Sierra Min. Co. v. Lucero
| Decision Date | 03 May 1948 |
| Docket Number | 15796. |
| Citation | 118 Colo. 180,194 P.2d 302 |
| Parties | SIERRA MINING CO. v. LUCERO et al. |
| Court | Colorado Supreme Court |
Error to District Court, Conejos County; Joseph H. Thomas, Judge.
Action by Sierra Mining Company against Antonio Lucero as County Treasurer of Conejos County, State of Colorado, and others to enjoin the issuance of tax deeds. Judgment dismissing the action, and the plaintiff brings error.
Judgment reversed and cause remanded with directions to vacate judgment of dismissal and for further proceedings in conformity with opinion.
Before BURKE, C.J., and HILLIARD and ALTER, JJ.,
Merle M. Marshall, of Alamosa, for plaintiff in error.
Clarence O. Moore, of Denver, for defendants in error.
The parties here are the same as in the trial court.
The case involves the validity of two tax sale certificates issued by the county treasurer of Conejos County, and the right of the owner to restrain the issuance of tax deeds on the alleged void certificates.
Plaintiff is the present owner and in possession of certain mining claims.
At a tax sale, December 19, 1931, certain of said mining claims were sold for delinquent taxes of 1927, to Conejos County and tax certificate No. 18370 issued therefor. At a tax sale December 22, 1941, certain other of said mining claims were sold for delinquent taxes of 1937, to Conejos County, and tax certificate No. 20913 issued therefor.
Both said tax certificates, by order of the Board of County Commissioners, were on August 6, 1945, sold and assigned to defendants W. A. McEntyre, F. C. Hendee and J. A. Rivera for less than their face amount of taxes due. These assignees requesting tax deeds thereon, the county treasurer published notices of intention to issue such deeds on December 10, 1945. Said notices did not state when the period of redemption expired. Prior to the issuance of the deeds and on December 8, 1945, plaintiff, as owner, filed suit to restrain said assignees from demanding, and said county treasurer from issuing such tax deeds, for that said tax sales and the tax certificates were illegal and void. Plaintiff alleged it had no notice of said tax sales or of the assignments of said tax certificates. An ex parte restraining order was issued, and thereafter on trial plaintiff introduced its deed showing legal title, the two tax certificates No. 18370 and No. 20913, the treasurer's records thereon and the cross-examination of defendants; also plaintiff's Exhibits 5 and 6 treasurer's tax receipts for subsequent taxes paid by assignees. At the conclusion of plaintiff's case, defendant moved for a 'non-suit' which motion was granted, and a judgment of dismissal entered. The case is now here to review that judgment.
The 'motion for nonsuit' will be considered a motion to dismiss. 'A motion for a nonsuit admits every inference of fact that can legitimately be drawn from plaintiff's evidence.' Westwood v. Richards, 109 Colo. 17, 122 P.2d 247, 248.
Tax certificate No. 18370, dated December 19, 1931, recites 'at a _____ SALE _____ FOR DELINQUENT TAXES _____ on the ___ day of december 19, 1931.' Tax certificate No. 20913 dated December 22, 1941, recites 'at a regular date of sale _____ for delinquent taxes _____ on the Dec. 22, 1941.' The Colorado Statute, '35 C.S.A., chap. 142, sec. 235, fixes the time for tax sales which 'shall commence on or Before the second Monday in December of each year.' The court will take judicial notice of calendar days and dates; that the second Monday of December in 1931 was the 14th day and that the second Monday of December in 1941 was the 8th day. Milow v. People, 89 Colo. 469, 3 P.2d 1077; 8 A.L.R. 63.
Said tax certificates do not show when the tax sales therein were commenced, nor whether the dates named were adjourned sales dates, and if so, no explanation for the adjournments. Hochmuth v. Norton, 90 Colo. 453, 455, 9 P.2d 1060; Denver v. Bach, 92 Colo. 594; 22 P.2d 1114.
The two tax certificates Nos. 18370 and 20913 show on their face that each was void, and being void, when attacked are ineffective against the owner's title. Ireland v. Gunnison Mountain Coal & Coke Co. 87 Colo. 193, 286 P. 280. Tax deeds issued on such void certificates would have been void deeds, subject to be restrained and set aside. There is no substantial difference whether the instrument sought to be restrained and set aside be a void tax deed or a void tax certificate. Pueblo Realty Co. v. Tate, 32 Colo. 67, 70, 75 P. 402.
Defendants for the purposes of their motion having admitted plaintiff's evidence, raise one point of law to sustain their motion, that 'plaintiff had ample notice and time to redeem from these tax sales had it so desired', that 'there was no evidence of any character to show any money tendered the treasurer in an...
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