3. TAXATION (§ 809*)—Tax TITLE-PLEADING | plaintiff to their cross-complaint defendants -ADMISSIONS-TAX DEED. filed replication, in which they denied each Where plaintiff in ejectment claimed under a tax deed, the fact that defendant set out the and every allegation set forth in said andeed in hæc verba in his answer, for the sole swer, and alleged, on information and bepurpose of attacking its validity, did not there- | lief, that the pretended treasurer's deed reby admit that it was valid or sufficient to any ferred to in plaintiff's answer was in certain extent beyond its prima facie showing, nor did he thereby waive the necessity for proof by plain- words and figures set forth in full in said tiff of the performance of any unadmitted act, replication, including the acknowledgment the doing of which was a prerequisite to the va- and date of its record, but giving no book lidity of the deed or to its competency as evi- in or page at which the same was recorded; alleged that said deed was void on its face, dence. [Ed. Note.-For other cases, see Taxation, Cent. Dig. §§ 1385, 1600-1604; Dec. Dig. and for divers reasons specifically set forth, 809.*] 4. TAXATION (§ 803*)-TAX DEEDS-RECITALS -LIMITATION. Where a tax deed on which plaintiff in ejectment relied failed to recite compliance with the statute requiring notice of intention to take out the deed, and due proof thereof, as a condition precedent to the treasurer's power to execute it, or that the assessed valuation of the land was such that notice was not required, it was not prima facie evidence of title, and insufficient to start the five-year statute of limitations. [Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 1588-1590; Dec. Dig. § 803.*] Appeal from District Court, Weld County; James E. Garrigues, Judge. Ejectment by Fannie B. Voorhees against George Sheesley and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded on rehearing. Isham R. Howze, of Denver, for appellants. John F. Mail, of Denver, for appellee. KING, J. Plaintiff in this action brought her suit in the nature of ejectment (under section 266, Civil Code), to recover possession of certain real estate, alleging her title and right of possession, and that defendants wrongfully withheld said premises from the plaintiff, and exercised acts of ownership on and over the same. For answer to this complaint defendants denied plaintiff's title and right of possession, and alleged that they were the owners in fee simple, in possession, and entitled to possession, of said premises. They also made cross-complaint in which they alleged their ownership in fee and possession of the land described in the complaint; that plaintiff claims some interest therein adverse to the defendants, which was without foundation or right, and asked that plaintiff be required to set out the nature of her title or claim, and that the same be adjudged invalid, and that defendants' title be quieted. To this crosscomplaint plaintiff answered, denying defendants' ownership and possession, and alleged that she claimed said, land and was the owner thereof in fee simple by mesne conveyances under a treasurer's deed executed, acknowledged, and recorded, giving the date of execution, the date of record, and the book and page in which said deed was recorded, and pleaded the short statute of limitations, to wit, Mills' Ann. Stats. § 3904 (Rev. Stats. 1908, § 5733), as a bar to defendants' cross-complaint. To this answer of but not appearing upon the face thereof. Judgment was rendered for plaintiff, and defendants appealed. 1. The case was first and separately tried as an equity case upon defendants' crosscomplaint to quiet title, at which time the court granted nonsuit as to defendants' cause of action set forth in their cross-complaint, holding that the tax deed set out in defendants' replication was fair on its face, and therefore said five-year statute of limitations barred defendants from introducing evidence to establish the invalidity of the deed for matters not appearing upon its face. Thereafter the cause came on for trial before another judge, upon plaintiff's cause of action in ejectment. As the only proof of her title plaintiff offered in evidence a quitclaim deed from Mary E. Grosvenor and two others as sole heirs of Margaret G. Palmer, to Edgar P. Long, quitclaim deed from Edgar P. Long to plaintiff, both said deeds conveying the lands herein in litigation, a court order reciting the death of said Margaret G. Palmer and settlement of her estate, and that the said Mary E. Grosvenor and the two others named in the quitclaim deed were her sole heirs. It was admitted in the pleadings that M. G. Palmer was the grantee named in the treasurer's tax deed. The tax deed relied on to prove plaintiff's title was not offered in evidence. By agreement of counsel it was stipulated that the title to the land in controversy emanated from the United States, and was thereafter conveyed to the defendants, and so stood at the time of the beginning of this action. 