Phillips v. City and County of Denver, 15505.

• Decision Date: 16 December 1946
• Docket Number: 15505.
• Citation: 175 P.2d 805,115 Colo. 532
• Parties: PHILLIPS v. CITY AND COUNTY OF DENVER (BROWER et al., Interveners).
• Court: Colorado Supreme Court

175 P.2d 805

115 Colo. 532

PHILLIPS v. CITY AND COUNTY OF DENVER (BROWER et al., Interveners).

No. 15505.

Supreme Court of Colorado, en Banc.

December 16, 1946

Error to District Court, City and County of Denver; Charles C Sackmann, Judge.

Action by George Phillips against City and County of Denver, a municipal corporation, to set aside a tax deed, wherein Anna E. Brower and Walter C. Brower intervened. To review the judgment plaintiff brings error.

Judgment affirmed.

E. V Holland, of Denver, for plaintiff in error.

Malcolm Lindsey, Ruth S. Hunt, and Thomas E. Boyles, all of Denver for the City and County of Denver.

Hindry Friedman & Brewster and Guy K. Brewster, all of Denver, for interveners, defendants in error.

BURKE, Justice.

These parties appear here in the same order as in the trial court and are hereinafter referred to as plaintiff, Denver and intervenors, respectively.

Plaintiff fee owner of certain lots in the city of Denver, brought this action August 10, 1943 to set aside a tax deed to Denver, which meanwhile had deeded to intervenors. Answers were filed and all facts essential to judgment for plaintiff were stipulated save the amount which he should pay intervenors. That sum being fixed by the court judgment was entered accordingly. To review that judgment plaintiff prosecutes this writ, contending, 1, that the judgment is erroneous in requiring that, as a condition precedent to recovery, he refund approximately $1000 special improvement taxes paid in advance by intervenors under an option granted by the city charter; 2, that interest was erroneously figured by the court under Sec. 262, chap. 142, C.S.A. '35 instead of Sec. 264, Id.

Plaintiff failed to pay general taxes for 1929. Such proceedings followed that on November 26, 1930 the property was stricken off to Denver. The statutory period of redemption expired November 26, 1933, but Denver did not take a deed until August 15, 1938. July 7, 1943, Denver deeded to intervenors. At that date there was due general taxes for 1929 and subsequent years, Moffat Tunnel Improvement District taxes, and a mandatory installment on the special improvement tax above mentioned, which installment had fallen due in April, 1943. On taking deed from Denver, intervenors paid the Moffat Tunnel taxes, an agreed amount for general taxes and, exercising an election granted by the charter, the total of the special improvement tax. Under Denver's interpretation of the statute then in effect and according to custom, she gave no notice of her intention to take her tax deed. March 17, 1941 we held such notice essential under the facts in that case and this. Bogue v. Miles et al., 107 Colo. 320, 111 P.2d 1055.

It is here important to note that Denver's deed was voidable, not void. Counsel for plaintiff refers to it as the latter and bases a portion of his argument on that assumption. However, he refers in his brief at least half a dozen times, to that deed as voidable and the court so held. Four months after Denver received it it was recorded and then became color of title. Sec. 262, supra, as amended Chap. 226, p. 1050, L.1937. It gave right of possession. Central Realty Co. v. Frost 76 Colo. 413, 232 P. 1111. Hence, until challenged, the holder of that deed and his assignee stood in the shoes of the owner of the fee.

1. It is self-evident that said section 262, and not 264, governs here. The latter expressly refers to redemptions within three years from date of sale and prior to execution of treasurer's deed; the former to actions for the recovery of land sold for taxes and recovery in such 'suit, action or proceeding.' It provides that in case of recovery the owner shall pay to the grantee named in the deed, or his successor, inter alia, 'all taxes paid...