Richardson v. Halbekann

• Decision Date: 15 April 1935
• Docket Number: 13403.
• Citation: 97 Colo. 175,48 P.2d 1014
• Parties: RICHARDSON v. HALBEKANN.
• Court: Colorado Supreme Court

48 P.2d 1014

97 Colo. 175

RICHARDSON v. HALBEKANN.

No. 13403.

Supreme Court of Colorado, En Banc.

April 15, 1935

Rehearing Denied May 6, 1935.

Error to District Court, City and County of Denver; Frank McDonough, Sr., Judge.

Action by Joseph Halbekann against Frank G. Richardson, substituted defendant for Standart and Main, Incorporated, and another. Judgment for plaintiff, and defendant brings error.

Affirmed.

YOUNG BURKE, and HILLIARD, JJ., dissenting.

W Richard Means and Albert S. Isbill, both of Denver, for plaintiff in error.

Royal R. Irwin, of Denver, for defendant in error.

CAMPBELL, Justice.

This action by plaintiff Halbekann seeks a decree quieting title in him as against the defendant Richardson to certain Denver City lots. In his opening brief, defendant, Richardson, says that the controlling question for decision is the alleged erroneous admission by the trial court of a certain tax deed offered by the plaintiff, Halbekann. Richardson further says if his objection thereto is good, the judgment must be reversed; if not good, it should be affirmed. In view of this statement of plaintiff in error, we confine our discussion solely to the one question of the admissibility of the tax deed.

At the trial below defendant, Richardson, objected to its introduction unless it was first shown, and it was not so shown as he says, that there had been full compliance with section 7423, C. L. 1921. This section, among other things provides, what is pertinent here, that Before a purchaser at a tax sale shall be entitled to a deed for the lands on which the tax is levied, if, as here, the assessed value of the property is over $100, he shall make request of the county treasurer therefor. And as a condition precedent the purchaser shall also, at that time, pay to the treasurer the necessary fees for cost of notice, etc., with the further provision that there shall be notice given and served, and return duly made thereunder in compliance with the statute above cited. It further appears that Halbekann, plaintiff rested his case without proof of compliance with the specific requirements of said section 7423.

In the view we take of this controversy, it is not necessary to reproduce the contents of section 7423. It is sufficient merely to say that it specifies what steps the county treasurer shall take when requested by a purchaser of land at a tax sale to issue a tax deed. There was no testimony for the holder of the tax title in this case that compliance was made by him with all the different steps he is required to take under the provisions of the section. The only specific objection of Richardson at the trial below was that there was a failure of notice required by section 7423, C. L. 1921, because the assessed value of the property in question exceeded $100, in which case there were certain requirements of section 7423 that were not complied with. The tax deed of the purchaser in this case recites in general terms that all the provisions of the statutes prescribing prerequisites to obtaining tax deeds have been fully complied with and are now of record and filed in the office of the manager of revenue, ex officio treasurer of said city and county of Denver.

While this case was pending in the district court, and Before final judgment therein was rendered, our Supreme Court decided the case of City and County of Denver v. Bach, 92 Colo. 594, 22 P.2d 1114, 1115. Before judgment in the case now under consideration was rendered by the district court it was aware of the pendency of the Bach Case in the Supreme Court and withheld decision in this, the Richardson Case, until the opinion in the Bach Case was handed down, since it was considered by both parties that the case now Before us would be governed by the decision in the Bach Case.

After decision in the Bach Case was handed down, the district court in the pending Richardson Case held that the Bach Case was decisive of this Richardson Case and rendered judgment accordingly in favor of the plaintiff Halbekann. We entertain no doubt whatever that the Bach Case, if adhered to, as we think it should be, requires affirmance of the judgment in this case now under review. The record Before us clearly discloses that counsel for both parties in the pending case so considered, as did the district court. The syllabus in the Bach Case, which the opinion justifies, reads: 'At common law a tax deed was not admissible in evidence unless accompanied by proof that all the requirements of law had been complied with by the proper officer, but this rule has been abrogated by statute in Colorado.' The opinion in the Bach Case, 92 Colo. at page 596, 22 P.2d 1114, quotes with approval the following: 'But by statute in this state the tax deed is made prima facie evidence of the regularity of these prerequisites. * * * The burden of proof concerning these things is simply shifted to the attacking party.'

