Tarabino Real Estate Co. v. Dunlavy

• Decision Date: 05 February 1940
• Docket Number: 14676.
• Citation: 105 Colo. 523,99 P.2d 926
• Parties: TARABINO REAL ESTATE CO. v. DUNLAVY, County Treas., et al.
• Court: Colorado Supreme Court

99 P.2d 926

105 Colo. 523

TARABINO REAL ESTATE CO. v. DUNLAVY, County Treas., et al.

No. 14676.

Supreme Court of Colorado

February 5, 1940

Rehearing Denied March 4, 1940.

In Department.

Error to District Court, Las Animas County; John L. East, Judge.

Mandamus by the Tarabino Real Estate Company against F. E. Dunlavy County Treasurer of Las Animas County, and another, to compel issuance of a certificate of redemption for lands sold for taxes. To review a judgment for defendants, plaintiff brings error. A joint motion to finally dispose of the cause on application for supersedeas was sustained.

Judgment affirmed.

Frank Hall, of Trinidad, for plaintiff in error.

John N. Mabry and B. H. Shattuck, both of Trinidad, for defendants in error.

BURKE Justice.

Plaintiff in error is hereinafter referred to as the company, defendant in error as the treasurer, and one Richard Candreva as Candreva.

This was an action in mandamus brought by the company to compel the treasurer to issue a certificate of redemption for lands sold for taxes, and struck off to the county which had assigned the certificate, at a reduction, to Candreva. The alternative writ was issued, a general demurrer thereto sustained, the company elected to stand, and to review the judgment thereupon accordingly entered this writ is prosecuted. On application for supersedeas we have sustained a joint motion to finally dispose of the cause.

The company was the fee owner. The sale was for the tax of 1932 and the certificate was assigned to Candreva in July, 1939. The price to him for the certificate, plus a reduction on subsequent taxes up to and including 1937, plus taxes in full for 1938 ($508.63), was $2784.39. Had Candreva paid the full face the total would have been $3847.51, including $275.87 for which the treasurer's records show the certificate was sold.

September 6, 1939, the company tendered the treasurer the exact amount of Candreva's payment, with statutory interest, etc., and demanded its certificate of redemption. The treasurer refused, claiming the company must tender the full $3847.51. The sole question raised by the assignments is, Must the company, as a condition to redemption, pay the full amount demanded by the treasurer, as held by the court, or only the amount paid by Candreva?

A certificate for land struck off to the county for failure of bidders at the sale is issued by the treasurer to the county and subsequent taxes are indorsed thereon. Thereafter no taxes are payable until redemption or sale. Sec. 234, chap. 142, '35 C.S.A. Such certificates may be sold by the treasurer for the amount for which the land was struck off to the county, with interest and penalties, or 'for such sum as the board of county commissioners * * * may decide and authorize.' Sec. 247, id. No mention is therein made of subsequent taxes, nor does the section refer to redemption. Sec. 264, chap. 142, '35 C.S.A., in effect when the sale was made, has been a portion of our general revenue law, in substantially its present form, at least since 1902. It provides for redemption by payment to the treasurer, for the purchaser, of 'the amount for which the same was sold', plus interest, 'together with the amount of all taxes accruing on such real estate after the sale, paid by the purchaser and endorsed on his certificate of purchase, * * *.' Section 244, id., provides a form of certificate of purchase and requires that it contain 'columns for subsequent taxes.' Section 266, id. provides that the treasurer shall, on the application of one entitled to redeem, issue certificate of redemption.

The company bases its contention here squarely on said section 264, and particularly on the words 'paid by the purchaser', concluding that the sum paid by Candreva is therefore the measure of its redemption. We think its counsel has misconstrued the section, and that, correctly interpreted, it flatly refutes him. It should be noted that the amount payable on redemption is not the sum paid by the purchaser, but the taxes paid by the purchaser. Where the sale is in regular course to a private purchaser these amounts are equal. Where the land has been struck off to the county and the certificate sold by it at a reduction, these sums may be, as here, vastly different. In such case the purchaser from the county may pay $1000 in taxes with $500. The assignee receives with his assignment receipts in full for all...