Timroth v. Oken
| Decision Date | 01 August 2002 |
| Docket Number | No. 01CA1416.,01CA1416. |
| Parties | Grant C. TIMROTH, Plaintiff-Appellant, v. Thomas OKEN, as Treasurer of Pitkin County, and Board of County Commissioners of Pitkin County, Colorado, Defendants-Appellees. |
| Court | Colorado Court of Appeals |
Wright & Adger, LLP, Gary A. Wright, James F. Fosnaught, Aspen, Colorado, for Plaintiff-Appellant.
John M. Ely, Pitkin County Attorney, Aspen, Colorado, for Defendants-Appellees.
Opinion by Judge DAVIDSON.
In this action to quiet title to a mining claim pursuant to C.R.C.P. 105, plaintiff, Grant C. Timroth, appeals from the grant of summary judgment to defendants, Board of County Commissioners of Pitkin County and Thomas Oken, as Treasurer of Pitkin County (collectively, the County). We reverse and remand.
In 1892, Henry L. Powers and Powell Smith received from the United States a patent grant to the subject property, the Twilight Lode Mining Claim. In 1908, a tax sale was held for the taxes of 1907, and, there being no bidders for the property, a tax certificate was issued to the County. In 1964, a treasurer's deed was issued to the County based on the 1908 sale and certificate. In 1979, John Frances Powers III conveyed his interest in the property to Tyrone Austin Thompson by quitclaim deed. Plaintiff's complaint alleges that John Frances Powers III is an heir of Henry L. Powers, but nothing in the record indicates succession or any transfer of the mining claim from Powell Smith. In 1988, Thompson conveyed the property to plaintiff by special warranty deed.
Plaintiff brought this quiet title action, asserting title based on deeds properly in the recorded chain of title, adverse possession pursuant to § 38-41-101, et seq., C.R.S.2001, and possession and payment of taxes pursuant to § 38-41-108, C.R.S.2001, and also asserting that the County's claim of title was void. On the parties' cross-motions for summary judgment, the court quieted title in the County, finding that extrinsic evidence demonstrated that the 1964 treasurer's deed to the County was valid and vested title in the County.
On appeal, plaintiff contends that the trial court erred in granting summary judgment to the County. Specifically, plaintiff contends that the treasurer's deed was void on its face, that no extrinsic evidence was admissible to rehabilitate it, and that the County therefore had no interest in the property and should be dismissed as a defendant. The County argues that, even if the deed was void on its face, extrinsic evidence was properly admitted to validate it, and, because plaintiff had not demonstrated that he had a valid claim to title, the County was entitled to judgment based on the legal title conveyed by the deed.
We agree with plaintiff that the grant of summary judgment to the County at this stage of the proceedings was improper. Specifically, we conclude that the 1964 treasurer's deed is void. We further conclude that extrinsic evidence was not admissible to validate the deed, but was admissible to validate the tax sale, which, under the circumstances, entitled the County to the issuance of a new treasurer's deed in proper form. However, disputed issues of fact remain as to whether plaintiff is entitled to redeem the property.
We first agree with plaintiff that the 1964 treasurer's deed is void.
The statutes in effect at the time of the 1908 tax sale required that such a sale be commenced no later than the second Monday of November. See § 5714, R.S.1908 (). A provision of the statute providing an exception stated:
If, from any cause, real property can not be duly advertised and offered for sale on or before the second Monday of November, it shall be the duty of the treasurer to make the sale on any subsequent day in which it can be made, allowing time for the publication of notice, as provided in this act.
A sale commenced after the time required by the statute is invalid, and when the recitals in a treasurer's deed indicate that the sale commenced later than the second Monday of November, but do not explain any cause for the delay, the deed is void on its face. See City & County of Denver v. Bach, 92 Colo. 594, 22 P.2d 1114 (1933)(also noting the merits of an alternative rule); Hamer v. Glenn Investment Co., 75 Colo. 423, 226 P. 299 (1924). Similarly, a treasurer's deed is void on its face when the recitals indicate that the final day of the sale occurred later than the day specified by statute, but do not indicate when the sale commenced or give a reason for the late occurrence. See Sierra Mining Co. v. Lucero, 118 Colo. 180, 194 P.2d 302 (1948); Hochmuth v. Norton, 90 Colo. 453, 9 P.2d 1060 (1932).
