Scott v. Watkins

Opinion by

Mr. Justice Teller.

The plaintiff in error filed his complaint in the usual form to quiet title to a tract of some 280 acres of land, the defendant in error being the only defendant in the action.

The latter, by answer, claimed title under a tax deed, and alleged that the land being subject to taxation and the assessed taxes for 1893 being unpaid, “the county treasurer advertised the said lands for sale on October 4th, 1894, at public sale,” etc.

The answer also set up the five year statute of limitations as a bar to the suit.

Plaintiff’s replication contained a denial of “each and every allegation in the answer contained, except as herein expressly admitted, or alleged.” Then,follows a specific denial in these words: “Denies the advertisement of the land as alleged. Denies that the list and notice of sale was published in a newspaper for four successive weeks, prior to October 8, 1894.”

The trial court held the plea of the statute of limitations good, and entered judgment for the defendant.

The case having gone to the Court of Appeals, that court held, (25 Colo. App. 340), that the court below was wrong in sustaining the plea of the statute of limitations, but that its refusal to permit the plaintiff to show defects in the— notice of sale was not error, those matters not being within the issues, it was said, because there were “no allegations in the plaintiff’s pleadings challenging the validity of the tax deed, for reasons other than those appearing on its face.” The judgment was accordingly affirmed.

The court was right in holding that the five years statute of limitations was not a defense in this suit.

We cannot, however, agree with the Court of Appeals that the matters which the plaintiff offered to prove were not within the issues presented by the pleadings. Indeed it was, under the pleadings, for the defendant to prove those steps to have been taken which the plaintiff specifically denied had been taken.

Defendant claimed title through a tax deed and alleged the advertising of'the land for sale as a step in the proceedings upon which the tax deed was based. Having made the allegation she was bound to prove it if denied, or her defense failed. The replication denied it both generally and specifically, making a clearly defined issue on that point.

In Rustin v. M. & M. Tunnel Co., 23 Colo. 356, 47 Pac. 301, this court said:

“The plaintiff alleged in his complaint that due and proper publication of the notice of the tax sale was made and an affidavit of such publication filed as required by law. It matters not that plaintiff might have filed a sufficient complaint without setting forth the various steps leading up to the execution of his tax deed. He having set forth these matters, and issue having been taken thereon, any evidence which tended to prove or disprove the truth of the allegations thus in issue was proper.”

In that case the plaintiff tendered the issue in the complaint. In this case the defendant, pleading affirmative mat-' ter, tendered an issue upon one of the steps in the proceeding out of which her defense grew. The plaintiff joined issue by his replication, and the defendant was put upon proof of the matters alleged.

It is true, as the Court of Appeals states, that defects in a tax deed good on its face cannot be shown on the trial unless they have been pointed out in the pleadings; but it is not necessary that this be done in any particular manner, or exclusively by the party relying on the defects. It is sufficient if it clearly appears from the pleadings that certain defects are relied upon, and an issue is made as to their existence. In this case plaintiff was not required to anticipate the defense and allege facts showing it to'be insufficient. The answer contained allegations the denial of which presented the issue which otherwise must have been made, if at all, by a direct charge in the replication that the sale had not been advertised as provided by law.

The defendant put in evidence her tax deed which was regular on its face, and thereby made a prima facie case as to the publication of notice of the sale for taxes, the recorded deed having that effect by section 5730, R. S. 1908.

The plaintiff, in rebuttal, offered in evidence the affidavit of publication which stated:

“that copies of each number of said paper, in which said notice and list were published, were delivered by carrier or transmitted by mail to each of the subscribers of the said paper in Arapahoe County according to the accustomed mode of business in the office.”

On objection by the defendant the court excluded this exhibit. This was error. In Lambert v. Shumway, 36 Colo. 350, 85 Pac. 89, an affidavit of publication in the form above set out was held not to comply with the statute. Mitchell v. Knott, 43 Colo. 135, 95 Pac. 335, is to the same effect.

This evidence if admitted would have overcome the case made by defendant, and as the case then stood, have entitled the plaintiff to judgment.

The judgment is wrong for another reason.

The case was brought and tried in Yuma County, but the judgment was entered in Logan County, on December 7, 1908.

A bill of exceptions was thereafter approved and signed, and an appeal bond was approved and filed. Afterwards, on January 5,1909, the court, sitting in Yuma County, set aside the finding and order for judgment made on December 7, 1908, and entered judgment in favor of the defendant. This was error. The appeal having been perfected, the case was pending here, and the trial court was without jurisdiction to make further orders in the cause. Eicholtz v. Wilbur, 4 Colo. 434; Ensminger v. Powers, 108 U. S. 292-302, 27 L. Ed. 732, 2 Sup. Ct. 643.

The judgment is reversed, and the cause remanded to the District Court for further proceedings in harmony herewith.

Mr. Justice Garrigues dissents.