2021 Colorado Code
Title 38 - Property - Real and Personal
Article 41 - Limitations- Homestead Exemptions
Part 1 - Limitation of Actions Affecting Realproperty
§ 38-41-108. Rights in Possession Seven Years - Color of Title and Payment of Taxes

Every person in the actual possession of lands or tenements, under claim and color of title, made in good faith, who for seven successive years continues in such possession and also during said time pays all taxes legally assessed on such lands or tenements shall be held and adjudged to be the legal owner of said lands or tenements to the extent and according to the purport of his paper title. All persons holding under such possession by purchase, devise, or descent, before said seven years have expired, who continue such possession and continue to pay the taxes as provided in this section, so as to complete the possession and payment of taxes for the term, provided in this section, shall be entitled to the benefit of this section.

History. Source: L. 27: P. 602, § 37. CSA: C. 40, § 143. CRS 53: § 118-7-8. C.R.S. 1963: § 118-7-8. History. Source: L. 27: P. 602, § 37. CSA: C. 40, § 143. CRS 53: § 118-7-8. C.R.S. 1963: § 118-7-8.

Analysis

• I. GENERAL CONSIDERATION.
• II. PROCEEDINGS TO WHICH STATUTE APPLIES AND PERSONS ENTITLED TO BENEFIT.
• III. PARTICULAR REQUISITES CONSIDERED.
  • A. Possession.
  • B. Color of Title.
  • C. Payment of Taxes.
  • D. Good Faith.

Law reviews. For article, “Curative Statutes of Colorado Respecting Titles to Real Estate”, see 16 Dicta 35 (1939). For article, “Curative Statutes of Colorado Respecting Titles to Real Estate”, see 26 Dicta 281 (1949). For note, “‘Color of Title ' in the Colorado Short Statutes of Limitation”, see 21 Rocky Mt. L. Rev. 226 (1949). For note, “When Is Homestead Title Marketable?”, see 28 Dicta 415 (1951). For comment on Fuschino v. Lutin, appearing below, see 24 Rocky Mt. L. Rev. 257 (1952). For note, “Adverse Possession in Colorado”, see 27 Rocky Mt. L. Rev. 88 (1954). For article, “One Year Review of Real Property”, see 36 Dicta 57 (1959). For note, “A Survey of Colorado Water Law”, see 47 Den. L.J. 226 (1970).

For history of adverse possession, see Laughlin v. City of Denver, 24 Colo. 255 , 50 P. 917 (1897); Munson v. Marks, 52 Colo. 553 , 124 P. 187 (1912).

Adverse possession deemed creature of statute. The doctrine of adverse possession was not recognized by the common law, but is the creation of statute. Laughlin v. City of Denver, 24 Colo. 255 , 50 P. 917 (1897).

Section provides an affirmative defense which defendants are required to set up and establish. Jewell v. Trilby Mines Co., 229 F. 98 (8th Cir. 1915).

And the statute of limitations must be specially pleaded, or the defense will be considered waived. Chivington v. Colo. Springs Co., 9 Colo. 597 , 14 P. 212 (1886); Webber v. Wannemaker, 39 Colo. 425 , 89 P. 780 (1907); Sedgwick v. Culp, 24 Colo. App. 566, 136 P. 88 (1913).

No waiver where issue of limitations tried by implied consent. Where it is apparent from the testimony, the exhibits, and the finding of the court that the issue of the statute of limitations was tried by implied consent, plaintiff will not be held to have waived his right to claim title under the provisions of this section because he did not specially plead the statute either by complaint, answer to interveners' petition or by motion. Rose v. Roso, 119 Colo. 473 , 204 P.2d 1075 (1949).

Section 38-41-109 is a parallel provision to this section. Winslett v. Rozan, 279 F.2d 654 (10th Cir. 1960). See also Empire Ranch & Cattle Co. v. Howell, 22 Colo. App. 584, 126 P. 1096 (1912), rev'd on other grounds, 60 Colo. 192 , 152 P. 1177 (1915).

Section 38-41-109 must be considered in relation to this section. Webermeier v. Pace, 37 Colo. App. 546, 552 P.2d 1021 (1976), aff'd, 193 Colo. 157 , 563 P.2d 950 (1977).

