Newcomb v. Henderson

• Citation: 22 Colo.App. 167,122 P. 1125
• Parties: NEWCOMB v. HENDERSON.
• Decision Date: 08 April 1912
• Court: Court of Appeals of Colorado

122 P. 1125

22 Colo.App. 167

NEWCOMB v. HENDERSON.

Court of Appeals of Colorado

April 8, 1912

Appeal from District Court, Logan County; H.P. Burke, Judge.

Action to quiet title by F.J. Henderson against D.C. Newcomb. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

E.S Allen and I.J. Doke, both of Loveland, for appellant. Munson & Munson, of Sterling, for appellee.

CUNNINGHAM J.

Appellee plaintiff below, brought his action in the district court to quiet title to the south half of a certain quarter section of land, situate in Logan county. Unless a certain tax deed offered in evidence by the defendant, and excluded by the court, was valid, the judgment in favor of appellee was proper, and must be affirmed.

Plaintiff asserts that the tax deed above mentioned was void on its face, for the reason, as he contends, it shows that the land described in it and involved in this action was bid in by the county on the first day it was offered for sale by the county treasurer, contrary to section 3888, M.A.S.; section 5713 R.S., then in force.

1. It is true, as appellant contends, the deed does not recite in terms that the property was not offered on the first day of the sale, to wit, October 29th. Therefore, he asserts, from the recitation in the deed, that the land was "struck off to the said county, and certificate of sale was duly issued therefor to the said county, in accordance with the statutes in such case made and provided," and from recitations of similar import we must infer, in the absence of proof to the contrary, that the treasurer did offer the land on the first day of the sale, and that it was not sold on the first day it was offered. This precise contention has been determined adversely to appellant's views in Bryant v. Miller, 48 Colo. 192, 109 P. 959. The deed before the court in the Bryant Case was precisely like the deed in the present case, and there is no difference in the facts; hence it follows that the deed offered and excluded by the trial court in this case was, under the doctrine laid down in the Bryant Case, void on its face.

2. From the testimony of the county treasurer and by his records, it is made to appear that the land was assessed as a part of a full quarter section, but sold in 40-acre tracts or subdivisions. This is contrary to section 3888, M.A.S., and section 5713, R.S., which provide as follows: "Where there are two or more lots or...