Norris v. Kelsey

• Decision Date: 10 March 1913
• Citation: 130 P. 1088,23 Colo.App. 555
• Parties: NORRIS v. KELSEY.
• Court: Colorado Court of Appeals

130 P. 1088

23 Colo.App. 555

NORRIS v. KELSEY.

Court of Appeals of Colorado

March 10, 1913

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

Action by W.D. Kelsey against Harrison Norris. From a decree for plaintiff, defendant appeals. Affirmed.

Munson & Munson, of Sterling, for appellant.

John F Mail, of Denver, for appellee. Bennett & Walrod, of Holyoke amicus curiae.

MORGAN J.

On rehearing granted by the Supreme Court. Appeal from a judgment and decree for possession of land sold for taxes and setting aside certain tax deeds in the Phillips district court, in favor of appellee, whose complaint was met by an answer relying on the tax deeds and on a judgment quieting title to the property involved, and to which answer the appellee replied that the deeds and the judgment were void and asked that they be set aside.

The appellant asks a reversal, presenting the validity of these instruments for the consideration of this court. The judgment was invalid, because the affidavit upon which the order of publication of summons was made states that the residence of the defendants is unknown, instead of stating that their post office address is unknown. To state that the residence is unknown is not in strict compliance with a statute that requires an affidavit for publication of summons to state that the post office address is unknown. In the case of Empire Ranch & Cattle Co. v. Gibson, 129 P. 520, in which the affidavit stated that the residence of the defendant was unknown, but did not state that the post office address was unknown, this court held that the judgment was void. See, also, Empire Co. v. Howell, 22 Colo.App. 389, 125 P. 592; Empire Co. v. Coldren, 51 Colo. 115, 117 P. 1005, in which collateral attack is sufficiently discussed; Lougee v. Beeney, 22 Colo.App. 603, 126 P. 1102; Empire Co. v. Saul, 22 Colo.App. 605, 127 P. 123.

One of the two tax deeds is void on its face, because it shows that noncontiguous tracts of land were sold en masse for a gross sum. This deed describes two tracts of land that could not be contiguous under the government survey, and then states that they were offered and sold to the county for a gross sum of money. Such a tax deed has been held to be void on its face in the cases of Emerson v. Shannon, 23 Colo. 274, 47 P. 302, 58 Am.St.Rep. 232; Webber v. Wannemaker, 39 Colo. 425, 89 P. 780; Whitehead v. Callahan, 44 Colo. 396, 99 P. 57; Page v. Gillett, 47 Colo. 289, 107 P. 290; Clark v. Huff, 49 Colo. 197, 200, 112 P. 542; Hughes v. Webster, 52 Colo. 475, 122 P. 789; Carnahan v. Hughes (Sup.) 125 P. 116; Inman v. White, 21 Colo.App. 429, 122 P. 65; Kit Carson Land Co. v. Rosenberry, 21 Colo.App. 439, 122 P. 72; Foster v. Clark, 21 Colo.App. 192, 121 P. 130; Fleming v. Howell, 22 Colo.App. 382, 125 P. 551; Vanderpan v. Pelton, 22 Colo.App. 357, 123 P. 960.

The other tax deed is void, because the affidavit of the treasurer concerning the posting of the tax list and notice was wholly insufficient. This affidavit by the treasurer states that for four weeks prior to the tax sale, which occurred on the 9th day of December, 1895, "I kept posted continuously near the front door of my office, and in plain view of the public, a complete printed list of all property offered for sale on that aforesaid day, with the exception of the amended list, which was posted for one week as provided by law." This affidavit was defective and insufficient, and was not in substantial compliance with sections 3882, 3883, and ...