To constitute a bar, a party must show a complete performance under either this section or § 38-41-109 , and he cannot show part performance under one section and part under the other and, thus, blend the provisions of both sections; the bar must be complete and distinct under the one or the other section. A party cannot avail himself of the provisions of both sections at the same time. Vider v. Zavislan, 146 Colo. 519 , 362 P.2d 163 (1961).

Nonresident chargeable with notice of public records. A nonresident is chargeable with notice of what appears by the public records, and of the actual possession of lands by another, within the limits of this state. Mulford v. Rowland, 45 Colo. 172 , 100 P. 603 (1909).

One who relies upon this section must plead and prove with exactness all of the facts upon which it is based. Gibson v. Huff, 26 Colo. App. 144, 141 P. 510 (1914); Bowers v. McFadzean, 82 Colo. 138 , 257 P. 361 (1927).

Adverse possession not found. Plaintiff's testimony that water was used from sump since 1949, that she and her husband worked side-by-side, that in 1966 they were irrigating 300 acres and now 800 acres, and that water has been used continuously on the farm for irrigation, along with all the other evidence presented, was not sufficient evidence to show adverse possession. Farmer v. Farmer, 720 P.2d 174 (Colo. App. 1986).

To obtain title pursuant to this section, a person must demonstrate color of title, possession, and payment of taxes for the full seven-year period. The statute of limitations does not begin to run until all three elements are met. Peters v. Smuggler-Durant Mining Corp., 930 P.2d 575 (Colo. 1997).

Applied in Barker v. Hawley, 4 Colo. 316 (1878); Kannaugh v. Quartette Mining Co., 16 Colo. 341 , 27 P. 245 (1891); Lougee v. Beeney, 22 Colo. App. 603, 126 P. 1102 (1912); Poage v. E.H. Rullins & Sons, 24 Colo. App. 537, 135 P. 990 (1913); Heini v. Bank of Kremmling, 93 Colo. 350 , 25 P.2d 1113, 89 A.L.R. 1442 (1933); Loveland Camp No. 83 v. Woodmen Bldg. & Benevolent Ass'n, 108 Colo. 297 , 116 P.2d 195 (1941); Coryell v. Robinson, 118 Colo. 225 , 194 P.2d 342 (1948); Hand v. Rhodes, 125 Colo. 508 , 245 P.2d 292 (1952); Jacobs v. Perry, 135 Colo. 550 , 313 P.2d 1008 (1957); Cleveland v. Dow Chem. Co., 168 Colo. 388 , 451 P.2d 741 (1969).

Section applies as defense to recovery of possession and ousters. This section is meant to apply as a defense only to actions for the recovery of possession, and the ouster from the land of someone in possession. Munson v. Marks, 52 Colo. 553 , 124 P. 187 (1912); Morris v. St. Louis Nat'l Bank, 17 Colo. 231 , 29 P. 802 (1892).

Section applies to all “lands or tenements” possessed. Webermeier v. Pace, 37 Colo. App. 546, 552 P.2d 1021 (1976), aff'd, 193 Colo. 157 , 563 P.2d 950 (1977).

Section applies to disputes concerning title to severed mineral interests. This section has been applied as the pertinent statute in situations where title to severed mineral interests is sought to be quieted on the basis of adverse possession. Webermeier v. Pace, 37 Colo. App. 546, 552 P.2d 1021 (1976), aff'd, 193 Colo. 157 , 563 P.2d 950 (1977).

Section applicable for protection of right-of-way. A railroad company is entitled to the benefit of this section for the protection of its right-of-way. Keener v. Union Pac. Ry. 31 F. 126 (D. Colo. 1887 ); Denver & R.G.R.R. v. Doelz, 49 Colo. 48 , 111 P. 595 (1910).

Section is apparently not limited to cases where a fee is claimed, and whoever is in possession of lands claiming a title, full or not, a title supported by some written document or under some legal color and claim of title who pays the taxes assessed upon that property, is, to the extent of that claim, protected. Keener v. Union Pac. Ry., 31 F. 126 (D. Colo. 1887 ).

Leasehold interest. If one who claims to have the leasehold interest of a tract of land for a period of 99 years, making no claim to the fee, and possessing that land for five years (now seven years), should pay the taxes assessed upon it, this section protects that title to the extent of that claim, that is, to the extent of his claim of a leasehold interest for 99 years. Keener v. Union Pac. Ry., 31 F. 126 (D. Colo. 1887 ).

