Morris v. St. Louis Nat. Bank

• Decision Date: 07 March 1892
• Citation: 17 Colo. 231,29 P. 802
• Parties: MORRIS et al. v. ST. LOUIS NAT. BANK.
• Court: Colorado Supreme Court

29 P. 802

17 Colo. 231

MORRIS et al. v. ST. LOUIS NAT. BANK.

Supreme Court of Colorado

March 7, 1892

Appeal from district court, Pueblo county.

Action by the St. Louis National Bank against Nathan Morris and Pembroke R. Thombs to set aside a tax deed. From a judgment for plaintiff, defendants appeal. Reversed.

Wells, McNeal & Taylor, for appellants.

John M. Waldron and John W. Sleeper, for appellee.

ELLIOTT J.

The record in this case shows a proceeding in the nature of a bill in equity to remove a cloud from the title to 72 certain lots or parcels of land situate in East Pueblo, Pueblo county, Colo. The cloud consists of a deed, commonly called a 'tax deed,' executed by the treasurer of said county to the defendant Morris. The defendant Thombs claims an interest in the lots by virtue of a contract with his codefendant.

1. There is some question whether the tax deed contains sufficient recitals to be prima facie evidence of title in favor of defendants under the statute. But such question need not be determined in this case, since by allegation and proof aliunde, the plaintiff is entitled to show that the tax sale upon which the deed rests was invalid, and thus have the deed canceled, even if the same be in all respects regular and sufficient upon its face. Mills, Ann. St. § 3902; Mining Co. v. Rogers, 8 Colo. 36, 5 P. 661. Among other prerequisites to a valid sale of lands for taxes, the statute provides for the giving of notice of such sale, for the proof of such notice, and for the careful preservation of such proof. Mills, Ann. St. §§ 3882-3885. When, by proper averment and evidence, it is affirmatively shown that proper notice of a sale has not been given, or that the proof of such notice has not been made in substantial conformity with the statute, the sale will be adjudged invalid, notwithstanding a tax deed, in proper form may have been duly executed and recorded. Notice of a tax sale is required to be given by publication in a newspaper and otherwise, (section 3883, supra;) and the publication is required to be proved by affidavit. The statute provides that such affidavit may be substantially in the following form 'I, A B., publisher (or printer) of the -----, a ----- newspaper, printed and published in the county of ----- and state of Colorado, do hereby certify that the foregoing notice and list were published in said newspaper, once in each week, for ----- successive weeks, the last of which publication was made prior to the --- day of -----, A. D. ---; and that copies of each number of said paper in which said notice and list were published were delivered by carriers or transmitted by mail to each of the subscribers of said paper, according to the accustomed mode of business in this office.' Section 3884, supra. The affidavit introduced as proof of notice of the sale in this case was as follows: 'We, * * * publishers of the Pueblo Democrat (weekly) newspaper, printed and published at Pueblo, in the state of Colorado, do hereby certify that the foregoing notice and list were published in said newspaper, once in each week, for four consecutive weeks, the last of which publication was made prior to the first day of September, 1879; and that extras of said paper, entitled 'Supplement to the Weekly Democrat,' were duly circulated with each edition of said paper, according to the accustomed mode of business in the office.' This affidavit was produced from the custody of the county clerk with whom we must presume it was deosited, to be carefully preserved, as the statute requires. Section 3885, supra. The clerk testified that no other affidavit was on file, and that no other could be found, relating to the notice of said sale. Hall v. Kellogg, 16 Mich. 139 It will be observed that the affidavit does not show, either in form or substance, that any copy or copies of such paper containing such notice and list were delivered to any subscriber of said paper; much less that any of said papers were delivered by carriers or transmitted by mail to each of the subscribers of said paper. In fact, the affidavit does not indicate, even by inference, that there were any subscribers to said paper. The affidavit shows that extras of said paper were duly circulated, but what is meant by 'duly circulated' does not appear. the affidavit shows that the circulation was according to the accustomed mode of business in that office. But what such accustomed mode of business was is not shown. The affidavit does not even show that the papers were duly distributed according to law, as in the case of Fisher v. People, 84 Ill. 495, cited by counsel for appellants. The statute contemplates that the notice shall be published in a newspaper having regular subscribers, and that copies of each number of the paper containing the notice and list shall be delivered to the several subscribers of said paper by carrier or by mail, and that the affidavit of the publisher or printer shall substantially state such facts. The mere opinion or conclusion of the affiant cannot be allowed as a substitute for such facts. The statutory form of affidavit need not be literally followed, but there can be no excuse for disregarding its substantial requisites; neither does the fact that the word 'may' was used instead of 'must' or 'shall,' in prescribing the form of such affidavit, warrant a material departure from the statutory form. The affidavit in this case cannot be held sufficient as proof of notice of the sale under consideration. Cooley, Tax'n, 334 et seq.; Wade, Notice, § 1106 et seq.; Gomer v. Chaffee, 6 Colo. 314; Lagroue v. Rains, 48 Mo. 536; County Com'rs v. Clarke, 36 Md. 220.

