Smith v. Highland Mary Mining, Milling & Power Co.

DEFENDANT in error had verdict and judgment against plaintiffs in error in a suit based on their entry on its property and their taking therefrom certain personal property, machinery, tools, etc., of the plaintiff, and they bring the case here by writ of error. The court directed a verdict for plaintiff and left to the jury the question of damages only, instructing them to include therein the value of replacing the improvements and the value of the personalty.

The defendants justified their entry by virtue of tax deeds purporting to convey "nine and thirty-two hundredths (9.32) acres of the Happy Valley Placer, Survey lot No. 12,354 Grand Island mining district, situated in the county of Boulder and state of Colorado." Since the description in each of these deeds is of an unidentified part of a larger tract, they are void (37 Cyc. 1447 [b]; 18 C.J. 182, § 64, and the cases there cited), and the defendants cannot justify their entry under such deed. Their justification is also bad because the lands they entered are no part of the Happy Valley Placer.

1. The defendants took from the premises they entered certain personal property which, so far as the record shows, was never assessed, was not described in the tax deed, and to which they had no title whatever. They are liable for this, if for nothing else.

2. They claimed the right to enter to take certain improvements which had been assessed as on the land described in the deeds, but which never were there. The deeds, of course, since they did not describe such improvements nor the land to which they were incident or appurtenant, did not convey them and the defendants acquired no title thereby, neither was any other method attempted to transfer such title to defendants.

3. It is claimed, however, that plaintiff is estopped by its conduct to assert that said deeds did not convey the improvements and is estopped to assert that the entry was a trespass, because the errors in the tax deed and the certificates on which they were based were caused by an erroneous tax schedule filed by the plaintiff in 1910 and copied by the assessor which described these same improvements on the Happy Valley Placer. If there is anything in this argument we cannot consider it because only part of the evidence is brought up in the bill of exceptions. The direction of the verdict was, of course, based on the evidence, and we cannot know that it was wrong unless all the evidence is before us. We do not know but that the whole evidence conclusively showed that defendants knew of the mistake and so were not misled. Weghorst v. Clark, 66 Colo. 535, 539,180 P. 742; Davidson v. Jennings, 27 Colo. 187, 200,60 P. 354, 48 L.R.A. 340, 83 Am. St. Rep. 49.

4. Another point made by plaintiffs in error is that the plaintiff was allowed by amendment to change a cause of action for conversion of personalty into one for trespass on real estate. We think either complaint stated facts constituting trespass on real estate. Either states an entry on land "of the plaintiff" and alleges, appropriately by way of damages, the doing there of certain unlawful acts. 2 Ch. Pl. 863; 1 Est. Pl. (4th Ed.) sec. 2071. True, neither complaint states a forcible entry, though it ought, but even at common law that was ground for special demurrer only. 1 Ch. Pl. 387. It seems clear, therefore, that the facts stated in either complaint constitute trespass quare clausum.

5. It is claimed that the plaintiff company was defunct at the time of the trespass because it had not paid its annual license fees for over five years (C.L. § 2317); that therefore the title to the land was then in its directors as trustees (C.L. § 2295), and so the action accrued to them; that it is not assignable and so could not be acquired by the corporation although that body was reinstated under said section 2317, before their suit was begun. Said section 2295 says that, "Upon dissolution by expiration of its charter or otherwise of any corporation * * * the board of directors * * * of such corporation * * * shall be the trustees of the creditors and stockholders of the corporation dissolved, and shall have full power * * * to have, hold, reserve, sell and dispose of property, * * *." The provision of § 2317 is that upon failure for five years to pay the annual license fee the corporation shall be deemed "defunct and inoperative and no longer competent to transact business within the state of Colorado." Does this mean that it is dissolved so that its directors have title to its property? We think rather that the intent of the legislature was to suspend its operation until payment, because the statute goes on to say "That any such defunct corporations upon the payment of all such delinquent taxes * * *, shall thereupon become reinstated, revived and operative." But whether we regard the revived corporation as having had continuous existence (Bonfils v.Hayes, 70 Colo. 336, 339, 340, 201 P. 677) or the chose in action though accrued to the trustees, as having been restored to the corporation, with its other rights, by reinstatement, the result is the same, there was no error in permitting the corporation to maintain the action.

6. Before this action was begun the corporation had not filed an annual report for many years, but filed one just before its commencement. The court held that report bad and abated the action, but reinstated it upon the filing of a good one. Plaintiff in error claims that this was erroneous, but such action is held to be proper with reference to payment of license tax in Rollins v.Fearnley, 45 Colo. 319, 101 P. 345, and we can see no difference in principle in the case of failure to report.

7. It is claimed that the evidence shows that defendant Smith is not liable to this action, but the evidence is not all before us and so we cannot consider that point.

8. It is argued that plaintiff should have paid or tendered the taxes before it was entitled to recover for the trespass. On this point C.L. § 7429, and CentralRealty Co. v. Frost, 76 Colo. 413, 232 P. 1111, are cited. The statute refers only to land sold for taxes. The land sold was not the land on which the trespass was committed and this action is not to recover land, but for trespass on land. The claim for reimbursement for taxes paid, therefore, can be only a claim for mitigation of damages, and with reference to that, no instruction was tendered. Instruction No. 4 given by the court on measure was correct as far as it went, and was not objected to on the ground that it did not direct this mitigation, so even if these taxes might have been set off, which we do not say, we cannot reverse on this ground.

The judgment is affirmed.

MR. CHIEF JUSTICE BURKE, MR. JUSTICE WHITFORD and MR. JUSTICE SHEAFOR concur.

On Rehearing.