At least seven full years to the day must elapse between the first payment of taxes and the date the initial complaint is filed in an action brought pursuant to this section. Payment of taxes on September 27, 1983, and filing of the action on February 22, 1990, was not sufficient to meet the requirements under this section. Peters v. Smuggler-Durant Mining Corp., 930 P.2d 575 (Colo. 1997).

Section inapplicable to part of vein apexing without claim's boundary lines. This section does not extend to that part of a vein apexing without the boundary lines of the claim under which the limitation is asserted. Davis v. Shepherd, 31 Colo. 141 , 72 P. 57 (1903).

Applicability of section to patented ground doubtful. It is extremely doubtful if this section was intended to apply in cases where the disputed territory was patented ground. Lebanon Mining Co. v. Rogers, 8 Colo. 34 , 5 P. 661 (1885); Arnold v. Woodward, 14 Colo. 164 , 23 P. 444 (1890); Silford v. Stratton, 54 Colo. 248 , 130 P. 327 (1913).

Proof not required in actions to quiet title to irrigation ditches. One who pleads the seven-year statute of limitations, in an action to quiet title to irrigation ditches, is not required in the first instance either to prove payment of taxes or nonassessment. Frey v. Paul, 69 Colo. 244 , 193 P. 560 (1920).

The statute of limitations does not apply to a claim for quiet title when the property was sold after the complaint was filed. The seven-year statute of limitations may have been applicable, but the quiet title claim became moot. Tafoya v. Perkins, 932 P.2d 836 (Colo. App. 1996).

Section requires actual, exclusive, and continuous possession of the property in question for seven years as one of the conditions to quieting title. Ginsberg v. Stanley Aviation Corp., 193 Colo. 157 , 568 P.2d 35 (1977).

Continuous, actual, adverse possession of a water right for seven successive years under color of title accompanied by payment of all taxes legally assessed thereon during that period, fixes title in the possessor, and as real property it may be passed by deed. Kountz v. Olson, 94 Colo. 186 , 29 P.2d 627 (1934).

Exclusive possession of land under color of title and payment of taxes for seven consecutive years constitutes a good title. Whitehead v. Desserich, 71 Colo. 327 , 206 P. 384 (1922).

Where the plaintiff in an action to quiet title was in actual possession of the land in controversy in good faith, under color of title under a tax deed and through divers mesne conveyances from the common source, and had paid taxes on the land for more than seven successive years, she acquired a valid title under the limitation law then in force. Laws v. Newkirk, 39 Colo. 78 , 88 P. 861 (1907).

Where a right-of-way deed contained language which created a possibility of reverter, upon termination of the use, the estate of the grantees and those claiming through them would ordinarily be terminated; however, the right of the land board to reacquire the property was subject to statutory conditions which were not complied with by the state, thus the plaintiffs, who have established prima facie color of title by successive grants which are free of condition, who have been in possession adverse to the state for over 20 years and who have been in possession and paid taxes under color of title for over seven years, were entitled to a decree against the state. State v. Franc, 165 Colo. 69 , 437 P.2d 48, cert. denied, 392 U.S. 928, 88 S. Ct. 2284, 20 L. Ed. 2d 1385 (1968).

Section inapplicable where all requirements not met. This section cannot apply to create a fee under color of title and payment of taxes for the statutory period in one out of possession. Radke v. Union P.R.R., 138 Colo. 189 , 334 P.2d 1077 (1958).

Mixed or common possession of land by parties to suit. In case of a mixed or common possession of land by both parties to a suit, the law adjudges the rightful possession to him who holds legal title, and no length of time of possession can give title by adverse possession as against the legal title. Vider v. Zavislan, 146 Colo. 519 , 362 P.2d 163 (1961).

Possession in conjunction with other landowners falls far short of adverse possession which deprives the true owner of his title. Webber v. Wannemaker, 39 Colo. 425 , 89 P. 780 (1907).

Maintenance of lawn, bush, and fences were sufficient acts and evidence of possession as to fulfill the requirements of this section. Koch v. Ilgen, 154 Colo. 59 , 388 P.2d 254 (1964).

Actual possession of contiguous property. When plaintiff took possession of the premises upon which the home, barn, and corral were located, he took actual possession of the contiguous property because, where one owns several tracts of land adjoining each other, and all of which he holds under deeds, patents, or other writings, and claims to the extent of his boundaries, he is in the actual possession of the adjoining tract, as well as the one upon which he lives, if there is no actual adverse occupancy of either one of the tracts. Vider v. Zavislan, 146 Colo. 519 , 362 P.2d 163 (1961).