2. Appellants contend that by reason of the failure of appellee to offer the tax deed in evidence, and support it by proof of compliance with certain statutory requisites to its validity, she wholly failed to establish prima facie title; while appellee contends that the defendants, by setting out the tax deed ipsissimis verbis in their reply, obviated the necessity on the part of plaintiff, not only of offering the deed in evidence in support of her title, but also of the offer of any proof with regard thereto. We think, under the facts of this case and the form of the deed pleaded by defendants, plaintiff's contention cannot be sustained. [1] Before a tax deed can become prima facie evidence of title in the courts of this state, it must affirmatively appear by the •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 134 P.-64 ted to bring their actions in a court of equity its right in declining to honor checks on the and enforce the decree rendered in their favor by contempt proceedings, such courts would soon become the sole resort of creditors, and our prisons would need to be greatly enlarged. same until that dispute had been finally settled, especially as it does not appear that the appellees offered to indemnify the bank against any loss which might be occasioned to it by the honoring of their checks. In its answer the bank alleges that "it simply wishes the court's decision as to who is entitled to check and draw upon the fund and money in this defendant's hands." This allegation, we are bound to believe, was made honestly, and now, that the question as to the title to the fund has been finally determined, there ought, it seems, to be no room for further controversy. The amount of the money in the bank, the circumstances under which it was deposited, the interest which the appellees are entitled to receive upon it, and all such matters are admitted by the bank, leaving for determination, so far as the bank is concerned, the sole questions of the title to the fund and the right of the appellees to a decree in equity against it. [2] Ordinarily an action to quiet title to personal property will not lie. "The subject-matter of equitable jurisdiction to quiet title or remove a clcud is generally held to be confined to land, including the surface of the ground, and everything that is on it and under it, and not to extend to personal property." 32 Cyc. 1308; Fudickar v. East Riverside Co., 109 Cal. 29, 41 Pac. 1024; Red Diamond Clothing Co. v. Steidemann, 120 Mo. App. 525, 97 S. W. 220; State ex rel. v. Wood, 155 Mo. 425, 56 S. W. 474, 48 L. R. A. 596; 6 Am. & Eng. Enc. of Law (2d Ed.) 150. There are exceptions to this rule, and this court, in Eagan v. Mahoney, 134 Pac. 156, just handed down, recognizes these exceptions. But the comparatively few cases wherein the The judgment of the trial court, in so right to maintain an action to quiet title to far as it affects the bank, will be reversed, personal property has been upheld, such as and, in so far as it affects the bank's coMagnusen v. Clithero, 101 Wis. 551, 77 N. defendants, the judgment of the trial court W. 882, and N. Y. & N. W. R. R. Co. v. will be affirmed. All the costs will be taxed Schuyler, 17 N. Y. 592, have every one pre- to the bank's codefendants. The judgment of sented some exceptional circumstance or con- the trial court is modified, and the case redition which made it apparent that the plain- manded for further proceedings in conformi tiff had no sufficient or adequate legal rem-ty with the views herein expressed, edy at law. [3] Such is not the case here, so far, at least, as the bank is concerned. There was nothing to prevent the plaintiffs from drawing a check on the bank and presenting it for payment. If the bank refused to pay, then it had a clear remedy at law in which all the difficulties, we believe, presented in this case could have beeu promptly disposed of. It is important that the almost limitless power of a court of equity, when properly invoked, should be confined to those cases wherein the law affords no speedy or adequate remedy. Modified and affirmed. (24 Colo. App. 428) SHEESLEY et al. v. VOORHEES.+ (Court of Appeals of Colorado. Sept. 15, 1913.) 