Pyles v. Portland Gold Mining Co.

• Decision Date: 02 February 1925
• Docket Number: 11158.
• Citation: 76 Colo. 598,233 P. 618
• Parties: PYLES v. PORTLAND GOLD MINING CO.
• Court: Colorado Supreme Court

233 P. 618

76 Colo. 598

PYLES v. PORTLAND GOLD MINING CO.

No. 11158.

Supreme Court of Colorado

February 2, 1925

Rehearing Denied March 2, 1925.

Department 3.

Error to District Court, Teller County; Arthur Cornforth, Judge.

Replevin by J. L. Pyles, administrator of the estate of J. T. Pyles, deceased, against the Portland Gold Mining Company. Judgment for defendant, and plaintiff brings error and applies for supersedeas.

Application denied and judgment affirmed.

Thornton H. Thomas, of Cripple Creek, for plaintiff in error.

E. B. Upton, of Cripple Creek, for defendant in error.

ALLEN, C.J.

This is an action in replevin. Judgment for defendant. Plaintiff has sued out this writ and applies for a supersedeas.

There is no dispute as to such facts which it is necessary to consider. Plaintiff sues as the administrator of a decedent who owned a lot and improvements thereon in the city of Victor. The 1919 taxes were not paid and the property was sold to Teller county. The 1920, 1921, and 1922 taxes were not paid, and were indorsed on the certificate of purchase. On June 19, 1923, the county assigned the certificate to one W. S. Rogers. Shortly thereafter Rogers commenced to wreck a building on the lot, and in August, 1923, sold some lumber therefrom to the defendant, a corporation. Before the time for redemption had expired, the administrator brought this action to recover from the defendant the possession of the lumber.

The plaintiff never redeemed nor attempted to redeem from the tax sale. A tax deed was issued to Rogers on November 30, 1923. If the plaintiff and redeemed, different questions would now arise. When Rogers obtained his tax deed, he was vested with all the rights the former owner had at the time of the sale. Section 7426, C. L. 1921. He was then the party, and not the plaintiff, who had the right to the improvements. Howze v. Rook Lumber Co., 118 Miss. 293, 79 So. 98. This situation existed at the time defendant filed its answer, and it was entitled to plead the fact of having a tax deed. 31 Cyc. 131. The plaintiff not having, after the issuance of Rogers' tax deed, any title to or right in the property, could not maintain this action.

The application for a supersedeas is denied, and the judgment is affirmed.

CAMPBELL and SHEAFOR, JJ., concur.