White Cap Min. Co. v. Resurrection Min. Co., 15454.

• Decision Date: 18 November 1946
• Docket Number: 15454.
• Parties: WHITE CAP MINING CO. v. RESURRECTION MINING CO. et al.
• Court: Colorado Supreme Court

174 P.2d 727

115 Colo. 396

WHITE CAP MINING CO. v. RESURRECTION MINING CO. et al.

No. 15454.

Supreme Court of Colorado, en Banc.

November 18, 1946

Error to District Court, Lake County; William H. Luby, Judge.

Action by the White Cap Mining Company against the Resurrection Mining Company and others to recover possession of mining premises and damages, and for injunction. To review a judgment for defendants, plaintiff brings error.

Affirmed.

HILLIARD J., dissenting.

Former landowner could not maintain action against persons claiming under assignment of certificate of purchase at tax sale where defendants were in actual possession under valid treasurer's tax deeds for more than two years prior to commencement of action. '35 C.S.A. c. 142, § 263.

Foard Brothers, of Colorado Springs, for plaintiff in error.

Pershing Bosworth, Dick & Dawson, Winston S. Howard, and Harold E. Popham, all of Denver, for defendants in error.

ALTER Justice.

The White Cap Mining Company began an action January 27, 1942, against the Resurrection Mining Company, W. G. McDonnell, Carl Youngstrom, Angelo Travison, Lawrence Lane, Jimmy Sullivan and Frank Kendrick, Jr., to recover possession of certain mining premises in Lake county, Colorado, together with $500 damages, and also sought to enjoin defendants from mining upon the premises. At the conclusion of a trial to the court without the intervention of a jury, judgment was entered in favor of defendants. To review this judgment plaintiff brings the cause here by writ of error.

We will refer to plaintiff in error, plaintiff below, as plaintiff or by name; defendants in error, defendants below, will be designated as Resurrection Company, and the individuals by name.

Plaintiff, in its complaint, alleged ownership of the mining premises and further that, in November, 1940, defendants, without plaintiff's knowledge or consent, took possession thereof, claiming title adversely to plaintiff. It further alleged damages as a result of defendants' unlawful possession and, as set out in the abstract of record, prayed 'judgment and decree of court, ejecting defendants from the permises and restoring plaintiff in the immediate possession thereof; that plaintiff recover judgment for the wrongful withholding of said premises in the sum of Five Hundred Dollars ($500.00), and that defendants and each of them be restrained from breaking down, mining or removing from said premises any ore or mineral-bearing rock or other material therefrom.' Defendant Frank Kendrick, Jr., filed a disclaimer. The Resurrection Company, in the first defense in its answer, denied plaintiff's ownership; admitted its occupancy of the premises, and denied that plaintiff had any rights therein. It set up its ownership by virtue of certain tax deeds; alleged payment of all taxes and the making of improvements, and prosecuting mining operations in good faith on said premises, all of which added to the value of the property. In the second defense it affirmatively alleged that it was the owner, and entitled to the possession, of the mining premises. In the third defense in its answer it set up its title to the mining premises by virtue of certain tax deeds and alleged that it and its predecessors in interest had been in actual possession of the mining premises since December 7, 1937, and it relied upon the provisions of section 263, chapter 142, '35 C.S.A. Defendants, other than Resurrection Company and Frank Kendrick, Jr., filed answers containing substantially the same admissions, denials and defenses as those contained in the answer of the Resurrection Company.

Plaintiff filed a replication in which it generally attacked the validity of the tax deeds under which defendants claimed title, and it alleged a willingness to reimburse defendant Resurrection Company for all moneys necessary to effectuate a redemption from the sales for delinquent taxes.

At the trial it was stipulated that the plaintiff had established title in and to the mining premises prior to the issuance of the tax deeds involved.

There are 11 specifications of points, but plaintiff, with commendable frankness, states that, 'The issues involved to be determined by this Court are: 1. To determine the validity or invalidity of the tax deeds in question; 2. If the tax deeds are valid the issues are determined in favor of Defendants. If not, the question remains to be determined whether Defendants have established title by actual possession under the two-year statute of limitations. 3. If Defendants have not established title by the required possession under the statute, are Defendants entitled to reimbursement for improvements? It is conceded of course that Defendants are entitled to recover taxes and penalties as provided by statute. 4. Plaintiff is entitled to damages.'

