Stough v. Reeves

42 Colo. 432

• Court: Supreme Court of Colorado
• Decided: January 15, 1908
• Docket: No. 5624
• Status: Published

Opinion

Mr. Justice Goddard

delivered tbe opinion of the court:

The appellees — plaintiffs below — bring this action to quiet their title to what is known and described in a plat on file in the county clerk’s office as Block 8 in Fairground Plat, Montrose county, Colorado. They allege possession and ownership of the property, and that appellant — defendant below— claims an interest or estate adverse to them which is without any foundation or right whatever. Appellant denies the ownership and possession of the appellees, - and alleges ownership in himself under a certain tax deed, which is set out in haec verba in his answer, and a conveyance to him from the grantee in the tax deed. Appellees replied admitting the tax deed and conveyance to appellant, but alleged that the .tax deed is voidable for several reasons, among others that the description of the property in the assessment roll, advertisement, and in the tax deed, was too indefinite to identify the premises; that the proper description of the land is and was Lots 1 to 24, inclusive, in Block 8 of Fairground Plat, according to a plat thereof on file in the county clerk’s office; that on the tax roll and in the publication notice it is described as “Lots 1 to 24, Block 8, Fairground,” and is not shown to be inclusive of Lots 1 to 24, and described in the tax deed as “Lots 1 to 24, inclusive, in Block 8, Fairground Subdivision to the Town of Montrose”; that said Fairground Plat never has been any part of the town of Montrose, and has no-reference to the same, but is a subdivision of a quarter section of land, and known and recorded as Fairground Plat; another subdivision adjoining it in the same quarter section-is fenced and improved as fairgrounds, and known as “The Fairgrounds,” and another subdivision in the quarter section is known as “ a part of the Fairground tract”; that the description in the deed from Musgrave to appellant is as follows: “All of Block eight (8), in Fairground plat or subdivision.” Upon the trial the treasurer produced and identified the tax roll wherein the property in question is described as follows:

“Lots Block Name of Town

1 to 24 8 Fairground.”

And in the publication notice the following description appears:

“Name of Owner. Part of Sec. Sec. or Range, Div.

Lot or Block. Block. or Add.

Holcombe, H. S. 1 to 24 8 Fairground.”

The recorded plat introduced in evidence shows that the land in controversy is a subdivision of the N. E. ¼ N. W. ¼ Sec. 27, T. 49 N., R. 9 W., and platted as the property of the Fairground Association and of O. D. Loutsenhizer, and is described as “Fairground Plat” in Lots 1 and 2.

The statute in force in 1898 provides that the county treasurer shall make out his list of town lots for publication of delinquent tax list, describing such town lots as they are described on tax roll. — § 3924q, 3 Mills’ (Rev.) Stats.

Section 3925, Mills’ (Rev.) Stats., p. 1081, reads:

“"When any lands or town lots are offered for sale for any taxes, it shall not be necessary to sell the same as the property of any person or persons, * * * but such land must be in other respects sufficiently described on the tax roll to identify it. ’ ’

The court found .the issues in favor of the appellees, and in its signed and recorded findings bases its conclusion that the tax deed is void upon the ground, “that the treasurer of said county and' the other county officers charged with the duty of placing on the tax roll, advertising and selling said Block 8, in said Fairground Plat, for the delinquent taxes for the year 1897, wholly fail to comply with the statutory provisions of said state requiring said .land to be described so it conld be identified, published and sold in substantial compliance with said statute, * * * and that by reason of said fatal descriptions of said property prior, to said sale, which were calculated to mislead those interested in the property and those desiring to purchase it, and because of their total failure to describe or purport to sell a portion of the property attempted to be conveyed in said tax deed, that said sale was for an excessive amount, all of which rendered said tax deed void and of no effect.”

In this finding the court does not specify in what particular the description of the land is insufficient, but finds that the description, as a whole, was too indefinite to identify the premises.

Counsel for appellant has included in the bill of exceptions and in the abstract of the record the oral remarks made by the court at the time of the rendition of the judgment, instead of the findings formulated and signed by the court and entered of record as its ultimate findings of fact and conclusions of law, and counsel predicates much of his argument upon some expressions found in the oral disquisition of the judge as to the specific objection that the description was subject to. We can consider only the ultimate conclusion of the court as expressed by the record, and we are not concerned with the reasoning by which the court below arrived at such conclusion.

