Page v. Gillett

• Decision Date: 07 February 1910
• Citation: 107 P. 290,47 Colo. 289
• Parties: PAGE et al. v. GILLETT.
• Court: Colorado Supreme Court

107 P. 290

47 Colo. 289

PAGE et al. v. GILLETT.

Supreme Court of Colorado

February 7, 1910

Appeal from District Court, Logan County; E. E. Armour, Judge.

Action by Rebecca J. Page and others against L. T. Gillett. Judgment for defendant, and plaintiffs appeal. Reversed and remanded.

Harry C. Riddle and John F. Mail, for appellants.

Munson & Munson, for appellee.

BAILEY J.

Plaintiffs appellants here, brought this action to recover 160 acres of land in Logan county, claiming to own in fee. For answer and a first defense to the complaint defendant, appellee here admits the description of the land and possession, but denies all other allegations. Under the second, fourth, fifth and sixth separate defenses the appellee claims title to, and the right of possession of, the property through divers tax deeds issued by the county treasurer, one dated December 20, 1899, another January 21, 1901, a third December 11, 1901, and the fourth December 8, 1902. For a third and separate defense a plea of the five year statute of limitation, under color of title, with peaceable, undisputed and continuous possession of the premises, and the payment of all subsequent taxes legally assessed thereon, is set up. Plaintiffs joined issue on the allegations of these defenses. Trial was had to the court with findings for defendant, upon which, in due course, judgment was rendered dismissing the action. Plaintiffs bring the case here for review.

The first contention is that each of the deeds offered and received in evidence, to support the several defenses, is void on its face, because they each show that the property conveyed is noncontiguous, being located in different sections, townships and ranges, and was sold en masse for a gross sum.

The deeds establish these facts. They convey sundry quarter sections of land, aggregating several hundred acres, widely separated, sold en masse for a gross sum, in which is included the one hundred and sixth acres in controversy. That the deeds are void is beyond question in this jurisdiction. In support of this conclusion we cite: Emerson v. Shannon, 23 Colo. 274, 47 P. 302, 58 Am.St.Rep. 232; Webber v Wannamaker. 39 Colo. 425, 89 P. 780; Whitehead v. Callahan 44 Colo. 396, 99 P. 57.

It is urged by defendant that the deed of December 11, 1901, shows that property bid in by the county, and a certificate issued to it, afterward assigned to defendant, upon which assigned certificate the deed was executed. The claim is that the county may bid in noncontiguous property en masse for a gross sum. The reason is not apparent. Such sale being void, is so without reference to who purchases, unless the statute makes some exception, the execution of the deed and continuously One object of separate valuation, assessment and sale is to create a lien upon each tract for its own assessment and levy. It is manifest that this is not done if the sale is en masse for a gross sum. The situation is not changed because the county buys. The rule in this behalf is mandatory. Webber v. Wannamaker, supra. The sum for which the sale was made comprised the total tax on the whole property. The amount of tax on each separate parcel does not appear. The deed does not show that the tracts were offered separately, as required by statute. Neither does it show that each tract was offered and failed to sell for lack of bidders. The fair inference from the deed is that the sale was to the county, because no person would pay, for the entire acreage, or any part of it, the gross amount due upon all. To authorize the county to bid in the several tracts, each parcel must have been offered for sale separately, and there must have been a failure of bids as to each. Howard v. Hulbert, 10 Kan. App. 314, 62 P. 545; Weeks v. Merkle, 6 Okl. 714, 52 P. 929.

Under the pleadings the reliance of defendant to establish his title is alone upon these tax deeds. Since they are void because of their own recitals, they were not competent in testimony. They should have been excluded under plaintiffs' objection.

It is further contended that, because of the following amendment to section 3888, 2 Mills', which was passed after the decision in Emerson v. Shannon, supra, to wit: 'Where there are two or more tracts of land valued and assessed as one parcel, the treasurer shall sell the same as assessed' (Laws 1902, c. 3,§ 164), therefore it was lawful to sell land not contiguous en masse for a gross sum and the decision above referred to is not controlling. This amendment must be considered with section 3822, 2 Mills', which was also in force when these assessments and sales were made. The latter section provides: 'Each tract of land, and each town or city lot, shall be valued and assessed separately, except when one or more adjoining tracts or lots are returned by the same person, in which case they may be valued and assessed jointly.' It follows that the only lands which may be valued and assessed jointly are such as adjoin and have a common ownership. Hence the only land which the treasurer may sell jointly is such as the assessor can jointly value and assess, namely, adjoining parcels, returned by the same person. Further the proofs show that this land was in fact separately...