Plaintiff, being the owner of the mining premises involved, consisting of four mining claims or fractions thereof, i. e., the Ocean Wave; the White Cap; the Forfeit, and the Imes, failed to pay taxes thereon for the year 1931, and on December 14, 1932, each mining claim being of an assessed value of more than $100, they were separately sold and separate certificates issued to Lake county, there being no other bidders for the mining premises, and the sale having taken place on the third and last day of the tax sale. June 15, 1936, the board of county commissioners, at a regular session, resolved, 'That the County of Lake do, and does hereby assign, sell and transfer within 15 days from the date hereof Certificate of Purchase No. 24973, on Imes Survey 363 to John Harvey for $112.00; * * * and that the county treasurer be, and he is hereby authorized and empowered to execute and deliver on behalf of said county, such instruments as may be necessary fully to convey all the right, title and interest of the county in, for and to such certificate.' Similar resolutions were adopted respecting the other three mining claims involved. June 30, 1936, the county treasurer, acting under the resolution, assigned the four tax sale certificates to John Harvey, who retained the same without recordation in the office of the county clerk until he, three years from the expiration of the sale, requested the county treasurer to issue him a deed for the mining premises described in the certificates of purchase. The county treasurer caused two notices to be published including in each thereof two of the claims described in the four certificates of purchase, and thereafter, on the 7th day of December, 1937, executed one treasurer's deed in which was included two of the mining claims and another treasurer's deed in which was included the other two mining claims. No notice of the application for the treasurer's deed was served upon plaintiff because the record failed to disclose its address and such personal inquiry as was made failed to reveal it. January 7, 1938, John Harvey, the grantee in the two treasurer's deeds, conveyed the property therein described to the Yak Mining, Milling and Tunnel Company, the deed being recorded on July 13, 1938. Subsequently, and on May 7, 1941, the Yak Mining, Milling and Tunnel Company conveyed the property described in the John Harvey deeds to the Resurrection Mining Company, the deed being recorded on May 19, 1941. March 7, 1942, the county treasurer issued to John Harvey correction tax deeds. Thereafter, on March 9, 1942, John Harvey executed a quitclaim deed to the four mining claims to the Resurrection Company. The correction deeds from the county treasurer to John Harvey, dated March 7, 1942, were filed and recorded in the office of the county clerk and recorder of Lake county on November 14, 1942.

Plaintiff, as above noted, concedes that if the treasurer's deeds are valid, the judgment entered in favor of defendants is correct. It is its contention that the treasurer's deeds are invalid for the following reasons: (1) There was no assignment of any of the tax certificates entered on the clerk's records; (2) the notice of purchase and the application for deed were insufficient; (3) the resolution of the board of county commissioners authorizing the assignment was in excess of the board's authority; (4) the original tax deeds were void; (5) the correction deeds inadmissible. We shall treat these objections to the validity of the treasurer's deeds and the title derived thereunder in this order.

1. The assignments of the certificates of purchase to Harvey were not entered upon the record of sales in the office of the county clerk. It is plaintiff's contention that until the assignments were so entered title in the plaintiffs did not vest in Harvey, and, consequently, title to the certificates of purchase not having vested in him, he had no right to demand or receive a tax deed to any of the mining claims. This contention is made under the provisions of section 245, chapter 142, '35 C.S.A.

The rights of the purchaser under a certificate of sale are not uniform in the different states. In some his interest is held to be an estate subject to be defeated on redemption; in others, an inchoate title which would become complete upon expiration of the time for redemption where no redemption is made; in others his puschase gives a lien merely. 3 Cooley, Taxation (4th Ed.), p. 2889.

Mr Black, in his Law of Tax Titles (2d Ed.), page 392, section 316, says: 'The inceptive title acquired by the purchaser at a tax sale, Before he receives his deed, is capable of conveyance or transmission to other parties. This could probably be done by quitclaim deed or other appropriate conveyance. * * * But the statutes commonly provide that this inchoate title may be transferred by the purchaser, to any person capable of holding it, by an assignment of his certificate of purchase. Whether this...