As was said in Burke v. Table Mountain Water Co., 12 Cal. 408:

“The reason given for the conclusion is not res judicata as to him, so as to bind him in any future proceeding. * * * We do not understand that the reasons given for a judgment are judgments. The point decided is the thing fixed by the judgment, but the reasons are not.”

The abstract filed by appellant was, therefore, defective in not presenting that part of the record to which reference is made in the assignments of error Nos. 1 and 2, and the appeal might have for this reason, if availed of in apt time, been dismissed; yet appellees having, by their supplemental abstract, supplied this omission and presented the finding of the court complained of, we are enabled to determine the case upon its merits, to wit: whether the court below erred in its conclusion that the description in the publication notice was insufficient to identify the property to be sold.

The sufficiency of the description in the notice is challenged by counsel for appellees upon two grounds:

1. That in the description of the lots “1 to 24,” without adding the word “inclusive,” the word “to” must be construed as a term of exclusion, and such description, therefore, did not include Lot 24.

In support of this construction counsel cites Yol. 2, p. 1122, Bouvier’s Law Dictionary, wherein the word “to” is defined as “a term of exclusion unless, bynecessary implication, it is manifestly used in a different sense.” In Yol. 8 of Words and Phrases, after citing cases wherein the word is defined according to the connection in which it is used, it is said: “Its meaning is ascertained from the reason and sense in which it is used. ’ ’

Testing its meaning as here used by these rules, it is manifestly used as a word of inclusion.

In prescribing the abstract of the assessment roll to be made by the assessors, the statute in force at the time of this proceeding gives an illustration of how lots are to be described therein which, in the column headed “Lots,” is “1 to 6,” which is the form prescribed in all former and subsequent revenue laws of the state, and this form of description has uniformly been followed by the treasurers and assessors in- preparing' the tax roll and tax sale notice's. The law that requires that the property be sufficiently described.in the tax roll to identify it gives, in this illustration, what the legislature considered a sufficient description of the lots to he taxed. The word, as here used, is to designate certain lots for taxation, describing them “1 to 24.” It, therefore, manifestly includes both. This objection, therefore, is without merit.

2. The further objection that the description of the property on the tax roll as ‘ ‘ Fairground Town, ’ ’ and in the publication notice as “Fairground Range, Div. or Add.,” and in the tax deed as “Fairground Subdivision to the Town of Montrose,” does not sufficiently identify the property included in “Fairground Plat,” we think is well taken. It appears from the evidence that “Fairground Plat” is not a subdivision to the town of Montrose, and has no reference thereto, but is a subdivision of an adjoining quarter section of land, and is known and recorded as “Fairground Plat.”

Furthermore, the descriptions — on the tax roll, “Lots 1 to 24, Block 8, Fairground Town”; in the publication notice, “Lots 1 to 24, Block 8, Fairground Range, Div. or Add.”; and in the tax deed, “1 to 24, inclusive, in Block 8, Fairground Subdivision to the Town of Montrose,” — on their face describe three distinct tracts of land, and there was no attempt on the part of the appellant to show that these different descriptions applied to- the land platted- and described in the complaint, or that it was known by all or either of such descriptions. The only evidence offered was that of the witness Red-ding — who was engaged in the business of abstracter —who testified that he thought he could, from his knowledge, identify the tract by the description in the notice of sale, but there was no evidence to show that it was well or generally known by the description in snch notice.

It has been held that a designation of a parcel of land as a portion of another larger tract simply by number and block, without any reference to a map, was not sufficient prima facie to identify the portion assessed. — Miller v. Williams, 135 Cal. 183, 67 Pac. 788; Best v. Wohlford, 144 Cal. 733, 78 Pac. 293; Baird v. Monroe, 89 Pac. 352; San Diego Realty Co. v. Cornell, 89 Pac. 603; Fox v. Townsend, 91 Pac. 1004; Chapman v. Zobelein, 92 Pac. 188.