2. The tax sale at which the lands in controversy were bid off was held in October, 1879. The tax deed, though dated November, 1882, was not recorded until January, 1884. This action was commenced in February, 1888. In the court below the defendants pleaded separate and distinct defenses, evidently designed to invoke the benefit of whatever statute of limitations might be deemed applicable to the case. Section 96 of the revenue act of 1877 (Gen. Laws, p. 778) is much relied on by counsel for defendants. The limitation reads as follows: 'No action for the recovery of land sold for taxes shall lie, unless the same be brought within five years after the sale thereof for taxes as aforesaid, any law to the contrary notwithstanding.' But this section was changed by the act of April 4, 1885, (Mills' St. § 3904,) so that it now reads: 'No action for the recovery of land sold for taxes shall lie, unless the same be brought within five years after the execution and delivery of the deed therefor by the treasurer, any law to the contrary notwithstanding.' If the defendants had made an entry into and upon the lands in controversy, taking actual possession of them by open and visible acts, and the plaintiff had brought an action in the nature of ejectment to recover possession, there could be no doubt of the applicability of one or both of the acts above quoted. The only question then would be as to their proper construction. But defendants' answer expressly admits that the premises in controversy 'have remained wholly vacant, unoccupied, and unimproved' at all times since the date of the tax deed, November 3, 1882. Under such circumstances, it is difficult to conceive how the present action can be regarded as an action for the recovery of said lands, since the plaintiff has never been actually dispossessed of them. It is only by resorting to a fiction of law that defendants can find authority for pleading either of the foregoing acts of limitation. The theory may be stated thus: In the case of vacant and unoccupied lands, the legal title draws to it the possession. The tax deed, as executed and recorded, vests the legal title prima facie in defendants. Therefore defendants have possession of the land in controversy. Upon this basis it is argued that, as the present action is brought to cancel defendants' tax deed, and thereby re-establish plaintiff's legal title, it will, if successful, result in reuniting both title and possession in the plaintiff, and therefore that it is an action for the recovery of land by the plaintiff from the defendants. This results from the fiction that the possession of vacant or unoccupied lands follows the legal title. If we accept the fiction, it must be because justice and equity will be thereby subserved. In fictione juris semper subsistit aequitas. In Cooley, Tax'n, 381, the learned author, speaking upon this subject, says: 'Possession of a vacant tenement is and must be purely a matter of fiction. Constructive possession is recognized for some purposes, because, under our peculiar forms of action, it is found necessary, in order to the protection of the rights of the owner against trespassers. The fiction is accepted, as all fictions in the law are for the sake of justice, never to do injustice. But, if one's freehold has been illegally sold under adverse proceedings, there is no justice in resorting to a fiction of law in order to sustain the sale.' In Broom, Leg. Max. p. 130, Lord MANSFIELD is quoted as saying that 'fictions of law hold only in respect of the ends and purposes for which they were invented. When they are urged to an intent and purpose not within the reason and policy of the fiction, the other party may show the truth.'

In determining whether the fiction, as above stated, should or should not be accepted as the basis for a plea of the statute of limitations in an action of this kind, it is proper to consider how differently the parties to such an action are related to the tax sale, and how differently they may be affected by it. The purchaser, as a matter of fact, knows of the sale at the outset; knows that he is taking steps to...