Land used to graze flocks thereon is sufficient continuous possession. Munro v. Eshe, 113 Colo. 19 , 156 P.2d 700 (1944).

Possession of surface not possession of severed mineral estate. After title to oil and gas had been severed from the title to the surface by reservation in deed conveying the surface, possession of the surface did not constitute possession of the severed mineral estate. Calvat v. Juhan, 119 Colo. 561 , 206 P.2d 600 (1949).

Actual adverse possession cannot be established by inference or implication, and the admission that plaintiff was in possession at, and for, some time prior to the time when suit was commenced, was not sufficient because the nature of the defense relied upon requires strict proof. Fleming v. Howell, 22 Colo. App. 382, 125 P. 551 (1912).

Constructive possession sufficient to maintain action to quiet title. Where one not in actual occupation claims the right of exclusive occupation and no person is in occupation opposing his claim, his possession is constructive and sufficient to enable him to maintain an action to quiet title. O'Reilly v. Balkwill, 133 Colo. 474 , 297 P.2d 263 (1956).

Burden of proof. A person not in possession asserting title to real property and seeking to enjoin others from claiming an interest therein or possessing the same has the burden of furnishing evidence which would enable the court to rest its decision on the strength of his title, rather than on the supposed weakness of the title of others claiming interests in the property. Nelson v. Van Cleve, 143 Colo. 117 , 352 P.2d 269 (1960).

Proof required where plaintiff not in possession of property. Where plaintiff is not in possession of the property, a defendant in an action to quiet title may effectually resist a decree against himself by showing simply that the plaintiff is without title since, if the plaintiff has no title, he cannot complain that someone else, also without title, asserts an interest in the land. Nelson v. Van Cleve, 143 Colo. 117 , 352 P.2d 269 (1960).

Section protects person under colorable title. This section, when its conditions are complied with, is intended as a protection to a person holding in good faith under a mere colorable title, that is, under a title which is really no title. Bennet v. N. Colo. Springs Land & Imp. Co., 23 Colo. 470 , 48 P. 812 (1897). See also Knight v. Lawrence, 19 Colo. 425 , 36 P. 242 (1894); De Foresta v. Gast, 20 Colo. 307 , 38 P. 244 (1894); Sullivan v. Scott, 73 Colo. 451 , 216 P. 515 (1923).

Color of title is mere pretense of title, but not a valid title; it purports to be a good title, but is not so in fact. Jackson v. Larson, 24 Colo. App. 548, 136 P. 81 (1913).

Paper title must be shown. Gibson v. Huff, 26 Colo. App. 144, 141 P. 510 (1914).

The phrase, “color of title” refers to a paper writing purporting to convey title, or to some writing whereby title is sought to be acquired. Knight v. Lawrence, 19 Colo. 425 , 36 P. 242 (1894).

Color of title created by conveyance in fee simple with a possibility of reverter. Barnes v. Winford, 833 P.2d 756 (Colo. App. 1992).

Color of title can only arise out of conveyance purporting to convey title to real estate. Omaha & Grant Smelting & Ref. Co. v. Tabor, 13 Colo. 41 , 21 P. 925 (1889); Warren v. Adams, 19 Colo. 515 , 36 P. 604 (1894); Minter v. King, 27 Colo. App. 233, 148 P. 275 (1915).

Color of title must arise out of some conveyance purporting to vest in the grantee an interest in his own right adverse to the true owner, and not from one that constitutes him a trustee of the title for the use and benefit of such owner; and, furthermore, such claim or color of title must be made in good faith. Warren v. Adams, 19 Colo. 515 , 36 P. 604 (1894); Silford v. Stratton, 54 Colo. 248 , 130 P. 327 (1913).

Deed is color of title only to the premises described therein. Denver Trackage & Imp. Co. v. Colo. & S. Ry., 58 Colo. 313 , 145 P. 707 (1914).

Color of title placed of record required to invoke limitation. The seven-year statute of limitations does not begin to run until a deed upon which a party in possession relies as being sufficient to give him color of title has been placed of record. Fallon v. Davidson, 137 Colo. 48 , 320 P.2d 976 (1958).