In Miller v. Williams, supra, the description under consideration was, “Lots 13, 14, 15, 16, 17 and 18, in Blk. F., Leibrandt Tract. Lots 18 and 20, Block C., Kaye & Uhden Tract.” Temple, J., speaking for the court, said:

“The assessment does not refer to a city map, but describes the land as belonging to certain named tracts. The lots and blocks are subdivisions of these named tracts, and not of the city, and no map, even of these tracts, is referred to. * * * Even supposing these lots and blocks to have been on a city map, the failure to refer to it has been held fatal. (Labs v. Cooper, 107 Cal. 656; Cadwalder v. Nash, 73 Cal. 43. See, also, Keane v. Cannovan, 21 Cal. 291; People v. Mahoney, 55 Cal. 286.) * * * The assessment is made with a view to a possible sale, and the property should, therefore, be . so described as to enable the owner to know what land is charged with the tax, and also to enable a possible purchaser to know what land is offered for sale. The bidder who will pay the tax for the smallest portion of the land will have his offer accepted. To decide this matter, there should be no uncertainty as to what land he is dealing with. Hence the description should be sufficient in itself to identify the land, or if reference to a map on record is required, that should be indicated in the assessment. ’ ’

The recent case of Chapman v. Zobelein is quite in point. ,Shaw, J., who delivered the opinion of the court, uses this language:

‘ ‘ The case comes precisely within the rule of the cases of Miller v. Williams, 135 Cal. 183, 67 Pac. 788; Labs v. Cooper, 107 Cal. 656, 40 Pac. 1042; San Diego Realty Co. v. Cornell, 89 Pac. 603, and Fox v. Townsend, 91 Pac. 1004, with respect to the description of the property in the assessment. The property is described in the complaint as Lot 34 of the University Addition Tract, according to the map thereof recorded in book 15, p. 46, of Miscellaneous Records of Los Angeles County, situated in the city of Los Angeles, in said county. In the assessment book there is the following general introductory heading: ‘Assessment Book of the Property of Los Angeles County for the Tear 1898,’ etc.

“The description of this particular property is as follows:

“From this it appears, with sufficient certainty, that the property assessed is Lot 34 in University Addition Tract in the city of Los Angeles, in Los Angeles county. There is no reference to any map of the said tract, nor anything to indicate the character of the ‘university addition tract,’ the location in the city of the addition, nor the relative location of Lot 34 thereof. Such a description, in the cases above cited, was held to he prima facie insufficient to make a valid assessment. True, in the cases of Best v. Wohlford, 144 Cal. 733, 78 Pac. 293; Baird v. Monroe, 89 Pac. 352, and Fox v. Townsend, 91 Pac. 1004, it has been decided that, while a similar description is presumptively invalid, it may be explained and supplemented by proof on the trial that there is a definite tract known by the name given, that a survey and map thereof has been made, and that the lot designated by number constitutes a known and certain subdivision thereof, and that, when so' explained, the assessment will be held good. Such proof merely shows that when the surrounding-natural objects and circumstances, explanatory of the descriptive words, are considered, the prima facie uncertainty disappears, and thereupon the description becomes clear and definite. Such extraneous objects and circumstances must be considered in order to give a definite location on the ground to any description. The only difference between this case and one where there is a reference to some map, is that maps are of such customary use that it will be presumed that one exists to answer the description and give it certainty; whereas, if there is no reference thereto; the presumptions against tax proceedings prevail, and there must be proof sufficient to make the description certain. In the case of an ordinary instrument, not subject to the strict rules applicable to tax assessments and sales, the description here in question would be prima facie good, and could only be rendered uncertain by affirmative proof of some fact which would disclose a latent ambiguity, as that there were two lots in the tract bearing the number 34. But, as pointed out in the recent case of Fox v. Townsend, 91 Pac. 1004, in cases of tax sales the proof must be made by the party who seeks to affirm the validity of the sale or other proceeding.”

Our conclusion is that the description in the notice of sale was prima facie insufficient to identify the land sold, and that there was no evidence introduced to show that it was well or generally known by that name or designation.

The judgment is, therefore, affirmed.

Affirmed.

Chief Justice Steele and Mr. Justice Bailey concur.