Webber v. Wannemaker

• Decision Date: 01 April 1907
• Citation: 39 Colo. 425,89 P. 780
• Parties: WEBBER v. WANNEMAKER.
• Court: Colorado Supreme Court

89 P. 780

39 Colo. 425

WEBBER v. WANNEMAKER.

Supreme Court of Colorado

April 1, 1907

Appeal from District Court, Jefferson County; James E. Garrigues Judge.

Action by Elizabeth Wannemaker against De Witt C. Webber. From a judgment in favor of plaintiff, defendant appeals. Reversed and remanded.

Horace G. Benson, De Witt C. Webber, and John R Smith, for appellant.

W. T Rogers and John F. Mail, for appellee.

CASWELL J.

Action to quiet title. Complaint in the usual form. The answer of defendant denies the possession and title of the plaintiff, and asserts title in himself, setting forth same. He also files a cross-complaint to have his own title quieted, to which plaintiff files replication setting up her title, and further attempts by the replication to plead one of the statutes of limitations as follows: 'Defendant further recites that she and her antecedent grantor have been in quiet and peaceable possession of the property under color of title, and have paid the taxes thereon for more than seven years last past before the commencement of this action, by reason whereof the defendant is debarred and estopped from claiming any interest in said land.' The plaintiff further recites in her replication that at the time the defendant procured the quitclaim deed, mentioned in his answer, he was acting for the plaintiff's immediate grantor in securing said deed, and was attorney for and agent of the grantor in procuring same, and that he procured it for said grantor's use and benefit, and he held it in trust for the plaintiff as grantee of the whole title from her said grantor. The title of the plaintiff rests upon two tax deeds, mentioned in the record and bill of exceptions as the 'Dollison deed' and the 'Jones deed.' The former was dated November 22, 1880, and was issued pursuant to a certificate of the sale for taxes upon certain lands for the year 1874; the sale being had upon the 20th day of May, 1875. This deed is void upon its face, and is admitted to be void by the plaintiff. It omits the description of any property in the granting clause, and purports to convey lands sold for delinquent taxes en masse for a gross sum. It appears furthermore upon the face of the deed that these tracts were not contiguous, and that they were not valued and assessed separately. Under our statutes, with certain exceptions not applicable here, lots or parcels of land must be valued and assessed separately. This rule is mandatory to the end that a lien may be created upon each separate tract for the amount of the taxes assessed and levied thereon, and because our statutes further provide that the property shall be sold to the higher bidder, who is defined to be 'the person offering to pay the amount due on any parcel of land, or the smallest portion of the same.' This court held such deeds void and not admissible to support a title in Emerson v. Shannon, 23 Colo. 275, 47 P. 302, 58 Am.St.Rep. 232. This deed was admitted in evidence over the objection of the defendant, under the theory that it was admissible under the allegations of the replication as supporting color of title, and sufficient to set in motion the statute of limitation. The so-called Jones deed was also admitted in evidence over the objection of the defendant that the same was void on its face and other objections. This Jones deed was dated in 1893, and purports to convey a portion of the land in controversy which was mentioned in the Dollison deed. It appears upon its face that it was issued pursuant to the same sale for which the Dollison deed was issued. It purports to have been issued for a less sum of money or less amount of takes than mentioned in the Dollison deed. It is a second treasurer's deed. As a matter of defense, the defendant attempted to defeat the Jones deed by showing that it was based upon void proceedings preceding its issue, and sought to prove the illegalities and infirmities of the steps leading up to the issuance of the deed under his denial. The trial court rejected such evidence and offers of proof, for the reason that the same was not pleaded, and could not be received under the denials. In this ruling the trial court was correct. In this state, under the then existing statutes, tax deeds were made prima facie evidence of all the steps necessary and required to be taken in the assessment and levy and sale for taxes previous to its issue. If the defendant desired to avail himself of facts not appearing on the face of the deed, to show its invalidity it was necessary to have pleaded the same as new matter. The defendant could not put plaintiff upon proof of his possession and title by denial. Under the statutory proceedings to quiet title in this state, 'when defendant has shown by his answer that he asserts such an adverse interest, legal or equitable, as, if sustained by proof, might entitle him to relief in connection with the property, then and not till then is he in position under the statute to try the issue of plaintiff's possession and ownership. * * * The statutory proceeding is in this respect unlike an action of ejectment.' Wall v. Magnes, 17 Colo. 478, 479, 30 P. 56. When this ruling was made at the trial the defendant asked leave to make such amendment of his pleading as would permit him to show the true facts in the case, as he claimed, which would defeat the so-called Jones deed. This application to amend was refused. In this we think the court below erred. It is the general rule concerning amendments that the trial court is guided by sound discretion, and its action in permitting or refusing to permit amendments will not ordinarily be reviewed except in cases of abuse; but it was early held by this court in Archibald v. Thompson, 2 Colo. 389, that the tendency of modern decisions is to favor amendments when the spirit of justice can be advanced or promoted. It does not appear that the defendant had been diligent in applying for such amendment; but it does appear, as we have seen, that the Jones deed was a second treasurer's deed, issued pursuant to the same sale for which the Dollison deed had been issued, and it became a question of importance to the court, as well as to the litigants, to determine whether it correctly stated the proceedings supporting it, because the power of a county treasurer does not extend to executing a second deed which misstates a fact respecting any proceedings prior to its execution. Black on Tax Titles, § 408; Devlin on Deeds, §§ 1413, 1414; Gould v. Thompson et al., 45 Iowa 450; Hewitt v. Storch, 31 Kan. 488, 2 P. 556. In Gould v. Thompson, supra, the court says: 'This authority to execute a second deed is conferred upon the treasurer in order to correct errors committed in the first, to the end that the tax deed may conform in its recitals, conditions, and descriptions to the tax records and the facts of the case which should appear in the instrument. The authority does not exist for the perversion of truth. It is not conferred to enable the officer to overthrow, by false recitals in a deed, the records upon which it is based. It is to be exercised only to attain the ends of truth and right.' And in the same case it is further held that a second deed, 'not being executed to correct a mistake, misdescription, incorrect recital, or other matter in conflict with facts, but on the other hand with the object of perverting truth, and falsifying the tax record, is void, and that defendants held no title under it.' In the case at bar, both the above deeds were admitted in evidence reciting different facts and each tending to impeach the other.

The law will not lend its support to a claim founded upon its violation. Oscanvan v. Arms Co., 103 U.S. 261, 26 L.Ed. 539. If the recitals of the Dollison deed were in accord with the proceedings leading up to its issue, certainly the recitals of the Jones deed were incorrect and misstated the facts. The court did not consider this deed as evidence in support of the allegations of the complaint, if we may judge from its findings, which are to the effect that by the Jones deed and mesne conveyances plaintiff secured color of title for said land,...