1. TAXATION (§ 789*)-TAX SALES-TAX DEED -PRIMA FACIE EVIDENCE. Before a tax deed can become prima facie evidence of title, it must affirmatively appear by its recitals that every preliminary step to divest the title of the patent owner has been regularly taken as prescribed by law, so that where a deed failed to recite compliance with the statute requiring the giving of notice of intention to take out the deed and due proof thereof, as urer to execute it, or that the assessed value of a condition precedent to the power of the treasthe land was such that notice was not required, it was not prima facie evidence of title in the holder, and was not admissible to show title in his behalf without proof of performance of such preliminary steps or conditions, or of facts making the taking thereof unnecessary. [Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 1556-1569; Dec. Dig. § 789.*] 2. TAXATION (§ 788*)-TAX DEED-PRIMA FAEVIDENCE-PERFORMANCE OF STATUTORY REQUIREMENTS. If it be said that our conclusions already announced may oblige the appellees to bring another action against the bank, our answer is that this is a result for which alone the appellees are responsible. If they have improperly secured a decree from a court of equity against the bank, that decree must be reversed, even though it should lead to the misfortune of further litigation. But the trial court, having found the title of the fund to be in the appellees, and that the bank's codefendants are in no wise entitled Though a tax deed, fair on its face, is prito interfere with it in any manner, and we ma facie evidence of facts occurring before or at having upheld the findings and decree of the time of the sale, it constitutes no evidence of the performance of acts which a cash purchas the trial court to this extent, we are unwill-er is required to perform, or the treasurer for ing to believe that the bank, from mere caprice or a litigious spirit, will decline to recognize the rights of appellees to the fund. So long as there was a dispute as to the title to the fund, the bank was well within CIE him, after the sale and before the deed can be lawfully executed, the performance of which is jurisdictional. Cent. Dig. 88 1555, 1557, 1559-1569; Dec. Dig. [Ed. Note. For other cases, see Taxation, § 788.*1 For other cases see same topic and KEY NUMBER in all Key Number Digests and Indexes + Rehearing denied. 3. TAXATION (§ 809*)-TAX TITLE-PLEADING | plaintiff to their cross-complaint defendants -ADMISSIONS-TAX DEED. Where plaintiff in ejectment claimed under a tax deed, the fact that defendant set out the deed in hæc verba in his answer, for the sole purpose of attacking its validity, did not thereby admit that it was valid or sufficient to any extent beyond its prima facie showing, nor did he thereby waive the necessity for proof by plaintiff of the performance of any unadmitted act, the doing of which was a prerequisite to the validity of the deed or to its competency as evisee Taxation, dence. filed replication, in which they denied each and every allegation set forth in said answer, and alleged, on information and belief, that the pretended treasurer's deed referred to in plaintiff's answer was in certain words and figures set forth in full in said replication, including the acknowledgment and date of its record, but giving no book in or page at which the same was recorded; alleged that said deed was void on its face, [Ed. Note.-For other cases, Cent. Dig. §§ 1385, 1600-1604; Dec. Dig. and for divers reasons specifically set forth, 809.*] but not appearing upon the face thereof. Judgment was rendered for plaintiff, and defendants appealed. 4. TAXATION (§ 803*)—Tax Deeds-RecitaLS -LIMITATION. Where a tax deed on which plaintiff in ejectment relied failed to recite compliance with the statute requiring notice of intention to take out the deed, and due proof thereof, as a condition precedent to the treasurer's power to execute it, or that the assessed valuation of the land was such that notice was not required, it was not prima facie evidence of title, and insufficient to start the five-year statute of limitations. [Ed. Note.-For other cases, see Taxation, Cent. Dig. §§ 1588-1590; Dec. Dig. § 803.*] Appeal from District Court, Weld County; James E. Garrigues, Judge. Ejectment by Fannie B. Voorhees against George Sheesley and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded on rehearing. Isham R. Howze, of Denver, for appellants. John F. Mail, of Denver, for appellee. KING, J. Plaintiff in this action brought her suit in the nature of ejectment (under section 266, Civil Code), to recover possession of certain real estate, alleging her title and right of possession, and that defendants wrongfully withheld said premises from the plaintiff, and exercised acts of ownership on and over the same. For answer to this complaint defendants denied plaintiff's title and right of possession, and alleged that they were the owners in fee simple, in possession, and entitled to possession, of said