Tewell v. Galbraith

Mr. Justice Hays delivered the opinion of the court. This is a controversy concerning the validity of a tax or treasurer’s deed to certain land in Lincoln county. The trial court held the tax deed to be valid and quieted title to the property conveyed in defendant Galbraith. Plaintiff Tewell seeks reversal of the judgment contending, inter alia, that the “notice of purchase of real estate at tax sale and of application for issuance of treasurer’s deed” is insufficient and the deed based thereon, void. We have held that a notice of application for a tax deed which does not speak the truth is void, and that a tax deed issued thereon is a nullity. Young v. Rohan, 77 Colo. 70, 234 Pac. 694; Green v. Halstead, 77 Colo. 578, 238 Pac. 40; Denver v. Murry, 82 Colo. 128, 257 Pac. 359; Staples v. Todd, 108 Colo. 386, 117 P. (2d) 1005. Section 264, chapter 142, ’35 C.S.A., permits redemption “At any time before the expiration of three years from the date of sale, or thereafter at • any time before the execution of the treasurer’s deed”; and section 255, id., as amended in 1937 (S. L. ’37, p. 1054), provides that the notice of application for tax deed shall contain a statement as to “when the time of redemption will expire, or when the tax deed shall be issued.” The phrase “the time of redemption” has been construed to refer to the three-year statutory period of redemption. Young v. Rohan, supra. Such period in the instant case had already expired at the time the notice was given, and it was unnecessary to refer thereto in the notice. We are here concerned only with the recital in the notice, “That a tax deed will be issued * * * on- the 16th day of September, A. D. 1942, unless the same has been redeemed,” and to ascertain whether that statement is false. [414] Considering a similar notice in Eshe v. Clough, 116 Colo. 266, 179 P. (2d) 979, we held that when the notice contained a statement that the tax deed would issue on a day certain, that the deed could be issued at any time during that day, and that redemption from the tax sale would be lawful at any time prior to the actual execution of the deed on that day, and we rejected the contention that the deed could only be issued after the date mentioned in the notice. The notice recited, “That I will on the 22nd day of November, 1937, execute and deliver to said L. W. Clough a Treasurer’s tax deed to said property above described, unless the same has been redeemed from said sale before the issuance of said deed on the date as hereinafter fixed.” Concerning this notice we said: “Clearly the notice contains a statement which definitely advised the person upon whom served that the redemption might be made at any time before the issuance of the treasurer’s deed, and also a definite notice that the deed would be executed and delivered to the tax certificate holder on November 22, 1937, unless the redemption occurs prior to that day.” In Young v. Rohan, supra, the notice of application for tax deed recited: “That the time for redemption of said property from said sale for taxes will expire on the 9th day of January, 1918, and unless the same has been redeemed on or before that date, I will execute and deliver to said Sternberger a treasurer’s or tax deed to said property above described as provided by law.” In construing this notice we stated: “The notice states definitely that there will be no right of redemption after January 9th, which would be false if the deed were not delivered on that day, and is therefore misleading. The notice cannot support the deed and plaintiff’s title fails;” The notice in the present case definitely informs those entitled to redeem that a deed would issue September 16, 1942, and that the right of redemption would ter [415] mínate on that date. This is an erroneous statement, because such right to redeem continued, under the above statute, after the date set forth in said notice and until the tax deed was actually issued. It is conceded by all parties that the deed here in question was not issued on the date set forth in the notice but that it was executed sometime during the following day. The time within which the property here involved could be redeemed from tax sale depended entirely upon the notion of the county treasurer as to when he saw fit to execute the tax deed. The fact that he actually issued it sometime during the day following that mentioned in the notice is wholly immaterial. He might have waited for weeks or even months during which time the right to redeem would continue. The time when the owner’s right to redeem would terminate was so uncertain and indefinite in the instant case as to render the notice ineffective. The rule on this subject is well stated in 51 American Jurisprudence, Taxation, section 1119, from which we quote: “A statutory notice of expiration of the time of redemption, or of intention to make application for a tax deed, must state the time when the redemption period expires with such certainty, clearness, and accuracy as to leave no room for doubt of the true date. Clearly, an error in the statement in the notice of the time for redemption indicating an earlier date than the true date of expiration of that time renders the notice insufficient and void, and some authorities hold that a notice is equally defective whether it extends or reduces the lawful time for redemption. Other courts, however, apply a more liberal rule, taking the position that if the notice states the last day upon which the land may be redeemed to be later than that provided by law the notice will not be void unless the owner shows that he offered to redeem within the time set out therein and was refused the right to do so. These courts are inclined [416] to take the view repudiated by most courts that a substantial compliance with the statute is sufficient. “Indefiniteness in the statement of the date, or ambiguity as to the expiration date, or the statement of the expiration date in the alternative will ordinarily render the notice ineffective.” To the same effect, see, Black on Tax Titles (2d ed.), page 413, section 334, which reads in part as follows: “The time when the right of redemption will expire by law must be stated in the redemption notice clearly and with exact correctness. If the time stated is earlier than the time which the law fixes for the expiration of the right of redemption, though it be by no more than a single day, the notice will be fatally defective. And indeed it is held that whether the date named is earlier or later than the time when the redemption actually expires makes no difference; in either case the notice is invalid. * * * The specification of time in the notice must also be precise and unambiguous.” See, also, Annotation, 82 A. L. R. 502. It follows from the foregoing that the recital in the notice here considered is uncertain, indefinite, ambiguous and false, and by reason thereof the tax deed based thereon is void. In view of the foregoing it is unnecessary that we pass upon other points raised. The judgment of the trial court is reversed, and the cause remanded for further proceedings in harmony herewith. Mr. Justice Jackson, Mr. Justice Stone and Mr. Justice Moore dissent.