Sedgwick v. Culp
| Citation | 136 P. 88,24 Colo.App. 566 |
| Parties | SEDGWICK v. CULP et al. |
| Decision Date | 14 October 1913 |
| Court | Court of Appeals of Colorado |
Appeal from District Court, Weld County; Neil F. Graham, Judge.
Action by John Sedgwick against Jerome F. Culp and another. Judgment for defendants, and plaintiff appeals. Reversed and remanded.
Delph E. Carpenter, Herbert M. Baker, and R.E. Winbourn, all of Greeley, for appellant.
John T Jacobs, of Greeley, for appellee Jackson.
This action was brought by John Sedgwick, as plaintiff, against Jerome F. Culp and James B. Jackson, defendants, for the purpose of quieting the title in said Sedgwick to one-half of section 19, township 11 N., of range 61 W. of 6 P.M., in Weld county, Colo.
At the trial plaintiff offered in evidence, as color of title, a treasurer's tax deed to the land in question, without showing that notice of the intention of said Sedgwick to apply for a treasurer's deed had been given as required by law, or that the assessed value of the property was such as to make the giving of notice unnecessary. The tax deed was admitted to be void upon its face. The deed offered was excluded by the court, and thereupon the plaintiff was denied the benefit of his plea of the statute of limitation, based upon his possession and payment of taxes for seven successive years under claim and color of title, made in good faith.
At this term of court, in the case of James B Jackson v. Eric Larson et al. (No. 3,789) 136 P. 81, the identical treasurer's deed here involved was under consideration, and was held to be admissible in evidence as color of title, and the decision in that case on that point is decisive of this case also, and for the reasons there given we hold that the court erred in excluding said deed as evidence of color of title, and the judgment must be reversed.
Reversed and remanded.
I have expressed my views concerning the conclusions reached in this case in my specially concurring opinion in Jackson v. Larson (No. 3,789) 136 P. 81.
For the reason that the opinion of the court reversing the judgment herein is a memorandum opinion, based upon the finding of the majority of the court upon one point considered and determined in Jackson v. Larson, et al. (No. 3,789), handed down at this term of the court, and wherein the presiding judge submitted a specially concurring opinion, which, in fact, is a dissenting opinion as to the only question in issue in this case; and because in that case the conclusion reached affirming the judgment of the trial court is right under all the authorities, without reference to the question that is decisive of the instant case; and, further, because, in my judgment, the views announced by the presiding judge in his dissenting opinion as to the question here necessary to decide are at variance with the decisions of our own Supreme Court, and, if accepted, so fraught with danger to established property rights--I feel justified in presenting this supplemental opinion.
August 2, 1909, the plaintiff, Sedgwick, in possession of the premises, brought a suit against Culp in usual form to quiet title. Culp made no defense, but long after suit was begun, defendant Jackson took his title to the premises by quitclaim deed, and with it his lawsuit. On December 16, 1909, Jackson made his appearance, and in March, 1910, his answer, claiming title under his quitclaim deed from Culp, the patentee. The plaintiff for his title relied upon a treasurer's tax deed issued to him, duly recorded, and under which he alleges that he went into actual possession under claim and color of title made in good faith, and that thereafter during more than seven years prior to the beginning of suit he remained in possession and paid all taxes assessed against said land under claim and color of title made in good faith. Defendant alleged that the tax deed was void on its face, and for reasons aliunde, particularly that the land was assessed at a valuation in excess of $500 during the years for the taxes of which the land was sold, and that, notwithstanding such assessed valuation, Sedgwick, the purchaser and assignee of the certificates of purchase, failed to give the statutory notice of his intention to apply for a treasurer's deed prior to its execution and delivery. This latter allegation was put in issue by the pleadings, and there was no evidence offered by the plaintiff of the giving of said notice, nor proof by the defendant that such notice was not given. Upon trial the plaintiff offered the treasurer's deed in evidence as color of title only; it being admitted that it was void on its face. Upon defendant's objection, the deed was excluded. The deed offered describes the land by legal subdivisions; recites the sale of the land to the county for delinquent taxes, the assignment of the certificates of purchase by the county to Sedgwick, the payment of all subsequent taxes, giving the amount thereof, and by apt words in statutory form purports to convey the title to Sedgwick. The plaintiff offered to prove that at the time he accepted the deed, he made inquiry of the county treasurer, and was told that the deed was a valid deed; that he entered into possession of the land in good faith, believing that his deed was valid, and paid the taxes assessed against the land for seven full years after the first payment of taxes, and had ever since been in possession; that all of said acts had been done by him under claim and color of title made in good faith; that during said time no other person had paid any taxes on the land, or made any demands against the plaintiff for possession or claimed any right, title, or interest therein; and that at all such times he was ignorant of the law requiring notice. Upon objection the court refused to admit the proof offered.