premises. They also made cross-complaint in which they alleged their ownership in fee and possession of the land described in the complaint; that plaintiff claims some interest therein adverse to the defendants, which was without foundation or right, and asked that plaintiff be required to set out the nature of her title or claim, and that the same be adjudged invalid, and that defendants' title be quieted. To this crosscomplaint plaintiff answered, denying defendants' ownership and possession, and alleged that she claimed said land and was the owner thereof in fee simple by mesne conveyances under a treasurer's deed executed, acknowledged, and recorded, giving the date of execution, the date of record, and the book and page in which said deed was recorded, and pleaded the short statute of limitations, to wit, Mills' Ann. Stats. § 3904 (Rev. Stats. 1908, § 5733), as a bar to defendants' cross-complaint. To this answer of as 1. The case was first and separately tried an equity case upon defendants' crosscomplaint to quiet title, at which time the court granted nonsuit as to defendants' cause of action set forth in their cross-complaint, holding that the tax deed set out in defendants' replication was fair on its face, and therefore said five-year statute of limitations barred defendants from introducing evidence to establish the invalidity of the deed for matters not appearing upon its face. Thereafter the cause came on for trial before another judge, upon plaintiff's cause of action in ejectment. As the only proof of her title plaintiff offered in evidence a quitclaim deed from Mary E. Grosvenor and two others as sole heirs of Margaret G. Palmer, to Edgar P. Long, quitclaim deed from Edgar P. Long to plaintiff, both said deeds conveying the lands herein in litigation, a court order reciting the death of said Margaret G. Palmer and settlement of her estate, and that the said Mary E. Grosvenor and the two others named in the quitclaim deed were her sole heirs. It was admitted in the pleadings that M. G. Palmer was the grantee named in the treasurer's tax deed. The tax deed relied on to prove plaintiff's title was not offered in evidence. By agreement of counsel it was stipulated that the title to the land in controversy emanated from the United States, and was thereafter conveyed to the defendants, and so stood at the time of the beginning of this action. 2. Appellants contend that by reason of the failure of appellee to offer the tax deed in evidence, and support it by proof of compliance with certain statutory requisites to its validity, she wholly failed to establish prima facie title; while appellee contends that the defendants, by setting out the tax deed ipsissimis verbis in their reply, obviated the necessity on the part of plaintiff, not only of offering the deed in evidence in support of her title, but also of the offer of any proof with regard thereto. We think, under the facts of this case and the form of the deed pleaded by defendants, plaintiff's contention cannot be sustained. [1] Before a tax deed can become prima facie evidence of title in the courts of this state, it must affirmatively appear by the For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 134 P.-64 recitals of the deed that every preliminary | dence. Because of the absence of allegations, step to divest the title of the patent owner admissions, or proof of the notice of intenwas regularly taken as prescribed by law. tion to take out the treasurer's deed, or of Charlton v. Toomey, 7 Colo. App. 304, 43 conditions which made the notice unnecesPac. 454; Empire Co. v. Howell, 23 Colo. sary, we think the plaintiff failed to establish App. 265, 268, 129 Pac. 245. If this rule be prima facie title, and for that reason the adhered to, it necessarily follows that this judgment cannot be affirmed. deed, which fails to recite compliance with the provisions of the statute making it obligatory to give notice of intention to take out the deed, and make due proof thereof, as a condition precedent to the power of the treasurer to execute it, or that the assessed valuation of the land was such that notice was not required, is not even prima facie evidence of title in the holder, and is not admissible in his behalf without proof of such preliminary step, or the condition which makes it unnecessary. Neither the copy of the deed pleaded by defendants for the purpose of showing its invalidity on its face, or aliunde, nor any allegation with regard thereto, contained or constituted an admission of compliance with this jurisdictional prerequisite to the power of the treasurer to execute the deed, without which defendants' title could not be divested. [2] And even though the deed, be conceded to be fair on its face, so