Abel v. Swain

CAMPBELL, <T. — The plaintiff in error, plaintiff below, brought this action to quiet her title to lot 6, in block 60, of the city of'Tombstone. She alleges in her complaint that the property was sold to the territory in 18É7 for the delinquent taxes of 1886, that a deed was executed to the territory on August 29, 1887, and that on September 6, 1907, the board of supervisors of Cochise county executed to her a deed for the said property. The defendants in their answer allege that they havé been in the quiet, peaceable, and adverse possession of the property in controversy for more than nineteen years last past, using and enjoying the same, and plead in bar of the action the ten year statute of limitation. Further answering the complaint, they deny that the plaintiff is the owner, in fee or otherwise, of the said property, and that she is entitled to the possession of the same, and that the deed of the tax collector conveyed any title to the property to the territory, and that the board of supervisors conveyed any title to the plaintiff. The plaintiff demurred to the answer, which demurrer was overruled. At the trial the deed executed by the tax collector to the territory in 1887 and the deed executed by the board of supervisors to the plaintiff were offered and received in evidence over the objection of the defendants, but at the close of the plaintiff’s ease judgment was rendered for the defendants. The ruling of the court upon the demurrer to the answer is assigned as error solely upon the theory that the ten year statute of limitations is not applicable to this action. Conceding that the action is not barred, the demurrer, being a general one to the entire answer, was properly overruled. The action of the court in awarding judgment to the defendants is also assigned as error. The deed from the tax collector to the territory recites the assessment and levy of taxes for the year 1886 upon the property described as “cabin and lot 6, of block 60,” and “cabin and lot 7, of block 60, of the city of Tombstone,” and upon certain personal property; that the taxes were delinquent and the property sold to the territory, and conveys to the territory “all that lot, piece or parcel of land or property above and last described [423] in this deed. ’ ’ The plaintiff contends that it is apparent from the recitals of the deed that both lots 6 and 7, of block 60, were levied upon for taxes; that the taxes were delinquent; that the tax collector intended to convey both to the territory. "Whatever his intentions were, it is manifest that the deed does not serve as a conveyance of lot 6. It purports to convey only the lot “last described,” and that is lot 7. The language of the deed is not ambiguous, and we are not at liberty to give to it an effect that is wholly unwarranted by its terms. A deed precisely similar in this respect was before the supreme court of Kansas in Spicer v. Howe, 38 Kan. 465, 16 Pac. 825, and the same conclusion was reached by that court. The deed did not convey to the territory any title to the property in dispute. Therefore the deed of the board of supervisors conveyed none to the plaintiff. The judgment of the district court is affirmed. KENT, C. J., and SLOAN, J., concur.