The questions involved, and the only questions, are: (1) Whether the tax deed offered constituted color of title in plaintiff, and as such was admissible in evidence; and (2) whether such deed, together with the evidence offered by the plaintiff, constituted prima facie claim and color of title made in good faith.
It is asserted by the appellees, and by the presiding judge in his dissenting opinion in Jackson v. Larson, supra, that because the plaintiff herein (the deed being the same) failed to prove that he gave the statutory notice of his intention to apply for the treasurer's deed, the said deed was inadmissible as proof of anything, even color of title, but more particularly as proof of claim of title made in good faith; and it is also asserted that, assuming, as we may for the purposes of this discussion, that notice was not given, that fact alone is not only presumptive evidence of a sinister purpose in taking a tax deed, and overcomes the other legal presumptions (1) that all men are presumed to act in good faith until the contrary is shown, and (2) that the deed itself purports good faith, unless facts and circumstances attending its execution show that the party accepting it had no faith or confidence in it, but furthermore bars and precludes the claimant under such deed from offering any evidence which will show his good faith and explain his reasons for failing to give the statutory notice. In other words, that fact alone is conclusive proof of bad faith.
That a void deed, whether void upon its face or shown to be such by evidence aliunde, does constitute color of title sufficient to set in motion the seven-year statute of limitation, and is of itself evidence of "claim and color of rifle made in good faith," is announced by a continuous line of decisions of our Supreme Court, beginning with Lebanon Mining Co. v. Rogers, 8 Colo. 34, 5 P. 661, in an opinion written by Mr. Justice Helm in 1884, approved and amplified by Mr. Justice Elliott in Knight v. Lawrence, 19 Colo. 425, 36 P. 242, and De Foresta v. Gast, 20 Colo. 307, 38 P. 244; by Mr. Chief Justice Hayt in Bennet v. N.C.L. & I. Co., 23 Colo. 470, 48 P. 812, 58 Am.St.Rep. 281; by the Court of Appeals in Brinker v. U.P., D. & G. Ry. Co., 11 Colo.App. 166, 55 P. 207; by Mr. Justice Gabbert in Walters v. Webster, 52 Colo. 549, 553, 123 P. 952; and by Mr. Justice Bailey in Silford v. Stratton, 54 Colo. 248, 130 P. 327, that opinion having been delivered in January, 1913. In Lebanon Mining Co. v. Rogers, supra, quoting from and adopting the views announced in Wright v. Mattison, 18 How. (U.S.) 56, 15 L.Ed. 280, after saying that the courts have concurred without exception in defining color of title to be that which has the appearance of title, but which in reality is not such, it is said: "They have equally concurred in attaching no exclusive or peculiar character or importance to the ground of invalidity of an apparent or colorable title; the inquiry with them has been whether there was an apparent or colorable title under which an entry or a claim has been made in good faith." (Italics are mine.)
In Knight v. Lawrence, supra, 19 Colo. 432, 36 P. 244, the court says: "In our opinion, the phrase 'color of title,' [as applied to the statute of limitations] refers to a paper writing purporting to convey title, or to some writing whereby title is sought to be acquired"--and further: ...
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