Wright v. Yust

• Decision Date: 06 July 1948
• Docket Number: 15841.
• Citation: 195 P.2d 951,118 Colo. 449
• Parties: WRIGHT et al. v. YUST et al.
• Court: Colorado Supreme Court

195 P.2d 951

118 Colo. 449

WRIGHT et al. v. YUST et al.

No. 15841.

Supreme Court of Colorado, in Department.

July 6, 1948

Rehearing Denied July 26, 1948.

Error to District Court, City and County of Denver; G. A. Luxford Judge.

Action for adjudication of rights to realty by Willis Edward Wright Jr., and others against Gladys Yust, also known as Gladys E Yust, and another. To review the judgment, the plaintiffs bring error.

Affirmed.

Alden T. Hill and Lloyd E. Williams, both of Fort Collins, for plaintiffs in error.

Horace N. Hawkins, Jr., of Denver, for defendants in error.

HILLIARD Justice.

In an action begun May 14, 1945, by plaintiffs in error, plaintiffs below, against defendants in error, for adjudication of rights to real property in the City and County of Denver described as lots one to fifteen, and lots sixteen to thirty, both inclusive, block thirty-seven, Malone and DuBois Subdivision, defendant Yust enjoyed favorable findings and judgment. Defendant in error Finnerty has not appeared, nor is she interested in the property involved.

It appears that in 1929, plaintiffs were the fee owners of the property involved, then, and hitherto, vacant and unoccupied; that the property was subjected to a general tax levy that year, in the payment of which plaintiffs defaulted; that in November, 1930, and because of such delinquency, the property, grouped as above described, was offered for sale, and in the absence of bidders it was stricken off to the City and County of Denver; that March 17, 1936, one Harry Bitman, who in the meantime had become assignee and owner of the tax sale certificates, received a county treasurer's deed for said property, which was recorded March 30, 1936; that May 10, 1940, Bitman conveyed the property to Gladys Yust, defendant in the action, who paid all taxes levied against said property, including general taxes, Moffat Tunnel and special improvement levies, or redeemed from all tax sales resulting from delinquencies in relation to such levies, so that, when plaintiffs instituted action here, May 14, 1945, or more than nine years after the Bitman tax deed had been recorded, there was no delinquent taxes or assessments against said property or any part thereof. On the other hand, as further appears, commencing with the general tax levy for 1929, and including all subsequent levies, general, Moffat Tunnel, other specials, or whatever, up to the time of the filing of the complaint in this action--some sixteen years thereafter--plaintiffs had not paid any taxes levied on said property, nor had they redeemed from any of several tax sales thereof. Premised on the foregoing facts, not questioned as to verity, defendant Yust, pleading sections 144 and 146, chapter 40, 1935 Colorado Statutes Annotated, alleged that 'plaintiffs have no cause of action against this defendant, and no right, title or interest in said thirty lots and are barred from asserting any claim to said lots or any part thereof.'

Before discussing the sections of the statutes thus pleaded, we pause to observe, that, while the treasurer's deed to Bitman--the basis of defendant's title--was issued without notice to plaintiffs of the application therefor, a statutory requirement, nevertheless, as we have held, the deed was 'voidable, not void,' and from the time it was recorded, March 30, 1936, as we have seen, it constituted 'color of title.' Phillips v. City and County of Denver, 115 Colo. 532, 175 P.2d 805. The foregoing in mind, section 144, pleaded as already stated, seems determinative of the controversy. It reads as follows 'Whenever a person having color of title, made in good faith, to vacant and unoccupied land, shall pay all taxes legally assessed thereon for seven successive years, he or she shall be deemed and adjudged to be the legal owner of said vacant and unoccupied land to the extent and according to the purport of his or her paper title. All persons holding under such taxpayer * * * Before said seven years shall have expired, and who shall continue to pay the taxes as aforesaid, so as to complete the payment of the taxes for the aforesaid period of time shall be entitled to the benefit of this section; * * *. For the purposes of this article a redemption from a sale for taxes by the party claiming under any of the limitations herein set forth shall be considered as the equivalent of a payment of taxes.' But in behalf of plaintiffs it is urged that in taking title in the circumstances appearing, defendant did not proceed in 'good faith,' a requirement of the statute we have quoted. We think that defendant's payment of taxes in the manner and for the time shown, evidences good faith in the sense of the statute. De Foresta v. Gast, 20 Colo. 307, 38 P. 244; Sullivan v. Collins, 20 Colo. 528, 39 P. 334; Crisman v. Johnson, 23 Colo. 264, 47 P. 296, 58 Am.St.Rep. 224. The deed here constitutes 'color of title.' 'It gave right of possession.' 'Hence, until challenged [not done until this action was begun, May 14, 1945], the holder of that deed and his assignee stood in the shoes of the owner of the fee.' Phillips v. City and County of Denver, supra [115...