Williams v. Conroy

• Citation: 83 P. 959,35 Colo. 117
• Parties: WILLIAMS v. CONROY et al.
• Decision Date: 04 December 1905
• Court: Supreme Court of Colorado

83 P. 959

35 Colo. 117

WILLIAMS v. CONROY et al.

Supreme Court of Colorado

December 4, 1905

Appeal from District Court, Las Animas County; Jesse P. Norrhcutt Judge.

Action by F. A. A. Williams against Kate Conroy and others, in which defendant Asa Haines filed a cross-complaint. From a judgment for cross-complainant, plaintiff appeals. Reversed.

W. B. Morgan, for appellant.

Fred A Sabin and R. S. Beall, for appellees.

CAMPBELL J.

Both parties claim ownership and right to the possession of certain lands in Las Animas county, of which Richard L. Survant is the patentee. Plaintiff's title is evidenced by tax deeds. Of the defendants, all have suffered default except Asa Haines, and, as he has succeeded to the title of the others, the case will be discussed as if he were the only defendant. Haines' title is two-fold: One is evidenced by tax deeds issued in pursuance of a tax sale at a later time and for a later year than were the tax deeds under which plaintiff claims. The other of defendant's titles is evidenced by a quitclaim deed from the patentee, obtained after this action was begun, but before the answer was filed. Defendant Haines was in actual possession of the land under his tax deeds at the time the complaint was filed. This action was brought by plaintiff to recover possession, and to have defendant's tax deeds canceled because they are void. In the amended answer, by way of cross-complaint defendant Haines sets out his two titles just mentioned, and, as he was in actual possession when the action was brought, he asks to have his title quieted, his possession confirmed, and for a cancellation of plaintiff's tax deeds. The cause was tried to the court without a jury upon an agreed statement of facts, and resulted in a decree for defendant in accordance with the prayer of the cross-complaint.

From this statement it appears that R. L. Survant, the patentee, allowed the taxes on the lands for the year 1889 to become delinquent, for which they were sold, and tax deeds, now held by plaintiff, issued under the sale, which were recorded in June, 1893. The land was vacant and unoccupied; no one being in actual possession of the same after the tax sale and before the tax deeds were recorded, and not until some time in January, 1900, when defendant entered under the tax deeds hereinafter mentioned. The original owner, though cognizant of the tax sale and the execution and recording of the tax deeds, never took any steps to recover possession, apparently abandoning all his rights thereto. Plaintiff's tax deeds are regular and valid on their face, though because of informalities in the sale they are as a matter of law void. After plaintiff's purchase at the tax sale referred to he neglected to pay the taxes on the land for the year 1891, and for such delinquency the land was again sold and tax deeds issued therefor, which were recorded December 18, 1896, and it is these tax deeds upon which the defendant Haines relies for his tax title. He took possession of the land thereunder January 1, 1900, and was so holding at the time of the beginning of this action. These tax deeds, though valid on their face, are void for the same irregularity which affects the plaintiff's earlier ones. From this statement it appears that plaintiff relies upon tax deeds which were recorded, and under which he held for more than five years thereafter without any action by the original owner, or any other person, in any way questioning that title. The defendant claims title, first, under tax deeds which were recorded less than five years, but under which actual possession was not taken by him for more than five years, after the date of the recording of plaintiff's tax deeds; and, second, by virtue of a quitclaim deed executed and delivered by the original patentee owner in February, 1902, and which was after this action was begun and before the amended answer was filed.

1. The defendant obtained nothing by his quitclaim deed, for section 3904, Mills' Ann. St., says that 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 a deed therefor by the treasurer, any law to the contrary notwithstanding. More than the full period of five years prescribed by this act of limitation had expired without any act of any sort by the patentee owner to recover possession or to question plaintiff's title under his tax deeds. The quitclaim deed gave to the defendant such rights, and such only, as the grantor himself had. The patentee owner's title, under section 3904, Mills' Ann. St., was completely extinguished and barred; hence the patentee had nothing to give when he executed his quitclaim deed, and the defendant received nothing thereby. Express authority for this conclusion is found in Crisman v. Johnson, 23 Colo. 264, 47 P. 296, 58 Am.St.Rep. 224, De Foresta v. Gast, 20 Colo. 307, 38 P. 244, and Bennet v. N.C. S. L. & I. Co., 23 Colo. 470, 48 P. 812, 58 Am.St.Rep. 281, which hold that a void deed, taken in good faith, constitutes sufficient color of title under our statute of limitations. See, also, Desty on Taxation, § 149. That the patentee's title was extinguished, and the same vested in the plaintiff under the facts of this case, see, also, Lebanon Mining Co. v. Rogers, 8 Colo. 34, 5 P. 661; Moingona Coal Co. v. Blair, 51 Iowa 447, 1 N.W. 768; Harris v. Curran, 32 Kan. 580, 4 P. 1044; Griffin v. Turner, 75 Iowa 250, 39 N.W. 294; Black on Tax Titles (2d Ed.) § 284; Shawler v. Johnson, 52 Iowa 472, 3 N.W. 604. Morris v. St. Louis Nat. Bank, 17 Colo. 231, 29 P. 802, is not opposed to this conclusion. There are some observations in the opinion, in the nature of dicta, which might seem pertinent, but the holding was that the statute of limitations we are considering was not applicable to that case, as the action was not 'for the recovery' of land, and the deed had not been on record for five years before the action was brought.

2. The remaining question, then, is as to which of the titles obtained under the tax deeds shall prevail. Let us again...