Successor of grantee established color of title by general warranty deed from grantor who retained a reversionary interest in property. Grantor had conveyed right-of-way to railroad with a provision that if the railroad abandoned use of the right-of-way, the property would revert to the grantor. The grantor's warranty deed conveyed all the estate, right, title and interest to the property, including reversions and remainders to the grantee, with the exception of the right-of-way conveyed to the railroad. When the railroad abandoned use of the right-of-way, the interest reverted to the grantee. Barnes v. Winford, 833 P.2d 756 (Colo. App. 1991).

Tax deed does not, until recorded, constitute color of title, so as to set in motion the seven-year statute of limitations. Morris v. St. Louis Nat'l Bank, 17 Colo. 231 , 29 P. 802 (1892); Wason v. Major, 10 Colo. App. 181, 50 P. 741 (1897); Sayre v. Sage, 47 Colo. 559 , 108 P. 160 (1910); Hughes v. Webster, 52 Colo. 475 , 122 P. 789 (1912); Empire Ranch & Cattle Co. v. Gibson, 22 Colo. App. 617, 126 P. 1103 (1912); Upham v. Weisshaar, 23 Colo. App. 277, 128 P. 1129 (1913); Parks v. Roth, 25 Colo. App. 296, 137 P. 76 (1914); Minter v. King, 27 Colo. App. 233, 148 P. 275 (1915).

Void deed is, color of title. Bennet v. N. Colo. Springs Land & Imp. Co., 23 Colo. 470 , 48 P. 812 (1897); Parker v. Betts, 47 Colo. 428 , 107 P. 816 (1910); Silford v. Stratton, 54 Colo. 248 , 130 P. 327 (1913); Munro v. Eshe, 113 Colo. 19 , 156 P.2d 700 (1944).

Deed, purporting to convey title, may be defective and thereby convey no title, yet give color of title. Whitehead v. Desserich, 71 Colo. 327 , 206 P. 384 (1922).

Deed even though void on its face will make color of title as fully and as effectually as though the deed had been regular on its face. De Foresta v. Gast, 20 Colo. 307 , 38 P. 244 (1894); Brinker v. Union Pac. D. & G. Ry., 11 Colo. App. 166, 55 P. 207 (1898).

Deed disclosing unauthorized sale gives color title. A deed, notwithstanding the fact that it discloses a sale unauthorized by this section, gives color of title. Hoge v. Magnes, 85 F. 355 (8th Cir. 1898).

Void deed admissible to show color of title. A treasurer's deed, upon sale of land for taxes, void upon its face, is admissible to show color of title. Jackson v. Larson, 24 Colo. App. 548, 136 P. 81 (1913).

Thus, attack of invalidity unimportant. No importance is attached to the ground of invalidity of an apparent or colorable title. Richards v. Beggs, 31 Colo. 186 , 72 P. 1077 (1903); Jackson v. Larson, 24 Colo. App. 548, 136 P. 81 (1913).

Where void deed fails to describe land no color of title. A treasurer's deed which fails to describe the lands sold, is void and does not give the color of title necessary under this section. Riley v. Lemieux, 24 Colo. App. 184, 132 P. 699 (1913).

And quit claim deed failing to convey land not color of title. A quitclaim deed does not constitute color of title, if it does not purport to convey the land in controversy, but designates a lot whose metes and bounds are specifically described in the map then on file, which description entirely excludes it. Lebanon Mining Co. v. Rogers, 8 Colo. 34 , 5 P. 661 (1884); Laughlin v. City of Denver, 24 Colo. 255 , 50 P. 917. (1897);

Actual possession and tax payments without color of title insufficient. Actual possession and payment of taxes for seven years, without color of title acquired in good faith, prior to the commencement of the seven-year period, is not sufficient to sustain a plea under this section. King v. Foster, 26 Colo. App. 120, 140 P. 930 (1914).

Color of title invoked as evidence of title impermissible. One offering a deed as color of title merely cannot afterwards invoke it as evidence of title in fact. Parks v. Roth, 25 Colo. App. 296, 137 P. 76 (1914).

But abstracts of title admitted for the purpose of proving title may also be used as evidence of color of title, since the same instrument may serve both as color of title and as evidence of title itself. Marr v. Shrader, 142 Colo. 106 , 349 P.2d 706 (1960).

Title acquired after the institution of the action does not avail. Empire Ranch & Cattle Co. v. McPherin, 26 Colo. App. 225, 142 P. 419 (1914).

