Mitchell v. Espinosa, 16566

• Decision Date: 17 March 1952
• Docket Number: No. 16566,16566
• Citation: 125 Colo. 267,243 P.2d 412
• Parties: MITCHELL et al. v. ESPINOSA et al.
• Court: Colorado Supreme Court

Page 412

243 P.2d 412

125 Colo. 267

MITCHELL et al. v. ESPINOSA et al.

No. 16566.

Supreme Court of Colorado, en Banc.

March 17, 1952.

Johnson & Robertson, Denver, for heirs of Paul Mitchell.

Eakes & Eakes, Durango, for defendants in error.

MOORE, Justice.

We will herein refer to the parties as they appeared in the trial court where plaintiffs in error were defendants, and defendants in error were plaintiffs, or by name.

The action was instituted under the provisions of Rule 105(a), R.C.P.Colo., for the purpose of obtaining a complete adjudication of the rights of the parties in and to real estate consisting of 160 acres of land in La Plata county, Colorado. The several parties, plaintiffs and defendants, claimed interests in the oil and gas underlying the surface of said land, under circumstances which will hereafter more fully appear.

The trial court found the issues in favor of plaintiffs, and entered judgment to the effect that the claims of defendants to an interest in said oil and gas were without foundation in law. Defendants seek review of this judgment by writ of error.

The United States of America issued a patent to the real estate in question to one Paul Mitchell on June 1, 1912. Mitchell by deed dated November 8, 1926, conveyed the property to A. W. Hamer. A printed form of warranty deed was used. In the space provided for the description of the property conveyed in the granting clause of said deed, nothing was mentioned other than the land in question and no reservation of any interest by the grantor was made; however, in the habendum clause of said deed, in the space provided for mention of any exceptions, limitations, or liens upon the title otherwise conveyed, is the statement, 'except one half of oil right reserved by Paul J. Mitchell.'

On November 15, 1926, A. W. Hamer executed a deed of trust upon said real estate to secure the payment of a note in the sum of $800 payable to Mitchell. In this deed of trust the property was represented to be free and clear of all liens and encumbrances whatsoever, 'except one half of oil right reserved by Paul J. Mitchell.' The warranty deed and the deed of trust above mentioned were filed for record on November 19, 1926.

The said real estate was sold at the tax sale held by the treasurer of La Plata county on the 6th day of December, 1929, and W. Bruce Jacobson purchased the tax sale certificate. He thereafter made application for the issuance of treasurer's deed, and on November 29, 1932, the treasurer gave notice of said application and caused the same to be published.

The deed of trust above mentioned was not released by the Public Trustee until after said notice was given and after tax deed had issued. Mitchell therefore was the beneficiary under the trust deed, as well as the holder of any rights which might arise under the asserted reservation of oil in the deed from him to Hamer at the time the notice was published. The notice was addressed, 'To Whom it May Concern, and more especially to A. W. Hamer and Paul J. Mitchell,' and contained, inter alia, the following statement: 'that the statutory period for redemption from said sale for taxes will expire March 5, 1933; that a Tax Deed to said property will be executed and issued to W. Bruce Jacobson, lawful holder of said Certificate of Purchase on the 6th day of March, A.D. 1933, unless the same has been redeemed theretofore.' Mitchell received the published notice as evidenced by the return receipt of registered mail and his letter making inquiry concerning the amount necessary to redeem.

Treasurer's deed was not issued until March 21st, 1933, or fifteen days after the time fixed by the notice for its issuance; thus an additional period of fifteen days was open, to those claiming interests, within which redemption might have been made. Jacobson was the grantee in the treasurer's deed. Apparently to avoid the necessity of an action to quiet title upon the tax deed, Hamer and Mitchell quitclaimed by separate instruments to Jacobson. However in the quitclaim deed from Mitchell to Jacobson a specific reservation was made in the property conveyed, as follows: 'Save and except a one half interest in any oil as reserved by me in my deed to Arthur W. Hamer.'

