Sheesley v. Voorhees

• Decision Date: 15 September 1913
• Citation: 24 Colo.App. 428,134 P. 1008
• Parties: SHEESLEY et al. v. VOORHEES. [d]
• Court: Colorado Court of Appeals

134 P. 1008

24 Colo.App. 428

SHEESLEY et al. v. VOORHEES. ^[d]

Court of Appeals of Colorado

September 15, 1913

Appeal from District Court, Weld County; James E. Garrigues, Judge.

Ejectment by Fannie B. Voorhees against George Sheesley and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded on rehearing.

Isham R. Howze, of Denver, for appellants.

John F Mail, of Denver, for appellee.

KING J.

Plaintiff in this action brought her suit in the nature of ejectment (under section 266, Civil Code), to recover possession of certain real estate, alleging her title and right of possession, and that defendants wrongfully withheld said premises from the plaintiff, and exercised acts of ownership on and over the same. For answer to this complaint defendants denied plaintiff's title and right of possession, and alleged that they were the owners in fee simple, in possession, and entitled to possession, of said premises. They also made cross-complaint in which they alleged their ownership in fee and possession of the land described in the complaint; that plaintiff claims some interest therein adverse to the defendants, which was without foundation or right, and asked that plaintiff be required to set out the nature of her title or claim, and that the same be adjudged invalid, and that defendants' title be quieted. To this cross-complaint plaintiff answered, denying defendants' ownership and possession, and alleged that she claimed said land and was the owner thereof in fee simple by mesne conveyances under a treasurer's deed executed acknowledged, and recorded, giving the date of execution, the date of record, and the book and page in which said deed was recorded, and pleaded the short statute of limitations, to wit, Mills' Ann.Stats. § 3904 (Rev.Stats.1908, § 5733) as a bar to defendants' cross-complaint. To this answer of plaintiff to their cross-complaint defendants filed replication, in which they denied each and every allegation set forth in said answer, and alleged, on information and belief, that the pretended treasurer's deed referred to in plaintiff's answer was in certain words and figures set forth in full in said replication, including the acknowledgment and date of its record, but giving no book in or page at which the same was recorded; alleged that said deed was void on its face, and for divers reasons specifically set forth, but not appearing upon the face thereof. Judgment was rendered for plaintiff, and defendants appealed.

1. The case was first and separately tried as an equity case upon defendants' cross-complaint to quiet title, at which time the court granted nonsuit as to defendants' cause of action set forth in their cross-complaint, holding that the tax deed set out in defendants' replication was fair on its face, and therefore said five-year statute of limitations barred defendants from introducing evidence to establish the invalidity of the deed for matters not appearing upon its face. Thereafter the cause came on for trial before another judge, upon plaintiff's cause of action in ejectment. As the only proof of her title plaintiff offered in evidence a quitclaim deed from Mary E. Grosvenor and two others as sole heirs of Margaret G. Palmer, to Edgar P. Long, quitclaim deed from Edgar P. Long to plaintiff, both said deeds conveying the lands herein in litigation, a court order reciting the death of said Margaret G. Palmer and settlement of her estate, and that the said Mary E. Grosvenor and the two others named in the quitclaim deed were her sole heirs. It was admitted in the pleadings that M.G. Palmer was the grantee named in the treasurer's tax deed. The tax deed relied on to prove plaintiff's title was not offered in evidence. By agreement of counsel it was stipulated that the title to the land in controversy emanated from the United States, and was thereafter conveyed to the defendants, and so stood at the time of the beginning of this action.

2. Appellants contend that by reason of the failure of appellee to offer the tax deed in evidence, and support it by proof of compliance with certain statutory requisites to its validity, she wholly failed to establish prima facie title; while appellee contends that the defendants, by setting out the tax deed ipsissimis verbis in their reply, obviated the necessity on the part of plaintiff, not only of offering the deed in evidence in support of her title, but also of the offer of any proof with regard thereto. We think, under the facts of this case and the form of the deed pleaded by defendants, plaintiff's contention cannot be sustained.

Before a tax deed can become prima facie evidence of title in the courts of this state, it must affirmatively appear by the recitals of the deed that every preliminary step to divest the title of the patent owner was regularly taken as prescribed by law. Charlton v. Toomey, 7 Colo.App. 304, 43 P. 454; Empire Co. v. Howell, 23 Colo.App. 265, 268, 129 P. 245. If this rule be adhered to, it necessarily follows that this deed, which fails to recite compliance with the provisions of the statute making it obligatory to give notice of intention to take out the deed, and make due proof thereof, as a condition precedent to the power of the treasurer to execute it, or that the assessed valuation of the land...