as to make it (by [4] Appellants also contend that the deed, if regarded as offered in evidence, is void on its face, and therefore not sufficient to support the plaintiff's plea of the short statute of limitations, while plaintiff contends that by this deed the defendants' title derived from the government was extinguished after five years, and before the commencement of this action, and relies on decisions of the Supreme Court in Williams v. Conroy, 35 Colo. 117, 83 Pac. 959, Wood v. McCombe, 37 Colo. 174, 86 Pac. 319, 119 Am. St. Rep. 269, and Halbouer v. Cuenin, 45 Colo. 507, 101 Pac. 763. We think those cases are not decisive of the instant case in favor of the plaintiff under the facts here shown. In Williams v. Conroy it was admitted by both the plaintiff and the defendant, that the tax deeds relied upon were regular and fair on their face in all respects; and in neither of considered that it was not shown, by the rethe three cases was the question raised or citals of the deed, or by evidence aliunde, that due notice of intention to take out the deed had not been given, or that the assessed valuation of the land was such as to make it unnecessary. Although the first statute, requiring notice as a condition precedent to the taking out of a tax deed in case the assessed virtue of the statute if otherwise admissible) prima facie evidence of facts occurring before or at the time of the sale, which we do not decide, nevertheless it constituted no evidence of the acts which the cash purchaser is required to perform, or the treasurer for him, after the sale and before a deed can be lawfully executed. Carnahan v. Sieber Cattle Co., 34 Colo. 257, 261, 82 Pac. 592; Rich-valuation exceeded a certain sum, was in ards v. Beggs, 31 Colo. 186, 72 Pac. 1077; Treasury T. M. & R. Co. v. Gregory, 38 Colo. 212, 88 Pac. 445; Mitchell v. Trowbridge, 47 Colo. 6, 8, 105 Pac. 878. This requirement is jurisdictional. Crisman v. Johnson, 23 Colo. 264, 47 Pac. 296, 58 Am. St. Rep. 224; Knox v. Cleveland, 13 Wis. 245, 255; Slyfield v. Healy (C. C.) 32 Fed. 2. In Empire Ranch & Cattle Co. v. Langley, 23 Colo. App. 49, 127 Pac. 451, this court, speaking through Cunningham, J., said: "It is difficult to perceive how a tax deed that has not been offered in evidence at all can be held to constitute prima facie evidence of title, unless every prerequisite necessary to constitute it such has been admitted by the opposing party." [3] It is equally difficult to perceive how a defendant who has set out a tax deed in hæc verba, under the claim that it is the deed relied on by the plaintiff as source of title, and for the sole purpose of attacking it, can be held to have admitted its validity or sufficiency to any extent beyond its prima facie showing and the admissions actually made in the pleadings, or to waive the necessity for proof by plaintiff, who seeks to use it as a muniment of title, of any unadmitted act the execution of which is a prerequisite to the validity of the deed or its competency as evi effect at the time the decisions in said three cases were rendered, it is shown by the record in each case that the tax deed there under consideration was executed and recorded prior to the taking effect of such statute, and for that reason said statutory provi sion neither had nor could have any bearing, and neither of said cases is in point upon the question here under consideration. If it be conceded that the tax deed was not void on its face because of any affirmative allegations showing a failure to comply with the statutory prerequisites, nevertheless, for its failure to recite the jurisdictional requirement which goes to the power of the treasurer to issue the deed, it was not prima facie evidence of title, and could not set the short statute of limitations in operation. Black on Tax Titles, § 498; Knox v. Cleveland, supra. If not held to be void, it must be held to be insufficient for lack of essential proof. The petition for rehearing is denied. But on account of modifications incorporated herein, which are deemed justifiable and appropriate under the law and the facts of this case, the former opinion will be withdrawn. The judgment of the trial court is reversed, and the cause remanded. (24 Colo. App. 442) SAWYER et al. (Court of Appeals of Colorado. July 14, 1913. In order that specific performance of a contract may be decreed, it must contain not only all the material terms necessary to a complete and legal contract, but each of the terms must be expressed in a sufficiently exact and definite manner. [Ed. Note.-For other cases, see Specific Performance, Cent. Dig. §§ 56-58, 60; Dec. Dig. § 25.