Pollen v. Magna Charta Min. & Mill Co.

• Decision Date: 03 June 1907
• Citation: 90 P. 639,40 Colo. 89
• Parties: POLLEN, County Treasurer, v. MAGNA CHARTA MIN. & MILL. CO.
• Court: Colorado Supreme Court

90 P. 639

40 Colo. 89

POLLEN, County Treasurer, v. MAGNA CHARTA MIN. & MILL. CO.

Supreme Court of Colorado

June 3, 1907

Error to District Court, El Paso County; Louis W. Cunningham Judge.

Mandamus by the Magna Charta Mining & Milling Company to compel C. A Pollen, as county treasurer of El Paso county, to issue a certificate of redemption from a tax sale. Judgment for plaintiff, and defendant brings error. Reversed, with instructions to dismiss the action.

James A. Orr, Henry M. Blackmer, R. L. Chambers and Karl C. Schuyler, for plaintiff in error.

Tiffany & Woodworth and Glunnell, Chinn & Miller, for defendant in error.

CAMPBELL J.

Mandamus by the assessed owner of lands to compel the county treasurer to issue a certificate of redemption from a sale thereof for nonpayment of taxes. There was a judgment for plaintiff, and defendant sues out this writ of error.

The case was tried upon an agreed statement of facts, and upon this review only questions of law are involved. From the statement it appears that on and prior to the 11th day of December, 1897, plaintiff was the owner of certain mining claims situate within what was then a part of El Paso county. The taxes levied and assessed thereon for the year 1896 were not paid by the owner, and because of such default they were sold by the treasurer of El Paso county on December 11, 1897 to a private purchaser, and the certificate of purchase issued therefor was afterwards duly assigned to, and became the property of, the Colorado Gold Mines Company. At the sale the county obtained all the taxes due it for the year 1896, and it is conceded in argument that all taxes levied upon and assessed against these mining claims for the years 1897 and 1898, while they were part of El Paso county, were received by that county. On March 23, 1899, the General Assembly created the county of Teller out of a portion of El Paso and Fremont counties, and included in, and as a part of, the territory taken from the county of El Paso were these mining claims. On December 12, 1900, the term of three full years allowed by statute for the redemption of lands from the sale for taxes having expired, the Colorado Gold Mines Company, the owner of the certificate of purchase, presented the same to the county treasurer of Teller county, and paid the prescribed fees, and demanded and received of him a tax deed for the claims, which deed was filed for record in the office of the county clerk and recorder of Teller county. Thereafter, and on various occasions between the 11th of December, 1900, and February 19, 1901, the Colorado Gold Mines Company tendered its certificate of purchase to the county treasurer of El Paso county, together with the proper statutory fees, and demanded of him that he also execute a tax deed to the company for these mining claims, but the treasurer of El Paso county, conceiving that it was not his duty, but that of the treasurer of Teller county, to make the tax deed under such a state of facts, refused, and ever since has refused, to issue to the certificate holder a tax deed, although the latter has kept its tender good. Thereafter, and on February 19, 1901, more than three years after the tax sale, but before a tax deed had been executed, the plaintiff, the original owner, made application to the treasurer of El Paso county to redeem the mining claims from the tax sale of December 12, 1897, tendering the statutory amount for redemption, but the officer refused to accept the tender, or issue the certificate, because of the foregoing facts, and for other reasons not necessary here to state.

1. It is to be borne in mind that the county of El Paso did not bid in the property. At the tax sale it received all that was then due it as taxes upon the property sold. All subsequent taxes that were assessed and levied upon the claims in which it had any interest or for which it had a lien were in its treasury at the time of the creation of the county of Teller. After Teller county was created, and thereby was withdrawn from El Paso county, the property in question, El Paso county and its officers had no...