Vogt v. Hansen

• Decision Date: 10 July 1950
• Docket Number: No. 16143,16143
• Parties: VOGT v. HANSEN.
• Court: Colorado Supreme Court

Page 1040

225 P.2d 1040

123 Colo. 105

VOGT v. HANSEN.

No. 16143.

Supreme Court of Colorado, en Banc.

July 10, 1950.

On Petition for Rehearing Dec. 11, 1950.

Chutkow & Atler, and Nathan Lee Baum, all of Denver, for plaintiff in error.

John G. Reid, Percy S. Morris, Denver, for defendant in error.

July 10, 1950: Judgment affirmed by a divided court.

ALTER, J., not participating.

JACKSON, STONE and MOORE, JJ., voting to affirm the judgment.

HILLIARD, C. J., HAYS and HOLLAND, JJ., voting to reverse the judgment.

STONE, Justice.

The essential facts in this case are not in dispute. Pursuant to default in payment of taxes for the years 1935 and 1936, the property here involved was stricken off to the county December 13, 1937. Treasurer's deed was issued thereunder to defendant in error Hansen, as assignee, March 31, 1941, and recorded April 10, 1941. Hansen testified without contradiction that he had been in possession of the property since the date of his deed, and the trial court so found. More than five years after recording of the tax deed, Vogt obtained quitclaim deed to the property from patent title owners thereof, and February 13, 1947, instituted this action, alleging ownership of the lands thereunder, and the assertion of some right or title therein by Hansen and other defendants; and asking that they be required to set up their claims; that plaintiff be decreed to be the owner, and that whatever claims defendants had be canceled as a cloud upon his title. To this complaint Hansen filed answer and counterclaim, asserting title by virtue of his tax deed, pleading the five-year statute of limitations, and praying that his title be quieted against any claim of plaintiff. By answer to the counterclaim, Vogt set up the alleged invalidity of the tax deed, due to matters not appearing on its face, and challenged the statute of limitations on the ground that the action was not brought for possession, but to remove a cloud. The trial court held the statute a good defense and found in favor of defendant.

It first is contended that the county treasurer had no authority to sell the lands involved for the taxes for the years 1935 and 1936, upon which sales defendant's treasurer's deed is based, for the reason that on December 15, 1915, 'the mineral reserve on' said lands was offered for sale for delinquent taxes thereon for the year 1914 and struck off to Lincoln county; that payment of subsequent taxes on said mineral reserve had been duly endorsed on said certificate; that with such certificate outstanding and subsequent taxes endorsed as paid, the county treasurer had no statutory or legal right to sell said lands for default in payment of taxes for 1935 and 1936, and that the five-year statute does no apply in the case of a treasurer's deed in the issuance of which the county treasurer was entirely without jurisdiction.

Whether the five-year statute is a defense where there is a total lack of jurisdiction need not now be determined. The cases seem to be in conflict in other jurisdictions. Plaintiff in his complaint alleges title 'subject to mineral reservations in favor of the Union Pacific Land Company.' It does not appear what reservations exist or that he claimed any title to the mineral reserve. If not, the validity of defendant's tax deed as to such interest is immaterial. In validity as to such interest would not destroy its validity as to the remaining estate. It is sufficient here to say that the 'mineral reserve on' this land was stricken off to the county on the first day of the sale; that the certificate was therefore void, and that the idle gesture of endorsement of subsequent taxes thereon by the county could give it no validity. Had the certificate been valid there would have been no taxes payable so long as it was held by the county, and since in fact the certificate was void, notations of such payment could not give it life. While held by the county it would constitute no lien as the county had paid nothing for it, and it could result in no loss of taxes to the county. The void sale would not prevent valid sale thereafter for subsequent delinquent taxes.

It next is contended that the five-year statute of limitations can be used only as a defense to an action for recovery of possession, and therefore was not properly interposed in the present action for the reason that it was not for recovery of possession, but only to remove a cloud by a plaintiff who was not in possession and did not seek to recover possession of the property. The applicable part of the statute, section 262, chapter 142, '35 C.S.A., amended S.L. '37, page 1050, reads: 'No action for the recovery of land sold for taxes shall lie unless the same be brought within five years after the execution and delivery of the deed therefor by the treasurer, any laws to the contrary notwithstanding'. Since the only possible purpose of the action here involved, whatever it may have been denominated, was to procure the ultimate recovery of possession, and it was sought by this action to remove the one obstacle preventing such recovery, to say that this was not an action for such recovery would seem more quibbling.

However, plaintiff in error insists that this contention is supported by authority and cites numerous cases. These we shall consider. The leading case, upon the argument and authority of which the court in later cases relies, is Morris and Thombs v. St. Louis National Bank, 17 Colo. 231, 29 P. 802, 803. This was an action to remove a cloud existing by virtue of a tax deed. It was admitted in the answer that the lands claimed under the tax deed had remained wholly vacant, unoccupied and unimproved, and it was held that the five-year statute could not there be interposed as a bar. The court said: 'Under such circumstances, it is difficult to conceive how the present action can be regarded as an action for the recovery of said lands, since the plaintiff has never been actually dispossessed of them. * * * An action like the present, to remove cloud from title, is an appropriate remedy by the original owner of vacant lands against a party claiming title under a tax deed. By instituting such action, the owner is not bound to confess himself ousted of his original possession, nor to assume, as a matter of law, that the tax claimant is in possession by virtue of his tax deed, when in fact the claimant is not in possession, and when the very purpose of the action is to have such deed adjudged invalid.' It is apparent both from the facts...