Siler v. Investment Securities Co.

• Decision Date: 05 May 1952
• Docket Number: No. 16458,16458
• Citation: 244 P.2d 877,125 Colo. 438
• Parties: SILER v. INVESTMENT SECURITIES CO., Limited.
• Court: Colorado Supreme Court

Page 877

244 P.2d 877

125 Colo. 438

SILER v. INVESTMENT SECURITIES CO., Limited.

No. 16458.

Supreme Court of Colorado, en Banc.

May 5, 1952.

Rehearing Denied May 26, 1952.

A. X. Erickson, Don B. Oliver, Denver, for plaintiff in error.

Phelps & Phelps, Edwin J. Wittelshofer, Robert L. Gee, Denver, for defendant in error.

MOORE, Justice.

We will hereinafter refer to the parties as they appeared in the trial court where defendant in error was plaintiff and plaintiff in error was defendant.

On October 14, 1946, plaintiff corporation filed its complaint alleging that it was the owner in fee simple and entitled to possession of twelve unimproved and unoccupied lots in the City and County of Denver; that defendant claimed some right, title, estate or interest in and to said property, adverse to plaintiff; and that his asserted interest in said land was without right. Judgment was sought quieting the title to said property in plaintiff, and adjudging that defendant had no lawful interest therein. Defendant by answer claimed title to said lots, based on a treasurer's deed.

For counterclaim defendant alleged that plaintiff 'offered to quit claim and disclaim any of its purported interest' in the real estate in question for the consideration of $125, which offer was accepted by defendant; that defendant had done all things required of him under this agreement and was ready and willing to pay the sum of $125 in consideration for said conveyance, but that plaintiff refused to abide by said agreement. Defendant demanded judgment requiring conveyance of said property or damages in lieu thereof. Plaintiff denied the validity of the tax deed upon which defendant relied, and denied any agreement to quitclaim said property to defendant.

The treasurer's deed in question was insued to one James Bradford upon a tax sale conducted November 26, 1930, for unpaid taxes for the year 1929. The date of the deed was January 9, 1942, and Bradford by quitclaim deed conveyed to defendant all rights arising under said tax deed.

Trial was to the court without a jury. When plaintiff rested its case counsel for defendant moved for dismissal of the action. This motion was denied. The findings of the trial court contained, inter alia, the following:

'And the Court doth further find that the Treasurer of the City and County of Denver failed and neglected to serve or cause to be served upon said Plaintiff notice of the application for Treasurer's Deed as is by statute provided, and that the Treasurer's Deed dated the Ninth day of January, 1942 and recorded in Book 5559 at Page 406 of the records in the Office of the County Clerk and Recorder in and for the City and County of Denver, State of Colorado, is null and void and of no force or effect.

'And the Court doth further find that no contract of sale and purchase of the property aforesaid enforceable at law was entered into between Plaintiff and Defendant, and that Defendant has no right, title or interest in or to said real estate by reason of the matters and things alleged in his Counterclaim or Cross-complaint.'

Judgment was entered consistent with these findings and in accordance with the prayer of plaintiff's complaint. Defendant seeks reversal of the judgment by writ of error.

The statute, S.L. '37, page 1053, requires that the county treasurer shall perform certain duties when application is made for issuance of a tax deed by a purchaser of land sold for taxes. Among other things it becomes the duty of the treasurer to, '* * * serve or cause to be served, by personal service or by registered mail, * * * notice of such purchase * * * on the person in whose name the same [the land] was taxed * * * if upon diligent inquiry such person can be found in the county, or his residence without the county be known, and upon all persons having an interest or title of record in or to the said premises, if upon diligent inquiry the residence of such persons can be learned, * * *.' It was for failure on the part of the treasurer to make 'diligent inquiry' to find the plaintiff in whose name the property was taxed, in order that service of the statutory notice could be made upon it, that the tax deed was voided by the judgment of the trial court.

The notice was sent by registered mail addressed to plaintiff at 626 Foster Building in Denver. It was deposited in the mail on October 6, 1941, was not delivered, and was returned to the treasurer. It was sent to said address--with had not been occupied by plaintiff corporation for many years--notwithstanding the fact that for the years 1939, 1940 and 1941 the identical property appeared on the 'assessment roll and tax warrant' under the control of the treasurer in the name of plaintiff corporation at its correct address. The duly authorized tax agent of the City and County of Denver testified in part as follows:

'Q. * * * Is there an entry relative to the property in dispute in your 1940 assessment roll and tax warrant? A. Yes.

'Q. And in whose name is the property therein assessed? A. Investment Securities Company, Limited, care of F. R. Ross Investment Company, 510 U. S. National Bank Building, Denver.

'Q. And would you refer to the assessment roll and tax warrant for the year 1941? Is the property in dispute listed? A. Yes, sir; lots 4 to 16.

'Q. Block 2, Romona? A. Yes, sir.

'Q. And to whom are they assessed--at what address? A. Investment Securities Company, care of F. R. Ross Investment Company, 510 U. S. National Bank Building, Denver.

'Q. I call your attention to at least six other parcels of property on the same page which are also assessed to the Investment Securities Company. Will you state what is the address of that Company as given on that page? A. It is the same as the address I have just given you.

'Q. 410 U. S. National Bank Bldg.? A. 510.'

Actually, statements of taxes due from plaintiff on the lots in question, and other property, were mailed to it at its correct address shortly prior to execution of the tax deed. For at least three years prior to the mailing of the notice to the address which had long been abandoned, records of the treasurer pertaining to the particular lots in dispute disclosed the correct address of plaintiff.

Counsel for defendant specify three points upon which they rely for reversal. In substance they are: That the motion for dismissal should have been granted because no prima facie case was made by plaintiff; that the court erred in rejecting the title of defendant based upon the tax deed; and the court erred in finding that defendant had no legal contract for a quitclaim deed from plaintiff.

Questions to be Determined

'First: In an action brought for the purpose of obtaining a complete adjudication of the rights of all parties thereto with respect to real property, under the provisions of Rule 105(a), R.C.P.Colo., was it necessary for plaintiff corporation to allege and prove that it had possession of the real estate in question?

This question is answered in the negative. Counsel for defendant argue at length that proof of possession of the lots is an essential part of plaintiff's case, and since no such proof was offered by plaintiff, no prima facie case was made and the motion to dismiss should have been sustained. The opinion in the case of Crandall v. Crandall, 72 Colo. 100, 209 P. 814, and several other decisions of this court are cited in support of the assertion that proof of possession is an essential part of plaintiff's case in an action to quiet title. Every case cited by counsel for defendant...