On October 10, 1946, Jacobson conveyed the land to plaintiff Espinosa by quitclaim deed. Other plaintiffs acquired their alleged interests in oil beneath the surface of the land from him. No assessment for taxes ever was made upon any oil deposits beneath the surface of said land following the claimed severance thereof by the alleged reservation. As far as taxes assessed or paid upon said property were concerned, there was no change whatever at any time relating to the assessment or collection thereof.

The defendants who appeared in the action are the heirs at law of Mitchell. They claim the one-half interest in oil beneath the surface of the land which they allege was reserved by their intestate. They contend that the reservation of oil was fully effective and valid in law; that the tax deed which is the basis of plaintiffs' reliance is void; and that even if said treasurer's deed is valid, it did not convey the oil rights reserved, because no taxes ever had been assessed against them following their severance from the land by the reservation of record.

Plaintiffs oppose each of the contentions of defendants, and in addition thereto urge as cross-specification of points, that the trial court committed reversible error in allowing defendants an extension of time, within which to lodge the reporter's transcript, after expiration of the time fixed by Rule 112(f) R.C.P.Colo., in the absence of proper showing of excusable neglect.

Questions to be Determined

First: Is the tax deed void for the reason that it was not 'executed and issued' until fifteen days following the date fixed by the notice for issuance of the treasurer's deed?

We answer this question in the negative. In so doing we fully realize that we not follow the majority opinion of this court in the recent case of Tewell v. Galbraith, 119 Colo. 412, 205 P.2d 229, in which the identical question, now reconsidered, was answered in the affirmative. We are fully satisfied that our opinion in that case was erroneous, and are now, for the first time, afforded an opportunity of correcting the manifest error there made.

The only purpose of the law in requiring the publication of notice that application has been made for the issuance of a treasurer's deed following a sale of realty for taxes, is to protect the interest of the fee-title owner and afford him an opportunity for redemption at any time prior to the actual issuance of the deed. If the deed does not actually issue until a date subsequent to that fixed by the notice as being the day when it will issue, no substantial right of the person entitled to redeem has been lost or impaired; on the contrary, the right to redeem continues, in this case for fifteen days, beyond the time fixed by the notice.

The defaulting taxpayer should not be permitted to capitalize on this extension of redemption time, which tended only to enlarge his rights, and make the extension the means by which the treasurer's deed is destroyed. The deed could not have been questioned by him had it issued on March 6, 1933. Its subsequent issuance deprived him of no substantial right, and he has no right to complain of a delay in action that kept alive for him a right that would have been lost to him at once by prompt action. Reconsideration of the question prompts us to adopt as the sound rule the views expressed in the dissenting opinion in Tewell v. Galbraith, supra.

Second: Under the admitted facts, was there a legal reservation by Mitchell of the one-half interest in oil, for which defendants contend?

This question is answered in the affirmative. On behalf of plaintiffs it is argued that the language used in the deed from Mitchell to Hamer was wholly insufficient to create any reservation by Mitchell of any interest whatever in the land described therein. It is contended that since the words of the deed on which defendants rely are not part of the granting clause, and appear only in covenant of seisen or habendum clause, that no reservation of any interest is established as a matter of law. Million v. Botefur, 90 Colo. 343, 9 P.2d 284, and Skerritt Investment Co. v. City of Englewood, 79 Colo. 645, 248 P. 6, are cited as authority for the general rule that a recital in the covenant of seisen which is repugnant to an express unrestricted grant by previous language in a deed, is void. We have examined these cases and fail to find any support therein for the contentions of plaintiffs under the facts in the instant case. In Million v. Botefur, supra, the deed was 'in the usual and customary form of a warranty deed with granting and habendum clauses.' There was in that case, as here, an insertion of language in the habendum clause. The inserted language there appearing was as follows:

'Provided, however, the said party of the first part, hereby expressly reserves to herself the use and enjoyment of said premises and the right to receive the rents, issues and profits arising therefrom, and to occupy said premises as a home, for and during the term and period of her natural life, and at her death said life estate hereby reserved in said premises, together with the fee title thereto to vest absolutely and...