Document tendered not objectionable as proof of lesser status. A document tendered as proof of title itself and so admitted is not objectionable as proof of the lesser status of color of title. Marr v. Shrader, 142 Colo. 106 , 349 P.2d 706 (1960).

But a document offered as evidence solely as proof of color of title may not also be invoked as proof of title. Marr v. Shrader, 142 Colo. 106 , 349 P.2d 706 (1960).

Record entry of judgment without judgment roll inadmissible. The mere record entry of a judgment, without the judgment roll is not admissible as evidence of title. King v. Foster, 26 Colo. App. 120, 140 P. 930 (1914).

Pleading which fails to comply with section's requirements is insufficient. Where there is no allegation that plaintiff paid for seven successive years all taxes legally assessed on the lands, nor does the plaintiff set up any paper title as a basis for color of title, nor is there any allegation of possession under claim and color of title made in good faith, the pleading falls far short of the requirements of this section and is insufficient. United States Sec. & Bond Co. v. Wolfe, 27 Colo. 218 , 60 P. 637 (1900); Eberville v. Leadville Tunneling, Mining & Drainage Co., 28 Colo. 241 , 64 P. 200 (1901); Webber v. Wannemaker, 39 Colo. 425 , 89 P. 780 (1907).

Proof of tax payment required to invoke section. To invoke successfully the provisions of this section, one must prove payment of taxes for the full period next prior to the commencement of a suit to quiet title claimed thereunder. Whitehead v. Bennett, 92 Colo. 549 , 22 P.2d 168 (1933).

Seven full years must elapse between date of first payment of taxes that has become due and payable after color of title is taken and the date of the institution of the suit to recover the land. Empire Ranch & Cattle Co. v. Howell, 22 Colo. App. 584, 126 P. 1096 (1912), rev'd on other grounds, 60 Colo. 192 , 152 P. 1177 (1915); DeFord v. Smith, 23 Colo. App. 78, 127 P. 453 (1912); Cristler v. Beardsley, 25 Colo. App. 369, 138 P. 68 (1914); Empire Ranch & Cattle Co. v. McPherin, 26 Colo. App. 225, 142 P. 419 (1914).

A tax deed which has not been of record for seven years preceding an action by the original owner for the recovery of the lands does not support a plea of the seven-year statute of limitations. Stephens-Wilmot Co. v. Howell, 23 Colo. App. 396, 128 P. 476 (1913).

Taxes paid after an action is brought are of no avail to support a plea of the seven-year statute of limitations. Empire Ranch & Cattle Co. v. Gibson, 22 Colo. App. 617, 126 P. 1103 (1912). See also Empire Ranch & Cattle Co. v. Howell, 22 Colo. App. 389, 125 P. 592 (1912), rev'd on other grounds, 60 Colo. 192 , 152 P. 1177 (1915).

Only taxes falling due subsequent to issue of tax deed counted. Only taxes, falling due subsequent to the issue of a tax deed which is relied upon as color of title, are to be counted. Empire Ranch & Cattle Co. v. Weldon, 26 Colo. App. 111, 141 P. 138 (1914).

Tax receipts dated after the institution of an action are inadmissible. Upham v. Weisshaar, 23 Colo. App. 277, 128 P. 1129 (1913).

Payment of taxes on severed minerals. Once the validity of a mineral deed is established, creating a separate mineral estate in the grantor, possession of the surface did not constitute possession of the minerals, and, payment of assessed taxes on the surface does not constitute payment of taxes on severed minerals, unless a specific reference to the contrary is made of record. Winslett v. Rozan, 279 F.2d 654 (10th Cir. 1960).

Fact that a person in possession was not the exclusive taxpayer on the property is not of significance. The requirement is that a person in possession must pay all taxes legally assessed on the land. The prior owner of a right-of way who abandoned the property and failed to inform county government can not be used to defeat title by adverse possession when the person in possession paid all taxes legally assessed on the land. Barnes v. Winford, 833 P.2d 756 (Colo. App. 1992).

Proof must be clear and satisfactory. Where payment of taxes under color of title is relied upon to defeat the original title the proof must be clear and satisfactory. Brinker v. Union Pac. D. & G. Ry., 11 Colo. App. 166, 55 P. 207 (1898); Eberville v. Leadville Tunneling, Mining & Drainage Co., 28 Colo. 241 , 64 P. 200 (1901); Upham v. Weisshaar, 23 Colo. App. 277, 128 P. 1129 (1913); Sullivan v. Scott, 73 Colo. 451 , 216 P. 515 (1923); Huffman v. Smith, 87 Colo. 265 , 286 P. 861 (1930).

