said sum having been made by it to the said treasurer, the said property was stricken off to it at that price.' It also appears from this deed that the tax sale certificate upon which the deed was issued was assigned to defendants on the 13th day of September, 1898 and that the date of such certificate was November 20, 1894. To this answer plaintiff interposed & general demurrer, which was sustained, and, the defendants having elected to stand by their answer, judgment was rendered in favor of plaintiff, annulling the tax certificate and tax deed in question. From this judgment the defendants bring the cause here for review on appeal.

Resing & Marshall and Herman Russell, for appellants.

GABBERT, J. (after stating the facts).

No appearance has been entered for plaintiff. We are advised, however, from the brief of counsel for defendants, that in the court below it was contended that the tax deed was void upon its face for two reasons: (1) Because it shows that the assignment of the tax sale certificate was not made to the defendants by the county within three years from the date of its issuance; (2) that the recitals in the deed quoted show affirmatively that the county was a competitive bidder at the tax sale. These are the only questions we shall determine.

According to the recitals in the tax deed, it appears that the tax sale certificate was assigned to the defendants more than three years after its issuance. Whether or not this is fatal to the validity of the tax deed depends upon a construction of sections 3888, 3900, 2 Mills' Ann. St. The first of these sections, as it now stands, was passed in 1894 (Laws 1894, p. 46, § 5), by which it was provided, in so far as it relates to the assignment of tax sale certificates issued to a county, that 'any person may at any time within three years from the date of such certificate deposit with the treasurer of such county the total amount due upon such certificate, due and unpaid, and interest thereon since the date of such certificate, whereupon the clerk of the county shall assign such certificate to such person. * * *' By the second section, which was passed in 1893 (Laws 1893, p. 428, § 1) it is provided with respect to the assignment of tax certificates by counties that 'whenever any lot or parcel of land * * * shall be bid in by or for the county, at any tax sale, * * * and a certificate of purchase shall be made to such county therefor, the treasurer may sell, assign and deliver such certificate to any person who shall desire to purchase the same upon payment to the treasurer of the amount of which such property was bid in by the county, with interest and penalties accrued thereon from the date of sale * * * or for such sum as the board of county commissioners at any regular meeting may decide.' As section 3888 was passed subsequent to section 3900, the material question to determine is whether or not the provisions of the former with respect to the assignment of tax certificates issued to a county repealed the provisions of the latter on the same subject. If such a repeal was effected, it is only by implication that such is the result. Repeals of this character are not favored. Where there is an apparent conflict between two statutes, the later, in the absence of a clear legislative intent to substitute the new for the old law, will not be adjudged to effect a repeal of the previous statute on the same subject, unless there is such a positive repugnancy that the two cannot consistently stand together. Schwenke v. Railroad Co., 7 Colo. 512, 4 P. 905; County of Saguache v. Decker, 10 Colo. 149, 14 P. 123; Rathvon v. White, 16 Colo. 41, 26 P. 323; Canfield v. City of Leadville, 7 Colo.App. 453, 43 P. 910. The act in which section 3888, supra, is found, is entitled 'An act concerning penalties and interest on delinquent taxes, and providing for the manner of advertising and collecting the same, and repealing all acts in conflict therewith.' Laws 1894, p. 45. It does not purport to directly amend or repeal any previous statute. All it states with respect to a repeal is to the effect that all statutes in conflict with its provisions are...