Approving as we do the decision in the Bach Case, it follows that the judgment herein should be, and it is, affirmed.

Affirmed.

BUTLER C.J., specially concurring.

BURKE, HILLIARD, and YOUNG, JJ., dissenting.

BUTLER, Chief Justice (concurring).

The court's opinion seems to me to be sound and in harmony with modern judicial thought. There was a time when, notwithstanding the recitals in a tax deed showing compliance with the law, one claiming under the deed was required to present independent proof of the performance of all the conditions precedent to the issuance of the deed. That fact, coupled with the strict requirements of the law as pronounced by courts, made it so difficult to sustain tax titles as to discourage bidders at tax sales, and this was so detrimental to the public interest that legislatures and courts alike began to throw greater protection around purchasers at tax sales. Acts were passed to mitigate the hardships. Some provide that the recitals in tax deeds shall be prima facie evidence of the facts recited; others, that tax deeds shall be prima facie evidence of the regularity of the tax sale and of the validity of the deed; others, as in Colorado (C. L. § 7426), that the deed shall be prima facie evidence of certain specified facts. See 26 R.C.L. p. 422; Lebanon Mining Co. v. Rogers, 8 Colo. 34, 5 P. 661.

Section 7426, supra, does not make the deed prima facie evidence of a compliance with section 7423, Complied Laws, concerning the giving of notice upon application for a tax deed where the assessed valuation of the property is $100 or more. In Richards v. Beggs, 31 Colo. 186, 72 P. 1077, it was held that a tax deed is not prima facie evidence of the service of notice as required by section 7423, supra; and that case was followed in Treasury Tunnel Mining & Reduction Co. v. Gregory, 38 Colo. 212, 88 P. 445. In each of those cases the deed was issued prior to 1902. In that year an act was passed (Sess. L. 1902, Ex. Sess., p. 43, c. 3), which for the first time required (section 181) the following recital to be inserted in tax deeds: 'And, whereas, all of the provisions of the statutes prescribing prerequisites (to) obtaining tax deeds have been fully complied with, and are now of record, and filed in the office of the county treasurer of said county.'

The cases cited above were decided under a statute that contained no such provision, and the deeds contained no such recital. The same is true of Sheesley v. Voorhees, 24 Colo.App. 428, 134 P. 1008; the deed involved in that case was issued in 1899. Mitchell v. Trowbridge, 47 Colo. 6, 105 P. 878, and Vandermeulen v. Burwell, 22 Colo.App. 486, 125 P. 131, were decided in reliance upon Richards v. Beggs, supra, and Treasury Tunnel Mining & Reduction Co. v. Gregory, supra. In the Mitchell Case, our attention was not called to the provision of the act of 1902 quoted above, which is the same, in substance, as section 7425, Compiled Laws, and we did not consider the effect of that provision. In the Vandermeulen Case that provision was not presented by the briefs or considered by the Court of Appeals. That provision must be given some effect, of course. If it was not intended to show a compliance with the conditions precedent to issuance of the deed, including the giving by the county treasurer of the notice required by section 7423, supra, and to be prima facie evidence thereof, what purpose was it intended to accomplish? It is not to be presumed that the General Assembly did a futile thing when it required that recital to appear in tax deeds--that it was indulging in a mere idle gesture. On the contrary, we may fairly assume that the General Assembly had in mind the provisions of section 7423, supra, making it the duty of the county treasurer (not of the purchaser or some other third person) to serve the notice or cause it to be served, and to 'make and carefully preserve among the files of his office a record of all things done in compliance with this section, and shall certify to a compliance with the provisions of this section,' and intended that the statutory recital in the deed that 'all of the provisions of the statutes prescribing prerequisites (to) obtaining tax deeds have been fully complied with, and are now of record, and filed in the office of the county treasurer' should be given effect.

We have given to recitals in tax deeds the effect of prima evidence of the facts recited. Section 7410, Compiled Laws, requires tax sales to be commenced on or Before the second Monday in November of each year. Section 7411 provides that if, from any cause, property cannot be advertised and offered for sale at that time, the treasurer shall sell on a subsequent day. Where the deed shows on its face that the sale was held on a day subsequent to that designated by section 7410, without a recital of any cause for the...