Here, the deed indicates that the sale concluded on December 12, 1908 and that it was an "adjourned sale." However, it does not indicate the date on which the sale was commenced and from which it adjourned or any reason the sale was held in December rather than on or before the second Monday in November, then, November 9. The preprinted portion of the deed form recites that the sale could not be commenced before the second Monday of December, but the recital is, at best, inconsistent. The blank for the year was not filled in, and in 1908, the second Monday of December would have been two days after the date stated for conclusion of the sale. Moreover, the deed gives no reason for the delay, and the County concedes that the sale was commenced on December 10, 1908. Thus, the deed was void on its face.
Plaintiff also argues that the trial court erred in admitting extrinsic evidence to validate the treasurer's deed. We agree, but conclude that extrinsic evidence is admissible to validate the tax sale.
The treasurer has no title to the property, and his or her power to convey it to another for nonpayment of taxes is purely statutory. Thus, that power is strictly limited to situations where there has been compliance with the statute. Crisman v. Johnson, 23 Colo. 264, 47 P. 296 (1896).
After a valid sale, the treasurer is required to issue a certificate of purchase to the purchaser, or, if there have been no bids and certain other conditions are met, to the county. Sections 5713, 5723, R.S.1908 (). A certificate of purchase carries with it "the right to have the legal title conveyed to [the holder] at the expiration of the time for redemption." White Cap Mining Co. v. Resurrection Mining Co., 115 Colo. 396, 413, 174 P.2d 727, 735 (1946). The property may be redeemed by the owner at any time within three years from the date of the sale or thereafter at any time before a treasurer's deed is executed. Section 5734, R.S.1908 ().
A treasurer's deed may be issued at any time after three years from the date of the sale, after certain notice is given to the owner. Sections 5726, 5727, R.S.1908 (). Recordation of a valid treasurer's deed vests in the grantee "all the right, interest and estate of the former owner in and to the land conveyed, and also all right, title, interest and claim of the state and county thereto, and shall be prima facie evidence . . . [t]hat the sale was conducted in the manner required by law." Section 5730, R.S.1908 ().
The form of a valid treasurer's deed must substantially comply with that provided by statute. See § 5729, R.S.1908 (). The deed "should show that the provisions of the law have been substantially followed, and if there is any fatal omission which ought to have been embraced in the deed under the provisions of the statute, the courts cannot supply or cure such fatal defects," and the deed will not vest title in the grantee. Lines v. Digges, 43 Colo. 166, 172, 95 P. 341, 342-43 (1908). Where the treasurer's deed on its face shows that the sale has not been conducted in the manner required by law, the deed is void on its face. Whitehead v. Callahan, 44 Colo. 396, 99 P. 57 (1908); see also Imperial Sec. Co. v. Morris, 57 Colo. 194, 197, 141 P. 1160, 1161 (1914)(deed is prima facie evidence unless "some statement therein shows affirmatively that the requirements of the statute were not complied with").
A void deed fails to convey legal title even if the underlying sale was valid. However, if the deed was irregular or defective because of some mistake of the treasurer, but the proceedings were in fact properly conducted, the holder of the defective deed is entitled to a corrected deed anytime before the owner's redemption. See Newsom v. Jacobs, 51 Colo. 579, 119 P. 623 (1911); Duggan v. McCullough, 27 Colo. 43, 59 P. 743 (1899); Smith v. Griffin, 14 Colo. 429, 23 P. 905 (1890). The authority of the treasurer has been described as follows:
The purchaser at the sale (the proceedings prior thereto having conformed to the statute, in so far as to make them valid and binding) acquires the right to have the legal title conveyed to him at the expiration of the time of redemption (in case no redemption is made); and it is the duty of the treasurer to convey that title to him. Any act of the treasurer which come[s] short of conveying the title (the purchaser having the right thereto), although he may have intended to convey it, does not discharge his duty to convey, and cannot therefore exhaust his power. For, having the power to convey, that power must continue until he does convey[.] If he should make a deed void on its face, and hence no deed, or make a deed to the wrong person, or of the wrong parcel of land, such acts would not exhaust his power to make...
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