Werner v. Norden, 12225.
| Decision Date | 28 April 1930 |
| Docket Number | 12225. |
| Citation | 87 Colo. 339,287 P. 644 |
| Parties | WERNER v. NORDEN et al. |
| Court | Colorado Supreme Court |
Department 1.
Error to District Court, Teller County; Arthur Cornforth, Judge.
Action by Louis Werner against Eugene A. Norden and others. To review a judgment for defendants, dismissing the action plaintiff brings error.
Reversed and remanded, with instructions.
E. B. Upton and G. F. Walter, both of Cripple Creek, for plaintiff in error.
J. E Little, of Colorado Springs, for defendants in error.
Plaintiff Werner is the owner in fee of a town lot in Cripple Creek. The defendants Eugene A. Norden and Andrew Norden were his tenants and in possession of the property. The defendant Ida Sennett is the record holder of a tax sale certificate of purchase of this town lot, as she asserts, by virtue of an assignment to her by the board of county commissioners of the county which had bid in the property at a tax sale. The defendant McLeod is the county treasurer. The complaint alleges that James Sennett, the father of defendant Ida during his lifetime conspired with the defendants Norden and Norden to secure the assignment to him of this tax sale certificate and thereby to secure tax deed title. After the death of James Sennett, the record in the county treasurer's office, as the complaint alleges, and there is no proper denial of the same, was changed by making the record appear to be that Ida Sennett, and not James Sennett, was the assignee of the county board of this tax sale certificate. The complaint further alleges that the defendant Ida had applied to the county treasurer for a tax deed, and that she was about to secure the same for the use and benefit of the tenants, thus carrying out the alleged conspiracy between her father and the Nordens, to secure for the tenants title to this property. Plaintiff offers to pay the amount of money paid by James Sennett to whomsoever the court may direct, and, as the Nordens and Ida Sennett are insolvent, plaintiff is without any plain, speedy, or adequate remedy at law, and, therefore, he prays for an injunction restraining the issuance by the treasurer of the tax deed to Ida, and for general relief. The complaint specifically charges that, unless the relief prayed for is granted, the defendant Ida Sennett will apply for and receive a tax deed to the property on July 2, 1927. The summons was dated and issued June 29, 1927, and was served, with a copy of the complaint, on all of the defendants on June 29, and the complaint, summons, and return thereon were filed in the district court July 6, 1927. The defendants filed separate answers to the complaint in which are embodied general demurrers. These answers show that tax deed was in fact issued and delivered to the defendant Ida Sennett July 2, 1927. The answers admit the tenancy, and the defendants Norden admit paying to Ida the rent after July 2, when the deed purports to have been issued and delivered to her. The answer of the county treasurer is a statutory denial of the allegations of the complaint as to the change of the record in his office. This statutory denial is insufficient and should have been, and may have been, disregarded by the court, because it was a denial of a matter of record in his own office which he is presumed to know, or could have known by examination thereof. Campbell v. Creighton, 63 Colo. 478, 167 P. 975; Strong v. Texas Co., 70 Colo. 546, 549, 203 P. 675. The opinions in both of these cases are that the denial of an allegation for want of knowledge of a matter of record, and easily accessible to a defendant, is of no force and should be disregarded. The substantial and controlling allegations of the complaint are not put in issue by any of the answers. The plaintiff's replication to these answers alleges that the tax deed which the county treasurer issued and delivered to the defendant Ida Sennett was issued and delivered after the suit was begun and service upon the parties was had and during the pendency of the action, and the record so shows and it is not denied.
The case, as made by the pleadings and the evidence, is that the defendants Norden and Norden were the tenants of this property by virtue of a lease to them from plaintiff, the fee owner, and during the term of the tenancy the Nordens and James Sennett unlawfully attempted to secure for Sennett title to this property. In other words, the case as made is that tenants of real property, during the time of the tenancy, sought to, and did, obtain the title of their landlord, and assert the same as hostile to him. No citation of authorities is...
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