Title should not be overcome by loose and uncertain testimony, or upon any conjecture or violent presumption. Upham v. Weisshaar, 23 Colo. App. 277, 128 P. 1129 (1913).

Payment of taxes by nonclaimant insufficient. It is not sufficient if the taxes were paid any one of the years by a person who at the time made no claim to the property under color of title. Ballard v. Golob, 34 Colo. 417 , 83 P. 376 (1905); Webber v. Wannemaker, 39 Colo. 425 , 89 P. 780 (1907).

Payment of interest on taxes. If a party pays to the collector all taxes assessed and extended against him on the tax book, he has complied with this requisite of the law; although he may not have paid interest on the taxes due because of nonpayment of the same at the time they were due, if such interest has not been ascertained and charged to him by the collector, he has not been required by such collector to pay the same. Latta v. Clifford, 47 F. 614 (D. Colo. 1891 ).

Good faith is essential. Silford v. Stratton, 54 Colo. 248 , 130 P. 327 (1913).

In order to justify a decree quieting his title, it is incumbent upon defendant to produce clear and convincing evidence that he, in good faith, acquired color of title to the property in question; that for a period of seven years he paid the taxes legally assessed against the same; and that the property claimed by plaintiff was included in his color of title. Kelly v. Sinclair, 129 Colo. 226 , 268 P.2d 1035 (1954).

Therefore, party must act bona fide. A party, who sets up an adverse possession under color of title, must act bona fide, or, in other words he must be honest; he must believe his deed to be valid in law and he must believe that it conveys to him a good title to the land, although it may turn out that another person has a better title. Sullivan v. Scott, 73 Colo. 451 , 216 P. 515 (1923).

Color of title made in good faith is shown by any deed or instrument which purports on its face to convey title which a party is willing to, and does, pay his money for, apart from any fraud; the deed itself purports good faith, unless facts and circumstances attending its execution show the party accepting it had no faith or confidence in it. Lebanon Mining Co. v. Rogers, 8 Colo. 34 , 5 P. 661 (1884); Knight v. Lawrence, 19 Colo. 425 , 36 P. 242 (1894).

Good faith of the claimant is a question of fact. Jackson v. Larson, 24 Colo. App. 548, 136 P. 81 (1913).

Party aware of fraud cannot render claim availing. A party receiving color of title, knowing it to be worthless or in fraud of the owner's rights, although he holds the color and asserts the claim, cannot render the claim availing because of the want of good faith. Knight v. Lawrence, 19 Colo. 425 , 36 P. 242 (1894); Sullivan v. Scott, 73 Colo. 451 , 216 P. 515 (1923).

Grantee's knowledge of grantor's insanity not conclusive of bad faith. The insanity of the grantor, even although known to the grantee at the time of accepting the conveyance, is not conclusive of bad faith on the part of the grantee. Parker v. Betts, 47 Colo. 428 , 107 P. 816 (1910).

Test of claim of title in good faith. If good faith will be presumed by the taking of the deed itself, unless the facts and circumstances attending its execution showed that the party accepting it had no faith or confidence in the deed, it is plain that confidence in the title and purpose in acquiring it constitute the test of claim of title in good faith. Sedgwick v. Culp, 24 Colo. App. 566, 136 P. 88 (1913).

Faith depends upon purpose with which deed is obtained, and the reliance placed upon the claim and the color, and a party receiving color of title, knowing it to be worthless, or in fraud of the owner's rights, although he holds the color and asserts the claim, cannot render it availing, because of the want of good faith. Silford v. Stratton, 54 Colo. 248 , 130 P. 327 (1913).

Deeds unaffected by insertion of treasurer's name following recording. Where the treasurer's name was omitted from the acknowledgment of tax deeds and, after they were recorded, he inserted his name with a rubber stamp and the county clerk's record was changed accordingly; while such procedure is condemned, it does not affect the validity of the deeds, nor to show claim of title made in bad faith on the part of the person causing the alterations to be made. Langley v. Young, 75 Colo. 44 , 224 P. 231 (1924).

Possession and payment of taxes must be affirmatively shown. Knight v. Lawrence, 19 Colo. 425 , 36 P. 242 (1894).