*] 2. SPECIFIC PERFORMANCE (§ 10*)-SPECIFIC PERFORMANCE OF PART OF CONTRACT. Specific performance of a contract should be enforced on the contract as an entirety, if possible; but, if not possible, specific performance of a part should not leave anything that depends upon that which is specifically enforced, or vice versa. [Ed. Note.-For other cases, see Specific Performance, Cent. Dig. §§ 20-25, 50; Dec. Dig. § 10.*] 3. SPECIFIC PERFORMANCE (§ 29*)-CONTRACTS ENFORCEABLE-CERTAINTY. An oral contract to transfer, or enter into an agreement to transfer, an irrigation plant, which the purchaser agrees to maintain, the vendor agreeing to take water from an irrigation district to be formed by the purchaser, bonds of which are to be transferred to the vendor, which is indefinite as to the amount of water to be furnished, the compensation therefor, the amount of bonds to be given the vendor, and in other respects, will not be specifically enforced at the instance of the purchaser. [Ed. Note. For other cases, see Specific Performance, Cent. Dig. §§ 69-82; Dec. Dig. 29.*] 4. SPECIFIC PERFORMANCE (§ 10*)-SPECIFIC [Ed. Note. For other cases, see Specific Performance, Cent. Dig. §§ 20-25, 50; Dec. Dig. § 10.*] 17. SPECIFIC PERFORMANCE (§ 1161⁄2*)-PLEADING AMENDMENTS. In a suit for specific performance of a contract and damages for its breach, where the contract is too uncertain to be specifically enforced, the allegations of the complaint as to plaintiff's damage may be amended so as to state the damages more specifically without changing the suit into an action at law. [Ed. Note. For other cases, see Specific Performance, Cent. Dig. 375; Dec. Dig. § 1162.*] Appeal from District Court, Mesa County; Sprigg Shackelford, Judge. Suit by the Riverside Land & Irrigation Company against R. H. Sawyer and others. From a judgment for defendants, plaintiff appeals. Reversed and remanded. W. L. Boatright, of Denver, and Wheeler & Weiser, of Grand Junction, for appellant. McMullin & Sternberg, of Grand Junction, for appellees. MORGAN, J. Appeal from a judgment Sustaining a demurrer to the complaint, filed February 21, 1910, for a specific performance of an oral agreement, and damages for nonperformance, and on the plaintiff's election to stand on its complaint, dismissing the suit. The contract was in substance: "That the party of the first part, the Riverside Land & Irrigation Company, agrees to and with the party of the second part, R. H. Sawyer, that for and in consideration of the cove nants and agreements nereinafter to be kept and performed, to transfer to the said party of the second part an option, then held by the said party of the first part from John Ternahan, on land, reservoir sites, and water rights, known as the John Ternahan ranch, together with the reservoir sites, ditch rights, and water rights pertaining thereto, which said ranch is described as the John Ternahan ranch" (here follows complete description of ranch) “together with all ditch and reservoir rights which have been used in connection with the aforesaid lands. The said party of the first part further agrees to enter into an agreement to provide an adequate water supply for the land immediately, using the water now going with the land, and such additions thereto as may be necessary to irrigate all of the land above described which the said party of the second part or his assigns may cultivate. The said party of the second part, in consideration of the agreement above set out to be done and performed by the said party of the first part, agreed to and with the said party of the A complaint seeking specific performance first part: (1) To transfer or enter into an and damages for breach of a contract, which is agreement to transfer to the said party of too uncertain for specific performance, is sufficient to entitle the plaintiff to recover damages, the first part, or to whomsoever it might dithough the only allegation respecting damages rect, all the reservoir sites, water and ditch is that plaintiff was damaged in a certain rights, and stock pertaining thereto, immediamount by defendant's noncompliance. [Ed. Note.-For other cases, see Specific Per-ately upon transfer of the same to him by formance, Cent. Dig. §§ 412-419; Dec. Dig. § 128.*] 5. SPECIFIC PERFORMANCE (§ 128*)-ALTERNATIVE RELIEF DAMAGES. Where specific performance of a contract and damages are sought, but the contract is too uncertain to be specifically enforced, the court may proceed with the case as an action for damages. [Ed. Note.-For other cases, see Specific Performance, Cent. Dig. §§ 412-419; Dec. Dig. 8 128.*] 6. SPECIFIC PERFORMANCE (§ 128*)-RELIEF— DAMAGES INSTEAD OF SPECIFIC PERFORMANCE-SUFFICIENCY OF COMPLAINT. John Ternahan. (2) The said party of the second part further agrees to put the entire For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |