Dalander v. Howell

Colorado Court of Appeals

Dalander v. Howell

22 Colo. App. 386

CourtColorado Court of Appeals

DecidedApril 15, 1912

DocketNo. 3382

StatusPublished

This text of 22 Colo. App. 386 (Dalander v. Howell) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dalander v. Howell, 22 Colo. App. 386 (Colo. Ct. App. 1912).

Pincite

Opinion

Walling, Judge.

[387]*387Tliis action was brought by the appellee, to quiet his title to two quarter sections of land in Washington county, against the appellant and others. The prima facie sufficiency of the proof introduced by the plaintiff, at the trial, to support the judgment in his favor, is not disputed by appellant. But it is claimed that the court erred in rejecting evidence offered on the side of the defendant, in support of the defenses pleaded in the answer. This evidence consisted of, first, the record of an action commenced in the county court of Washington county on July 7th, 1906, wherein Frederick FI. Dávis and Charles T. Kountze were plaintiffs, and W. H. Lanning, trustee, W. H. Carnahan, and others, were defendants, which appears to have been likewise an action to quiet the alleged title of the plaintiffs therein to the identical lands here in controversy; and, second, two instruments, purporting to be treasurer’s deeds conveying to Frederick H. Davis and Charles T. Kountze the two quarter sections of land in question, that is to say, one deed, dated and recorded January 26th, 1901, for the northwest quarter of section 17, township 2 north, range 50 west, and the other, dated and recorded on the same date, for the northwest quarter of section 25, township 2 north, range 51 west, each of those deeds appearing from its recitals to be based upon a sale of the land therein described for taxes, as stated hereafter.

1. It appeared from the record of the action in the county court, between Davis and Kountze, plaintiffs, and Lanning, Carnahan, and others, defendants, that the plaintiffs therein recovered a judgment against all of the defendants, whereby it was [388]*388adjudged that the plaintiffs in that action were the owners in fee simple of the land here in controversy, and that the defendants therein had no right, title or interest to or in the same, etc. Neither appellant nor appellee was a party to that action, and no attempt was made on the part of appellant to show any privity with the plaintiffs in the county court action, when, or at any time after, it was commenced. The following facts, however, do appear from the bill of exceptions: Frederick IT. Davis and Charles T. Kountze executed a special warranty deed, dated November 7th, 1905, conveying the same land to John Anderson and E. P. Dalander, which deed was recorded on December 8th, 1905, and it is admitted that afterwards Dalander succeeded to all the title of Anderson. Appellee claimed title to the land through a deed from Carnahan, one of the parties defendant to the action of Davis and Kountze in the county' court, which deed was filed for record in the office of the recorder of Washington county on July 19th, 1906; while a notice of the pendency of the action of Davis and Kountze mentioned was filed in the same office on July 20th, 1906, and the judgment in that action was rendered October 3rd, 1906. It therefore appeared from the evidence in the case before us that appellee was a purchaser of the land pending the action in the county court, and there was no effort made to prove that he had actual notice of that action. The notice of suit pending, which was filed after his title was recorded, was of no avail to charge him with constructive notice. Mills’ Ann. Code, sec. 36. In fine, there was nothing upon the face of the proceedings in the county court, and there was no proof aliunde, which could [389]*389make tlie judgment of tlie latter court competent evidence as between appellant and appellee.

2. It appears from the recitals contained in the supposed treasurer’s deeds, which were offered as evidence by the defendant, that' each was based upon a sale of the land therein described to the county of Washington on the 21st day of October, 1895, and the assignment. of the respective certificates of sale by the county, “by its county clerk,” to the grantees, on December 31st, 1900, and January 2nd, 1901. It has been frequently held that the recital in a treasurer’s deed of the assignment of the tax sale certificate of purchase by the county clerk, after the expiration of three years from the date of the sale to the county, is fatal to the validity of the deed. The tax deeds were therefore properly excluded. Empire etc. Co. v. Coldren, 117 Pac., 1005. Lambert v. Murray, 120 Pac., 415. Dimpfel v. Beam, 41 Colo., 25.

The judgment will be affirmed.-

Affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

Walling, Judge.

[387]*387Tliis action was brought by the appellee, to quiet his title to two quarter sections of land in Washington county, against the appellant and others. The prima facie sufficiency of the proof introduced by the plaintiff, at the trial, to support the judgment in his favor, is not disputed by appellant. But it is claimed that the court erred in rejecting evidence offered on the side of the defendant, in support of the defenses pleaded in the answer. This evidence consisted of, first, the record of an action commenced in the county court of Washington county on July 7th, 1906, wherein Frederick FI. Dávis and Charles T. Kountze were plaintiffs, and W. H. Lanning, trustee, W. H. Carnahan, and others, were defendants, which appears to have been likewise an action to quiet the alleged title of the plaintiffs therein to the identical lands here in controversy; and, second, two instruments, purporting to be treasurer’s deeds conveying to Frederick H. Davis and Charles T. Kountze the two quarter sections of land in question, that is to say, one deed, dated and recorded January 26th, 1901, for the northwest quarter of section 17, township 2 north, range 50 west, and the other, dated and recorded on the same date, for the northwest quarter of section 25, township 2 north, range 51 west, each of those deeds appearing from its recitals to be based upon a sale of the land therein described for taxes, as stated hereafter.

1. It appeared from the record of the action in the county court, between Davis and Kountze, plaintiffs, and Lanning, Carnahan, and others, defendants, that the plaintiffs therein recovered a judgment against all of the defendants, whereby it was [388]*388adjudged that the plaintiffs in that action were the owners in fee simple of the land here in controversy, and that the defendants therein had no right, title or interest to or in the same, etc. Neither appellant nor appellee was a party to that action, and no attempt was made on the part of appellant to show any privity with the plaintiffs in the county court action, when, or at any time after, it was commenced. The following facts, however, do appear from the bill of exceptions: Frederick IT. Davis and Charles T. Kountze executed a special warranty deed, dated November 7th, 1905, conveying the same land to John Anderson and E. P. Dalander, which deed was recorded on December 8th, 1905, and it is admitted that afterwards Dalander succeeded to all the title of Anderson. Appellee claimed title to the land through a deed from Carnahan, one of the parties defendant to the action of Davis and Kountze in the county' court, which deed was filed for record in the office of the recorder of Washington county on July 19th, 1906; while a notice of the pendency of the action of Davis and Kountze mentioned was filed in the same office on July 20th, 1906, and the judgment in that action was rendered October 3rd, 1906. It therefore appeared from the evidence in the case before us that appellee was a purchaser of the land pending the action in the county court, and there was no effort made to prove that he had actual notice of that action. The notice of suit pending, which was filed after his title was recorded, was of no avail to charge him with constructive notice. Mills’ Ann. Code, sec. 36. In fine, there was nothing upon the face of the proceedings in the county court, and there was no proof aliunde, which could [389]*389make tlie judgment of tlie latter court competent evidence as between appellant and appellee.

2. It appears from the recitals contained in the supposed treasurer’s deeds, which were offered as evidence by the defendant, that' each was based upon a sale of the land therein described to the county of Washington on the 21st day of October, 1895, and the assignment. of the respective certificates of sale by the county, “by its county clerk,” to the grantees, on December 31st, 1900, and January 2nd, 1901. It has been frequently held that the recital in a treasurer’s deed of the assignment of the tax sale certificate of purchase by the county clerk, after the expiration of three years from the date of the sale to the county, is fatal to the validity of the deed. The tax deeds were therefore properly excluded. Empire etc. Co. v. Coldren, 117 Pac., 1005. Lambert v. Murray, 120 Pac., 415. Dimpfel v. Beam, 41 Colo., 25.

The judgment will be affirmed.-

Affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

22 Colo. App. 386, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dalander-v-howell-coloctapp-1912.

Opinion

Related

Cite This Page — Counsel Stack